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Right to Silence (WA)

A fundamental common law rule is that a person who is suspected of a criminal offence has the right to silence. This principle extends to a suspect’s right to refuse a police interview and a defendant’s right when going through a criminal trial to choose not to give evidence. In some Australian jurisdictions, the right to silence has been codified. It is also the subject of a large body of case law. This article deals with the right to silence in WA. 

Police interviews

A person suspected of an offence is entitled to say nothing to the police. The police may ask the person questions, whether or not they have been arrested, but the person does not always have to answer the questions. However, there are some questions that a person must answer when asked by the police. These are their name, address and date of birth.

If a person is suspected of an offence in Western Australia, the police must caution them before seeking to interview them. The caution must include the information that they are not obliged to say anything and that anything they do say may be used as evidence against them. The caution must be given in a language the person understands and at a time that they can understand it. The police should not interview a person if they are drunk or drug-affected, sick, injured or hungry. 

Once the police have cautioned a person, they can ask them questions. The person may remain silent or say ‘no comment’. The police are not allowed to pressure the person to answer questions by making threats or offering rewards.

Exceptions to the right to silence

There are some exceptions to the right to silence when a person is being questioned by police. If the police ask a person for their name, address and date of birth, they must give the police this information. If the police pull a person over when they are driving, they must provide their name and address, show the police their driver’s licence and take a breath test or provide a blood sample if asked to do so. If the person is on licensed premises, police may ask them for proof of their age. A person is also required to answer questions of customs officers about the import and export of goods.

Admissibility of confessions

A person’s confession is only admissible in court proceedings if the confessions are made voluntarily. Statements made when a person is under pressure or while a suspect is intoxicated, sick or injured are not admissible. Statements made in response to police questioning without a thorough caution that the suspect understands are also inadmissible. Therefore, if a person has been interviewed without a proper caution or if they have been interviewed while intoxicated, sick or injured and the prosecution is seeking to rely on the interview as evidence, the accused should challenge its admissibility. 

Silence is not evidence of guilt

If the suspect chooses not to respond to the police’s questions, the court must not draw an adverse inference. The prosecution must not suggest that their silence is an indication of guilt. If the defendant offers a defence or explanation for the offending later in the proceedings, it must not be suggested that their failure to offer this explanation or defence at the first opportunity suggests a lack of credibility.

In jury matters, the jury will be given a direction that the accused exercised their right to silence and that this must not be used as evidence of guilt. In matters heard by a judge or magistrate, the decision-maker must not take the accused’s silence as evidence of their guilt.

Legislation on the right to silence

In WA, the right to silence is set out in Section 8 of the Evidence Act 1906. That provision states:

  • That an accused cannot be called as a witness except on their own application;
  • The failure of an accused to give evidence in their defence shall not be commented on by the prosecution;
  • An accused who does give evidence can be cross-examined regardless of whether the questioning will incriminate them in relation of the offence charged;
  • An accused must not be questioned in a way that is likely to incriminate them for an offence that is not the offence charged unless such questioning has a bearing on whether they are guilty of the offence charged or unless they have raised the character of a prosecution witness.

Other states and territories have different prohibitions in relation to what can be said about an accused person’s failure to give evidence. In Queensland, there is no prohibition on the judge or prosecutor commenting on the accused’s silence, while in Victoria and the Northern Territory neither the judge nor the prosecution may comment on it.

Right to silence and appeals

In all Australian states and territories, the silence of an accused at trial can be taken into account on appeal when determining whether the standard of proof has been met. If the accused person shoes not to give evidence in their defence, the inference that they are guilty is strengthened.

If you require legal advice or representation in any 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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