The right to stay quiet is a key part of Australia’s legal system, especially when chatting with the police. Knowing what you can and should do during police interviews is super important for keeping yourself safe and making sure things go down fairly.

This comprehensive guide aims to shed light on the concept of the right to silence, its legal basis, and its implications for individuals who find themselves facing police questioning. By exploring the nuances of this important legal principle, we hope to empower readers with the knowledge they need to navigate these challenging situations effectively.

Understanding Your Right to Silence During Police Interviews

The right to silence is a fundamental principle in NSW law that allows individuals to refuse to answer questions during police interviews. This right is supported by the Law Enforcement (Powers and Responsibilities) Act 2002 and is designed to protect suspects from self-incrimination.

When you are asked to participate in a police interview, you have the right to remain silent. This means you do not have to answer any questions beyond providing your name, address, and date of birth. Police officers must inform you of this right through a caution, which states that you are not obliged to say anything and that anything you do say may be used as evidence against you.

It’s crucial to understand that there is no such thing as an “off the record” conversation with police once a caution has been given. Any information you provide voluntarily can be used as evidence in court.

The Legal Basis of the Right to Silence

The right to silence in NSW is underpinned by specific legislation, primarily the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). This act outlines the powers that police have when investigating crimes and interacting with suspects.

Under LEPRA, police cannot arrest a person merely for questioning or require them to accompany officers to a police station for an interview unless the individual has been arrested for an offence. When a person is asked to participate in an interview, they have the right to silence, meaning they do not have to take part or answer any questions beyond providing basic personal details.

Section 89A of the Evidence Act 1995 (NSW) further reinforces an individual’s right to silence, stating that no adverse inference should be drawn from a person’s failure to answer questions from authorities. However, amendments in 2013 introduced the concept of “unfavourable inference” for serious indictable offences, which will be discussed later in this article.

When You Must Provide Information

While the right to silence is a cornerstone of NSW law, there are certain situations where you are required to provide information to police, even if you are not under arrest. Failing to do so in these circumstances can result in criminal charges.

You must provide police with your name, address, and date of birth when asked. Providing false information is an offence. Additionally, if police suspect you have information about a serious indictable offence (one that carries a maximum penalty of 5 years imprisonment or more), refusing to answer questions related to that crime can be an offence. The maximum penalty for not disclosing information about a serious indictable offence is 2 years imprisonment, or 5 years if you gained a benefit from withholding the information.

Other situations where you must provide information include:

• If police reasonably suspect you can assist in the investigation of an indictable offence because you were at or near the location where it occurred.
• If police reasonably suspect an Apprehended Violence Order (AVO) has been made against you.
• If you were involved in a vehicle crash as a driver, passenger, or owner and police suspect the vehicle is connected to an indictable offence.
• Specific details you must provide within 24 hours of a vehicle crash, such as names, addresses, registration details, and an explanation of the circumstances.

When Remaining Silent May Harm Your Defence under Criminal Law

While the right to silence is a fundamental legal protection, there are situations where exercising this right could potentially impact your defence negatively. The law in NSW has evolved to allow courts to draw unfavourable inferences from silence in certain circumstances, particularly for serious indictable offences.

The Concept of Unfavourable Inference

In 2013, significant changes were made to NSW legislation regarding the right to silence in serious indictable offences. The court may draw an unfavourable inference against a suspect who fails to mention during police questioning a fact that later becomes crucial to their defence. For example, if someone accused of robbery doesn’t mention an alibi during initial police questioning but later relies on it as a key defence in court, the judge may view this unfavourably.

However, unfavourable inferences can only be drawn when specific conditions are met:

• A special caution must be given by an investigating official who reasonably suspects the person of committing the serious indictable offence
• The caution must be given before the person’s failure to mention the relevant fact
• The caution must be given in the presence of the person’s lawyer
• The person must have had a reasonable opportunity to consult with their lawyer about the special caution’s nature and effect

Since these legislative changes, while the right to silence continues to exist under NSW law, remaining silent has become a less attractive option in serious indictable matters. The police must follow proper procedures with caution for a judge to potentially draw an unfavourable inference from a defendant’s silence during questioning.

