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This article was prepared by Go To Court Lawyers, Australia's largest legal service. For legal advice specific to your situation, call 1300 636 846.
The right to silence is recognised as a fundamental common law right in all Australian jurisdictions. In Queensland, it is codified in Section 397 of the Police Powers and Responsibility Act (PPRA), which states that a person’s right to refuse to answer questions is protected, unless they are required under legislation to answer the questions. The basis of the right to silence is the principle that the burden of proving an accused’s guilt beyond a reasonable doubt falls on the Crown, and an accused cannot be compelled to self-incriminate.
Case law
In the 1991 case of Petty & Maiden v The Queen, it was determined that a jury cannot draw an adverse inference against an accused because the accused refused to give an account to the police.
However, this rule can vary when an accused agrees to answer some questions but refuses to answer others, or where a person does not explain matters that are solely within their knowledge.
Legislation
Section 431 of the PPRA states:
“(1) A police officer must, before a relevant person is questioned, caution the person in the way required under the responsibilities code.
(2) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency but need not be given in writing unless the person cannot hear adequately.
(3) If the police officer reasonably suspects the person does not understand the caution, the officer may ask the person to explain the meaning of the caution in his or her own words.
(4) If necessary, the police officer must further explain the caution."
The above provision sets the standards that police officers are required to adhere to when questioning a person. The police are required to inform the person being questioned that anything they say may be used as evidence in criminal proceedings against them. The law requires police officers to be certain that the person understands their right to silence before proceeding with the interview. This may mean using an interpreter or asking the suspect to paraphrase the caution to ensure they have understood it correctly.
What if the police fail to caution the suspect?
If the police fail to caution a person before questioning them or if they do not give the caution in a way the person can understand, this can affect the admissibility of the evidence the person gives during the interview. When admissions are made but the suspect was not properly cautioned, the defence will usually challenge the admissibility of the admissions in a pre-trial proceeding called a voir dire. If the court considers the police failed to adequately inform the suspect of their right to silence, it will exclude the admissions from evidence and the prosecution will not be able to rely on them. This is to ensure that police comply with the law and that prosecution is not allowed to benefit from a failure by police to uphold the rights of an accused.
Exceptions to the right to silence
Section 431(5) of the PPRA provides an exception to the right to silence if another Act requires the person to answer questions. An example of this is when police require a person to provide their name and address. Under section 41 of the PPRA, a person must provide police with their name and address in certain circumstances, such as when police find them committing an offence or have reasonable grounds for suspecting they has committed an offence. Failure to provide these details when asked can result in a criminal charge.
Should you exercise your right to silence?
At times it can be beneficial to cooperate with police when you are a suspect as this can result in a more lenient penalty. However, it’s crucial to remember that the right to silence is protected by law, and that you cannot get into any trouble, or be inferred to be guilty, because you chose to exercise that right. The ultimate responsibility for proving an accused guilty lies with the prosecution and an accused is not required to prove their innocence by presenting an account of what happened.
If police ask you to take part in an interview it is always a good idea to receive legal advice before agreeing to do so. If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Go To Court Lawyers.
faqs: - question: 'Can police draw adverse inferences if I refuse to answer some questions but answer others?' answer: 'Yes, the rule against adverse inferences can vary when you agree to answer some questions but refuse to answer others. While you cannot be penalised for exercising your right to silence completely, selective silence may allow different legal considerations. This is particularly relevant where you fail to explain matters that are solely within your knowledge, potentially allowing the court to consider your partial cooperation differently.' - question: 'What specific caution must Queensland police give me before questioning under the PPRA?' answer: 'Queensland police must caution you before questioning that anything you say may be used as evidence, and you have the right to remain silent. The caution must be given in a language you understand with reasonable fluency, and if police suspect you don''t understand, they may ask you to explain it back in your own words and provide further explanation if necessary.' - question: 'How much does it cost to get legal advice about exercising my right to silence?' answer: 'Go To Court Lawyers offers a fixed consultation fee of $295 to discuss your right to silence and police questioning matters. During this consultation, you''ll receive specific advice about your situation, understand your rights under Queensland law, and learn how to properly exercise your right to silence. This upfront cost provides clarity on your legal position without unexpected fees.' - question: 'How can a criminal lawyer help me with police questioning and my right to silence?' answer: 'A criminal lawyer can advise you on when and how to exercise your right to silence effectively, attend police interviews with you, and ensure police follow proper caution procedures under Section 431 of the PPRA. They can protect you from self-incrimination, challenge improperly obtained statements, and explain the implications of answering some questions while refusing others to prevent adverse inferences.' - question: 'Is there a time limit for challenging police questioning that violated my right to silence?' answer: 'You should seek legal advice immediately if police violated your right to silence during questioning. While there''s no specific time limit for challenging improperly obtained evidence, delays can weaken your position. Early intervention allows your lawyer to properly document violations, file appropriate motions to exclude evidence, and ensure your rights are protected throughout the criminal proceedings before evidence becomes harder to challenge.' ---