In our opinion people in Queensland far too easily give up their right to silence when speaking to police. Often a person’s willingness to talk to police results in charges being bought or harsher penalties in court.
With limited exceptions you only need to go with the police station for an interview if you are formally arrested for an offence or formally detained for questioning about an indictable offence.
Over the past 20 years I have had hundreds of calls from people asking my advice on whether to talk to police. In those 20 years I have never once advised a client to give a voluntary statement to police. I hope in this article to explain why.
The situation in Australia
The Australia Constitution contains no right to avoid self incrimination or to refuse to give a statement to police. Unlike the situation in America where the constitution contains the fifth amendment which provides: no person “shall be compelled in any criminal case to be a witness against himself …”
The right to silence and self incrimination under the common law is however well established throughout Australia.
The High Court of Australia stated that right was;
A person may refuse to answer any question, or to produce any document or thing, if to do so may tend to bring him into the peril and possibility of being convicted as a criminal
In another Case Justice Murphy of the High Court put that right as follows;
It is based on the desire to protect personal freedom and human dignity. These social values justify the impediment the privilege presents to judicial or other investigation. It protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is society’s acceptance of the inviolability of the human personality
The common law right of silence applies to both people who have actually committed an offence and those that are merely suspected of committing an offence.
The situation in Queensland
The right to silence is contained in Queensland common law and is protected in legislation. Section 397 of the Police Powers and Responsibilities Act 2000 provides that;
Right to remain silent not affected
Nothing in this chapter affects the right of a person to refuse to answer questions, unless required to answer the questions by or under an Act
Before Questioning a suspect the police in Queensland must caution that suspect that they have a right not to answer any questions and to obtain legal advice.
It is also critical to understand that if you chose not to speak to the police and are subsequently charged with a crime then the court or a jury cannot take into account you chose to remain silent, remaining silent is not evidence of guilt and no inference can be drawn that a person remaining silent is hiding something. In Petty v R (1991) 173 CLR 95 the High Court confirmed that no adverse inferences, of any sort, could be drawn from the accused's refusal to answer questions. The High Court went on to say that;
Although ordinary experience allows that an inference may be drawn to the effect that an explanation is false simply because it was not given when an earlier opportunity arose, that reasoning process has no place in a criminal trial. It is fundamental to our system of criminal justice that it is for the prosecution to establish guilt beyond reasonable doubt. ... it is never for the accused person to prove his innocence ... Therein lies an important aspect of the right to silence, which right also encompasses the privilege against incrimination.
The right to silence also extends to a court case, a defendant cannot be compelled nor is required to give evidence at their trial. It is critical to understand that the crown must prove a person is guilty of an offence beyond a reasonable doubt, it is not up to the accused to prove they are innocent.
As can be seen the right to silence is one that is both well established in Queensland and a powerful right that should be exercised by almost every person that the police wish to speak to. The Queensland Government makes it clear on their website you have the right to remain silent. It is however in our experience one that most people do not take advantage of, why is that?
Why do people not remain silent?
In our experience most people want to actively assist the police. They have been told since a child that the police can help them if they get into trouble. The police are also very good at making it sound like they are just there to assist people and maybe if a person can explain their situation then they perhaps won’t be charged. This is not how the police work in practice.
If you are being asked to give an interview to the police then in our experience it is because of two reasons. The first is the police don’t have enough evidence to you and need them to admit their guilty, once that is done they are charged. Alternatively, the police always intended to charge you and just want you to give a confession to make the police job easier.
Also remember the police are experts at questioning, for most people this will be their first experience, they will be stressed, nervous and out of their depth, not the police they do this all the time and are taught the most effective methods of questioning. If you think you can fool the police during an interview then you will find you are wrong.
I’m not guilty what’s the harm in telling the police my side?
The police before questioning a person will investigate the matter, gather evidence, speak to other witnesses. They will know the case and all the evidence in great detail before speaking to a suspect. The suspect however will know very little and the police usually won’t tell them very much about the evidence they have. The police also have often decided that they believe the suspect is guilty and will be actively trying to get the suspect to confess certain things to make the charging process easier. Remember the police are talking to a person because they are either a suspect or possible suspect to a crime.
