Right to Silence
by Graham Maranda
Writing a story with cops and robbers?
Does part of your plot involve questioning, arresting and / or interviewing someone? Does questioning
involve informal (questions undertaken in the street or scene of the crime) or a formal (structured interview
process which most likely will be presented in a future court hearing)?
Let me try to put some clarity to the fundamental matters involved in a person's right to silence.
'The right to remain silent is a legal protection given to people undergoing police interrogation or
trial. The law is recognized, explicitly or by convention, in many of the world's legal systems. The
right covers a number of issues centred on the right to refuse to answer questions' [Wikipedia].
In England in 1912 Judges of the Kings Bench created the Judges' Rules. Amongst those rules was one that
clearly stated when police charge a suspect with some offence and intend to interview that person, police should
first caution the person that he or she is entitled to be silent. Our Australian legal system was and is
strongly built around English Law. Therefore, as a matter of course we adopted the Judges' Rules including a
persons' right to be cautioned.
A person has the right to remain silent. In some Australian jurisdictions legislation has been
enacted requiring police to caution suspects of the right (for example NSW, SA, Commonwealth and
Victoria). At trial, in all Australian jurisdictions an accused has a choice to give sworn evidence or
'The New South Wales Evidence Act 1995 codified the common law right to silence. The Evidence Act also
changed the law concerning the defendant's right to silence at trial. The change now permits a trial judge to
make comment to the jury on inferences it (the jury) may draw from the fact that the defendant exercised the right
to silence' [Law Reform Commission Report].
CAN POLICE PUT QUESTIONS TO PEOPLE GENERALLY?
This question was answered by a High Court Judge some years ago in the United Kingdom. The Judge ruled
that police, in the normal course of their day, are duty-bound to ask people questions but if a person refuses or
declines to answer, the police officer can only proceed further if the law permits. That is to say,
legislation provides certain powers to continue his interrogation by powers such as detain, search & seizure
For example, it may be simple fact a police officer sees a person who does not look familiar; that police
officer may put to that person whatever questions he desires to determine who the stranger is. However, if
the stranger elects not to answer each or any question then the police officer can pursue his line of questioning
if the law allows (reasonable suspicion to search and / or arrest).
The NSW Court of Criminal Appeal case below provides view of 'reasonable suspicion'.
Regina -V- Rondo  NSWCCA 540 (24 December 2001). It says, inter alia:
- A reasonable suspicion involves less than a reasonable belief but more than a possibility.
- Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be
- What is important is the information in the mind of the police officer stopping the person or the vehicle
or making the arrest at the time he did so. Having ascertained that information the question is whether that
information afforded reasonable grounds for the suspicion, which the police officer formed. In answering that
question regard must be had to the source of the information and its content, seen in the light of the whole of
the surrounding circumstances.
However, once a police officer makes their mind up that a person has committed a offence (that is sufficient
evidence has been gleaned to place the person before a court) that police officer MUST inform the person that they
are not obliged to say anything further, as anything they may say can be used in court as evidence. In other words,
that person must be advised of their right to silence.
POWERS OF ARREST
In general, most States and Territories within Australia have similar powers of arrest. Looking at New South
Wales legislation the police can arrest someone who:
(a) is in the act of committing any statutory offence, or
(b) has just committed a statutory offence, or
(c) has committed a serious indictable offence for which the person has not been tried, or
(d) is wanted on warrant.
Police can also arrest a person, without warrant, if they suspect on reasonable grounds that the person has
committed a statutory offence. These powers will be very similar throughout Australia.
A person cannot be arrested for the sole purpose of questioning alone. Any detention of a person must be based
on an offence being (or about to be) committed tied in with 'reasonable suspicion' of that suspect committing the
However, at the time of making an arrest (or before) police should provide:
- Evidence they are a police officer (unless in uniform)
- Name and place of duty
- The reason for the arrest
- A warning that failure / refusal to comply during the arrest may be an offence.
Case law requires police to arrest a person by touching or by using words to advise of the arrest. The
suspect must also be advised of what they are being arrested for, unless of course the suspect is putting up the
fight of their life and it is obvious, to the Court, that their actions and the surrounding circumstances shows the
suspect knew they were being arrested.
