Right to Silence
A fundamental common law right that is protected in Australia is your right to remain silent. This right is then enshrined at a state level in Queensland in section 397 of the Police Powers and Responsibility Act 2000 (Qld) (‘PPRA’). Section 397 of the PPRA states that a person has the right to refuse to answer any question unless they are required to do so under legislation.
The basis of the right to silence is the principle that the burden of proof rests with prosecution to prove beyond a reasonable doubt that an accused person is guilty.
What questions am I required to answer?
There are some questions that if asked by a Police Officer you are required to answer, such as:
- Providing your name and address
- Providing your date and place of birth if they are investigating a drug matter
- Questions regarding breaking traffic laws or whether you’ve seen a traffic accident
If you fail to answer those questions you may be charged with an offence of Contravene Direction or Requirement which carries a maximum penalty of 40 penalty units. As of 1 July 2021, one penalty unit is valued at $137.85, so the maximum penalty for this offence currently is a fine of $5,514.00.
Another example of where you are required to provide information to police is where they are executing a valid search warrant which includes an order from a Magistrate that you provide access to any electronic device that is in your possession. In that situation, you will be directed to provide a PIN access to a device such as a phone. If you fail to provide access you will be charged with a different offence of Contravene Order which carries a maximum penalty of five years imprisonment.
Do police have to caution me before questioning?
If you have been arrested or detained because police suspect you have committed an indictable offence, they must caution you about your right to remain silent and tell you that any statements you make might be used as evidence against you.
If the person being questioned has any specific needs, the police officer must also do the following:
- Provide an interpreter where needed
- Have a parent or independent person present when questioning a child about a serious matter
- Notify a legal aid organisation and arrange for support for Aboriginal and Torres Strait Islander people where required
- Allow a person with impaired capacity to speak with a support person and not continue with questioning if the person does not have the legal capacity to be questioned. If police realise that a person has impaired capacity only part way through the interview, they must suspend the questioning to organise a support person
- Not question a person who is under the influence of alcohol or drugs.
If you have been detained and have agreed to participate in a formal interview with police, the police will again caution you about your right to remain silent and tell you that you have the right to contact a support person and a lawyer and allow you to contact them if you wish. The entire interview including those cautions and rights being explained to you will be recorded by police electronically and can be used in evidence against you at your trial.
Should I do an interview with police?
You should always seek legal advice before deciding whether to participate in an interview with police. You may not realise the significance of information you provide and might admit to an offence you did not realise you had committed. In some limited circumstances, it can be beneficial to provide a version of events to police at an early stage of their investigation, however you should always consult with your lawyer before making a decision, and if possible, arrange for your lawyer to be present when you speak with police.
This post contains general advice only and is not intended as legal advice