Right to Silence In Canberra

When the police suspect that a person has committed an offence, they may ask the person to take part in an interview. A person cannot be arrested for the purpose of questioning, and unless a person has been arrested for an offence, they do not have to accompany police to a police station to take part in an interview. When a person is arrested and asked to participate in an interview they have the right to silence. This means that they are not obliged to answer the police’s questions. This article outlines the right to silence in Canberra.

How long can you be held at a police station?

When police detain a person at a police station, they must charge and bail or remand the person within a reasonable time. For an adult, this must occur within four hours, unless the person is, or appears to be, under 18, or is an Aboriginal person or a Torres Strait Islander. In this situation, the police may only detain the person for two hours. 

What is the right to silence?

The right to silence is the principle that a person suspected of an offence does not have to take part in an interview with the police. However, there are some limits on the right to silence. For example, when the police suspect you of an offence related to the use of a motor vehicle, you are required to provide your name and the driver’s identity. You are also required to provide your name and address to police when asked for thee details. 

The right to silence in Canberra, as elsewhere, is based on the broader principle of the privilege against self-incrimination. This privilege also extends to a person who is required to give evidence in court. A person cannot be required to give evidence that is likely to incriminate them of a crime. 

The right to refuse to answer questions by authorities is an important part of maintaining a democratic legal system where the prosecution bears the burden of proving a person guilty of a crime. An accused is not obliged to assist the police or the prosecution to do this.  

Should you participate in an interview?

There are both advantages and disadvantages in participating in a police interview. 

Advantages

If a person participates in a police interview and denies committing the alleged offences, that denial may mean that police do not charge them with the offence. If the police do lay the charge, their denial may be more readily accepted by a court if they have already told the police a version of events that is consistent with the defence they are running. 

If a person is guilty of the alleged offence and they admit this in an interview and express remorse for their actions, this will be taken into account by the court when sentencing them. 

Disadvantages

If a person participates in a police interview and admits to the alleged offending, they may help the police to prove offences that they would not otherwise have sufficient evidence to prove. 

If a person takes part in an interview and claims they did not commit the offence, there is no certainty that providing their version of events to police will convince the police officer not to lay the charges. 

The interview process can be stressful and this may lead a person to be confused or mistaken about what actually occurred. Sometimes a person who is interviewed will give an incorrect version of events and, after reading witness statements, remember all of what occurred. When this happens, it is difficult for the accused to convince the court that they were mistaken and did not change their evidence to support their case.

Children and young people and the right to silence in Canberra

When the police are attempting to interview a child or young person under 18, they must do so with an appropriate adult support person present. This may be a parent, someone who has daily or long-term care responsibility for the child, or another suitable person (for example, a person trained by the Public Advocate to attend such interviews).

However, police can interview a child without an adult support person present if they believe on reasonable grounds that it is necessary to avoid the death or serious injury of a person, or serious damage to property.

Police must not charge a child with an offence at a police station unless satisfied that issuing a summons would not achieve one or more of the following outcomes:

• ensuring the young person appears in court;
• preventing the young person from offending;
• preventing the concealment, loss, destruction or fabrication of evidence;
• preventing harassment of, or interference with, a potential witness;
• preserving the young person’s safety or welfare.

If a child is detained or arrested, police must promptly take all reasonable steps to tell a parent or responsible person about their restraint or arrest. If a child is charged with an offence at a police station, the charging officer must promptly take all reasonable steps to inform a parent or responsible person the terms of the charge, where the child is and when they will be brought before the Children’s Court.

For advice or representation in any legal matter, please contact Go To Court Lawyers.