The common Law right of the right to remain silent is one of
the most well known rights
in NSW. A person in NSW has the right to remain silent when they are a subject
to investigation for criminal offences. The right to silence extends to
declining to answer questions of the police when taking part in an interview as
well as electing not to give evidence at trial.
This common law right is based on the fact that the
prosecution must prove that the accused is guilty in a criminal matter beyond a
reasonable doubt as the defendant does not have to prove anything. It should be
noted however that section 89A of the Evidence Act 1995
allows for unfavourable inference(s) to be drawn if a defendant fails to answer
a question in relation to a serious indictable offence during official
questioning in relation to an offence and it applies only if:
special Caution was given to the defendant by the investigating official who at
the time of the caution had reasonable cause to
suspect that the defendant had committed the serious indictable offence; and
The special caution was given before the failure or refusal to
mention the fact; and
3. The special
caution was given in the presence of an Australian legal practitioner who was
acting for the defendant at that time; and
The defendant had, before the failure or refusal to mention the
fact, been allowed a reasonable opportunity to consult with that Australian
legal practitioner, in the absence of the investigating official, about the
general nature and effect of special cautions.
Admissions- are they admissible?
A confession made to the police is admissible as evidence in
court if the admission/ confession was made by the person voluntarily (meaning
in the absence of any pressure, trickery etc). Any admission which is made
without a proper police caution is inadmissible and this includes any admission
which was made when a person was intoxicated, injured etc.
Police Interviews & the ‘Right to silence’
A person who is suspected to have committed a crime can
refuse to answer questions asked by a police officer. The only exception
to this is when the police request the person’s name, date of birth and
residential address as these are questions which must always be
answered whether a person is under an arrest or whether a person is not under
If the suspect chooses to participate in a
police interview then the police must caution the suspect- that
is, the police must tell the suspect that he/ she is not obliged to answer any
questions and that they completely understand what the police are saying to
The Defendant Giving Evidence in Court Proceedings?
Section 17 of the evidence act notes that a defendant cannot
be compelled as a witness to give evidence against a co-defendant unless the
defendants are being tried in separate proceedings.
A defendant in criminal proceedings cannot be called by the
prosecution as a witness. A defendant can give evidence in their criminal
matter if they choose to give evidence, or a defendant may choose not to give
evidence. If a person chooses not to give evidence in their criminal trial a
Jury cannot draw any unfavourable inferences which may suggest that the
defendant has failed to give evidence at the trial because they are guilty. It
should also be noted that if the defendant does choose to give evidence at the
trial the prosecution will then cross examine them.
Why Choose Nicopoulos Sabbagh
Lawyers to represent you?
Nicopoulos Sabbagh Lawyers is the
leading Law firm in Criminal Law matters as our office has dealt with the most
complex matters and our office appears in all Jurisdictions in Criminal Law. No
matter is too complex for the team so be sure to book your first Free Consultation
It is very important that you
speak with a lawyer so that you can get the appropriate legal advice which you
require prior to going to court.
Our team of experienced
solicitors are there for you and can help you answer all your questions, so be
sure to contact Nicopoulos
correctly reflects the Laws of NSW as at 8th May 2023.
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Sabbagh Lawyers) are not to be considered as a substitute for legal advice or
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