WHAT IS THE RIGHT TO SILENCE IN NSW? YOUR RIGHTS IN CRIMINAL AND TRAFFIC LAW

The right to silence is a fundamental pillar of the justice system in New South Wales, empowering individuals to protect themselves from self-incrimination during police investigations or court proceedings. Whether you’re stopped for a traffic offence like drink driving or facing serious criminal charges such as assault or drug possession, understanding your right to silence is very important.

At Nicopoulos Sabbagh Lawyers Criminal Defence & Traffic Lawyers, our criminal defence lawyers in Sydney, NSW, are experts in safeguarding clients’ rights, ensuring they navigate police questioning and court processes with confidence. This comprehensive guide explores what the right to silence entails in NSW, its legal framework, practical applications, limitations, and how our criminal lawyers in Sydney can help you achieve the best possible outcome. As a leading criminal law firm in Sydney, we’re dedicated to delivering fierce advocacy and personalised support to protect your freedom and future.

 

Understanding the Right to Silence in NSW

The right to silence is a legal principle that ensures no one is compelled to provide incriminating information to authorities, preserving the presumption of innocence until proven guilty. In NSW, this right applies to both criminal law matters (e.g., theft, assault, drug offences) and traffic law matters (e.g., speeding, negligent driving). It is enshrined in several legal frameworks:

•  Evidence Act 1995 (NSW): Regulates how silence during questioning or trial is treated in court.

•  Criminal Procedure Act 1986 (NSW): Governs procedures for arrests, interviews, and trials.

•  Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA): Outlines police powers and individuals’ rights during investigations.

•  Common Law: Reinforces the privilege against self-incrimination, as established in landmark cases like Petty v R (1991).

The right to silence operates in two key contexts:

1.  Pre-Trial Silence: The right to refuse to answer police questions or provide a statement during investigations, arrests, or interviews.

2.  Trial Silence: The right to not testify or give evidence in your own defence during a court hearing or trial.

Exercising this right means you cannot be forced to speak, and in most cases, your silence cannot be used as evidence of guilt. However, legislative changes introduced in 2013 have created exceptions for serious crimes, making it essential to consult a criminal lawyer in Sydney to understand when and how to use this right effectively.

 

Legal Framework Governing the Right to Silence

The right to silence in NSW is protected by a combination of statutory and common law principles, but it comes with specific rules and exceptions. Here’s a detailed overview:

1. Pre-Trial Right to Silence

When police question you—whether during a roadside stop for a traffic offence, an arrest, or a formal interview—you have the right to remain silent under Section 89 of the Evidence Act 1995 and Section 139 of LEPRA. Key aspects include:

•  Police Caution: Before questioning, police must deliver a caution, typically: “You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence.” This informs you of your right to silence.

•  No Adverse Inference (General Rule): Under Section 89, your refusal to answer questions or participate in an interview cannot be used in court to imply guilt. For example, remaining silent when questioned about a suspected theft cannot be presented as evidence of your involvement.

•  Special Caution for Serious Offences: The Evidence Amendment (Evidence of Silence) Act 2013 introduced Section 89A, which allows courts to draw an adverse inference from silence in cases involving serious indictable offences (punishable by 5 years or more imprisonment, e.g., robbery, drug trafficking, or sexual assault). This applies if:

•  You fail to mention a fact during questioning that you later rely on in your defence (e.g., an alibi).

•  The fact was something you could reasonably have been expected to mention at the time.

•  Police issued a special caution, explicitly warning that your silence could harm your defence, and you had access to a lawyer or declined legal advice.

•  Traffic Offences: For drivers involved in a crash, you must provide details such as your full name, address, and driver’s licence details (and many, many more but just to name a few) under Regulation 287- Duties of a driver involved in a crash of the Road Rules 2014 Act. It is critical that you obtain legal advice.

 

2. Right to Silence at Trial

During a court hearing or trial, you have the right to not testify in your own defence under Section 20 of the Evidence Act 1995. Key points include:

•  No Compulsion to Testify: The prosecution cannot force you to take the stand, and your decision to remain silent cannot be used as evidence of guilt.

