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:
<![if !supportLists]>1. <![endif]>A 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
<![if !supportLists]>2. <![endif]>The special caution was given before the failure or refusal to mention the fact; and
<![if !supportLists]>3. <![endif]>The special caution was given in the presence of an Australian legal practitioner who was acting for the defendant at that time; and
<![if !supportLists]>4. <![endif]>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 an arrest.
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 them.
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.
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*This article correctly reflects the Laws of NSW as at 8th May 2023.
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