Do we still have a right to silence?

Most people imagine after watching American TV Crime shows that they have a universal right to remain silent and this right to remain silence will not be used against them.

In America they call this their Miranda rights.

However, here under the Southern Cross particularly NSW our right to silence is no-where near Miranda quality or strength.

And even though police will tell you ‘you have a right to not say or do anything….’

Do you really have that right? – The answer is yes, but it can be used against you in some instances.

For whilst it is true that you do not have to say or do anything to assist police in their investigation of you.

And generally, this silence will not negatively impact you at trial.

BUT amendments to the NSW legislation in the form of the Evidence Act section 89A does allow in certain circumstances for silence to be used against an accused at his/her trial.

For instance, section 89A of the Evidence Act provides:
 (1) In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or         refused to mention a fact:
However, the only saving part of this trespass on the right to silence in NSW is if a ‘Special Caution’ was given to the person in front of their lawyer.

For instance, section 89A (2) Subsection provides that (1) does not apply unless:
…..(c) the special caution was given in the presence of an Australian legal practitioner who was acting for the defendant at that time……

Therefore, if a lawyer is present with you at the police station police can give you what is known as the ‘Special Caution’ meaning that after police have explained to you in front of your lawyer that you can remain silent but if you remain silent to their questions they CAN drawn adverse inference from that and use this silence against you later in Court.

Thus, your right to silence is no longer useful.

The ‘Special Caution’ only applies to serious indictable offences. A serious indictable offence is an offence punishable by imprisonment for a term of 5 years or more. 

So as an arrested person if you have been charged with a serious indictable offence the last thing you should do is tell your lawyer to attend the police station with you. BUT by all means and it is always recommended to contact a lawyer before speaking to police BUT think carefully about asking your lawyer to attend the police station with you.

Of course, lawyers have been accused of finding easy ways of getting around the “right to silence” laws as a prominent politician once stated lawyers are…“running away from Police stations”

But in all fairness to Lawyers and an arrested person the right to silence should always remain universal and the Law is there to be challenged.

Therefore, if it takes not attending police stations to ensure clients rights remain, then it is a small price to pay to uphold a very important right we should all have access too, no matter the circumstances. 

If you or someone you know has been charged with a criminal offence, contact Rep-Revive Criminal & Employment Lawyers ® for a free initial consultation.


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