•  Judicial Restrictions: Judges and juries are generally prohibited from inferring guilt from your silence, ensuring your choice not to testify doesn’t prejudice your case.

•  Exceptions: In rare cases, if the prosecution’s evidence is overwhelming and your silence leaves it unchallenged, the court may note this, though it cannot directly infer guilt. Additionally, co-defendants in a joint trial may comment on your silence under Section 20(2), but this is tightly regulated.

 

3. Privilege Against Self-Incrimination

The privilege against self-incrimination, recognised under Section 128 of the Evidence Act 1995 and common law, allows you to refuse to answer questions or produce documents that could incriminate you. This applies in court or during investigations, except where specific laws require disclosure (e.g., regulatory investigations with immunity).

Limitations of the Right to Silence

While the right to silence is a powerful protection, it is not absolute and misusing it can have consequences. Key limitations include:

1.  Section 89A Adverse Inference:

•  For serious indictable offences, failing to disclose a fact during questioning (e.g., that you were at a different location during a crime) that you later use in court can lead the judge or jury to question its credibility. This applies only if a special caution was given and a lawyer was available.

•  Example: If you’re questioned about a drug offence and remain silent about a witness who can confirm your innocence, but later call that witness in court, the jury may doubt the testimony’s reliability.

2.  Mandatory Disclosures:

•  In traffic law, you must provide identifying details (e.g., name, address, licence) such as the example mentioned above. Refusing to do so can result in additional charges or fines.

•  Certain regulatory bodies (e.g., Australian Securities and Investments Commission) may require answers in non-criminal investigations, though responses are often inadmissible in criminal proceedings.

 

3.  Practical Risks:

•  While silence cannot be used as direct evidence of guilt, police may view it as suspicious, leading to further investigation or scrutiny.

•  Failing to provide an early explanation (e.g., an alibi) could weaken your defence if evidence emerges later, as it may appear less credible.

 

Given these nuances, exercising the right to silence without legal guidance can be risky. Our criminal defence lawyers in Sydney are available 24/7 to speak to you should you require any advice.

 

Practical Applications in Criminal and Traffic Law

The right to silence is relevant in various scenarios, from roadside stops to courtroom trials. Here’s how it applies in practice:

1. Roadside Stops and Traffic Offences

If police stop you for a suspected traffic offence, such as speeding, drink driving, or running a red light, you can exercise your right to silence by providing only the required details (name, address, licence) and declining to answer questions about the offence. For example:

•  If asked, “How fast were you going?” or “Have you been drinking?” you can say, “I wish to exercise my right to silence and seek legal advice.”

•  For breath tests or drug tests, you must comply, but you can remain silent about related questions.

Our traffic lawyers in Sydney are available to give you any legal advice regarding this.

 

2. Police Interviews and Arrests

If arrested for a criminal offence (e.g., assault, theft, drug possession) or a serious traffic offence (e.g., dangerous driving), police may conduct a recorded interview. You have the right to:

•  Refuse to answer questions or participate in the interview.

•  Request a lawyer, which police must facilitate under Section 123 of LEPRA. This is critical for Section 89A cases to avoid adverse inferences.

•  Receive a copy of the interview recording, which our criminal lawyers can review for procedural errors.

Saying, “I’m exercising my right to silence until I speak with my lawyer,” ensures your rights are protected while maintaining a respectful tone.

 

3. Court Proceedings

At trial, you can choose not to testify, relying on your lawyer to challenge the prosecution’s case through cross-examination, witness testimony, or other evidence. Our criminal defence lawyers in Sydney will assess your matter, the nature of the evidence in the case and consider factors like your defence strategy.

 

Defences and Legal Strategies Involving the Right to Silence

Exercising the right to silence is a strategic decision that should be given careful consideration. Common approaches include:

1.  Challenging Police Conduct:

•  If police failed to issue a proper caution, pressured you to speak, or denied access to a lawyer, your criminal defence lawyers can argue that your rights were violated, seeking to exclude any statements under Section 138 of the Evidence Act 1995.

•  Example: If police questioned you about a drug offence without a caution, any admissions may be inadmissible.

