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Maintaining the Right to Silence

In Common Law countries like Australia, the right to silence has long been a cornerstone of the legal system, integral to the preservation of justice and the protection of individual rights. Despite its fundamental nature, this right is often misunderstood and under appreciated. Many individuals believe that if they have nothing to hide and have done nothing wrong, they are able to submit to an interview or provide a statement to, for example, the Police, an investigator or other authorities. This misconception can lead to significant legal repercussions. This article seeks to put some context to the critical importance of the right every person has to maintaining silence.  The article also examines the potential damage caused if your comments are alleged to be prior inconsistent statements.

Whilst the right to silence is critical in criminal matters, people overlook its importance in civil proceedings.

???? When does a person being investigated by their employer or being interviewed by an investigator appointed by an insurer have a right to silence?

???? What rights does the interviewer have to demand a response?

The Right to Silence: An Overview

The right to silence is enshrined in Australian law and is recognised as a basic legal principle that allows individuals to refuse to answer questions or provide information when faced with allegations that may result in actions being taken against you. This right is rooted in the common law tradition and is aimed at protecting individuals from self-incrimination and ensuring fair treatment under the law.

Legal Basis

The right to silence is protected under common law and various statutory provisions in Australia. It is reflected in the privilege against self-incrimination, a fundamental principle of the criminal justice system. This privilege ensures that individuals are not compelled to provide evidence that could be used against them in criminal proceedings.

The Evidence Act 1995 (Cth) and its counterparts in each state and territory provide statutory recognition of this principle. For instance, Section 89 of the Evidence Act 1995(NSW) states that a person’s failure or refusal to answer questions or to respond to accusations is not admissible in court as evidence of guilt.

Controversially, the NSW Parliament has added s89A to Evidence Act. This amendment restricts the right to silence in “serious indictable matters”. As a result of this amendment, Courts have the discretion to draw an unfavourable inference against a suspect if they failed to participate in a police interview and subsequently advanced a defence that they could reasonably have been expected to have outlined in that interview.

This applies only when the suspect has been given a ‘special caution’ before the interview. This is a warning that remaining silent may harm their defence. No adverse inference may be drawn against a suspect who is under 18.



Why the Right to Silence Matters

Protection from Self-Incrimination

The primary reasons for the right to silence is to protect individuals from self-incrimination. When questioned by law enforcement, individuals may inadvertently say something that could be misconstrued or taken out of context, potentially leading to charges or convictions. Even innocent individuals can make statements that may be damaging when pieced together with other evidence.

We have all heard of the United States’ right to “Plead the Fifth”.  This comes from the 5th Amendment to the United States Constitution, ratified in 1791 as part of the Bill of Rights.  The 5th Amendment enshrines the Common law right against self-incrimination.  In part, it states, “No person … shall be compelled in any criminal case to be a witness against himself …”

Ensuring Fair Legal Procedures

The right to silence ensures that the burden of proof remains on the prosecution or the party maintaining the allegation. In the criminal justice system, it is the prosecution’s responsibility to prove the guilt of the accused beyond a reasonable doubt. If individuals were compelled to speak or provide evidence, this burden would shift, undermining the fairness of legal procedures.

Avoiding Coercion and Pressure

A formal interview can be highly stressful and intimidating. Individuals may feel pressured to speak or may be coerced into making statements that are not entirely accurate. The right to silence protects individuals from such coercion, allowing them to seek legal representation and make informed decisions about their responses.

Misconceptions About the Right to Silence

Despite its importance, there are several misconceptions about the right to silence, which can lead individuals to waive this right inadvertently.

“I Have Nothing to Hide”

Many people believe that if they have done nothing wrong, they have nothing to hide and should, therefore, speak openly to an investigator. However, this overlooks the complexities of legal proceedings. Innocent statements can be misinterpreted, and individuals-—more frequently than not— inadvertently provide information that could be used against them.

“It Looks Suspicious”

Some people fear that exercising their right to silence will make them appear guilty or suspicious. While it is true that remaining silent can be seen as uncooperative, it is a legally protected right and cannot be used as evidence of guilt. Moreover, legal professionals can help explain the decision to remain silent in a way that mitigates any potential negative perceptions.



Prior Inconsistent Statements: The Risks

One of the most significant risks of speaking without legal representation is the possibility of making a prior inconsistent statement. These occur when an individual provides different accounts of events at different times.  This can severely damage their credibility in court.

A prior inconsistent statement is any previous statement made by a witness that contradicts their evidence given in a final hearing. These statements can be made in various forms, written or oral, and can occur in any setting, such as social media posts, conversations, previous trials, or statements.