Yes, I know it is bleedingly obvious no right minded police officer could explain in slow, articulated
legalistic terminology what a person is being arrested for - whilst simultaneously rolling around on the ground
THE CAUTION - RIGHT TO SILENCE
'Police are required to caution someone once they (1) arrest, (2) believe there is sufficient evidence to
establish they have committed the offence, (3) would not allow them to leave if they wanted to, or (4) have given
them reasonable grounds to believe they would not be allowed to leave if they wanted to' [NSW Police Code of
Practice for CRIME].
Failure to provide the caution (advice as to right to silence) at the appropriate time may see a Court later
rule certain conversation/admissions and/or evidence as improperly obtained and inadmissible.
The NSW Police Code of Practice tells us the initial caution is broken into two parts:
I am going to ask you some questions. You do not have to say or do anything if you do not want to. Do you
We will record what you say or do. We can use this recording in court. Do you understand that?
Then when a formal interview, either electronically or manually, is about to take place the caution is provided
I am going to ask you more questions. You do not have to say or do anything if you do not want to. Do you
We will video tape/tape record/type up our questions, your answers and what you do.
We can use this recording in court. Do you understand?
Of particular importance, the Crimes Act 1900 (NSW) s 424A provides that admissions made during police
questioning in New South Wales are not generally admissible as evidence in trials for indictable offences unless
they are electronically recorded.
The prosecution must establish a reasonable excuse for failure to audio tape or video record admissions, such as
mechanical failure, lack of availability of equipment or refusal of cooperation by the suspect.
DETAINED IN CUSTODY
Once a person is arrested there is a requirement at law that the arrested person is taken before a justice and
dealt with according to law. However, legislation allows that once a suspect is lawfully arrested they can be
taken to a police station and detained for a reasonable period (for investigative purposes) for up to 4
hours. After this time police must either (a) release the suspect, (b) charge the person with an offence, or
(c) make application to a Magistrate or Justice to detain the suspect for a further 4 hours.
So, if all charging processes are complete and the matter is substantively serious (police request bail be
refused) then the person will be taken to appear before the nearest court (weekday and during court hours).
Otherwise the alleged offender will be held overnight to appear at the next court day sitting. If police are
not opposing bail then the alleged offender will be bailed from the police station to appear before court on a
future date (usually 3 weeks ahead).
MY FINAL WORDS
Being a long-term investigator (either as the interrogator, corroborator, investigation supervisor or overall
manager) I have always believed in procedural fairness. A key element in procedural fairness is ensuring the
suspect / person interviewed is clearly aware of their rights.
You may hear, from time to time, the argument that suspects should not have the right to silence. Well,
any investigator worth their salt will tell you that when an investigation is carried out to its fullest it will
not matter whether the suspect talks or not, in the end. Good investigators will throw a broad net to
capture/analyse/dissect/ then prepare & present to the court:
- testimony from all relevant witnesses
- crime scene evidence
- other scientific evidence
- documentary evidence that directly or by circumstance links the suspect to the crime
- evidence of expert witnesses
- aerial maps
- certified weather reports
… the list can go on and on.
Let me give you a couple of my examples where people have elected the Right to Silence.
In the mid-1990s we ran a covert operation purchasing illicit drugs from targets operating in a hotel. One
target sold a drug to the undercover operative. The monies had been documented before use. The
'purchased' drug was weighed, photographed and lodged as an exhibit. A month later the target was arrested
and requested the presence of his solicitor.
The person was interviewed with his solicitor; however declined to answer (right to silence) questions. In
fairness I offered to show him (and the solicitor) what evidence we possessed concerning the supply of the
drug. In a formal interview I outlined the evidence of the undercover operative; I also showed copies of the
money handed over on the night, photographs of the drug when lodged in police exhibits, etcetera. On leaving
the interview room the solicitor whispered to me "we will be pleading guilty to this one".
Investigating a very violent armed robbery in 2002 we identified a strong suspect (his fingerprint was found on
a newspaper inside the getaway car). Subsequent to a long investigation (including a long-term cat &
mouse game played out by us and the suspect) I formally interviewed the suspect about his involvement in the
robbery. He (rightfully) refused to answer any questions. I asked if he would like to listen to what evidence
we possessed (without making comment as he previously indicated unwillingness to answer). Eventually, after
putting 147 questions to him (yes he did choose to make certain comments here and there) the interview was
concluded and he was charged.
© Graham Maranda