When to Speak to Police

Police interviews can serve a strategic purpose in certain situations. While you have the right to silence, there are times when providing information during an interview may benefit your case. Speaking to police requires careful consideration of the potential advantages and risks.

Advantages of Providing a Statement

There are several potential benefits to participating in a police interview when approached strategically:

• Your denial, if accepted by police, may prevent criminal charges from being filed against you.
• Providing your version of events early in the investigation may give your account more credibility if the matter proceeds to court.
• The interview presents an opportunity to demonstrate remorse, which courts must consider during sentencing.

Before agreeing to an interview, you or your lawyer should ask the investigating officer:

• Whether participation will affect their decision about issuing charges
• What evidence police currently have
• If you are likely to be granted bail
• Whether any questions require mandatory answers

However, there are also risks to consider. Police often conduct interviews before gathering sufficient evidence. Your statements could inadvertently assist their investigation or lead to additional charges. The stressful interview environment may cause confusion about events, making it difficult to later correct any mistaken responses.

Role of Your Lawyer During Interviews

Having a lawyer present during police interviews provides crucial protection of your legal rights and interests. A lawyer can help ensure you understand the implications of any statements made and guide you on whether to answer specific questions.

During an interview, your lawyer serves as a safeguard against unfair questioning tactics. Police interviews often involve an intentional power imbalance, with at least two trained officers questioning you in unfamiliar surroundings. Your lawyer helps level this playing field by monitoring the interview process.

Ensuring Fair Treatment

Your lawyer plays a vital role in maintaining fairness during police questioning. They can request reasonable facilities for private consultation and ensure questioning is delayed if needed to allow proper legal representation. This is especially important as police are not allowed to interview someone who is sick, injured, intoxicated, tired, hungry or distressed.

A legal representative can also verify that police provide proper caution about your right to silence. While they cannot intervene directly in questioning, they can advise you on exercising your rights and help prevent any procedural unfairness during the interview process.

For those under 18, police must arrange for a responsible adult to be present during questioning. Your lawyer can ensure this requirement is met and that young people’s additional rights are protected throughout the interview.

Impact of Silence at Trial

Remaining silent during police interviews can have significant consequences on subsequent legal proceedings and trial outcomes. It’s crucial to understand how your decision to exercise your right to silence may be interpreted in court and potentially affect the trial process.

Legal Implications of Silence

In New South Wales, the Evidence Act 1995 allows for unfavourable inferences to be drawn from a defendant’s silence in certain circumstances, particularly in cases involving serious indictable offences. If a person remains silent during police questioning and later relies on a fact in their defence that they could reasonably have mentioned during the interview, the court may view this silence negatively.

For an unfavourable inference to be drawn, specific conditions must be met:

1. A special caution must have been given by the investigating official, who had reasonable cause to suspect the defendant’s involvement in the serious indictable offence.
2. The special caution must have been given in the presence of the defendant’s lawyer.
3. The defendant must have been allowed reasonable opportunity to consult with their lawyer about the consequences of remaining silent.

If these conditions are satisfied, the defendant’s silence can be used as evidence to support an inference of guilt. However, silence alone is not enough to establish guilt; the prosecution must still prove the case beyond reasonable doubt.

It’s important to note that this provision applies only to serious indictable offences (as opposed to summary offences), which carry a maximum penalty of five years imprisonment or more. For less serious offences, the common law right to silence remains intact, and no adverse inferences can be drawn.

Conclusion

The right to silence during police interviews is a fundamental legal protection in NSW that requires careful consideration. While this right provides important safeguards against self-incrimination, its application has some limitations and exceptions that individuals should understand.

Understanding your rights and obligations during police questioning is essential for protecting your interests while navigating the criminal justice system. Whether to exercise the right to silence or participate in a police interview is a decision that should be made with the benefit of legal advice, as each case presents unique circumstances that may affect the best course of action.

Take the first step towards resolving your legal issue—call us today.

Frequently Asked Questions