Right to Silence in Queensland

Legal Resource

Kerri Fredericks – Principal Lawyer

24 September 2019

Kerri Fredericks – Principal Lawyer

24 September 2019

Kerri Fredericks Principal Lawyer in Anderson Fredericks Turner. Prior to operating a law firm she worked as a Crown Prosecutor and Barrister in Queensland. With a background of significant courtroom advocacy, she is independently recommended as a criminal lawyer in Australia.

The Right to Silence in Queensland

The Right to Silence in Queensland

The right to silence is something that is better known than understood.

Today I am going try to delve into the place of the right to silence in criminal law proceedings as they apply in Queensland. There are primarily three things I am going to address:

  1. The exceptions to the right to silence in Queensland;

  2. When remaining silent results in no adverse inferences; and,

  3. When remaining silent does result in adverse inferences.

There are two things that I should caution people about from the start. First, there are laws across Australia that modify or qualify the right to silence in a variety of ways. So what I outline about Queensland may be of no relevance to other states or territories in Australia. And second, in providing this information about the right to silence, it is not intended to be and certainly should not be relied on as any form of legal advice, or a substitute for legal advice.

Whether or not to exercise your right to silence in a particular situation depends very much on the specific considerations that apply. If you want to obtain legal advice about a specific situation, our law firm does provide a free case assessment to determine if we will be able to assist a particular issue or concern.

What is the right to silence?

A person who believes on reasonable grounds that he or she is suspected of committing an offence is entitled to remain silent when a person in authority seeks to ask them questions. A person who exercises the right to silence should not have any adverse inference drawn against them for declining to answer questions. The right to silence has been modified and qualified by numerous laws throughout Australia.

While the existence of the right is confirmed for indictable offences by s. 397 of the Police Powers and Responsibilities Act 2000 (Qld), it is also qualified or abrogated by other laws. As such, it is quite wrong to consider the right to silence is ‘codified’ by any law in Queensland.

Criminal LawyersLeading Criminal Lawyers

Why is there a right to silence?

The right to silence is grounded in the principle that it is for the prosecution (often the State) to prove the guilt of the accused person. A person is innocent until proven guilty. An important component of the principle is that people accused of a crime should be free to remain silent in the face of an accusation and demand that it be proved against them. In other words, our system of criminal justice generally demands the prosecution prove its case rather than a person accused of a crime prove their innocence. In essence, you are “innocent until proven guilty”.

The innocent and guilty alike may resort to the right to silence. While I imagine many people think you would only resort to the right to silence if you were guilty, in practice I find there are sometimes good reasons even for innocent people to exercise the right.

In the face of police questioning, it is the case that people do panic and not put their best foot forward, or through panic make matters worse. Sometimes a judgement is made that the investigating police are going to charge someone no matter their explanation, so it is better to wait until a later point to reveal your hand and the flaws in the prosecution case. Each case will depend on its own circumstances.

Exceptions to the Right to Silence

There are exceptions to the right to silence, which are often overlooked or misunderstood. This is where the danger can set in for people who actually need to make a decision. It is why people should seek out a lawyer who knows what they are doing, if they have a decision to make as to whether to speak or remain silent.

One fundamental thing to realise is that the right to silence is generally restricted to people facing questioning by someone in authority, such as a police officer. So, questions by a person not in authority may be treated differently. For instance, an adverse inference may arise against a person who remains silent in the face of an accusation made by a person with whom they are on an equal footing, as was held in the case of R v Alexander [1994] 2 VR 249.

Even if it is a person in authority, there are certain exceptions to that rule. In Queensland, some of those exceptions can involve police officers asking you to:

  • provide your name and address (in prescribed circumstances); and,

  • state your age and, if reasonable, produce proof of your age (in prescribed circumstances);

There are other people who hold positions of authority, such as investigators under the Liquor Act 1992 (Qld), who have the power to require people to provide their name, address and age.

For matters involving certain traffic offences, police officers have a wide power to require certain people to identify or help identify the person in control of a vehicle when the offence took place. For ‘relevant vehicle incidents’, which generally involve traffic incidents involving death or harm to a person or animal, additional powers are given to police in Queensland.

In circumstances where people are required by law to provide information, such that the right to silence does not apply, a person may commit an offence that is punishable by imprisonment.

