The police have the responsibility to protect people and to enforce the law. If you are present in a scene of a crime or if you, yourself, are a suspect of violating a criminal law – then the police will want to ask you questions. However, you have the right to silence which means that the police cannot force you to accept their request for an interview or an interrogation. 

Approached by Police

The right to silence does not mean you can choose to remain anonymous to police when approached. If you are approached by police, you should comply with their request to provide a copy of your identification. You must legally comply with this request if you are; 

  • under the age of 18 years; 
  • involved in a traffic offence; 
  • Suspected of committing an offence on a public train;
  • Suspected on reasonable grounds that you may be able to assist the police in investigating an indictable offence. 

It is important to note that the NSW Police does not have the authority to stop a person for questioning or interrogation if the person has not been arrested.  

Understanding the Right to Silence

As the name suggests, the right to silence is your right to refuse to give information, answer questions, or simply the right to not say anything. If you feel uncomfortable answering questions, you should tell the police officers that you wish to remain silent.

Here are some of the common questions regarding the right to silence:

Will I look guilty if I don’t answer questions from the Police?

The police are not lawfully able to accuse you of being guilty based on a hunch. You have the right to remain silent and the police cannot infer guilt if you choose to take up this right. 

If the police insist that you are guilty based on your choice to remain silent, keep in mind that they need to prove that you are guilty and that it is not your responsibility to prove that you are innocent. This is called the presumption of innocence, and is a major focal point of the English legal system. You are innocent until proven guilty.

Would it be better if I answer SOME of the questions?

No, fully commit to your choice. It may feel awkward not to answer questions from the police, but agreeing to answer some questions and denying to answer others can make your situation worse.

It is important to note that if you have not been arrested,  you do not have to go through the interview process to deny your involvement in the crime. You do not have to be in the interview room to say that you are innocent, and you do not have to be in the interview room to record your refusal to be interrogated. As mentioned previously, tell the police right off the bat that you do not wish to be interrogated if you have not been arrested. 

What kind of questions can I expect from the Police?

The police will want details from the scene. Expect questions confirming the people involved and asking you for details about what happened. They may also ask whether you are involved in any way, whether as the suspect or a witness.

As a witness, the police may want to show you images or CCTV footage and ask you to confirm the identity of the suspects. Keep in mind that this is part of their job, they have the rights to ask questions. However, do not forget your own rights and remember that you are not obliged to answer.

You also need to keep in mind that anything you say can be used against you or others in court. It is always advised to seek legal assistance before answering any questions from the police. If you wish to answer without legal assistance, make sure that you think your answers through.

Is it okay to give the Police my name and address?

Your name and address are one of the few exceptions to the right of silence. Refusing to give these details is may be an offence. If you feel unsure about giving out your identification, you should call for legal assistance.

Is it better if I just go through the interrogation?

The decision is for you to make, but keep in mind that it is better to first seek legal advice from lawyers who are experts on criminal law before agreeing to an interview or interrogation. 

There are times when agreeing to an interview works in your best interest, and a lawyer can help you confirm when it is advisable to agree to one. Inversely, sometimes an interview may lead to you being charged and a lawyer can warn you against it.

The bottom line is: talk to a lawyer first. And remain silent while you wait for one.

If I am a witness, do I have the right to silence?

Yes. Even if you are a witness to the crime, you have the right to silence. You have no legal obligation to report a crime or answer questions from the police. However, things are different if the crime is a serious offence. In case you witnessed a serious crime, which is called an indictable offence, refusing to assist will lead to prosecution for Concealing

If you voluntarily report a crime to the police, keep in mind that you can be asked to provide evidence or be legally required to attend court trials.

How can I tell if I am being interviewed or interrogated as a suspect?

Even if you are not actively involved, if you are present when the crime happened and it is committed by the people you are with, then there is a high probability that you will be seen as a suspect. It is for your best interest to invoke your right to remain silent until you have legal assistance by your side. 

If you are present at the scene of the crime but have never met the suspects, then the police will treat you as a witness. 

Amendment to the Evidence Act- Section 89A

Two laws were introduced to the Evidence Act of 1995 by the new amendments made effective on 1 September 2013. These two laws include:

  • The Evidence Amendment (Evidence of Silence) Act 2013 (NSW)– This law limits the right to silence for a serious indictable offence, and allows the juries to draw an unfavourable inference against the accused who relies on facts in the trial that were not mentioned at the time of official police questioning. In other words, if the accused chooses to remain silent and not provide the relevant facts to the police in the initial questioning, but relies on those facts during the trial, the jury may look adversely upon the accused. 
  • The Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 – This law makes it compulsory for both defence and prosecution to provide an outline of their cases ahead of the trial proceedings.

Conclusion

Police interviews and interrogations sound intimidating, however, you need to remember that you have the right to silence. You must be mindful of what you say or what you decide to do.

If you are accused of an offence, you may choose to remain silent until an Australia legal practitioner is present. However, due to the new amendment to the Evidence Act of 1995, it may be disadvantageous for you to remain silent if you choose to withhold facts that you later rely on in your trial for a serious indictable offence. 

Executive Legal have skilled lawyers who are experts in criminal law. Get in touch with us for legal assistance.