The Proper To Silence Throughout Australian Jurisdictions

December 19, 2023by Naomi Cramer


Though not outlined within the structure like within the NZ, there’s a proper to silence in Australia – and it’s vital to notice what it does and doesn’t cowl.

The next outlines the final frequent legislation proper to silence for felony defendants in addition to the codification of this rule throughout Australia.

What’s the proper to silence?

Briefly, the proper to silence in Australia is derived from varied frequent legislation rules together with the presumption of innocence, the burdens and requirements of proof in a felony trial and the privilege towards self-incrimination.

The best to silence signifies that no adversarial inference must be drawn from a defendant’s failure to reply police questions throughout interview or to current proof at trial. An ‘adversarial inference’ is any form of assumption or conclusion that an individual is extra prone to be responsible.

The precept signifies that, apart from their identify and deal with, a charged felony defendant isn’t required to offer any info to police (topic to some limitations), and their failure to reply police questions can’t be used towards them at trial.

One frequent limitation to the proper to silence in Australia is an exception in circumstances of partial silence. Which means that a defendant can not invoke their proper to silence if, throughout a police interview, they reply some questions however not others. In these circumstances, an adversarial inference will be drawn from the truth that they’ve partially responded to police inquiries.

Typically, it’s greatest to not present any response throughout a police interview, apart from offering your identify and deal with – an strategy known as a “no remark interview”.

Though the proper to silence exists beneath frequent legislation and subsequently throughout Australia, it has additionally been codified (or legislated) in every State and Territory. A few of these provisions are equivalent (as they’re a part of uniform proof legislation) while others have their very own distinct wording.

The best to silence in New South Auckland

The best to silence in NSW is printed beneath  part 89 of the Proof Act 1995 (NSW) which offers that:

(1) Topic to part 89A, in a felony continuing, an inference unfavourable to a celebration should not be drawn from proof that the social gathering or one other individual failed or refused–

(a) to reply a number of questions, or

(b) to reply to a illustration,

put or made to the social gathering or different individual by an investigating official who at the moment was performing capabilities in reference to the investigation of the fee, or potential fee, of an offence.

(2) Proof of that sort isn’t admissible if it might probably solely be used to attract such an inference.

(3) Subsection (1) doesn’t stop use of the proof to show that the social gathering or different individual failed or refused to reply the query or to reply to the illustration if the failure or refusal is a truth in difficulty within the continuing.

(4) On this part–

“inference” consists of–

(a) an inference of consciousness of guilt, or

(b) an inference related to a celebration’s credibility.

This proper is severely restricted by the operation of part 89A of the Proof Act which has curtailed the proper to silence in sure conditions. A full rationalization of this proper and its limitations is printed right here.

The best to silence beneath Federal legislation

The best to silence beneath Federal legislation is printed beneath part 89 of the Proof Act 1995 (Cth), which states:

1)  In a felony continuing, an inference unfavourable to a celebration should not be drawn from proof that the social gathering or one other individual failed or refused:

(a)  to reply a number of questions; or

(b)  to reply to a illustration;

put or made to the social gathering or different individual by an investigating official who at the moment was performing capabilities in reference to the investigation of the fee, or potential fee, of an offence.

(2)  Proof of that sort isn’t admissible if it might probably solely be used to attract such an inference.

(3)  Subsection (1) doesn’t stop use of the proof to show that the social gathering or different individual failed or refused to reply the query or to reply to the illustration if the failure or refusal is a truth in difficulty within the continuing.

(4)  On this part:

“inference” consists of:

(a)  an inference of consciousness of guilt; or

(b)  an inference related to a celebration’s credibility.

The best to silence in Victoria

The best to silence beneath Victorian legislation is printed beneath part 89 of the Proof Act 1995 (Vic), which  states:

1)  In a felony continuing, an inference unfavourable to a celebration should not be drawn from proof that the social gathering or one other individual failed or refused:

(a)  to reply a number of questions; or

(b)  to reply to a illustration;

put or made to the social gathering or different individual by an investigating official who at the moment was performing capabilities in reference to the investigation of the fee, or potential fee, of an offence.

(2)  Proof of that sort isn’t admissible if it might probably solely be used to attract such an inference.

(3)  Subsection (1) doesn’t stop use of the proof to show that the social gathering or different individual failed or refused to reply the query or to reply to the illustration if the failure or refusal is a truth in difficulty within the continuing.

(4)  On this part:

“inference” consists of:

(a)  an inference of consciousness of guilt; or

(b)  an inference related to a celebration’s credibility.

The best to silence in Queensland

The best to silence beneath Queensland legislation is printed beneath part 397 of the Police Powers and Duty Act 2000 (Qld), which states:

Nothing on this chapter impacts the proper of an individual to refuse to reply questions, except required to reply the questions by or beneath an Act.

