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Right To Silence In Sydney

The right of a person to refuse to be interviewed by the police when they are suspected of criminal offences is a well-known principle of the common law. Suspects may decline to answer questions by police as well as choosing not to give evidence during a trial. The right to silence is based on the principle that the burden of proof in a criminal matter falls on the prosecution. The accused is not required to prove their innocence. The right to silence in Sydney and elsewhere in New South Wales also reflects the traditional belief that persons should not be compulsorily interrogated about alleged criminal conduct.

Police interviews and the right to silence in Sydney

A person suspected of offences can refuse to answer the police’s questions under most circumstances. An exception to this is where the police ask someone for their name, address and date of birth. These questions must be answered, whether you are under arrest or not.

If the police suspect a person of an indictable offence, they will ask them to participate in an interview. The police must tell the suspect that they do not have to answer the questions and make sure they understand. This is called a ‘caution’. The suspect may say ‘no comment’ in response to questions or they can just remain silent.

Admissibility of confessions

Confessions made to police are only admissible as evidence in criminal proceedings if they were made voluntarily (ie the suspect was not pressured, forced, or tricked into making admissions). Confessions made without a proper caution from police are inadmissible as evidence as are confessions that were made when the accused was sick, injured or intoxicated. If the prosecution seeks to rely on admissions whose voluntariness is in doubt, the defence should challenge the admissibility of the evidence.

NSW legislation on the right to silence

The common law right to silence is codified in section 89 of the New South Wales Evidence Act 1995. This provision states that no adverse inference is to be drawn on the basis of evidence that an accused person failed to answer the police’s questions.

In 2013, the right to silence was qualified in NSW by the addition of section 89A into the Evidence Act. That section states that in serious indictable matters, courts may draw an unfavourable inference against a suspect who failed to participate in a police interview but subsequently relied on a defence that they could reasonably have been expected to have volunteered when interviewed. 

Section 89A allows this adverse inference to be drawn only where the person was given a ‘special caution’ – a warning that remaining silent may harm their defence. If the police did not give such a caution, no adverse inference may be drawn by the court.

No adverse inference may be drawn from the silence of a juvenile suspect. The legislation also stipulates that an accused’s silence may not be taken as evidence of guilt where it is the only evidence of the person’s guilt.

Although suspect still have a right to silence in Sydney and elsewhere in New South Wales law, remaining silent is now less attractive when a person is facing serious indictable charges.

Giving evidence in court

A defendant cannot be called as a witness in the case against them by the prosecution. Under section 17, an accused cannot be compelled as a witness to give evidence against a co-accused unless the defendants are being tried separately.

A defendant may give evidence in their defence criminal if they choose to do so. If a defendant chooses not to give evidence in court, the judge may comment on this, but must not suggest that their failure to give evidence suggests that they are guilty.

If a defendant does choose to give evidence in their defence, the prosecution may cross-examine them in any way, regardless of whether their answers may incriminate them. However, the prosecution must not cross-examine a defendant in a way that may incriminate them for criminal offences other than the one that they are being tried for. 

On appeal 

When a defendant chooses not to give evidence at their trial or contested hearing but is found guilty and subsequently appeals against that finding, the appeal court can take into account their silence at trial when considering whether or not the standard of proof was satisfied. If the defendant did not give evidence, the inference of guilt is strengthened.

If you need legal advice or representation in relation to the right to silence in Sydney or in any other legal matter, please contact Go To Court Lawyers.

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Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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