Written by Youssef Maksisi, Associate


The main basis for the right to silence is about protecting a person’s civil liberty and ensuring that there is always a presumption that a person is innocent until proven guilty.

The onus of proving a person’s guilt rests with the Police and the Prosecution who bring a criminal matter to the Courts on behalf of society generally.

There must always be a delicate balancing act between the right to silence and the interests of justice. For those reasons, the Courts and the Parliament in Westminster countries have over time developed a series of guidelines or laws concerning any admissions made by a person who is being investigated in relation to a crime.

The most basic example is the ‘caution’ that must be given to a person who is a suspect or who is being investigated. This is often a statement by an investigating official (usually a Police Officer) with words to the effect ‘I would like to ask you some questions in relation to [brief details of the allegation or suspicion]. You do not have to say anything and you do not have to answer my questions. If you do say something or answer my question, that will be recorded and used in evidence in Court’.

The caution that should be given is related to the principal of a right to silence. It is also linked to the notion that a person does not have to prove his or her innocence [as this is the job of the investigating and prosecuting authorities]. It is also linked to the idea that any admission of guilt made by a person must be made voluntarily and must not be the result of pressure or intimidation.


The New South Wales government announced its intention to redefine the ‘right to silence’ by restricting that right through legislation. This, it was argued, would improve the ability of Police Officers in New South Wales to conduct their investigations without being hampered by the ‘right to silence’ and also assist them in securing the conviction of criminals.

It was argued that the New South Wales Police were being disadvantaged in their investigations by the insistence of people in exercising their ‘right to silence’, thereby preventing Police from capturing valuable admissions and/or information that would otherwise be used to secure a conviction. Although the argument sounds convincing, the reality is that the majority of people who would be impacted by a restriction on their ‘right to silence’ are not career criminals [who are cluey enough to know that they should remain silent despite the circumstances], but rather those affected are likely to be:

  1. people who have never been charged/investigated previously;
  2. people who become nervous or panicked when being questioned by persons in authority;
  3. persons with a metal or other disability that would prevent them from properly understanding their rights even if they are explained to them by Police;
  4. persons who use English as a second language or experience other language difficulties; and
  5. persons who suffer from any other disadvantage which may not allow them to properly understand the situation which they find themselves in.


The New South Wales Parliament legislated the Evidence Amendment (Evidence of Silence) Act 2013. This Act amends the Evidence Act 1995 so that in proceedings for a serious indictable offence (being any offence which carries a maximum penalty of 5 years or more of imprisonment) an unfavourable inference may be drawn from the Defendant’s failure or refusal to mention a fact during official questioning that the Defendant could reasonably have been expected to mention, and which the Defendant then seeks to rely upon in any trial.

Essentially, what this means is that:

  1. If you are charged with an offence; and
  2. At the time that you are charged/questioned by the Police, you are aware of information or facts that may prove you are innocent;
  3. But you fail to disclose that information or facts at the time of questioning; and
  4. You then decide to rely on that information or facts at your trial…
  5. The Court [and or jury] will be entitled to make the conclusion that you did not disclose the information or facts at the time because you knew you were guilty, and that you are only disclosing that information or facts at the trial in order to protect yourself from a conviction.

This means that the presumption of innocence has been effectively reversed. In addition to this, if you fail to disclose any information or facts at the time of questioning and then later seek to rely upon that material to prove your innocence at trial, the prosecution will make a submission that any evidence that is given at the trial to support your ‘defence’ based on that information or facts should be considered untrue, and that the Judge and/or Jury should draw the conclusion that you made up this information later on in order to prove your innocence when you are actually guilty of the offence. As you can see, the consequences of these amendments can have very significant repercussions for you if you are charged with a serious indictable offence. It is therefore very important that you obtain the relevant legal advice from specialist criminal lawyers, like those at Uther Webster & Evans before you make any decision in relation to your participation in any questioning by police or any other investigative authority.


In order for the above inference to be drawn, and before the questioning commences, a special caution must be given to the Defendant in the presence of a legal practitioner acting for the Defendant. This means that if you are in custody and you are legally represented [by a solicitor who is also present in person at the police station] an unfavourable inference may be drawn because of your failure or refusal to mention a fact during the official questioning which is later sought to be relied on at your trial to prove your innocence.

Essentially, what this means is that:

  1. The negative inference [explained above] will not be able to be drawn;
  2. If you are not given the appropriate caution in the presence of a solicitor acting on your behalf;
  3. Before the questioning commences.

It is now a consideration which must be taken into account to consider whether it is actually in your interest for a solicitor to be physically present at the police station during the initial questions for serious matters. It must be considered that solicitors are only in a position to give proper advice when they are fully apprised of the case. Solicitors must be confident of the accuracy and disclosure of all the facts and circumstances before giving advice about the effects of exercising a right to silence. Rather than assisting police in their investigations in relation to difficult matters, the amendments have, in some instances, led to a situation where police are unable to properly caution a person as a result of Police being unable to secure the attendance of a solicitor [in person] at the police station who can witness the caution and give the proper advice. Accordingly, the police are unable to argue for an adverse inference to be drawn in those circumstances.

At an early stage therefore, we would recommend that you contact the experienced criminal lawyers at our office who will determine the best course in light of the recent amendments.


Our lawyers are highly experienced in criminal matters and have been involved in several high-profile criminal matters. One example is the case of RPS v R [2000] 199 CLR 620 which was a High Court of Australia case where our very own Vivian Evans, Senior Partner represented the Appellant in an appeal dealing with the directions given by a Judge of the Supreme Court of New South Wales to a Jury concerning, among other issues, the right of a Defendant to ‘silence’.

Refer to Uther Webster & Evans posts for a case summary of RPS v R [2000] 199 CLR 620.