When arrested, you have a fundamental legal right to silence. You are innocent until proven guilty and police cannot accuse you of being guilty without proof. If authorities insist on charging you, they must prove your guilt. It is not your obligation to prove innocence.
Unlike the Miranda warning used in the United States, Australian police do not always read out your rights. It is important to know them. You generally have the right to remain silent when questioned before and during proceedings, especially if answers may incriminate you. If you are being questioned about a serious indictable offence in NSW, special rules can apply to facts you later wish to rely on. Always seek advice from an expert criminal lawyer about what you should or should not tell police.
Right to silence when arrested
There is a general right to silence, qualified in some circumstances by demands for information and by the NSW special caution regime. You also have the right to contact a lawyer and have them present for interview, the right to medical attention if needed, the right to contact a friend or family member, and the right to an interpreter where required. See our guides on police interviews and your right to silence and what to do if police contact you.
Exceptions to the right to silence
Because of section 89A of the Evidence Act 1995 (NSW), if you are questioned about a serious indictable offence and a valid special caution is given in the presence of your lawyer, a court may draw an adverse inference if you later rely on a fact not mentioned to police at the time. This is a narrow exception with strict requirements, which is why timely legal advice is critical.
Compromising your right to silence
Your protections can be undermined by what you publish. Emails, texts and social media posts can be used as evidence. Never discuss your case with anyone other than your lawyer and do not post about it online. We have seen cases affected by casual posts that cut across a defence strategy.
Should I give a statement to police to prove I am innocent
Except where legal strategy requires it, lawyers generally recommend that you do not give a statement. Police may charge you regardless, and anything you say can be used as evidence even if there is little else. Get advice before answering questions or signing anything. If you choose to speak, ensure your lawyer is present.
Do I have a right to silence as a witness
As a witness, you usually do not have to answer police questions or report a crime. However, for serious matters you may face liability for concealing a serious indictable offence. For NSW, see Crimes Act 1900 (NSW) s 316. If you voluntarily report a crime, you may be asked for evidence and required to attend court. Seek advice if you are unsure about your position.
Do I have to give a police statement if I am not accused or charged
A police statement records your version of events. Before deciding to give one, ask what offence is being investigated and get advice from a criminal defence lawyer. If you do provide a statement, ask for a copy. You must tell the truth. False statements can result in charges. Police cannot force you to make a statement, although you can be subpoenaed to attend court and give evidence.
Making a false statement to police
Each state and territory has offences for false statements or false statutory declarations. Examples include:
ACT – ss 336A, 337 Criminal Code 2002
NSW – relevant offences exist under NSW law for false statements and false accusations
Northern Territory – s 68A Summary Offences Act 1923
Queensland – ss 193, 194 Criminal Code 1899
South Australia – ss 242, 243 Criminal Law Consolidation Act 1935
Tasmania – s 113 Criminal Code 1924
Victoria – s 53 Summary Offences Act 1966
Western Australia – s 169 Criminal Code Compilation Act 1913
Never sign a statement you are unsure about. Do not sign if you are intoxicated or if you need an interpreter. Ask to pause and obtain legal advice. For immediate help, call (02) 8806 0866 or contact us via the Jameson Law contact page.
