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Right To Silence in Perth

A fundamental common law rule is that a persons suspected of criminal offences have the right to silence. This principle covers the right of a suspect to refuse a police interview and the right of a defendant going through a trial to choose not to give evidence in court. The right to silence has been codified in some Australian jurisdictions and also has a large body of case law on it. This article outlines the right to silence in Perth and the rest of Western Australia. 

Police interviews and the right to silence in Perth

A person suspected of offences has the right to say nothing to the police. The police may ask a person questions, but a person generally does not have to answer them. However, when a person is asked for their name, address and date of birth by police they must always provide this information. 

When a person is suspected of an offence, the police must caution them before attempting to interview them. The caution must include an explanation that they are not obliged to say anything and that anything they say may be used as evidence against them. The caution must be given in a language the person understands, or translated for them, and at a time that they can understand it. It must not be given when the person is sick, intoxicated, injured or hungry. Once the police have cautioned a suspect, they can proceed to ask them questions. A person may be silent or say ‘no comment’. The police are not allowed to pressure a person to answer by making threats or offering incentives.

Exceptions to the right to silence in Perth

There are some exceptions to the right to silence. If the police ask a person for their name, address and date of birth, they must provide this information. If the police pull a person over when they are driving, they must give their details and show their driver’s licence and take a breath test or provide a blood sample if the police ask them to do so. If a person is on licensed premises, police may ask them for proof of age ID. A person must also answer the questions of customs officers about the import and export of goods.

Admissibility of confessions

Confessions are only admissible as evidence if they were made voluntarily. Statements made under pressure or while intoxicated, sick or injured are not admissible. Statements made in response to police questioning without a thorough caution being provided are also not admissible. Therefore, if a person was interviewed without a proper caution or when they were intoxicated or otherwise compromised and the prosecution is seeking to rely on the interview as evidence they should speak to lawyer about challenging the admissibility of the interview. 

Silence is not evidence of guilt

If a suspect chooses not to answer the police’s questions, court must not draw an adverse inference from this. The prosecution must not suggest that their silence was an indication of guilt. If the defendant offers an explanation or defence during the proceedings, it must not be suggested that their failure to offer this explanation at the first opportunity suggests a lack of credibility.

If the matter is decided by a jury, it will be given a direction that the accused exercised their right to silence and that this is not evidence of guilt. If the matter is to be heard by a judge or magistrate, they must not take the accused’s silence as evidence of their guilt.

The legislation

The right to silence in Perth and the rest of WA is set out in Section 8 of the Evidence Act 1906. That section provides:

  • That an accused cannot be called as a witness except on their own application;
  • An accused’s failure to give evidence in their defence shall not be commented on by the prosecution;
  • An accused who gives evidence can be cross-examined regardless of whether the questioning will incriminate them in relation of the offence being tried;
  • An accused must not be questioned in a way that is likely to incriminate them for an offence other than the offence charged unless the questioning has a bearing on whether they are guilty of the offence charged or unless the defence has raised the character of a prosecution witness.

Other states and territories have different prohibitions in relation to what can be said about the face that an accused did not give evidence. In Queensland, there is no prohibition on the judge or prosecutor commenting on the accused’s silence, while in Victoria and the NT neither the judge nor the prosecutor may comment on it. 

On appeal

In all Australian jurisdictions, an accused’s silence at trial can be taken into account on appeal when determining whether or not the standard of proof has been satisfied. If the accused did not give evidence in their defence, the inference that the accused is guilty is strengthened.

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