If someone is suspected of committing a criminal offence, or is part of an ongoing investigation into an alleged crime, the Police may want to ask them questions. People have a right to remain silent and are not required to answer any Police questions or participate in a Police interview unless they choose to do so.
There are some instances where someone may be required to answer Police questions, waiving their right to silence, as follows:
- where Police require identification if they have reasonable grounds to suspect that they may be able to assist in the investigation of an alleged indictable offence;
- where Police are issuing move on directions to people in public places;
- where Police believe that a person’s vehicle is involved in a serious crime.
In these circumstances, a person is required to provide their name and address to the Police and the particulars of the driver and any passengers.
Aside from answering identification questions, there is no legal obligation to answer any questions by the Police. A person cannot be considered guilty or uncooperative because they decline to speak with Police or answer their questions. In criminal proceedings, the Police need to prove beyond a reasonable doubt that a person has committed a crime. If someone is suspected of committing a crime, it is not necessary for them to deny their involvement in any alleged offence. The Police need to prove that the person committed the offence. If the Police are not able to establish each element of an offence, then a person cannot be found guilty.
If a person decides to answer questions by the Police, anything they say may be used as evidence in later court proceedings. Sometimes, answering Police questions can directly lead to a person being charged for an offence and can make it difficult to later defend that charge in court. This may be because the person has made certain admissions which assist the Police in establishing an element of a crime. There may be times where it is in a person’s legal interest to answer Police questions, which is why it is recommended that people get legal advice before deciding whether to be questioned by Police. If it is not possible to speak with a lawyer, then a person can remain silent and let Police know they do not wish to be interviewed until they have spoken with a lawyer.
There may be circumstances where a person was present when a crime occurred, and the Police want to question them. Even if the person was not actively involved, they may be taken to be a suspect. These situations should be taken seriously, and legal advice sought at the earliest opportunity. Similarly, if a person is a witness to a crime, there is no legal obligation to report crime or provide a statement unless it is relation to some serious offences. It is important to remember that if a witness does provide a statement, this means the witness may be required to give evidence against the alleged offender in later court proceedings.
If someone decides to participate in Police interview and waive their right to silence, they may choose to answer some questions and not others. This is generally done by answering ‘no comment’. Importantly, providing ‘no comment’ is not an admission of guilt. However, under section 89A of the Evidence Act 1995 (NSW), in criminal proceedings for serious indictable offences, a Court may draw any unfavourable inferences that appears proper from any evidence which suggests that a defendant, during official questioning in relation to an alleged offence, failed or refused to mention a fact that they could have reasonably been expected to mention at the time; and the defendant then seeks to rely on that fact in their defence.
This section will only apply if the defendant has been issued a special caution by the investigating officials before the defendant’s failure or refusal to mention a fact; and the caution was given in the presence of a legal practitioner acting for the defendant with an opportunity being given to the defendant to discuss the nature of the caution with their legal representative. This example (while relating specifically to more serious offences), illustrates the importance of and value of speaking with a lawyer before being interviewed by Police so that they may fully assess the particular legal circumstances of a specific case.
