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Right To Silence In Brisbane

The right to silence is a fundamental common law right in all jurisdictions of Australia. In Queensland, the right to silence has been codified in Section 397 of the Police Powers and Responsibility Act (PPRA). That provision states that a person’s right to refuse to answer questions is protected, except where they are required to provide information under legislation. The right to silence is based on the principle that the prosecution bears the burden of proving a person guilty of an offence beyond a reasonable doubt and that an accused person therefore cannot be compelled to incriminate themselves. This article outlines the operation of the right to silence in Brisbane and the rest of Queensland.  

Case law and the right to silence 

In the 1991 decision of Petty & Maiden v The Queen, it was established that a court may not draw an adverse inference against an accused because they refused to give information to the police when asked to participate in an interview.

However, this rule does not extend to when an accused answers some of the questions during a police interview but refuses to answer others.


Section 431 of the PPRA sets out the right of an accused person to silence as follows:

1. A police officer is required to caution a suspect prior to interviewing them;

2. The caution must be delivered in, or translated into, a language that the person is reasonably fluent in;

3. If the police officer suspects that the person does not understand, they may ask them to explain the caution in their own words.

4. If necessary, the police officer must explain the caution further.

A caution is a warning that the person does not have to answer any questions and that any information they do give may be used as evidence against them. The police must be certain that the person understands that they have the right to silence before proceeding to interview them. This may mean using an interpreter or asking them to repeat the caution in their own words to make sure they have understood it.

What if the police fail to caution a suspect?

If the police fail to caution a person before attempting to interview them or if they do not give the caution in a way the person understands, this can affect the admissibility of any evidence they give during the interview. When a person incriminates themselves after they were not properly cautioned, the defence will usually challenge the interview’s admissibility in a pre-trial proceeding known as a voir dire. 

During a voir dire, the court will hear evidence about how the interview was conducted. If the magistrate or judge considers that the police officers failed to adequately caution the suspect, it will exclude the interview from evidence so that the prosecution cannot adduce it. This is to ensure that police comply with the proper procedures and do not achieve a finding of guilt as a result of failing to uphold the rights of an accused person.

Exceptions to the right to silence in Brisbane

Under section 431(5) of the PPRA, there is an exception to the right to silence, which applies where someone is required to answer questions under legislation. One example of where a person is required to give information to the police is when police ask a person to provide their name and address. Under section 41, a person must provide police with their details in certain circumstances, like when police find them committing an offence or suspect on reasonable grounds that they have done so. Failure to provide a person’s name and address to police when asked to do so can amount to an offence

Should you exercise your right to silence in Brisbane?

At times it can be advisable to cooperate with the police when they suspect you of an offence as doing so can result in a more lenient penalty. However, it should be remembered that the right to silence is protected and that you cannot get into trouble as a result of refusing to exercise that right. The prosecution must ultimately prove an accused guilty beyond a reasonable doubt. The accused does not have to prove that they are innocent.

If you require legal advice or representation in relation to the right to silence in Brisbane 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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