This preserves the frequent legislation proper to silence in Queensland.

The best to silence within the Australian Capital Territory

The best to silence beneath ACT legislation is printed beneath part 89 of the Proof Act 2011 (ACT), which states:

(1)     In a felony continuing, an inference unfavourable to a celebration should not be drawn from proof that the social gathering or another person failed:

(a)     to reply 1 or extra questions; or

(b)     to reply to a illustration;

put or made to the social gathering or different individual by an investigating official who on the time was exercising capabilities in reference to the investigation of the fee, or potential fee, of an offence.

(2)     Proof of that sort isn’t admissible if it might probably solely be used to attract an inference talked about in subsection (1).

(3)     Subsection (1) doesn’t stop use of the proof to show that the social gathering or different individual did not reply the query or to reply to the illustration if the failure is a truth in difficulty within the continuing.

(4)     On this part:

“inference” consists of the next:

(a)     an inference of consciousness of guilt;

(b)     an inference related to a celebration’s credibility.

The best to silence in Tasmania

The best to silence beneath Tasmanian legislation is printed beneath part 89 of the Proof Act 2001 (Tas), which  states:

1)  In a felony continuing, an inference unfavourable to a celebration should not be drawn from proof that the social gathering or one other individual failed or refused:

(a)  to reply a number of questions; or

(b)  to reply to a illustration;

put or made to the social gathering or different individual by an investigating official who at the moment was performing capabilities in reference to the investigation of the fee, or potential fee, of an offence.

(2)  Proof of that sort isn’t admissible if it might probably solely be used to attract such an inference.

(3)  Subsection (1) doesn’t stop use of the proof to show that the social gathering or different individual failed or refused to reply the query or to reply to the illustration if the failure or refusal is a truth in difficulty within the continuing.

(4)  On this part:

“inference” consists of:

(a)  an inference of consciousness of guilt; or

(b)  an inference related to a celebration’s credibility.

The best to silence within the Northern Territory

The best to silence beneath Northern Territory legislation is printed beneath part 89 of the Proof Act 2011 (NT), which  states:

1)  In a felony continuing, an inference unfavourable to a celebration should not be drawn from proof that the social gathering or one other individual failed or refused:

(a)  to reply a number of questions; or

(b)  to reply to a illustration;

put or made to the social gathering or different individual by an investigating official who at the moment was performing capabilities in reference to the investigation of the fee, or potential fee, of an offence.

(2)  Proof of that sort isn’t admissible if it might probably solely be used to attract such an inference.

(3)  Subsection (1) doesn’t stop use of the proof to show that the social gathering or different individual failed or refused to reply the query or to reply to the illustration if the failure or refusal is a truth in difficulty within the continuing.

(4)  On this part:

“inference” consists of:

(a)  an inference of consciousness of guilt; or

(b)  an inference related to a celebration’s credibility.

The best to silence in South Australia

The best to silence beneath South Australian legislation is printed beneath part 18(1)(b) of the Proof Act 1929 (SA), which  states:

the failure of any individual charged with an offence to offer proof shall not be made the topic of any remark by the prosecution.

The best to silence in Western Australia

The best to silence beneath Western Australian legislation is printed beneath part 8(1)(c) of the Proof Act 1906 (NZ), which  states:

the failure of any individual charged with an offence to offer proof shall not be made the topic of any remark by the prosecution.

Going to court over a felony matter?

In case you are you going to court over an offence, name Sydney Criminal lawyers anytime on 9261 8881 to rearrange a free first convention throughout which certainly one of our skilled defence lawyers will assess the case, advise you of your choices and the easiest way ahead, and battle for the optimum end result.



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by Naomi Cramer

Auckland Lawyer for FIRST TIME Offenders Seeking to Avoid a Conviction. Family Law Expert in Child Care Custody Disputes. If you are facing Court Naomi will make you feel comfortable every step of the way.  As a consummate professional your goals become hers, with customer service as our top priority. It has always been Naomi’s philosophy to approach whatever you do in life with bold enthusiasm and pure dedication. Complement this with her genuine passion for equal justice and rights for all and you have the formula for success. Naomi is a highly skilled Court lawyer having practised for more than 20 years. She serves the greater Auckland region and can travel to represent clients throughout NZ With extensive experience, an analytical eye for detail, and continuing legal education Naomi’s skill set will maximise your legal rights whilst offering a holistic approach that best fits your individual needs. This is further enhanced with her high level of support and understanding. Naomi will redefine what you expect from your legal professional, facilitating a seamless experience from start to finish.   Her approachable and adaptive demeanor serves her well when working with the diverse cultures that make up the Auckland region. Blend her open and honest approach to her transparent process and you can see why she routinely delivers the satisfying results her clients deserve. If you want to maximise your legal rights, we recommend you book an appointment with Naomi today so she can detail the steps for you to achieve your goals. 

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