Issues Surrounding The Right To Silence And Current Law

The Right to Silence

1.0 Introduction

This report will explore and evaluate the issues surrounding the right to silence and current law to make recommendations as to whether some aspects of the right to silence should be abolished. (THOMSON REUTERS, 2015).

2.0 Issues

When debating this topic, several issues are raised. Firstly is the question of whether the right to silence should apply for all types of people and all types of offences. For example, should it apply in the case of indictable offences? Should it apply to repeat offenders? Another question is whether one view should override the other, is the right to silence less important than the presumption of innocence and the burden of proof? How can the law strike a balance between

Current Australian laws about the right to silence are outlined in the Evidence Act 1977 and the Police Powers and Responsibilities Act 2000. Section 431 of the PPRA Subsection (1) states that ‘a police officer must, before a relevant person is questioned, caution the person in the way required under the responsibilities code’ (QUEENSLAND GOVERNMENT, 2015). There is no law making it an offence to exercise the right during police questioning. The Police Powers and Responsibilities Regulation 2012 Schedule 9 Section 26 details the wording of the caution which is as follows: 'before I ask you any questions I must tell you that you have the right to remain silent. This means you do not have to say anything, answer any question or make any statement unless you wish to do so. However, if you do say something or make a statement, it may later be used as evidence. Do you understand?’ (QUEENSLAND GOVERNMENT,

In regards to upholding the suspect’s rights, it is argued that there are many legitimate reasons for remaining silent, which are consistent with innocence. Among these include that suspects may distrust the police and fear that police will trick them into answering questions. Suspects may be reluctant to repeat an explanation given to police informally which was disbelieved. Innocent suspects may have a desire to protect others or fear being labelled a police informant or fear reprisal by the offender. Suspects may want to conceal something unrelated to the crime, which is personally embarrassing, or something that they are ashamed of or to conceal illegal behaviour, which is not under investigation. Suspects may have limited language ability or be intoxicated or under the influence of drugs at the time of questioning or have low IQ or mental deficiencies. There is concern that modification could result in police manipulating interviews by framing questions in a way that encourages suspects to remain silent. It’s argued that the right to silence provides a necessary incentive to police to investigate thoroughly and search for evidence beyond mere confessions (SKINNIDER, Eileen and Gordon, Frances,