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What would you do if you were arrested and taken into police custody? Few of us have stopped to consider this scenario apart from to hope it never happens. But at Gallant Law, we believe that everyone should be aware of their individual rights – including those available upon arrest. In this post we’re discussing a fundamental right to ensuring a person’s liberty: the right to silence. 

What is the right to silence? 

The right to silence applies to everyone arrested on suspicion of an offence in Australia. It is designed to protect people from police misconduct, accidental self-incrimination and having a charge laid against you that is not founded in fact. 

Here’s how it works. If you’ve been arrested on suspicion of committing (or being involved in) an offence, the police will take you into custody at their nearest station. There, they will ask you a series of questions in a police interview. 

The only things you are legally obliged to tell the police are your name and address. If you are an Indigenous Australian, you must make this known to the police as they are particular procedures they are required to follow in this case.  But any other information (where you were at the time of the offence, other people who can corroborate your recount of events, etc) is protected by your right to silence. 

So I just stay silent…then what? 

Essentially, your right to silence means you can seek legal advice before answering police questions. Before the interview begins, you may make two phone calls: one to a family member or a friend and one to a lawyer. If you are not offered these calls you are entitled to request them from the police. 

It’s essential that you contact a lawyer as soon as possible. It does not matter if you do not have a lawyer; upon arrest, you may get a lawyer. If you are seeking legal advice regarding a criminal matter, contact Gallant Law on 03 9070 9885 or on our after-hours number 0412 513 915.

Once you have contacted a lawyer, you are entitled to legal advice before answering police questions. This advice will explain how to best answer the police’s questions. This means you can enter the police interview with confidence, knowing that the information you share will help your case in the long run. 

In the interim, if you need to exercise your right to silence, answer questions with ‘no comment.’ Remain consistent and continue to answer with ‘no comment’ throughout the entirety of the interview.  

 

Doesn’t answering with ‘no comment’ make me look guilty?

It’s natural to think that eagerly recounting your version of events to police helps you appear co-operative and may land you favours with the police. 

But in fact the opposite is true. If you’ve been arrested, taken into police custody and are being interviewed, the police already suspect you. At this point, they are looking to elicit particular answers from you that corroborate their version of events. 

Simply exercising your right to silence does not equate to being uncooperative or difficult and the police cannot use this behaviour to infer that you are guilty. If your matter continues to court, a jury cannot use your silence to infer your guilt or assume you have something to hide. Having said that, it’s important to remain polite and respectful; while you are entitled to remain silent, mouthing off at the police is never a good idea. 

What if I want to talk to the police? 

Whether you wish to exercise your right to silence is a judgement call. However, it’s important to note that speaking openly to the police may not have the effect you anticipate it will.

If you do choose to answer police questions, be aware that anything you say can be used against you as evidence in court. This is true for anything said in police custody, regardless of where the police are questioning you or whether your comments are directed to a police officer. 

As defence lawyers, we understand how overwhelming being involved in the criminal justice system can be. While it might be tempting to think you can take matters into your own hands, the reality is, it’s important to seek legal advice before acting in a manner that you think best helps your case. 

With experience as defence lawyers, Gallant Law can provide tailored advice to your situation and assist you through this difficult time. Contact us on 03 9070 9885 or on our after-hours number 0412 513 915 if you are seeking legal advice regarding a criminal matter.