Last updated 25 August 2016
Right to silence
Under the Police Powers and Responsibilities Act 2000 (Qld) (PPR Act), a person who is suspected by police of committing an offence is entitled to remain silent when questioned about it by the authorities. This is recognised in Australia as a fundamental rule of common law and has commonly been referred to as the right to silence (s 397 PPR Act). The rationale lies in the principle that it is for the Crown to prove a case beyond reasonable doubt, and an accused should not be compelled to incriminate themselves. The effect is that at a trial, a judge must direct a jury (or a magistrate must apply the principle) that no adverse inference should be drawn against an accused for not giving an account to police (Petty & Maiden v The Queen (1991) 173 CLR 95). However, this may be somewhat qualified when there is an agreement to answer some questions and a refusal to answer others. In relation to more serious offences, sometimes an adverse inference will be drawn if a person does not explain matters that are solely within their knowledge.
In recognising the right to silence, s 431 of the PPR Act provides that a person sought to be questioned in respect of an indictable offence must be cautioned by police that anything they say may be used as evidence against them. The police officer must be positively satisfied that the person understands that warning (sch 9 reg 6(2) Police Powers and Responsibilities Regulation 2012 (Qld) (PPR Regulation)), and in the case of questioning indigenous people, they must ask questions to ascertain the person’s level of education or understanding (sch 9 reg 25). The warning should be repeated if there is a delay or suspension of questioning (sch 9 reg 26(4)).
Supplying name and address
People may be required to give their names and addresses to police, and sometimes provide evidence of the same (e.g. showing photo identification) if asked by a police officer to do so. The supply of a person’s name and address is an exception to the general right to remain silent, and failure to provide these details is an offence in certain circumstances. Legislation that prescribes these circumstances includes the PPR Act and the PPR Regulation, the Drugs Misuse Act 1986 (Qld), the Liquor Act 1992 (Qld) and the Transport Operations (Road Use Management) Act 1995 (Qld). Section 41 of the PPR Act sets out the prescribed circumstances for requiring a person to state their name and address.
If requested by a police officer to supply a name and address, a person may request an officer to explain the authority relied upon to make the request.
Access to legal and other advice
The more serious the offence, the more necessary it is to have a well-calculated and informed approach to whether an interview should be undertaken at all and if so, the framework within which it is undertaken. Particularly in relation to serious offences, these decisions should only be made following a considered and informed discussion with an experienced lawyer. Section 418 of the PPR Act obliges a police officer to inform a person suspected of committing an indictable offence that they may telephone or speak with a lawyer. Police must also provide a reasonable opportunity for that to occur, usually by allowing them access to a phone book and a telephone. However, no common law right to legal advice exists, and there are statutory limitations on when such an obligation on the part of police arises. For instance, it does not apply to summary offences, nor does it apply when a police officer is exercising powers to detain for search purposes.
Some suggestions for the accused in this context include the following:
- Politely assert a desire to obtain legal advice before any discussions with police commence. The opportunity to obtain legal advice only arises if the person requests it. A lawyer cannot compel police to grant him contact with the accused person if this has not been requested by the accused. Many criminal defence firms operate a 24-hour service whereby a lawyer can be contacted at any time.
- If this request is declined or there is a delay, do not speak to police at all.
- Do not speak to police if they offer you an inducement for your participation in the interview (i.e. they will give you bail).
- If a lawyer cannot be contacted, contact a trusted family member or friend. Police are also required to permit this upon request. That person should be told where the accused is, the names of the relevant police officers and asked to urgently engage a lawyer to assist. Legal Aid Queensland do not fund this level of representation, however, minor expenditure on legal advice at this stage can have a dramatic effect on the entire matter.
- If and when there is access to legal advice, it should preferably be in person and in private before any final decision by the accused about what to do is made. All matters within the accused’s knowledge should be fully disclosed to the lawyer. Those discussions are subject to solicitor/client privilege and cannot be published by the lawyer to anyone else without the consent of the client. The more comprehensive the information provided, the more able a lawyer is to formulate the correct advice.
Additional safeguards (e.g. the presence of support people) are included in the PPR Act to regulate police questioning of indigenous people (s 420), children (s 421), people with impaired capacity (s 422) or intoxicated persons (s 423).