The right to remain silent when suspected of a crime is a fundamental principle in New South Wales criminal law. This right encompasses the ability to refuse to answer questions during police interviews and the choice not to testify in court proceedings. 

However, recent changes to NSW legislation have introduced exceptions to this long-standing protection. It is crucial for individuals to understand when and how they can exercise their right to silence, as well as the potential consequences of doing so. This article will provide an overview of the right to silence in NSW, its legal basis, and practical guidance on navigating police questioning and court proceedings.

The Concept of the Right to Silence in NSW Criminal Law

The right to silence is a fundamental principle in NSW criminal law that allows individuals to remain silent when questioned by police or during legal proceedings. This right is based on the presumption of innocence and the idea that the prosecution bears the burden of proving guilt beyond a reasonable doubt.

Common Law Origins

The right to silence has its roots in common law, which is a body of law developed through court decisions rather than legislation. The common law principle emerged in England during the 16th and 17th centuries as a response to the use of torture and coercion by authorities to extract confessions from suspects. Over time, courts recognised the importance of protecting individuals from self-incrimination and the potential for false confessions obtained under duress.

Codification in NSW Legislation

In NSW, the right to silence has been codified in the Evidence Act 1995 (NSW). Section 89 of the Act states that in criminal proceedings, an unfavourable inference cannot be drawn from evidence that a person failed or refused to answer questions posed by an investigating official. This means that a person’s silence during police questioning cannot be used as evidence of guilt.

However, in 2013, the Evidence Amendment (Evidence of Silence) Act 2013 inserted section 89A, which allows for an adverse inference to be drawn from a defendant’s silence in certain circumstances. This applies to serious indictable offences where the defendant is over 18 years old and has been given a special caution by police in the presence of a lawyer. The caution informs the defendant that exercising their right of silence may harm their defence if they later rely on information they could have reasonably mentioned during questioning.

Despite this amendment, the fundamental right to silence remains intact in NSW criminal law. The prosecution still bears the burden of proof, and a defendant cannot be compelled to testify against themselves. The right to silence is an essential safeguard against self-incrimination and helps ensure that confessions are voluntary and reliable.

When the Right to Silence Applies

The right to silence applies in specific situations where individuals can exercise this right in NSW.

During Police Interviews

When being questioned by police, a person has the right to remain silent. The right to silence includes the right to decline to answer questions asked by the police. If the police suspect someone of committing an offence, they will attempt to interview them. The police must inform the suspect that they are not obliged to answer any questions and ensure they understand this, known as a “caution”.

The suspect may choose to remain silent or say “no comment” throughout the interview. An exception is when police ask for a person’s name, address and date of birth, which must always be provided regardless of whether the person is under arrest.

Confessions made to police are only admissible as evidence in court if they were made voluntarily, without coercion, trickery or when the person was impaired. Confessions obtained without proper caution are inadmissible. If the prosecution seeks to rely on such evidence, the defence should challenge its admissibility.

At Trial

A defendant in a criminal matter cannot be compelled to give evidence at their trial. They have the right to choose whether to testify in their own defence.

If a defendant chooses not to give evidence, the judge may comment on this but cannot suggest that their silence indicates guilt. The prosecution cannot call the defendant as a witness.

However, if a defendant does choose to testify, they open themselves up to cross-examination on any issue, including questions that may incriminate them in the offence being tried. The prosecution cannot cross-examine the defendant in a way that may incriminate them in offences other than the one being tried.

When a defendant exercises their right to silence at trial but later appeals a guilty verdict, the appeal court can consider their trial silence when assessing whether the prosecution met the standard of proof. A defendant’s failure to give exculpatory evidence at trial may strengthen the inference of guilt on appeal.

Exceptions to the Right to Silence in NSW: When Can You be Compelled to Give Evidence

While the right to silence is a fundamental principle in NSW criminal law, there are some important exceptions where this right may be limited.

Providing Identification

One key exception to the right to silence is the requirement to provide your name and address to police when asked. Failing to provide this basic identifying information can itself be an offence in many circumstances. If you are unsure whether you are legally obliged to provide your details in a particular situation, it is advisable to seek immediate legal advice.

Section 89A of the Evidence Act

In 2013, a significant amendment was made to the Evidence Act 1995 (NSW) which allows for adverse inferences to be drawn in certain situations where a suspect remains silent during police questioning.

