'It's The Law' – Right to silence

Most people are aware of a “right to remain silent” from US television dramas when police list of an offender’s rights while they are arresting them.  The right to remain silent is also available in Australia but most people seem to have a poor understanding of the right. Most of my clients fail to take advantage of the right and answer at least some of questions asked of them by police in a record of interview following their arrest. In this article I will discuss when the “right to silence” is available, the purpose of the right and some examples of why it is important to use the right when arrested.

Individuals in Victoria are entitled to rely on the privilege against self-incrimination. This privilege entitles a person to refuse to answer any question, or produce any document, if the answer or the production would tend to make that person appear guilty of a crime. However, there are some important exceptions to the right (including the requirement to provide your name and address when asked by police).

Responses provided to police in a record of interview can sometimes provide the final evidence required to prove a person’s guilt. Attempts to prove innocence can often go wrong and responses can also undermine defences that otherwise would have been available.

Accused people are often unaware of defences available to their actions and so incorrectly consider themselves guilty during police questioning. This can lead them to make admissions that should never have been made.

The right should usually be exercised even by people who have a defence and should not be seen as a right only exercised by the guilty.

I recently had a client charged with recklessly causing serious injury (a serious offence that carries the possible maximum penalty of 15 years imprisonment). The client instructed that the alleged victim had swung at the accused first, so the defence of self-defence was seemingly available. However, our client spoke at length in the record of interview and made some comments that seemed to contradict this argument. If the client had decided to rely on their right to silence these weaknesses to the argument would have been avoided.

Clients accused of committing a crime sometimes accept legal advice not to answer any questions but then answer what they consider the “easy questions”. In a 1964 case the High Court declared that the decision by an accused to answer some questions but refusing to answer others could in some circumstances lead to an inference of guilt. There is some debate whether this the current state of the law. Regardless, choosing to answer some questions and not others is unlikely to be the preferred strategy if you wish to avoid the possibility of a negative inference being drawn. Further, deciding to answer the “easy questions” can also lead accused people to answer all questions as they get used to responding.

Despite my comments in relation to the importance of the right to silence, in limited circumstances participating in the record of interview may be appropriate. Accordingly, you should ask to speak to your solicitor for advice if asked by police to participate in a record of interview.

Patrick Smith is the principal of O’Brien & Smith Lawyers.

This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick nor O’Brien & Smith Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.