The Right to Silence in New South Wales

Unlike in the United States, there is no constitutional protection for the right to silence in Australia.

Rather, the fundamental centuries-old democratic principle that a person’s silence cannot be used against them at a later time has developed through ‘common law’ – also known as judge-made law – which are decisions made by the courts over time, often in the interests of promoting the interests of justice.

Until 2013, the right to silence was a fundamental component of the criminal justice process in New South Wales, meaning for example that the silence of a person of interest or suspect at the police station or the decision by a defendant not to take the witness stand, or not to incriminate themselves while there, could not be used to draw adverse (negative) inferences or findings suggesting their guilt.

However, as outlined later in the article, this all changed for New South Wales under the O’Farrell Coalition government a decade ago.

But before outlining the current state of the ‘right’ to silence in our state, it should be recognised that police will not always seek to comply with protections that do still exist under the law.

NSW police interfere with right to silence

A recent investigation by the New South Wales police watchdog, the Law Enforcement Conduct Commission (LECC) into an arrest which hospitalised an Indigenous teen determined that the officers involved compromised the youth’s right to silence. 

The 14 year old was arrested along with another teen in September 2022 in Northern New South Wales, as part of an ongoing investigation into a number of property offences. Footage taken shortly after the arrest and posted online showed both boys sitting on the ground, back to back, in handcuffs.

The 14-year olds face was covered in blood, and it was this graphic image which sparked the LECC investigation – use of excessive force by members of the NSW Police, particularly during the arrest of indigenous youths – has become alarmingly common. 

Arrest as a last resort 

Although the 14-year old was taken to hospital, the LECC maintains the arrest was lawful and officers did not use excessive force. The boy hit his head on gravel as he was tackled by Police.

Both boys were subsequently charged with offences relating to trespass and possession of suspected stolen goods. 

However, LECC Chief Commissioner Peter Johnson was highly critical of some of the actions by police, saying Police should have considered diversionary options under the Young Offenders Act and described the decision to arrest a young person as “the last resort”, and further that the officers interviewed the 14-year-old despite a lawyer from the Aboriginal Legal Service telling the police custody manager that the boy did not want to be interviewed.

The LECC mentioned it had also received complaints from the Director of Public Prosecutions about similar matters in which police had interviewed vulnerable people despite their representatives advising officers otherwise.

“The NSW Police Force has failed to address interviewing practices which compromise the right to silence, despite a number of court decisions setting out the problems with these practices,” Chief Commissioner Peter Johnson said. 

What is the right to silence? 

If you’re a fan of US television, you’ll probably know the Miranda Rights by heart – they go something like this: “You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.”

In the USA this right is also protected by the 5th Amendment of the Constitution. 

As stated earlier, the Australian Constitution does not protect the right to silence. Rather, the fundamental rule that a person’s silence during any phase of the criminal justice process – whether during arrest, the investigation phase or at trial – cannot be used to draw an adverse inference against them is a centuries-old ‘common law principle’; in other words, one developed by the courts over time.

The right to silence in Australia in fact describes a range of separate rules that apply in criminal law, one of which is contained in section 89 of the Evidence Act 1995 (NSW) (and equivalent sections of Evidence Acts across the nation) which provides as follows:

89 Evidence of silence generally

(1) Subject to section 89A, in a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused–

(a) to answer one or more questions, or

(b) to respond to a representation,

put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.

(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.

(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4) In this section–

“inference” includes–

(a) an inference of consciousness of guilt, or

(b) an inference relevant to a party’s credibility.

Putting this legal right into practice requires that police do several things including making an accused person aware of their right to not answer their questions, as well as not using their silence against them at any stage in criminal law proceedings.

Dilution of the right to silence in New South Wales

However, on 1 September 2013 the New South Wales enacted section 89A of the Evidence Act which has curtailed the right to silence in certain situations.

The law, which at the time appeased calls by police to keep criminal defence lawyers away from police stations, means that a person’s silence when questioned by police can in some cases be used later in court to draw an adverse (negative) inference against them.

The section provides that unfavourable inferences may be drawn against a defendant in criminal proceedings if, during official questioning (eg police questioning) the failed or refused to mention a fact:

1. That the defendant could reasonably have been expected to mention in the circumstances existing at the time, and
2. That is relied upon by his or her defence in the criminal proceeding.

This ‘exception’ to the right to silence only applies if the following circumstances exist:

1. The person is at least 18 years of age, 
2. A ‘special caution’ is given by police to the effect that silence may be used at a later time to draw such adverse inferences,
3. That caution is given in the presence of an Australian legal practitioner (ie a lawyer),
4. The person is suspected of a serious indictable offence ie one that carries a maximum penalty of at least 5 years in prison (which, in practical terms, covers most offences for which a person would be brought to or required at a police station, and
5. The person is given a reasonable opportunity to consult his or her attending lawyer in the absence of the police.

It is not difficult to see how this law has had the effect of keeping lawyers out of police stations (so as to protect the right to silence of their clients) and thereby giving officers the greatest opportunity to exert pressure to participate in police interviews, something which is almost always against a person’s interests.

Evidence can be compelled in certain situations

There are additional exceptions to the right to silence in proceedings conducted by various tribunals and commissions, including those brought by the New South Wales Independent Commission Against Corruption and the National Anti-Corruption Commission – where witnesses can be compelled to produce documents and answer questions.

There are also certain terrorism-related offences in respect of which law enforcement agencies are empowered to can compel disclosure from suspects where the situation is considered serious and important enough to justify it, and prescribed procedures are followed.