Legal Framework

The use of prior inconsistent statements is primarily governed by the Evidence Act 1995 (Cth) and its state counterparts. Key sections of the Evidence Act relevant to prior inconsistent statements include:

Section 43: Allows for the cross-examination of a witness regarding a prior inconsistent statement without initially showing the statement to the witness, although the witness must be given an opportunity to explain the inconsistency.

Section 60: Deals with the admissibility of the prior inconsistent statement as evidence to show that the witness is not credible.


Legal Implications

Inconsistent statements can be used against the defendant (or any witness for that matter) to challenge the reliability and truthfulness of their evidence. Under the Evidence Act 1995, prior inconsistent statements can be admitted as evidence to discredit a witness’s credibility. This can create doubt about the accuracy of all the statements made by the individual, potentially leading to adverse legal outcomes.


Psychological & Practical Considerations

Human memory is fallible, and recollections can change over time. Stress, trauma, and the passage of time can all affect how events are remembered and recounted. Without legal guidance, individuals may provide statements that are later revealed to be inconsistent, not because they are lying but because of the natural variability in human memory.


Case Studies

Case Study 1 | The Perils of Speaking Too Soon

Consider the case of an individual involved in a minor altercation. Believing they had done nothing wrong, they provided a detailed account to the police without legal representation. Months later, when the case went to court, discrepancies between their initial statement and their evidence emerged. These inconsistencies were used by the prosecution to cast doubt on their credibility, ultimately leading to a conviction despite their innocence.


Case Study 2 | The Protection of Silence

In contrast, another individual in a similar situation chose to exercise their right to silence and seek legal advice before making any statements. Their lawyer helped them craft a clear and consistent account of events, which was later presented during the trial. As a result, their credibility remained intact, and the case may be dismissed due to lack of evidence.


Case Study 3 | Employment and/or Insurance Based Interviews

We are frequently asked to advise both employers and employers regarding their rights when it comes to a workplace interview.

An employee is required to cooperate with their employer.  They can still maintain a right to silence in certain situations

The case of Grant v BHP Coal Pty Ltd addresses whether employees can refuse to answer questions about alleged misconduct and claim a privilege against self-incrimination. The Full Bench in Grant determined that while this privilege can apply in workplace interviews, it only protects against self-exposure to criminal prosecution, not disciplinary or civil actions.

For the privilege to apply, the employee must show a genuine and reasonable fear of self-incrimination. If the employee has already made self-incriminating statements or fails to explicitly claim the privilege, it does not apply. Employees are required to participate and cooperate in workplace investigations if there is no risk of criminal prosecution. They must be open and honest with their employer about serious workplace issues.

In Mr. Grant’s case, his refusal to answer questions about not attending a medical appointment, without claiming the privilege against self-incrimination, was deemed a valid reason for dismissal. His answers were unlikely to increase his legal jeopardy, and his refusal was viewed as non-cooperation.


The Role of Legal Representation

The importance of seeking legal representation before attending any investigation cannot be overstated. Lawyers are trained to navigate the complexities of the legal system and provide invaluable guidance on how to exercise the right to silence effectively.


Legal Advice

Legal practitioners can help individuals understand their rights and the potential implications of making statements. They can advise on when it is appropriate to remain silent and how to respond to an investigator’s questioning in a way that protects the individual’s legal interests.



If the case goes to court, having a lawyer who is familiar with the case from the beginning ensures that the individual’s rights are protected throughout the legal proceedings. Lawyers can challenge the admissibility of prior inconsistent statements and work to preserve their clients’ credibility.

The right to silence is a fundamental aspect of the Australian legal system, designed to protect individuals from self-incrimination and ensure fair legal procedures. Despite common misconceptions, exercising this right is crucial, even for those who believe they have nothing to hide. Speaking without legal representation can lead to prior inconsistent statements, which can severely damage an individual’s credibility and, in turn, affect the outcome of legal proceedings.


Understanding and exercising the right to silence is not about evading an outcome but about ensuring that the outcome is delivered fairly and accurately. A safeguard against coercion, misinterpretation, and the inherent fallibility of human memory. By maintaining this right and seeking appropriate legal representation, individuals can protect themselves from potential legal pitfalls and contribute to the integrity of the legal system.


The right to silence must be preserved and respected in a society that values justice and fairness. It is a critical tool in protecting individual rights and preventing miscarriages of justice. Therefore, it is imperative for everyone, regardless of their circumstances, to understand the importance of this right and to exercise it wisely when necessary.


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