‘Silence is golden’ according to the famous song by American rock band, the Four Seasons. The praise of silence can also be found in the book of Proverbs in the Bible, which states (at 10:19) ‘… he that refraineth his lips is wise.’

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In law, silence is considered a fundamental right that provides fairness in criminal proceedings. The privilege against self-incrimination forms part of this right. Many historians attribute the right to silence, or the privilege against self-incrimination, to Saint John Chrysostom (d. 407). It is regarded as essential to human liberty and significant in the development of civil rights. As a legal principle, this right can be found in English common law as far back as the 17th century.

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Today, the right to silence continues to be enforced by human rights treaties and constitutions across many international jurisdictions.

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While Australia has no constitutional right to silence, Australian common law gives a person the right to refuse to answer any question that ‘may tend to bring him into the peril and possibility of being convicted as a criminal’ (Sorby v Commonwealth (1983) 152 CLR 281). This common law right enforces the onus on prosecutors to prove criminal offences and prevents a person charged with an offence from having to assist prosecution. This was explained in Cornwell v R (2007) 231 CLR 260:

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"… self-incrimination has been treated in the [legal system] as objectionable, not only because the methods used to extract it are commonly unacceptable but because the practice is ordinarily incompatible with the presumption
of innocence."

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Not only must people be warned of their right to silence before police questioning, but they must also be seen to understand that warning.

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Intoxication or high levels of violence during arrest can render a warning futile. In Robinett v Police (2000) 116 A Crim R 492, the court confirmed that ‘a confession not shown to be voluntarily and freely given with full knowledge of the rights not to give it, should not, in fairness, be admitted’ in trial.

There are some exceptions to the right. For example, in all jurisdictions, police can require you to give personal details including name, address and date of birth if they suspect you of criminal offending, or if they believe you can assist with their investigations, or if you are the driver of a motor vehicle or can help to identify a particular driver or owner of a motor vehicle.

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Furthermore, the right to silence does not prevent a person from having to provide evidence such as fingerprints, DNA samples or voice recordings (Sorby v Commonwealth). Controversially, commissions such as the Australian Criminal Intelligence Commission may conduct coercive hearings in which there is no right to silence.

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Crucial to the right to silence are the rules preventing jury members from drawing a conclusion of guilt because a person has exercised silence in police questioning or trial. This can be seen in legislation such as, for example, s.89 of the Evidence Act 1995 (NSW) that provides ‘in a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party … failed or refused (a) to answer one or more questions, or (b) to respond to representations.’ Section 18(1)(b) of the Evidence Act 1929 (SA) states: ‘the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecutor.’

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New South Wales, however, weakened the protections of the right to silence in 2013 by introducing section 89A of the Evidence Act 1995 (NSW). Section 89A allows a jury to find that silence can be an indication of guilt in certain circumstances – that is, when an accused fails to mention a fact during a police interview which the accused then relies on for defence in trial. Further limitations on s.89A include that the accused (i) must be over 18 years of age, (ii) have a lawyer present and available during the relevant questioning, and (iii) be read an appropriate warning by police at the time of questioning.

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Silence may indeed be golden. However, the introduction of s.89A shows that even the most fundamental common law rights may be diminished by Parliament. It is recommended that you obtain expert legal advice before participation in any police investigation.