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THE RIGHT TO SILENCE


Over many years of practice, principal Dan Creevey Snr has invariably never advised a client to provide a voluntary statement to the police at the first instance.


The right to silence is codified in legislation in Queensland. Under section 397 of the Police Powers and Responsibilities Act 2000, which states that a person's right to refuse to answer questions is protected, unless they are required under legislation to answer the questions - such as the Crime and Corruption Act. This right to silence is the principle that the burden of proving an accused’s guilt beyond a reasonable doubt falls on the Crown, where an accused cannot be compelled to self-incriminate.


In Petty & Maiden v The Queen, it was determined that a jury cannot draw an adverse inference against an accused because the accused refused to give an account to the police. However, this rule can vary when an accused agrees to answer some questions but refuses to answer others, or where a person does not explain matters that are solely within their knowledge.


It is the strong advice of Creevey Russell Lawyers that clients will have the opportunity to provide information they choose to at some later stage in the matter when they are fully apprised of the allegations against them.


There have been many attempts from government bodies that suggest the right to silence should be curtailed or even abolished. However, in our view, these attempts are illegitimate, and this right should be vigorously defended.


The fundamentals of the right to remain silent is based on personal freedom and human dignity. Specifically, this right protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory crimination. It is society's acceptance of the inviolability of the human personality. The right to silence has been a cornerstone principle of law since the 17th Century and the reasoning for this principle is best explained through the Latin bocard “nemo tenetur se ipsum accusare” – no man is bound to accuse himself. The Prosecution bears the onus of proof, and they must prove their case beyond reasonable doubt.


Principal Dan Creevey Snr has decades of experience in criminal law, where this provides him with the opportunity to observe that if you are asked by the police to give an interview it is generally because the police do not have enough evidence to prosecute you or, that even if they do, they're seeking a confession to make their job easier.


It is important to be live to the fact that the police will be fully prepared and have a lot more information about the matter in question than you do – which can lead to a person feeling that they need to give police further information to defend their name, even though this is detrimental to their case.


If you have not committed a crime, one may ask why you would be volunteering information to the police in any event.


Even if you are guilty of an offence, you gain nothing by telling the police anything at this stage – and even if you decide to plead guilty, you will not necessarily get any further discount on penalty by confessing in a police interview.


Police can detain suspects for up to 8 hours and will attempt various actions to make one think speaking to them is the right choice. But it very rarely is. Holding your nerves for 8 hours is better than having your freedom taken from you for months or years.


If you or a person known to you are required to provide a statement to police, please contact the Creevey Russell Lawyers Crime and Misconduct team as soon as possible.