When You Say Nothing At All – When Can Silence Be Held Against You?

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The right to remain silent when being interviewed or questioned by police has been considered by many to be a fundamental legal right. However, this is no longer the case following legislative reforms by the NSW government earlier this year. There are certain circumstances where your silence can be held against you in a criminal trial and the judge or jury can be invited to draw an unfavourable inference against you.

Previously, you could decline to give an interview or answer specific questions to police without fear of retribution. There were some exceptions to this rule, such as failing to mention an important fact when answering questions but then seeking to raise it later in your defence. This remains the position except to the extent that it has been varied by the Evidence Amendment (Evidence of Silence) Act 2013 (NSW). The Act inserted a new section 89A was inserted into the Evidence Act 1995 (NSW). The changes came into effect on 25 March 2013.

The new provision allows the decision maker in a criminal trial – whether it be magistrate, judge or jury – to draw an unfavourable inference when you fail to answer a question or mention a fact when being questioned by police if the answer or fact would reasonably be within your knowledge.

What is an unfavourable inference? Say, for example, you are being questioned by a police officer who is investigating a bank robbery that occurred on Wednesday at 2.00pm. Say, then, that the officer asked you, ‘Where were you at 2.00pm on Wednesday?’ If you decided not to answer that question, the jury would be allowed to draw the inference that is most unfavourable to you – that is, the reason you didn’t answer was because you were present at the bank robbery at 2.00pm on Wednesday.

There are some limits to the new provision. It only applies to the investigation of serious indictable offences (which are offences punishable by a maximum sentence of imprisonment for 5 years or more). It also only applies in situations where the answer or fact that you fail to provide is to be relied upon in your defence at trial.

There are other protections that apply specifically to the person being questioned. A special caution must be given to you by police in the presence of your lawyer. You must be given the opportunity to consult with your lawyer about the nature and effect of the special caution in the absence of police. You must be aged 18 years or over and be capable of understanding the special caution.

As you can see, there are now some very real and very important consequences for people that decline to give an interview or answer specific questions to police. It can be held against them if the investigation proceeds to criminal charges and trial.

This does not mean that you should never assert your right to remain silent in the course of a police investigation. However, it is a good idea to seek some legal advice before you do so.

The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.

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