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When arrested, you have a fundamental legal right to silence. You are innocent until proven guilty and the police cannot accuse you of being guilty without proof. If the authorities insist on charging you with a crime they must be able to prove your guilt. It is not your obligation to prove your innocence. 

Unlike the Miranda rights read out to Americans when they are arrested, in Australia the police do not necessarily need to read out your rights to you; so it is important that you know them! Whilst you have the right to remain silent when questioned prior and during legal proceedings especially if you would be incriminating yourself, if you are being charged with an indictable offence, it is sometimes important not to suppress facts that you wish to rely on later in your defence. It is therefore imperative that you seek counsel from an expert criminal lawyer to advise you on your rights and what you must and must not divulge to the police.

Right to silence when arrested

In a criminal matter there is an essential premise of a right to silence that is qualified to some extent by the police issuing a form of demand or administering a special caution. You also have the right to contact a lawyer and have them present for any investigation, the right to medical attention, if necessary, the right to contact a friend or family member and the right to utilise an interpreter, if necessary.

Exceptions to the rule of your Right to Silence
If you are accused of a crime, you can remain silent until a legal representative from a criminal law firm arrives. However, because of a new modification to section 89A of the Evidence Act 1995, remaining silent altogether even when you have representation, may be harmful if you choose to suppress facts that you later rely on in your trial for a significant indictable offence. The exception is in NSW where section 89A of the Evidence Act  stating that Defendants may not be able to rely on a fact unless mentioned to police at the time of questioning.

Compromising your right to silence

Your right to silence are diminished if the you have been communicating using email, SMS or posting on social media. We’ve had cases where representations have been made to the police, and the police have not been willing to entertain them or show leniency simply because of a post on Facebook or Snapchat of a disparaging nature about the officer; and in some cases having published a video which compromised the defence.

So never discuss your case with anyone except your lawyer and do not communicate details of your case via email, SMS, or social media as you are most likely compromising the protections afforded to you by the law to a right to silence.

Should I give a statement to police to prove I am innocent?

Apart from the aforementioned exception (under section 89A of the evidence Act in NSW), criminal lawyers generally recommend that you do not give police a statement if you are accused of a crime. This is because the police may still charge you irrespective of whether you give a statement or not; and giving a statement will likely increase the chances of you being charged and despite your intention to defend yourself. In fact, things you say in your statement can be used to find you guilty of a crime, even if there is no other evidence.

Do I have a right to silence as a witness

Yes, if you witness a crime you have the right to remain silent. You are also under no legal obligation to report a crime or answer police questioning. However when the offence is serious things are different. If you refuse to help after witnessing a significant criminal crime, known as an indictable offence, you may be charged with concealing. If you choose to report a crime to the police voluntarily, you may be asked to produce evidence and/or you may be legally obligated to attend court trials. If you find yourself in this situation, and require direction, you may get in contact with a criminal law firm Sydney to assist.

Whilst the right of silence has been heavily exploited by criminals who know how to use this law in their favour, it does not protect victims and witnesses who expect retribution from offenders because they do not qualify for the right because they themselves are not being charged.

Do I have to give a Police Statement if I am not accused or charged?

A police statement is a written document stating a person’s version of events. You should always discuss the matter with a criminal defence lawyer and make sure the police have made it clear what crime is being investigated before you decide to answer investigator questions or make a statement to police. You should also always ask for a copy of your statement from the police after you have made one. Should you choose to give a statement, it is important to be aware that you can be charged with making a false statement to police if you make an untruthful statement. So make sure you tell the truth. Your statement may help police to investigate the crime. You should consult a lawyer if you feel that making a statement might get you into trouble with the law, or implicate you in the crime, or in any other crime. The police cannot force or coerce you into making a statement, but they can subpoena you to attend court and cross examine you on your version of events.

Making a false statement to the police

Each state and territory has its own legislation that all essentially make it an offence to make a false statement or false statutory declaration. Here is a list of the relevant state legislation:
  • ACT – sections 336A and 337 of the Criminal Code 2002
  • NSW – section 85 of the Criminal Procedure Act 1986
  • Northern Territory – section 68A of the Summary Offences Act 1923
  • Queensland – sections 193 and 194 of the Criminal Code 1899
  • South Australia – sections 242 and 243 of the Criminal Law Consolidation Act 1935
  • Tasmania – section 113 of the Criminal Code 1924
  • Victoria – section 53 of the Summary Offences Act 1966, and
  • Western Australia – section 169 of the Criminal Code Compilation Act 1913.
For this reason you should be careful of anything you include in a statement to police and you should definitely not sign any statement that you are unsure of, or if you are drunk or under the influence of drugs, or if you do not speak English well or at all.

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