New Laws on The Right to Silence for Criminal Offences

By Jimmy Singh and Tayla Regan

Say for instance you have been arrested for a crime, taken to the police station, and offered to participate in an interview with the police.

Can you refuse to give an interview with police without your silence being used against you later?

Can your silence amount to a consciousness of guilt in the eyes of the law?

The right to silence has been a long existing right for people confronted by police questioning to remain silent without having that silence ever being used against them in court for Criminal Offences.

In a legal system that declares you are innocent until proven guilty, eliminating the right to silence will allow police to rely upon evidence of admissions from people who are highly stressed, emotional, confused and scared, to support serious charges. In that context any admission can be very unreliable.

It will also mean that you will be required to outline your defence without first requiring the police to show you any evidence to support their allegations.

This can then place you at a disadvantage to disclose an immediate defence to serious criminal offences where significant consequences and penalties can follow.

The Sydney Morning Herald reports that “three years after former premier Barry O’Farrell declared his government would be removing the right to silence under police questioning following the spate of drive-by shootings, the law has proved unworkable”.

Even the Office of the Director of Public Prosecutions reported that it wasn’t aware of any criminal trial where a jury has drawn an unfavourable inference against an accused because the person refused to answer police questions when first arrested.

‘The Right to Remain Silent’

The police are generally not allowed to use your silence to establish guilt, or to discredit you.

This means that you have a right to silence, which means exactly that- you actually have a right to refuse to go through an interview with police, to refuse to answer their questions, and to refuse to give a statement or give information.

This extends to your right to refuse to even sit in an interview room to have your refusal to be interviewed recorded by police.

Your right to silence is reflected in section 89 Evidence Act 1995 (NSW).

Your right to remain silent includes your right to elect not to give any evidence in court on your hearing or trial. This means that you don’t have to go into the witness box to give evidence in court.

If you decide not to give evidence in court, the Judge or Jury are generally not allowed to take this as an adverse inference against you in any way- it cannot be used as a sign of guilt.

Police are also not allowed 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.

Your decision to refuse to give an interview to police is not allowed to effect whether or not the police end up charging you or granting you bail (released on conditions pending your case).

Why Do We Have a Right to Silence?

It’s easy to quickly conclude that someone who decides not to talk in response to an allegation is more likely to be guilty, or not credible. Police are not suppose to think that way when investigating-this is because their investigations must be impartial, fair, and free from any bias.

Our justice system in Australia works in such a way that if your accused of committing a crime, the police are required to prove you did it. You are not required to prove your innocence.

You do not need to prove anything, in fact, you have a right to be silent.

The police will try to gather evidence to prove that you did it. The standard of that proof is a high one- which means the police must prove it beyond reasonable doubt. This can also be seen as a reflection of giving the accused person the benefit of the doubt.

A possibility that you did it will generally not be enough to establish your guilt under the law.

The right to stay silent not only reduces the amount of unreliable evidence being relied upon in Court at a later stage, but also protects people who find themselves in the highly stressful and unfamiliar scenario of a police investigation.

The Evidence Act modified the right to silence in 2013 after a proposal by the O’Farrell Government.

This brought about the existence of section 89A Evidence Act 1995 (NSW).

The amendment has now made it possible for a Judge or Jury to find a person guilty if there has been a refusal to answer police questions that relate to the charge.

Exceptions to the Right to Remain Silent

While there is a right to remain silent, you are now required to talk to police in the following circumstances:

Special Caution: Your decision to remain silent (by refusing to give an interview with police shortly after arrest) can only be used against you later in court (to prove your guilt) if:

  • The alleged crime carries a maximum penalty of 5 years or more imprisonment; and
  • What you rely on later in court as part of your defence was something you could have mentioned earlier when given an opportunity to partake in an interview with police; and
  • You refused to be interviewed with police earlier; and
  • Before you refused to be interviewed, you were given an opportunity to get legal advice; and
  • Before you refused to be interviewed with police, a ‘special caution’ was given to you by police in the physical presence of your lawyer at the time. This means the police officer told you something along the lines that, “you do not have to say or do anything, but anything you fail to mention now, which you later try to rely on in court, may harm your defence, and anything you say or do may be used in evidence.”

This is known as the ‘special caution’ and is reflected in section 89A Evidence Act 1995 (NSW).

The ‘special caution’ does not apply to you if you are under 18 years of age, or incapable of understanding the general nature and effect of a special caution.

Requesting your identification: You will be required to answer police questions in respect to your identity in circumstances where police hold a reasonable suspicion that you may be able to assist the investigation of serious criminal offences. This is reflected in section 11 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

This means you will then be required to tell police your name and residential address.

Where your Vehicle is involved in a crime: Where police hold a reasonable suspicion that your vehicle was involved in a serious offence, you will be required to tell police your name and address. This includes the identity of any other person who was driving or passenger in that car.

This is reflected in section 14 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

If you’re a witness to a serious crime: You will be required to tell police any information that might assist police in their investigation of a serious offence in circumstances where:

  • A serious offence has been committed by someone; and
  • You are aware of the serious offence, but it wasn’t you; and
  • You have or know information which may help police in finding the offender or prosecuting the offender; and
  • Without a reasonable excuse, you fail to bring that information to the attention of police.

Where you do not tell police this information, in those circumstances, you can be charged for concealing a serious offence which attracts a penalty of up to 2 years imprisonment under section 316 Crimes Act 1900 (NSW).

If unsure, it is highly recommended to get advice from a defence lawyer.

What Evidence Can Police Try to Use to Prove Guilt?

Police are trained to investigate crimes. From my experience, some investigations are done very thoroughly, while others are not.

Some of the evidence police may try to gather could include, CCTV footage, eye witnesses, your mobile phone, your car or other property, and your DNA.

An important piece of evidence police will try to get is a recorded interview from you shortly after your arrest. Before doing this, police will give you a caution along the lines of, “you have a right to remain silent, anything you do say or do can be used against you in court”. You will then be given an opportunity to speak to a lawyer for advice before you decide whether or not to give an interview with police.

What Questions can Police ask in an Interview?

Depending on the allegation and case, police can ask lots of questions. Those questions can include:

  • Whether you were involved.
  • Your whereabouts at the time of the alleged incident.
  • Whether anyone else was at the scene at the time, and if there were others, whether you have his/her contact details.
  • Whether you are the person depicted in the photos or CCTV footage.
  • Your version of what happened.

If you decide to give an interview with police, your answers will be recorded on a CD, and a copy of that CD will be given to you after the conclusion of your interview.

Your answers can then be played in court- this may harm your case, while on other occasions it may assist your case.

Why Was the Law Amended?

A person’s right to remain silent was controversially regarded by the Government as a tool designed for lengthening trials, mistaken findings of not guilty, hampering investigations and abusing the right to silence.

Despite the prosecution being entitled to test any differences between a person’s statement made at the time of being arrested up until the point of trial, the O’Farrell Government discussed wanting to stop surprise alibis from being thrown into a case at a later stage.

An article by the Sydney Morning Herald in 2012 referred to Mr O’Farrell’s comments, where he stated, “It’s been too easy to say: ‘I have nothing to say’. Jurors are smart enough to know if there is something suspicious about evidence which suddenly appears at a trial and is designed to get the accused off.”

Unfortunately, it seems that the elimination of the right to silence in NSW isn’t really working from a practical point.

Because your silence can only be used against you later in court if a lawyer is physically present at the time you are about to be questioned, the special caution also has the effect of lawyers refraining from attending the police station when you are under arrest.

This essentially takes away a protective safeguard in pressured circumstances where you are more likely to make unreliable admissions to the police.

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