One of the most fundamental, yet often misunderstood and seldom utilised rights of an accused person is his right to silence.

What is the right to silence?

In a nutshell, the right to silence is:

The refusal by an accused person to answer questions put to him by an investigator cannot be used against the accused person in a court case.

Why do we have a right to remain silent?

The right to silence is derived from the following principles:

  1. Every person accused of a crime is presumed to be innocent.

  2. It is for the prosecutor to prove beyond reasonable doubt (in most cases) that that person has committed a criminal offence.

  3. The fact that a person has not told the police his or her side of the story cannot (in the overwhelming majority to cases) be used against him in a court case.

Why was the right to silence created?

An interview is usually conducted between:

  • An interviewer – who is a professional investigator experienced in the law, rules of evidence and criminal procedure; and

  • The person being interviewed – who usually has no or little understanding of the law, rules of evidence or the investigation process.

There is a real danger that, in this unequal setting, the person being interviewed may say things that can be unfairly used against him in later court proceedings.

This is one of the principal reasons why our legal system has retained the right to silence for centuries.


There are some limited exceptions to the right to silence. These include:

  • A person involved in a traffic accident must provide information such as his name and address and the circumstances of the accident to a police officer.

  • The newly enacted section 89A of the Evidence Act provides that in the case of certain serious offences, a defendant’s failure to mention a fact during official questioning that he could have reasonably been expected to mention, may be used against him if he later relies on it as a defence.

Dangers of participating in a police interview

A person being interviewed by police may not be able to express his version of events accurately because of a number of reasons. These include:

  • He is usually in a state of distress following a recent traumatic incident.

  • He has never been in the custody of police before and/or is unfamiliar with criminal law, procedure and rules of evidence.

  • He has poor communication skills or has limited English language skills. Even where an interpreter is used, it is often the case that the interpreter does not interpret each question and answer in an interview accurately.

  • In reality, most police interviews end up in the interviewer trying to obtain admissions from the accused person that he has committed criminal offence/s.

  • Many accused are not aware of certain defences that they could raise: eg, the right to self defence.

  • He does not appreciate the effect of what he is saying. For example:

      • admitting that he touched someone (an assault) but not being able to explain the surrounding circumstances;

      • inadvertently agreeing to inaccurate or incomplete descriptions of his actions (eg, “Yes, I grabbed him”, “Yes, I pushed him, “Yes, I was angry”) without explaining  the context; or

      • admitting technically committing an offence (eg breaching an AVO) but not explaining that the act was accidental/not willful.

  • In an interview, accused persons can forget to mention relevant evidence or can appear evasive or unreasonable. This is often because the defendant is in a state of anxiety in an unfamiliar and intimidating interview environment.

  • In many cases, a complainant later withdraws his complaint or changes his story. If a defendant has admitted committing an offence in a police interview, then he will still be prosecuted for the offence.


The above is an attempt to provide some background to a complex area of law.

If you are asked to take part in a police interview, you should first obtain advice from a suitably qualified lawyer.