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The Right to Silence (Vic)

When a person is questioned by police or others acting under the authority of the state, they have the right to silence. This means that they do not have to answers any questions where the answers may incriminate them. This is because the common law recognises the need to protect the freedom of individuals against the state. Subject to the exceptions provided below, a person may exercise the right to silence both at the time they are confronted by law enforcement and also by choosing not to give evidence in their defence when a matter proceeds to trial.

What is the right to silence?

The law provides that a person who is suspected of having been a party to a criminal offence is entitled to remain silent when questioned or asked for information by any person in authority about what occurred, the identity of the participants, and what roles they played.

A court cannot draw any adverse inferences from the fact that an accused exercised their right to silence by refusing to take part in a police interview or by choosing not to give evidence in court.

The privilege against self-incrimination

The privilege against self-incrimination is one of several legal privileges that may be relied on when a person seeks not to attend court in response to a summons or not to answer specific questions while giving evidence. The privilege against self-incrimination allows a defendant to resist a request for information that they would otherwise have to comply with.

The privilege may be relied on by any person, not only a person accused in a criminal investigation. When seeking to rely upon the privilege against self-incrimination, a person (other than the accused) may only rely upon this privilege in relation to specific questions posed to them on the grounds that the answers may incriminate them.

Legislative provisions on the right to silence

The right to silence is also protected by various provisions in Victorian legislation. These provisions serve to further ensure that an accused is protected from adverse inferences being drawn because they exercised their right to silence.

No adverse inferences

Under section 89 of the Evidence Act 2008 an unfavourable inference may not be drawn from evidence that an accused person failed or refused to answer one or more questions or respond to representations put to them by investigating officials who were investigating the commission of an offence.

Evidence of the above nature is inadmissible in court proceedings where it serves only to create an inference that the accused person is guilty based on their exercise of their right to silence.

Jury directions on the right to silence

When a person is being tried before a jury, the Jury Directions Act 2015 provides that when they have chosen not to give evidence, their lawyer may request that the judge provide a jury direction about the right to silence. The direction will inform the jury that:

  • The failure of the defendant to give evidence cannot be considered an admission by the accused;
  • The defence’s failure to call a witness may not be used as evidence against the accused and does not strengthen the prosecution case.

The court may also give a jury direction explaining that the onus in proving the case against the accused beyond a reasonable doubt lies with the prosecution, that the accused is not required to call any particular witnesses and that the jury ought not to speculate about what may have been contained in evidence that was not called by the defence.

The legislation also prevents any party making statements that suggest that because an accused did not give evidence they may be presumed to be guilty.

Application of privilege against self-incrimination

When information is requested from an accused, they may rely on the privilege against self-incrimination where providing the information would otherwise be compulsory. 

This privilege is abrogated when an accused chooses to give evidence in their defence. The Crimes Act 1958 provides that, in the event that an accused chooses to testify in court, they will lose their right to claim privilege against self-incrimination. In other words, an accused who chooses to give evidence cannot claim privilege in order to avoid having to answer particular questions where the answers may incriminate them.

Sometimes a witness may want to claim privilege on the ground that the evidence they would give may show that they committed a criminal offence or are liable to a civil penalty in circumstances where the evidence is also relevant to whether they did an act or were of a particular state of mind relevant to the charges. In this situation, the parties may seek a direction from the court about whether there are reasonable grounds for the person to object to giving evidence. The judge may direct that the witness need not give evidence unless required to do so by the court. Where the court requires the evidence to be given, it may in some circumstances issue a certificate protecting the accused’s right against self-incrimination. The certificate is applicable only in the proceeding in which it is issued.

Exceptions to the right to silence

The Evidence Act 2008 provides that evidence may be given that the accused exercised their right to silence or failed to respond to a question posed to them where this is a fact in issue in the proceeding (section 89).

The Criminal Procedure Act 2009 contains some exceptions to the right to silence. These include pre-trial disclosure requirements and the requirement that a person provide their name and address when asked by the police or their driver’s licence when they are pulled over by police while driving.

If you require legal advice or representation in a criminal matter or in any other legal matter please contact Armstrong Legal. 

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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