In some cases, a search warrant may also specifically require a person to produce information to a police officer, such as passwords to a computer. In Queensland, failure to comply can result in a charge that is punishable by imprisonment. In the case of Ross v Commissioner [2019] QCA 96, a person who contravened that section received a term of imprisonment for the offence.

There are other circumstances in Queensland where a person may be compelled to speak to people in authority, notwithstanding the general right to silence. Anyone called to any of the following law enforcement and intelligence agencies will generally be compelled to answer questions, even if the answer would tend to incriminate them:

While there may be certain privileges or exceptions to certain questions asked by such agencies, failure to answer questions can result in a person being charged with an offence. Such offences can carry actual jail time as part of the punishment.

Knowing how any exception to the right to silence may apply in a specific case, and the limits of those exceptions, is important for anybody who may be the subject of a police investigation. Frankly, I think anybody facing a police investigation ought to seek advice from a criminal defence lawyer, even if they think they are right as rain. Sometimes storm clouds gather from an unexpected direction.

Legal Funding Options
Call Us Today

How silence may be used in criminal trials

When people say silence can never be used against you in a criminal case because of the right to silence, they are wrong. For this purpose, I’m going to be referring to both answering police questions, as well as remaining silent and not giving evidence during a criminal trial.

It will help to go through the two different ways silence may be used. One way is when no adverse inference may be drawn against a defendant and the other is when an adverse inference may be drawn.

  1. When no adverse inference may be drawn

As we know, a person who believes they are suspected of committing an offence by police may refuse to answer questions asked of them by a person in authority. We understand that relates to the presumption of innocence but it would be rather meaningless if by exercising the right, some adverse or negative view should be formed from it.

So the law in Australia, including in Queensland, is that in most cases, if a person exercises their right to silence, no adverse inference may be drawn by that fact. The key is exactly that – in most cases.

In many cases in Queensland, where it is an issue, there may even be evidence of a police officer cautioning a person that they may exercise their right to silence. In such cases, a jury is often told that it would be quite wrong to reason that because the accused exercised their right that he or she must have something to hide. Essentially, it cannot be used against the accused.

  1. When adverse inferences may be drawn

Strictly speaking, it may not be an ‘adverse inference’ but there are a number of laws that require a person accused of a crime to positively raise a defence. So if a person remains silent in such a case, they will not raise the defence. An example is a charge of possessing a relevant substance or thing under the Drugs Misuse Act 1986 (Qld), whereby the law requires the person charged “to prove that the person has a reasonable excuse for possessing the relevant substance or thing”.

An adverse inference may be also drawn when a person chooses to remain silent in the face of an allegation made by a person not in authority, where common sense would dictate an innocent person would protest their innocence.

A very important example of an adverse inference may arise from silence comes comes from two cases of the High Court of Australia, Weissensteiner v The Queen (1993) HCA 65 and Azzopardi v The Queen (2001) HCA 25. Where there are additional facts that would given an innocent explanation to the prosecution case against an accused and those additional facts would be known only by them and nobody else, it is possible to more safely conclude the accused is guilty if they elect not to give evidence of additional facts which raise an innocent view of the prosecution evidence.

While the cases of Weissensteiner and Azzopardi raise the notion that adverse inferences may be drawn from silence in limited cases, a jury will still generally be told there may be other reasons for a person not to give evidence in such a case, such as from timidity, prior explanations to police, or fear of retribution just to name a few.

Summary

In all, the right to silence is not a simple, straight-forward area of law. Rather, it is an area where people can be lulled into thinking it presents with obvious answers, only to find getting it wrong has devastating consequences that cannot be undone.

Please remember that this was never intended to be anything other than an overview of the law in Queensland. And I have only just scratched a small portion of the surface.

Being aware of the fundamentals of the right to remain silence, what that right essentially means and what exceptions there are is valuable. However, if you or a family member find yourself in a situation where you are contemplating whether exercising the right to silence is the correct decision in your case, getting legal advice is certainly something to consider.

More Information

The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.

Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving police interviews and the right to silence. Our lawyers are available for all courts throughout Queensland and we operate from local offices in Brisbane, Beenleigh, Maroochydore, Southport and Townsville.

Call Us Today

More Articles