Your right to silence – when to keep it zipped.

Dealing with the police is daunting, especially if you are arrested on suspicion of having committed an offence. Let’s be honest, no matter how big and tough you feel, being pulled in for questioning is going to be unpleasant. It’s stressful, worrisome and you will not always be in the best headspace to answer questions appropriately. 

That’s why it’s critical you know your rights and understand how to exercise them appropriately. Ultimately what you do and say to the police can have a significant bearing on the outcome of any charges that are brought against you. 

So: be respectful, but be mindful. Quite literally your freedom and livelihood is at stake as soon as you open your mouth. 

Make no mistake, the police aren’t there to help you, they are there to charge someone. Everything they do and say is for their benefit, not yours. Everything you say may well be admissible if the matter reaches court — so think long and hard. 

Your right to silence is protected by law and exists to prevent police oppression or force against you or anyone else. It is fundamental to ensuring your liberty and operates on the legal presumption that a person is innocent until proven guilty.

As such, if you are approached by the police, you do not have to answer every question they ask. All you need to do is identify yourself: provide your full name, date of birth and residential address. In some cases, such as being pulled over for a traffic offence, you may need to show the police your driver’s licence.

That’s it. Name, date of birth and address is all you need to communicate before speaking to a lawyer. 

If you are arrested on suspicion of committing an offence, the police can take you into custody and interview you. However, aside from identifying yourself (as mentioned above), you are not automatically required to answer every interview question the police ask you. Also note that if you are Indigenous Australian, you must make this known to the police as there are specific guidelines police are required to follow in this case. 

In this situation, stay calm (as much as possible), be respectful and be mindful. To exercise your right to silence, answer interview questions with ‘no comment.’ It’s important to remain consistent and continue to answer with ‘no comment’ throughout the entirety of the interview. 

If you choose to remain silent, the police cannot use this behaviour to infer that you are guilty. Nor will you be seen as being uncooperative with the police. If your matter continues to court, a jury cannot use your silence to infer guilt or assume you had something to hide. 

If you do choose to answer police questions, be aware that anything you say can be used against you as evidence in court. This is true for anything said in police custody, regardless of whether the police are questioning you or whether your comments are directed to a police officer. 

In addition to your right to silence, you have the right to request information from the police. This information includes: 

  • The reason for your arrest (the offence you are suspected of committing or being involved in);
  • The police officer’s identification (their name, rank and station). This information is necessary should you choose to lodge a complaint for police misconduct later. 

Upon your arrest, the police are required to caution you by informing you of your rights and ensuring you understand your rights. These include your right to silence as well as your right to make two phone calls, one to a friend or relative and another to a legal practitioner like Green & Associates. You should make these phone calls as soon as possible. If the police fail to inform you of your rights to these phone calls, you are entitled to request to make your phone calls before questioning begins. 

It’s important that you speak to a lawyer like us as soon as possible. During police interviews, the police will ask questions from their point of view. Your perspective and reasoning may not be understood by the police the way you intended, and any information you provide can be used against you later. Moreover, your lawyer can provide specific advice as to how your matter should be presented and the best course of action for you to take. Recount your understanding of events to your lawyer at the earliest possible date. 

If you find yourself in this situation please get in touch with us on (02) 8080 7585 as quickly as possible so we can help advise you of the best course of action.

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