Know Your Rights: Right to Silence
In New South Wales, you generally have the right to remain silent when questioned by police. You cannot usually be punished, and a court cannot usually hold your silence against you, if you choose not to answer police questions. There are important exceptions: in some situations you must provide your name and address, drivers have additional disclosure obligations, and for serious indictable offences a “special caution” given in the presence of your lawyer can allow a court to draw unfavourable conclusions if you stay silent about a fact you later rely on in your defence. Because the exceptions are technical, it is sensible to get legal advice before taking part in any police interview. Caspian Legal assists clients in Hornsby and surrounding Upper North Shore suburbs with police interviews and Local Court matters. Call 02 7264 3200.
Which law applies?
This article deals with the law of New South Wales, primarily the Evidence Act 1995 (NSW) and the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (often called LEPRA), together with Australian common law. Different rules can apply to Commonwealth offences and to compulsory examinations by regulators. If your matter involves federal charges or a regulator, obtain specific advice.
Worried about a police interview?
Being contacted by police for an interview, or being arrested and cautioned, is stressful, particularly if it has never happened to you before. People often feel that staying silent will “look guilty” or that talking will “clear things up quickly”. Neither assumption is safe. What you say in a recorded interview can be used in evidence, and it is very difficult to undo.
If police have asked you to attend an interview, or your matter is listed at Hornsby Local Court, you can speak with Caspian Legal before you say anything to police. Call 02 7264 3200 or enquire through caspianlegal.com.au to arrange a consultation.
What is the right to silence?
The right to silence is the shorthand name for a group of rules which mean that, in most situations, a person suspected of an offence does not have to answer police questions, does not have to take part in an interview, and does not have to give evidence at their own trial. The High Court of Australia confirmed in Petty v The Queen (1991) 173 CLR 95 that no adverse conclusion should ordinarily be drawn from an accused person exercising their right to remain silent.
In NSW, the main statutory rule is section 89 of the Evidence Act 1995 (NSW). It provides that, in a criminal proceeding, an unfavourable inference must not be drawn from evidence that a person failed or refused to answer questions put by an investigating official. In plain terms, your silence during police questioning cannot ordinarily be treated as evidence of guilt.
Key terms in plain English
| Term | Plain English meaning |
| Caution | The warning police must give before questioning: you do not have to say or do anything, but anything you say or do may be used in evidence. See section 122 of LEPRA. |
| Special caution | An additional warning under section 89A of the Evidence Act 1995 (NSW), used only for serious indictable offences and only when your lawyer is present. It warns that staying silent about a fact you later rely on may harm your defence. |
| Serious indictable offence | An offence punishable by imprisonment for 5 years or more. |
| Official questioning | Questioning by an investigating official (usually police) in connection with the investigation of an offence. |
| Unfavourable (adverse) inference | A conclusion a court draws against you, for example that silence suggests a defence was invented later. |
| ERISP | Electronically Recorded Interview with a Suspected Person: the recorded police interview. |
The general rule: your silence cannot be used against you
Under section 89 of the Evidence Act 1995 (NSW), if you decline to answer questions during official questioning, the prosecution cannot invite the court to reason that you must be guilty because you stayed silent. This protection applies to most offences dealt with in the Local Court, including matters heard at Hornsby Local Court, such as traffic, drug possession, common assault and AVO-related charges.
The protection applies whether you refuse the interview entirely or answer some questions and not others, although selective answering carries practical risks and should not be attempted without advice.
The exception: section 89A and the special caution
Since 1 September 2013, section 89A of the Evidence Act 1995 (NSW) has qualified the right to silence for serious indictable offences. If it applies, a court may draw an unfavourable inference where you failed to mention a fact during official questioning that you later rely on in your defence, and that you could reasonably have been expected to mention at the time.
