A Guide on Your Right to Silence When Approached by Police

By Scott Feeney and Jimmy Singh.

The Brazilian Military Police were ready. The raid was about to take place in the northeast of the country, in the low-income community of Vila Irma Dulce.

It was Monday the 22nd of April, and while on a regular patrol of their beat, the police observed a man outside a home, it was a small brick, one story house with a windowless facade. They believed the man had just purchased some drugs from the residence.

Those inside the building were suspected to be dealing crack cocaine.

Police approached, suddenly there was a shrieking voice screaming “Mamae policia! Mamae policia!” The Portuguese translation to English being “Mum the police”.

The lookout, put in place by the suspects had activated. He was attempting to thwart the police’s efforts.

Police had to silence him. However, it wasn’t a him. The lookout was a lime green Amazon Parrot.

The parrot’s warnings were not enough though, to alert his owners. Police moved in and made two arrests.

Inside the house was the bird’s owner, a woman using the name India. India was known to the police who had two previous arrests for drug dealing in the past.

The Arrest

India, at the time of the raid, was bed-bound and recovering from an accident.

Allegedly, her 30-year-old Husband, Edvan was using the bird as a lookout to be used as an alert signal to warn him of the presence of any police authorities.

Police officers arrested him when they discovered four small bags of prohibited drugs, namely cocaine in the premises during the raid.

Cannabis was allegedly found concealed in the underwear of Edvan’s 16-year-old daughter. Quickly discovered by law enforcement, she was promptly arrested.

Father and daughter were taken to the Flagrant Centre in Teresina, which is the capital of the state of Piaui. The Flagrant Centre is where crimes of this type are commonly investigated.

After appearing before a judge, Edvan’s daughter was released from custody.

The Lookout

The unnamed parrot is now referred to as “papagaio do trafico” or “trafficking parrot” by news outlets in the region.

“Papagaio do trafico” was also taken into police custody. Locked up inside a chicken wire cage he was transported back to the police station.

However once back at the station, “Papagaio do trafico” refused to cooperate with the police, maintaining his silence. He did not utter a single word.

On Wednesday Alexandre Clark, a local vet made the statement saying that despite the fact  “lots of police officers have come by and he’s said nothing.”

The bird’s silence has caused Edvan’s defence attorney to question the police version of events. Casting some doubt as to whether the bird really reacted as reported during the raid.

Highlighting that although “Papagaio do trafico” was surrounded by police officers after being locked up in the station, he didn’t screech loud warnings similar to that he is alleged to have done during the police raid.

Authorities believe the little lime green spotter was trained to spot police cars.

Major Mello from the Military police unit said “papagaio do trafico” impressed police officers, “He must have been trained for that. He began to scream as soon as the police approached”.

It is believed “Papagaio do trafico” can be rehabilitated. He has since been relocated to the local Terasina zoo. This is where he will learn to fly over the next three months and then be released.

“Papagaio do trafico” isn’t the first feathery felon to be incarcerated by the authorities for aiding drug traffickers.

Not the First Time a Parrot has Been Arrested

In 2010 another parrot by the name of Lorenzo was arrested in Colombia.

Lorenzo was reportedly trained to call out every time a police officer went near the trafficker’s headquarters.

However, Lorenzo was soon outsmarted by the authorities. Police worked out the parrots cunning ploy.

They managed to sneak past the bird to discover a cache of weapons, marijuana and two more highly trained lookout parrots.

At that time, it was estimated police had seized up to 1700 parrots. The whole lot had been trained to warn their owners of police being close by.

Later, Lorenzo was presented to a mob of reporters where he said: “Run, run, the cat is going to eat you!”

A Guide on Your Right to Silence When Approached by Police in NSW

The right to silence is a fundamental right for anyone who is approached by police for police questioning.

Essentially, remaining silent to police questioning should not then be used against you in court during criminal proceedings. Generally, having refused to give police an interview when arrested cannot then be used by the prosecution as evidence to infer guilt to the alleged offence.

The law protects those who are vulnerable from stress, confusion, emotion or who are scared in the presence of police for purposes of police questioning, particularly who are placed in a stressful and unfamiliar situation with the police. The common person will likely fit into such categories when approach by police.

The law protects those by giving people a right to remain silent without that silence ever being used against him/her if later charged. This is due to the fact that admissions made by people in those circumstances, which is usually the common person, can be unreliable.

Remaining silent also allows suspected person from not having to disclose his/her defence to the police in the absence of being provided with the police evidence first. It is important to remember that anyone accused or suspected of a crime in NSW is considered innocent until proven guilty in a court of law.