2.  Suppressing Evidence:

•  Statements obtained after improper questioning or without legal access can be excluded, weakening the prosecution’s case.

•  For Section 89A adverse inferences, your criminal defence lawyers can challenge the validity of the special caution or argue that you lacked reasonable opportunity to disclose facts.

3.  Building an Affirmative Defence:

•  Even if you remain silent, your criminal defence lawyers can present evidence like alibis, CCTV footage, or expert testimony to prove your innocence.

•  For traffic offences, your criminal defence lawyers may argue equipment malfunctions (e.g., inaccurate speed cameras) or mistaken identity.

4.  Securing Non-Conviction Outcomes:

•  If pleading guilty, your criminal defence lawyers can use your silence as evidence of caution rather than guilt, seeking a Section 10 dismissal under the Crimes (Sentencing Procedure) Act 1999 to avoid a conviction, fine, or licence disqualification.

•  Your criminal defence lawyers can present character references, rehabilitation evidence (e.g., completion of a Traffic Offender Intervention Program), and hardship documentation to secure leniency.

Your criminal defence lawyers in Sydney, Nicopoulos Sabbagh Lawyers are available 7 days a week, 24 hours per day and your criminal defence lawyers will go through your case in detail.

 

Why Choose Nicopoulos Sabbagh Lawyers?

Facing police questioning or charges without understanding your right to silence can jeopardise your future. At Nicopoulos Sabbagh Lawyers Criminal Defence & Traffic Lawyers, we’re committed to protecting your rights and achieving the best outcome. Here’s why clients across Sydney, NSW, trust us:

•  Specialised Expertise: Decades of experience in criminal law and traffic law, including right to silence cases, police interviews, and court defences.

•  Proven Results: Success in securing Section 10 dismissals, acquittals, and evidence suppression for clients facing criminal and traffic charges.

•  Client-Centred Approach: We listen to your needs and design a defence strategy tailored to your goals, whether pleading guilty or not guilty.

•  24/7 Support: Available around the clock for urgent advice during arrests, roadside stops, or court deadlines.

•  Local Knowledge: Regular appearances in Sydney courts, including Downing Centre, Parramatta, Blacktown, and Burwood, ensuring familiarity with local judges and procedures.

 

How to Exercise Your Right to Silence Effectively

To protect yourself during a police investigation or court case, follow these steps:

1.  Seek Legal Advice Immediately: Contact Nicopoulos Sabbagh Lawyers at info@nslaw.net.au or call 0427 101 499 or 02 9793 7016 for a free initial consultation before speaking to police or attending court.

2.  Assert Your Right Politely: Say, “I wish to exercise my right to silence and speak with my lawyer.” Avoid arguing or providing unnecessary details beyond mandatory disclosures (e.g., name, licence).

3.  Request a Lawyer: Insist on legal representation during questioning, especially for serious offences where Section 89A applies. Police must comply under Section 123 of LEPRA.

4.  Document Police Interactions: Note details of the encounter (e.g., whether a caution was given, police conduct) to aid your defence.

5.  Act Within Deadlines: Respond to court notices or file appeals within 28 days to avoid complications. Our team will handle filings to keep your case

 

Why Choose Nicopoulos Sabbagh Lawyers YOUR Leading Sydney Criminal Defence & Traffic Lawyers to represent you in your Traffic Law Matter?

 

Nicopoulos Sabbagh Lawyers are the leading Law firm in Traffic Law matters as our office appears at ALL Courts in NSW on a regular basis in ALL Traffic Law matters.  No matter is too complex for Nicopoulos Sabbagh lawyers, your Traffic Sydney Lawyers, so be sure to book your first Free Consultation today!

 

GOING TO COURT?

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 your Sydney Lawyers, Nicopoulos Sabbagh Lawyers.

 

*This article correctly reflects the Laws of NSW as at 25^th April 2025.

 

*Please note that this page or any other pages on our website (including any other social media platforms for Nicopoulos Sabbagh Lawyers) are not to be considered as a substitute for legal advice or even other professional advice. It should also be noted that accessing of this information from this website does not create a client-lawyer relationship.