Section 89A only operates if strict conditions are met:
| Condition | What it requires |
| Offence type | The charge must be a serious indictable offence (maximum penalty of at least 5 years imprisonment). |
| Special caution given | An investigating official with reasonable cause to suspect you committed the offence must give the special caution before your failure to mention the fact. |
| Lawyer present | The special caution must be given in the presence of an Australian legal practitioner acting for you at that time. |
| Opportunity to consult | You must have had a reasonable opportunity to consult that lawyer, away from police, about what the special caution means. |
| Age and capacity | Section 89A does not apply to people under 18 or to people incapable of understanding the special caution. |
| Not the only evidence | Silence alone cannot prove guilt: the inference cannot be drawn if it would be the only evidence of guilt. |
A practical consequence, well known to criminal law practitioners, is that the special caution generally cannot be given unless your lawyer is physically present at the interview. How to respond to a request for an interview about a serious charge is a decision that should only be made with advice, because the safest course varies from case to case.
What you may still be required to provide
The right to silence is not absolute. Situations where the law requires you to provide information include:
- Identity: police can require your name and address in defined circumstances under LEPRA, for example if they suspect you can assist in investigating an alleged indictable offence, or in relation to certain vehicle and public order powers. Refusing, or giving false details, can be an offence.
- Drivers and vehicle owners: under road transport legislation, drivers must produce their licence when required, and owners of a vehicle can be required to identify who was driving at the time of an alleged offence.
- Compulsory examinations: some bodies, such as the NSW Crime Commission and ICAC, have statutory powers to compel answers, subject to protections about how those answers can later be used.
These obligations are technical, and the consequences of getting them wrong differ. If you are unsure whether you must answer a particular question, say that you wish to obtain legal advice first.
Silence at trial
The right to silence continues at trial. An accused person cannot be compelled to give evidence, and section 20 of the Evidence Act 1995 (NSW) limits the comments that can be made about an accused not giving evidence. The High Court held in Azzopardi v The Queen (2001) 205 CLR 50 that, in most cases, a jury must not treat the accused’s silence at trial as evidence of guilt.
Police want to interview you: a step-by-step approach
- Stay calm and be polite. You can decline to answer questions without being rude or obstructive.
- Ask whether you are under arrest, and what the alleged offence is.
- Provide your name and address if required. Do not give false details.
- Say that you do not wish to answer further questions until you have obtained legal advice. This is a lawful and common response.
- Contact a solicitor before agreeing to any recorded interview. Interviews are voluntary in most cases.
- Do not discuss the allegation with anyone else, and do not post about it on social media.
- Keep any documents police give you, such as a Court Attendance Notice (CAN), a Field Court Attendance Notice or bail papers, and bring them to your solicitor.
Your rights and obligations at a glance
| Situation | Do you have to respond? |
| Police ask general questions about an alleged offence | No. You may remain silent, and under section 89 your silence cannot usually be used against you. |
| Police require your name and address in defined circumstances | Yes, where LEPRA applies. Refusal or false details can be an offence. |
| Police request a recorded interview (ERISP) | Participation is generally voluntary. Get legal advice before agreeing. |
| You are the registered owner of a vehicle and police require the driver’s identity | Yes, under road transport legislation. |
| Special caution given for a serious indictable offence with your lawyer present | You may still remain silent, but section 89A may allow the court to draw an unfavourable inference in defined circumstances. Advice is essential. |
| At trial | You cannot be compelled to give evidence. |
Documents to prepare before seeing a solicitor
- Court Attendance Notice (CAN) or Field CAN, if issued
- Police facts sheet, if provided
- Bail documents or conditions
- Any AVO application or order, if related
- Details of the time, place and officers involved in any police contact
- Names and contact details of any witnesses
- Any relevant messages, photos, receipts or records
- Your identification and, if relevant, your driver licence
What not to do
- Do not ignore a Court Attendance Notice or a listed court date, including at Hornsby Local Court. Failing to appear can lead to a warrant or the matter being decided in your absence.
- Do not take part in a recorded interview without first getting legal advice.
- Do not give false or misleading information to police. Lying is not an exercise of the right to silence and can be a separate offence.
- Do not discuss the allegation with co-accused, witnesses or on social media.
- Do not assume silence is automatically the best strategy in every case. For serious charges, the section 89A special caution changes the analysis, and timing can matter.
- Do not destroy documents, messages or other potential evidence.