Under section 89A, if a person is suspected of a serious indictable offence (one carrying a maximum penalty of at least 5 years imprisonment) and they fail to mention a fact during official questioning that they later rely on in their defence, the court may draw an unfavourable inference based on this failure or refusal to mention that fact.

However, for this provision to apply, a special caution must be given to the suspect in the presence of their lawyer, warning them that their silence may be used against them in this way. The suspect must also be over 18 years of age and be given an opportunity to consult privately with their lawyer.

This amendment has been controversial, with concerns it undermines the fundamental right to silence. However, the provision aims to prevent suspects from ambushing the prosecution at trial with a fact or defence they could reasonably have been expected to mention much earlier when questioned.

It is important to note that even under section 89A, silence cannot be the only evidence used to prove guilt. Additional evidence is still required to meet the prosecution’s burden of proof. The amendment simply allows adverse inferences to be drawn from the suspect’s silence in limited circumstances.

Given the complex and high-stakes nature of section 89A, it is crucial for anyone suspected of a serious offence to obtain comprehensive legal advice before deciding whether to exercise their right to silence during police questioning. Experienced criminal lawyers can provide guidance on the potential risks and benefits of remaining silent in light of the specific circumstances of the case.

Practical Advice on Exercising Your Right to Silence in Criminal Proceedings

What to Say to Police

When interacting with the police, it is crucial to be clear and direct about your intention to exercise your right to silence. Some specific phrases you can use include:

• “I am exercising my right to remain silent.”
• “I do not wish to answer any questions without a lawyer present.”
• “I will not be making any statements or participating in an interview.”

It is important to be polite but firm in your communication. Remember, you are not required to provide any explanations or engage in conversation beyond invoking your right to silence.

Seeking Legal Advice

Before deciding whether to speak to the police or participate in an interview, it is always advisable to seek guidance from a qualified criminal defence lawyer. A lawyer can assess your specific situation and provide personalised advice on the best course of action.

Some key reasons to consult with a lawyer include:

• Understanding the potential implications of answering police questions
• Evaluating the strength of the evidence against you
• Determining whether there are any exceptions to the right to silence that may apply in your case
• Developing a strategic defence plan

If you are unable to secure legal representation immediately, you should still exercise your right to silence until you have had the opportunity to consult with a lawyer. Politely inform the police that you wish to speak with a lawyer before answering any questions or providing a statement.

Remember, even if you believe you have nothing to hide, speaking to the police without legal advice can inadvertently harm your defence. A skilled criminal defence lawyer can protect your rights and ensure that your interests are represented throughout the legal process.

Potential Consequences of Remaining Silent

Choosing to exercise your right to silence during a police investigation can have various implications. It is important to understand these potential consequences when deciding whether to answer questions or remain silent.

Impact on Police Investigations

When a suspect remains silent during police questioning, it can affect the investigation of the commission of offence. Police may view silence as uncooperative behaviour and may be more inclined to pursue charges against the individual. However, it is important to note that silence alone cannot be used as evidence of guilt.

In some cases, remaining silent may prompt the police to search for additional evidence to build a case against the suspect. This could involve interviewing other witnesses, examining physical evidence, or conducting further investigations.

Perceptions in Court

While the right to silence is protected by law, choosing to remain silent during police questioning can still have an impact on how a case is perceived in court. In some instances, jurors may view a defendant’s silence as an indication of guilt, even though they are instructed not to draw such conclusions.

However, it is crucial to remember that the burden of proof lies with the prosecution. They must prove the defendant’s guilt beyond a reasonable doubt, regardless of whether the defendant chose to remain silent during the investigation.

If a defendant does choose to testify in court after remaining silent during police questioning, the prosecution may attempt to challenge their credibility by highlighting the inconsistency between their silence and their testimony.

Conclusion

The right to silence is a fundamental principle in the New South Wales criminal justice system. It allows individuals to remain silent when questioned by police and to choose not to give evidence in court proceedings. This right is based on the notion that the prosecution bears the burden of proof and that accused persons should not be compelled to incriminate themselves.

However, recent legislative changes have qualified the right to silence in certain circumstances. The introduction of section 89A of the Evidence Act in 2013 allows courts to draw unfavourable inferences against defendants in serious indictable matters if they fail to mention facts during police interviews that they later rely upon in their defence. This provision applies only where a special caution has been given, and the suspect has had the opportunity to consult with a lawyer. Despite these changes, the right to silence remains an important protection for individuals facing criminal investigation and prosecution in New South Wales.

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