The prosecution therefore bears the onus of proving the essential elements of the alleged crime, not the defence. The prosecution is required to prove its case beyond reasonable doubt. If there is a doubt in their case, the court is required to acquit the accused person.

Generally, anyone suspected of a crime who is being questioned by police can decide not to answer police questions where those questions are connected with the police investigation of that crime.

After remaining silence, the police are then not allowed to use the silence as a method to portray that the person was guilty from a consciousness of guilt.

In practicality, police will approach a person suspected of having committed a crime, following or before an arrest takes place, the police will be required to issue that person with a caution that he/she does not have to do or say anything but that anything he/she does do or say can be used against him/her in court.

Following that, the police will provide the person with an opportunity to obtain legal advice and offer a chance to provide a recorded interview in connection with the investigation.

Deciding whether or not to give an interview to police is an extremely important decision at the beginning of what could result in serious charges effecting the rest of a person’s life.

Refusing to participate in an interview with police is a right one has without it being used against him/her. After refusing an interview, the police are not allowed to use this in any way to intimidate or threaten a person to changing his/her mind about it.

Threatening to charge a person who refuses to give police an interview is illegal.

Police are also not allowed to refuse a person bail simply because he/she has exercised a right to silence by refusing to give police an interview.

The right to silence is reflected in section 89 Evidence Act 1995 (NSW) which prohibits an unfavourable inference to be drawn against an accused person who has refused to answer a question or respond to questions put from a police officer who was performing functions in connection with the investigation of the alleged crime.

This means a person’s decision to not reply to police questions cannot be used as a consciousness of guilty or inference as to the person’s credibility.

Exceptions to the Right to Silence

Notwithstanding a person’s right to silence, as of 2013 when the O’Farrell Government introduced the new section 89A Evidence Act 1995 (NSW), there is now an exception to the right to silence.

In certain situations, a person’s refusal to answer questions or disclose a defence can now be used against him/her in court relevant to his/her guilt.

In the following situations, you will now be required to talk or give an interview to police after being arrested if:

1. The alleged offence is an offence carrying a maximum penalty of at least 5-years imprisonment; and
2. At the time of being given an opportunity by police earlier, you failed to raise the defence you later rely on in court if it was something you could have outlined in the earlier opportunity to police; and
3. When you were given that opportunity to give an interview to police, you refused; and
4. Before refusing to give that interview, an opportunity was provided to you to obtain legal advice; and
5. Before refusing to give that interview, in the presence of your lawyer (in person) you were informed by police that “you don’t have to do or say anything, but if you fail to say anything which is later relied on by you could adversely impact on your defence and anything you do or say can be used as evidence in court” or words to that effect. (‘special caution’). This special caution will not apply if you’re below the age of 18-years or incapable of comprehending the general nature and impact of the special caution.

Failure to talk or give an interview to police in those circumstances can allow your silence to be used as a consciousness of guilty and/or inference relevant to your credibility in order for the prosecution to prove your guilt.

However, this exception to the right to silence only applies if your lawyer is physically present with you at the police station. This will likely have the natural consequence of lawyers failing to attend the police station especially when advice can be provided over the phone instead.

What am I Required to Tell Police?

Where the Police Suspect that you can Help in an Investigation

When approached by a police officer in NSW, you must provide your identity if the police officer has a reasonable suspicion that you’re able to help the investigation of a serious crime (section 11 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)). i.e. you must provide police with your home address and name.

Where you Have Witnessed a Serious Offence

When having witnessed a serious offence, if your aware that it was a serious offence, and you have information that can help police in finding the perpetrator or help police in prosecuting the perpetrator, you must inform police of any information which may assist police in the investigation, unless you have a reasonable excuse not to. Failing to comply with this is a crime of concealing a serious indictable offence which attracts a maximum penalty of up to 2-years jail pursuant to section 316 Crimes Act 1900 (NSW).

Serious Offence involving a Vehicle

You must also disclose your address and name, including identities of any others who were in a vehicle if the police reasonably suspect that your vehicle has been involved in a serious offence. (section 14 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW))

If you think you are likely to be approached or are under arrest by police in respect to an alleged crime, it is critical to obtain advice and guidance from an experienced and reliable criminal defence lawyer.

Immediate advice can be provided over the phone without delay from any experienced criminal defence lawyer.

Our criminal lawyers appear in all courts and are available 24/7 to provide urgent advice and guidance. We are available on (02) 8606 2218.

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