Common myths and mistakes
| Myth or mistake | The reality |
| Staying silent makes me look guilty in court | Under section 89, a court cannot usually draw an unfavourable inference from your silence during police questioning. |
| If I explain my side now, police will drop it | Police decide charges on the evidence as a whole. An unprepared interview often creates evidence rather than removing suspicion. |
| I have to answer every police question | In most situations you only have to provide limited information, such as your name and address when lawfully required. |
| The right to silence was abolished in NSW | No. Section 89A qualified it for serious indictable offences in narrow circumstances, but the general rule in section 89 remains. |
| I can sort the interview out myself and get a lawyer later if needed | What is said, or not said, at the interview stage can shape the whole case. Early advice usually gives you more options, not fewer. |
Local help in Hornsby and the Upper North Shore
Caspian Legal is based at 22–28 Edgeworth David Avenue, Hornsby NSW 2077, a short walk from Hornsby Local Court and Hornsby station. We assist clients from Hornsby and nearby suburbs including Waitara, Asquith, Wahroonga, Thornleigh, Pennant Hills and Berowra with police interviews, Court Attendance Notices, bail and Local Court hearings. Many matters that begin with a police interview in this area are listed at Hornsby Local Court, and being advised before the interview stage can make the court process more manageable.
What happens in a first consultation?
- We review your court papers, police facts and any correspondence from police.
- We explain, in plain English, how the right to silence and any exceptions apply to your situation.
- We discuss whether to participate in an interview, and if so, on what basis.
- We identify time limits, upcoming court dates and immediate next steps.
- We give you a clear outline of options and likely costs before you decide anything.
Why timing matters
Interview requests, bail conditions and court dates all run on timetables that are not of your choosing. Time limits may apply, and options that exist before an interview or a first mention may narrow afterwards. Obtaining advice early, rather than the night before court, usually gives your solicitor more scope to assist.
Frequently asked questions
Do I have to attend a police interview?
In most cases, no. Participation in a recorded interview is generally voluntary. If you are arrested, police may detain you for investigation for a limited period, but you still do not have to answer questions beyond lawfully required details.
Can my silence be used against me at Hornsby Local Court?
For matters dealt with summarily in the Local Court, section 89 of the Evidence Act 1995 (NSW) prevents an unfavourable inference being drawn from your silence during police questioning.
What is a special caution?
A warning under section 89A used for serious indictable offences, given in the presence of your lawyer, that staying silent about a fact you later rely on may harm your defence. It does not apply to people under 18.
Do I have to give police my name and address?
In defined circumstances under LEPRA, yes. Refusing, or providing false details, can be an offence.
Should I answer some questions and refuse others?
Selective answering carries risks and can create an unclear record. Obtain advice before deciding how to approach an interview.
Does the right to silence apply to my phone passcode?
Access to devices is governed by separate search and digital evidence powers, and in some situations orders can compel assistance. This area is technical, so obtain specific advice before responding to any demand.
Can I stop an interview after it has started?
You can decline to answer further questions at any point. Anything already said remains recorded.
Will refusing an interview affect bail?
Bail decisions are made under the Bail Act 2013 (NSW) based on factors such as risk, not on whether you exercised your right to silence. Advice on your particular circumstances is important.
Speak with a solicitor before you speak with police
If police have contacted you for an interview, or you have received a Court Attendance Notice listed at Hornsby Local Court, contact Caspian Legal to discuss your options before taking the next step. We can review your papers, explain how the right to silence applies to you and prepare you for what comes next.
Caspian Legal Pty Ltd
22–28 Edgeworth David Avenue, Hornsby NSW 2077
Phone: 02 7264 3200
Website: caspianlegal.com.au
If we have assisted you, you can leave a review: g.page/r/CYig8LJ260Y7EB0/review
Sources
Evidence Act 1995 (NSW), section 89 – AustLII
Evidence Act 1995 (NSW), section 89A – AustLII
Evidence Act 1995 (NSW), section 20 – legislation.nsw.gov.au
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – legislation.nsw.gov.au
Judicial Commission of NSW, Criminal Trial Courts Bench Book, Silence – evidence of