A person can also innocently admit a fact that they don’t know is a breach of the law or that the admissions they won’t be able to claim a certain type of defence if the matter went to trial. People under stress can also make mistakes, they can inadvertently admit something that isn’t true. We often get charges withdrawn because the evidence if not strong enough, it happens every day however if you have made admissions to the police getting charges withdrawn is almost impossible.
Remember also that people lie, a person may have lied to police that a suspect did something, the police may believe that lie and not be objective in their questioning. Perhaps a witness is wrong about something, you may tell the police something and a witness might innocently but wrongly tell them something different, you might come off as a liar even though you told the absolute truth.
James Duane, an American Law professor gave an excellent speech about why you should never talk to police. Whilst the American law is different the basic concepts are not. Professor Duane argues that even if you haven't committed a crime, it's dangerous to tell the police any information. You might make mistakes when explaining where you were at the time of a crime that the police interpret as lies; the officer talking to you could misremember what you say much later; and your statements to police could, in combination with faulty eyewitness accounts, evidence that can be interpreted different ways and sheer bad luck lead to you being convicted of a serious crime. His speech can be viewed on YouTube.
But I will look guilty if I don’t talk to police
Quite frankly who cares if you look guilty, not talking to police protects your rights the most, better to look guilty by not talking to police then actually be charged by police after you talk to them. In our experience if the police are going to formally interview you then they have likely already made up their mind to charge you, why help them with that process? You are not going to talk you way out of a charge if the police have already decided to charge you. The police aren’t there to be fair to you, this is critical to understand, your future is at risk, your job is at risk, your liberty is at risk.
Remember if a police officer or lawyer or judge was ever accused of a crime you can be absolutely sure they would not talk to the police and they would be telling their family and friends the same thing if they were charged.
I’m guilty why not just tell the police everything so I get a lighter sentence?
While it’s true that co-operating with police can often be a factor the court can take into account when setting a penalty in our view its not a major factor and the risk of getting charged with extra offences because an accused made admissions to charges the police wouldn’t be able to charge without that admission is, without legal advice to the contrary, not worth giving up the right to silence. If you are truly guilty and are charged then you can plead guilty before a court and that guilty plea is one of the most important factors the court will take into account.
You don’t need to be in a hurry to admit your guilt.
How do I tell police I want say anything?
You should make it clear from the start that you will not be answering questions and wish to speak to a lawyer. If the police continue to question you then you can remain silent and merely point out that you wish to speak to a lawyer. Do not answer some questions and not others, apart from basic details such as name and address then you should not be answering any questions without legal advice.
The police can detain a person for up to 8 hours before they need to charge them or release them. The police can question a person for up to 4 hours within that 8 hours.
Obviously this is just general guidance and not specific legal advice and this guidance only applies in Queensland. There are occasions where you must accompany the police to a station, for example for a drug or drink driving test if you are suspected of a DUI, also you are required to give basic details like your name and address if asked by police.
There might be the very unusual case where talking to police is the right thing to do. That is why we say you need to talk to a lawyer before talking to the police. One of our District Court Judges once gave a speech when I was in law student in Brisbane and he was a barrister. I can still remember his advice, he said 9 times out of 10 you should advise a client not to talk to the police, with the remaining 1 out of 10 person you should pause and then tell them you really need to shut up (there was actually a swear word used but you get the picture).
If the police want to question you, don’t answer any questions and invoke your right to speak to a lawyer. The right not to talk police has developed over hundreds of years for a reason, it is a person’s best defence again the almost unlimited power and resources of the state. One of the most talented and admired American judges was Robert Jackson. He was the chief American prosecutor at the Nuremburg trials of Nazi war criminals, was the US Attorney General and later a Justice of the US Supreme Court, when it came to talking to police he stated that;
"Any lawyer worth his salt will tell the suspect, in no uncertain terms, to make no statement to the police under any circumstances"
The law provides you with powerful right, you should use it.