Page Contents
“You have the right to remain silent. Anything you say will be recorded and can be used against you” are words said in almost every crime television show and movie. Despite their dramatic effect, an accused’s right to silence is a fundamental right in NSW and one which unfortunately is often foregone by an accused when being interviewed by Police. Police, in their investigation of an alleged criminal offence will almost inevitably seek to interview a suspect or an accused person with a view to using whatever they can as evidence against an accused. Answers to what may seemingly be the most innocent of questions asked by Police can be used against an accused as an admission to a particular fact or provide the Police with information to further their investigations against an accused. This article examines the right to silence in NSW and its fundamental importance.
Recording of interviews by Police
Under section 281 of the Criminal Procedure Act 1986 (NSW), any interviews conducted by the Police must be recorded either by way of an audio and or video recording unless there is a reasonable excuse for its absence. Such interviews commonly occur in an interview room at the Police Station after an accused’s arrest however with the introduction of Police Body Worn Videos, Police are often able to record interviews with an accused at the scene of an alleged offence and then later seek to use this recording in evidence as well as to ask further questions at the Police Station.
Police cautions and the right to silence
Under section 139(1)(c) of the Evidence Act 1995 (NSW) a statement made by an accused person during questioning by Police is taken to have been obtained improperly if before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. It is for this reason, Police will caution a suspect using words along the lines of the accused not being obliged to say or do anything if they do not want to but whatever they saw will be electronically recorded and that recording may later be used in evidence in court.
Will I be presumed guilty if I don’t give an interview?
Consistent with the fundamental right of an accused to silence, the law provides that an accused can be presumed to be guilty just because they exercise their right to silence. In fact, juries, judges and magistrates are reminded that no adverse inferences can be drawn against an accused person merely because they have exercised their right to silence. The onus is on the prosecution to prove an accused’s guilt beyond reasonable doubt. There is no onus on an accused to prove their innocence.
There are however some exceptions contained under Section 89A of the Evidence Act 1995 (NSW) when it comes to serious offences where in some circumstances an unfavourable inference may be drawn from an accused’s failure or refusal to mention matters concerning a matter where the defendant could reasonably have been expected to mention such matters at the time of Police questioning. In such instances, Police are required to administer a ‘special caution’ which can only be done in the presence of a lawyer acting on behalf of the accused and who was present during the interview.
Do I have to answer all questions during a Police interview?
In short, the answer to this question is no. However, selectively answering some questions and declining to comment on them whilst answering other questions can sometimes appear to be undesirable and can result in impressions of an accused being evasive or selective in their answering of questions put to them by Police. It is often best to decide from the outset if you are going to participate in an interview and the golden rule is to exercise your right to silence. Even if you are unsure what to do, it is very important to err on the side of caution and advise the Police that you will not be interviewed.
Can I stop an interview at any time?
Even though a suspect may voluntarily participate in an interview with Police, this does not mean that they are compelled to answer all questions and participate in the entire interview. If you find yourself not wanting to answer any more questions during an interview, you should clearly state this to the interviewing officers and decline to answer any further questions. It is often best to decide from the outset if you are going to participate in an interview and the golden rule is to exercise your right to silence. Even if you are unsure what to do, it is very important to err on the side of caution and advise the Police officers that you will not be interviewed.
Are there exceptions to the right to silence?
There are certain exceptions to the right to silence where the law requires a person to answer Police questions. Some examples are:
1. The requirement to provide your name and address.
2. The requirement to provide police with your driver licence or some form of identification.
3. To disclose the identity of a driver and/or passenger if your vehicle has been used in a serious offence.
4. To provide particulars following a motor collision.
What questions will the Police want to ask me?
Police will want to find out what the allegation is and find out who the person or persons involved were. The types of questions which the Police may want to ask will depend on their investigation. Police will often ask questions pertaining to the circumstances of an alleged offence and later ask direct questions concerning whether the person suspected did what it was alleged that they had done. The Police may also ask an accused to confirm whether they were present at the scene, comment on photographs, CCTV footage or to confirm the identity of themselves or others. Whatever questions the police seek to ask, it must be remembered that answers to what may seemingly be the most innocent of questions asked by Police can be used against an accused as an admission or provide the police with information to further their investigations against an accused.
Why do accused still participate in interviews with Police despite the right to silence?
There are many reasons where an accused may choose to participate in an interview with Police. Some may think that they are innocent and have nothing to hide. Others may want to come across as being co-operative, whilst some accused feel intimidated by the process of being arrested by the police and feel as though they have no choice but to answer questions despite being told otherwise. Unfortunately, unless there are serious improprieties in the way the Police conducted an interview, there are limited grounds to exclude a Police interview from evidence in its entirety.
I am a witness to a crime. Do I have to answer Police questions or provide a statement to the police?
In general, there is no legal obligation to report a crime or information to the police as a witness unless it is a serious offence. In relation to serious offences, a failure to notify or assist the police as a witness can result in a witness potentially being charged with concealing a serious indictable offence.
How do I know if the police want to interview me as a suspect or as a witness?
This is a very common and tricky question. Often, Police in the early stages of their investigation are attempting to put the pieces of a puzzle together when obtaining witness statements and other pieces of evidence. Sometimes it is not clear whether the Police, when seeking to interview a person, seek to do so as a witness or as a suspect. There are some instances where a witness may inadvertently disclose some form of criminal conduct to the Police when being asked about what had occurred, or disclose that they were somehow indirectly involved in an incident which may expose them to being charged along with other persons involved. Therefore, if you were present during an alleged offence, it is important to assume that you may also be investigated and therefore information given to the Police may result in you becoming a suspect, or even charged with an offence.
Should I get legal advice before speaking with the Police?
It is highly recommended that you get legal advice before you decide whether to answer Police questions or to participate in an interview with the Police. There may be times where it is in your best interests to speak with the Police or participate in an interview. However, as a suspect, participating in an interview can assist the Police to prove a charge against you. It is often very difficult to later change the version given to the Police in court as this can impact on one’s credibility. For these reasons, it is always best to speak to an experienced criminal defence lawyer to get advice before speaking to the police and decline to speak with the Police until you have spoken with a lawyer.
Do I need a lawyer with me at the Police Station?
It is highly recommended that you speak with an experienced criminal defence lawyer before deciding whether your lawyer needs to attend the Police Station with you. There may be times where it is in your best interests to have a lawyer present with you at the Police Station regardless of whether you intend to be interviewed or not. In other instances, having a lawyer present when being interviewed in respect of serious criminal offences, may give rise to a ‘special caution’ being given whereby a refusal or failure to mention certain information to the Police during an interview may result in certain adverse inferences being drawn against an accused later on.
Why Choose Australian Lawyers and Advocates?
The right to silence is the most fundamental right of an accused person. It is important that the circumstances of each case be carefully examined by an experienced criminal defence lawyer. It is therefore important that you consult with an experienced criminal defence lawyer as soon as possible after you have been arrested or contacted by the Police in respect of an offence. Many law firms claim to be ‘the best’ or ‘leading’ firms. At Australian Lawyers and Advocates, we let our results, reputation and high level of client service and satisfaction speak for themselves. Our team of lawyers are highly experienced, highly skilled and respected advocates.
The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you, or someone you know has been arrested or charged with a criminal offence and requires legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss any criminal law or traffic law matters further.
