Miranda Rights: Do You Have the Right to Remain Silent in Australia?

What are Miranda Rights?

The Miranda Rights will be familiar to those enthralled by American police or law related TV shows such as Law & Order, Criminal Minds, and NCIS.

They are a statement which must be provided by police officers to those being placed under arrest in the United States.

The statement, which even many Australians will know off by heart, essentially reads as follows: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.”

The wording may vary and still be valid, as long as the statement conveys the same message.

The officer must also ensure that the accused person understands the statement, and their rights.

This may include having it translated for those who cannot speak English.

Why Is It Called Miranda Rights?

They are named so after a landmark 1966 US Supreme Court decision, Miranda v. Arizona, which established guidelines for how arrested persons need to be informed of their Constitutional rights.

In the case itself it was found that Ernesto Miranda had not been told by police that he had the right to remain silent or the right to a lawyer.

Miranda had been arrested for stealing $8.00 from another and after 2 hours of questioning he had not only confessed to the robbery, but also to kidnapping and rape charges.

He was ultimately convicted of these charges, which was then appealed to the Supreme Court.

The Supreme Court overturned his convictions on the basis that his confessions could not be used as evidence against him, as he was not advised of his Constitutional rights by police.

Whilst the decision did not create any new rights for Americans, as they were already present in their Constitution, it essentially held that for the rights to be meaningful, a suspect has to be aware of them.

Miranda Rights in Australia | Do we Have Miranda Rights in Australia?

The Miranda rights may be familiar to many Australians; however, it is important to note that in this form, they are exclusive to the United States.

Whilst we do not have Miranda Rights in Australia, we do have many similar rights protected by law. Here is more on police arrest.

In Australia, there is a fundamental common law right to silence, which means that you cannot be compelled to incriminate yourself. The prosecution carries the burden of proving the allegations against you ‘beyond reasonable doubt’. If the prosecution fails, the accused will be acquitted of the charge(s). an accused person is presumed innocent until he or she is proven guilty in court.

In NSW, the right to silence is reflected in section 89 of the Evidence Act 1995 (NSW). This section essentially states that, in a criminal proceeding, an unfavourable inference must not be drawn from evidence that the party or another person failed or refused to answer one or more questions, or respond to a representation, made to the party by an investigating official. This means that a suspect does not have to say or do anything in response to police questioning. This is a fundamental right that can be exercised by anyone accused or suspected of having committed a crime.

An inference includes one pertaining to a consciousness of guilt, or relevant to a party’s credibility.

Generally, a person will be required to provide their name, address, and date of birth to police.

However, arresting officers are required to make an accused person aware of their right to not answer their questions.

This is known as a ‘caution’ and will consist of a statement outlining that they don’t have to respond to questioning, and that anything they say or do can be used against them as evidence.

If the person cannot speak English with reasonable fluency the caution must be given in, or translated into, a language which they understand.

Furthermore, the caution may be oral, and need not be given in writing unless the person cannot hear adequately.

Evidence obtained after failing to caution a suspect is deemed to be obtained improperly and is generally inadmissible. This means that any evidence obtained after police have failed to give an accused person a caution may be kicked out, which may result in the accused being acquitted of the charge(s).

An accused person is thus permitted to refuse to conduct a formal interview with police, answer their questions, or provide a statement or information.

The right to silence also extends to electing not to give evidence in court during any hearing, trial, or sentence proceedings – which essentially means that you are not required to go into the witness box to give evidence in court, however, may do so if you choose to.

An adverse inference is not permitted to be taken as a result of an accused person utilising their right to silence in any of the above scenarios.

Notably, police are not able to tell you that you will be considered guilty, or that you will be charged or refused bail if you decide not to give an interview.

However, amendments to the Evidence Act in 2013 mean that an accused person’s decision to remain silent (i.e., by refusing to give an interview with police) may be used against them in very confined circumstances, as outlined in section 89A.

This includes where:

• the alleged crime in question carries a maximum penalty of 5 years imprisonment or more,
• you rely on evidence in court, as part of your defence, that you could reasonably have been expected to mention earlier when given an opportunity to partake in an interview with police,
• before you refused to be interviewed, you were given an opportunity to get legal advice, and
• before you refused to be interviewed, a ‘special caution’ was given by police in the physical presence of your lawyer at the time.

The ‘special caution’ means that a police officer provided a statement along the lines of: “You are not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something which you later rely upon in court. Anything you do say and do may be given in evidence. Do you understand?”

The ‘special caution’ will not apply where the accused person is under 18 years of age, or incapable of understanding the general nature and effect of a special caution.

However, this process may be circumvented by lawyers not attending police stations or being present when police try to give a special caution, and instead electing to advise clients via telephone.

Do You Have a Right to Legal Representation in Australia?

In NSW, when a person is arrested and taken to a police station, they have the right to contact a lawyer and a friend or family member under section 123 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

However, unlike in the United States, in Australia there is no inherent right to free legal representation.

Those facing criminal proceedings must retain private legal representation, qualify for subsidized or free representation provided by bodies such as Legal Aid, or remain unrepresented.

Notably, for serious charges it has been held that trials should proceed without representation for the accused in exceptional cases only (Dietrich v The Queen [1992] HCA 57).

When an accused person, through no fault of their own, does not have legal representation when charged with a serious offence, a judge may order that the trial be stayed (i.e., delayed) until they obtain legal representation, to ensure fairness.

Other rights afford to those arrested include having an interpreter present during questioning (if necessary), receiving food and water, accessing bathroom facilities, and receiving medical assistance questioning (if necessary).

By Poppy Morandin and Jimmy Singh.

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