Last updated 14 January 2019

Innocent until proven guilty

A core principle of the Australian criminal justice system is that a person is presumed to be innocent unless proven guilty of the offence beyond a reasonable doubt. An accused person must be acquitted of an offence if there is any reasonable doubt about their guilt in the mind of the jury (or judge or magistrate).

The prosecution have the burden of proof. This means that an accused person does not prove they are innocent of the crime. Rather, the prosecution must prove the person is guilty beyond a reasonable doubt.

There are some limited exceptions to the rule that the prosecution must prove the case against a person (see s 129 Drugs Misuse Act 1986 (Qld)).

The right to remain silent

The right to remain silent is another important principle of the Australian criminal justice system.

A person is not required to answer any questions that are put to them by a police officer, regardless of whether they have been arrested or not.

The major exception is that a person should provide their name and address if asked by police; not doing so may constitute an offence.

It is important that a person who has been arrested understands that, beyond providing their name and address, they have the right to refuse to answer all questions or participate in an interview.

Anything a person says to police, whether in a formal interview or not, may be used in evidence against that person at their trial. Making ill-considered, hasty or careless statements to police in the heat of the moment, during an interview or when questioned at the scene and without legal advice can cause great harm to a person and their legal position.

The fact that a person has relied on their right to silence cannot be used against them at their trial. This means that a prosecutor cannot point to a person’s silence as evidence of their guilt in any way.

In court, a defendant is not obliged to give sworn evidence in their own defence.

There are some circumstances when a person may be required to give evidence which may implicate them. One example is at a coronial inquest or at crime commission hearings.

Double jeopardy

Section 17 of the Criminal Code Act 1899 (Qld) states that a person cannot be tried twice for the same offence. There are certain limited exceptions to this rule, such as ‘fresh and compelling evidence’ for a charge of murder.