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Right To Silence In Melbourne

When a person is questioned by authorities, they have the right to silence. This means that suspects do not have to incriminate themselves by answering questions. This is due to the common law’s recognition that individuals must be protected against the state. With the exceptions provided below, a person may exercise the right to silence in Melbourne both when confronted by law enforcement and also by choosing not to give evidence in their defence if the matter goes to trial.

What is the right to silence?

The law provides that a person suspected of being a party to a criminal offence is entitled to remain silent when questioned by an authority about what happened, the identity of the participants, and what roles they played.

A court cannot draw any adverse inferences from the fact that an accused person exercised their right to silence and refused to take part in an interview or by not giving evidence in court.

The privilege against self-incrimination

There are several legal privileges that may be relied on when a person is the defendant in criminal proceedings. The privilege against self-incrimination is one of them. It allows a defendant to resist a request for information that they would have to comply with under other circumstances. 

The privilege may be relied on by any person, not only those accused in a criminal investigation. When seeking to rely on the privilege against self-incrimination, a person who is not the accused may only rely upon this privilege in relation to specific questions on the basis that the answers may incriminate them.

Legislative provisions on the right to silence

The right to silence is also protected under various provisions in Victorian legislation. These provisions further ensure that an accused person is protected from adverse inferences being drawn by courts because they exercised their right to silence.

No adverse inferences

Section 89 of the Evidence Act 2008 provides that an unfavourable inference may not be drawn from evidence that an accused did not answer one or more questions or respond to representations put to them by authorities who were investigating a criminal offence.

Evidence of the above nature is not admissible in court where it serves only to create an inference that they are guilty based on their exercise of their right to silence.

Jury Directions On The Right To Silence in Melbourne

When a person is facing a jury trial, the Jury Directions Act 2015 provides that if they choose not to give evidence, their lawyer may ask the judge to provide a jury direction about the right to silence. The direction will inform the jury that:

  • The failure of the accused to give evidence to the court cannot be considered an admission;
  • The defence’s failure to call a witness may not be relied on as evidence against them and does not strengthen the case of the prosecution.

The court may also give a jury direction to the effect that the prosecution bears the onus in proving the case beyond a reasonable doubt, that the accused does not have to call any particular witnesses and that the jury should not speculate about what may have been contained in evidence that was not called.

The legislation also provides that parties may not make statements that suggest that because a defendant did not give evidence they may be presumed to be guilty.

Privilege against self-incrimination

When information is requested from an accused person, they may rely on the privilege against self-incrimination where it would otherwise be compulsory to provide the information. 

This privilege is abrogated when an accused gives evidence in their defence. The Crimes Act 1958 provides that, where an accused chooses to testify in court, they lose their right to claim privilege against self-incrimination. In other words, a person who chooses to give evidence in their defence cannot claim privilege to avoid having to answer particular questions that may incriminate them.

Sometimes a witness claims privilege on the basis that the evidence they would give may show that they committed an offence or are liable to a civil penalty under circumstances where the evidence is also relevant to a question relating to whether the charges are emade out. In this situation, the parties may ask the court for a direction as to whether there are reasonable grounds to object to giving evidence. The judge may direct that the witness does not have to give evidence unless required to do so by the court. Where the court requires the witness to give evidence, it may in some circumstances issue a certificate to protect the accused’s privilege against self-incrimination. The certificate is applicable only in the particular proceeding in which it is issued.

Exceptions to the right to silence in Melbourne

Under the Evidence Act 2008, evidence may be given that the accused exercised their right to silence or did not respond to a question posed to them where this is a disputed fact in the proceeding (section 89).

The Criminal Procedure Act 2009 sets out some exceptions to the right to silence in Melbourne and the rest of Victoria. These include pre-trial disclosure requirements and the requirement that a person give their name and address to police when asked or to show their driver’s licence when pulled over by police while driving.

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