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Did you know you have rights and powers when dealing with police? – Part 2

In our previous article we discussed the power to request the identity of a police officer.

This article deals briefly with the right to silence and how far this can be taken.


The Right to Silence

Generally speaking, a person does have a common law right to remain silent when asked a question.

The mere refusal by a suspect to:

  1. answer police questions relating to the commission of an offence; or
  2. to advance an innocent explanation of the circumstances which throw suspicion upon him or her

affords no basis for an inference of guilty: Petty and Maiden v The Queen [1991] HCA 34.

A person cannot always remain silent though. Some legislation compels a person to talk, especially in the case of disclosing a person’s identity to authorities.

For example, section 175(1) of the Road Transport Act 2013 (NSW) effectively requires drivers and “riders” of motor vehicles (and horses) to show their Australian driver licence (in the case of driving a motor vehicle) and state their name and address when asked by an authorised officer (including police officers).

A failure to comply with this section could result in a fine of up to 20 penalty units or $2,200: section 175(2) of the Road Transport Act – see also section 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

By way of further example, section 96(1) of the Casino Control Act 1992 (NSW) allows a police officer (or the person at the time in charge of a casino) to ask for a person’s correct age, name and address and provide relevant proof where they suspect that person to be a minor.


Compare this with failing to offer any evidence at trial – “doing nothing”

When people think of the right to silence, they usually associate this with keeping quiet when police are asking questions.

However, what if the concept of ‘the right to silence’ was taken one step further – for example, what if the accused fails or refuses to produce any evidence in a court trial by simply doing nothing?

Section 20 of the Evidence Act 1995 (NSW) says that, while a judge or a party (other than the prosecutor) may comment on a failure of the defendant to give evidence, such a comment must not suggest that the defendant failed to give evidence because the defendant was guilty of the offence in question.

In other words, just because an accused does not provide evidence to explain the situation, this does not of itself prove that the accused is guilty. The failure of an accused to give evidence is not of itself an admission of guilt by conduct. It is up to the prosecution to prove its case.

Despite this protection, it is important to note that a failure to offer an explanation while in a criminal trial may sometimes not be to a person’s benefit.


A ‘failure to offer an explanation’ in suspicious circumstances

Where the accused has failed to give an explanation for a circumstantial case led by the Crown, and the facts for that case are peculiarly within the accused’s knowledge, a judge may give a direction to the jury that they can more safely infer the guilt of the accused: Weissensteiner v The Queen (1993) 178 CLR 217.

For example, an accused using property which belongs to another who recently disappeared may be implicated not only in the theft of the property, but in the disappearance of that person. If the accused failed to explain the situation, an inference is open to the jury that the accused’s involvement in the disappearance provided the opportunity for the theft: Wessensteiner v The Queen.

In the famous case of Weissensteiner a boat for the purpose of cruising the Pacific was found to be in the accused’s possession in suspicious circumstances: the couple who owned the boat spent a great deal of money on the boat and had suddenly “disappeared” with all their intimate items and camping equipment left behind on the boat. The accused worked on the boat for some time. The accused gave no evidence at his trial, nor did he call any evidence.

In the circumstances of the case, there was a strong prima facie case against the accused. By a majority verdict of 5-2, the High Court of Australia held that the judge was entitled to direct that the jury could infer the guilt of the accused in circumstances where the accused chose not to give evidence of relevant facts which were easily within his knowledge.

Every case is different. We strongly recommend that you obtain legal advice regarding your particular circumstances.

By Andre Lim, Solicitor.


McAuley Hawach Lawyers

Telephone: (02) 9633 1826



The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.


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