The Right to Silence

Queensland

Get informed about the right to silence in Queensland

In Queensland, the right to silence is recognised as important but it is not an absolute right. While often relevant to police suspects facing questioning, in some situations it can be an offence to not answer questions of a person in authority. In limited circumstances, the law allows unfavourable inferences to be drawn because a suspect remains silent.

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The Right to Silence

The right to silence is both enshrined and qualified by a number of different laws and principles in Queensland.


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The Right to Silence

The right to silence is both enshrined and qualified by a number of different laws and principles in Queensland.

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View our growing library of articles and webinars, which are accessible no matter the time of day or night.

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Anderson Legal provides a free, no-obligation consultation to understand whether this firm can assist you.

The Right to Silence in Queensland

The right to silence is a fundamental rule of the common law that protects people accused of crimes.
This section deals with the following:
Criminal Defence Image

The Right to Silence in Queensland

The right to silence is a fundamental rule of the common law that protects people accused of crimes.
This section deals with the following:
Criminal Defence Image

The right to silence in Queensland

The significance of the right to silence

The right to silence is regarded as a fundamental rule of the common law. It relates to the requirement that the prosecution prove its charge beyond a reasonable doubt rather than it being for an accused person to prove their innocence.

In Queensland, the right to silence is made complex by a range of laws that either enshrine the right or abrogate it. It is important to understand the essential origins of the right to silence in order to appreciate why courts exclude evidence obtained by police in breach of the right to silence. Equally, it is important to understand the limits of the right and how its exercise can be used against an accused person in limited circumstances.

In the High Court case of RPS v The Queen [2000] HCA 3, Justice McHugh explained the right to silence is related to the privilege against self-incrimination:

The “right to silence” derives from the privilege against self-incrimination. That privilege is one of the bulwarks of liberty. History, and not only the history of totalitarian societies, shows that all too frequently those who have a right to obtain an answer soon believe that they have a right to the answer that they believe should be forthcoming. Because they hold that belief, often they do not hesitate to use physical and psychological means to obtain the answer they want. The privilege against self-incrimination helps to avoid this socially undesirable consequence.

In Queensland, section 10 of the Criminal Law Amendment Act 1894 (Qld) – a law that is approaching 130 years old – remains in force to guard against involuntary statements by an accused person. It states:

No confession which is tendered in evidence on any criminal proceedings shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.

Being tied to the privilege against self-incrimination, the right to silence is connected to the fundamental principle in the criminal justice system that an accused person is not required to prove their innocence. In the High Court case of Petty and Maiden v The Queen (1991) 173 CLR 95, Justice Gaudron stated at pages 128-9:

Although ordinary experience allows that an inference may be drawn to the effect that an explanation is false simply because it was not given when an earlier opportunity arose, that reasoning process has no place in a criminal trial. It is fundamental to our system of criminal justice that it is for the prosecution to establish guilt beyond reasonable doubt. … it is never for the accused person to prove his innocence … Therein lies an important aspect of the right to silence, which right also encompasses the privilege against incrimination.

There are specific laws in Queensland that confirm, modify, or abrogate the common law right to silence. The significance of these laws means the way an accused person chooses to exercise their rights will vary according to their priorities and situation. There is no ‘one size fits all’ advice that can be given to a police suspect about whether or not to exercise the right to silence. For that reason, any person facing the prospect of police questioning ought to obtain specific advice from an experienced criminal lawyer.

Specific ‘right to silence laws’ in Queensland

There are a number of laws or regulations that are relevant to the right to silence in Queensland. In addition to the Criminal Law Amendment Act 1894 (Qld) referred to above, they include:

  • Human Rights Act 2019 (Qld)
  • Police Powers and Responsibilities Act 2000 (Qld)
  • Police Powers and Responsibilities Regulation 2012 (Qld)

Human Rights Act 2019 (Qld)

The right to silence is derived from the privilege against self-incrimination, which relates to the presumption of innocence. In that way, it may be concluded that section 32(1) of the Human Rights Act 2019 (Qld) impliedly protects the right to silence in declaring:

A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

Police Powers and Responsibilities Act 2000 (Qld)

The Police Powers and Responsibilities Act 2000 (Qld) has a number of provisions designed to ensure police suspects have the right to silence in Queensland. In Chapter 15, which relates to the powers and responsibilities of police relating to investigations and questioning for indictable offences, it is stated in section 397:

397 Right to remain silent not affected

Nothing in this chapter affects the right of a person to refuse to answer questions, unless required to answer the questions by or under an Act.

Section 431 of the Police Powers and Responsibilities Act 2000 (Qld) requires a police suspect to be cautioned in the way required under the ‘responsibilities code’ if they are being investigated or questioned in relation to an indictable offence.

Police Powers and Responsibilities Regulation 2012 (Qld)

The responsibilities code, referred to above in relation to section 431 of the Police Powers and Responsibilities Act 2000 (Qld), is set out in the Police Powers and Responsibilities Regulation 2012 (Qld). With respect to cautioning about the right to silence, it states:

26 Cautioning relevant persons about the right to silence

(1) A police officer must caution a relevant person about the person’s right to silence in a way substantially complying with the following—

‘Before I ask you any questions I must tell you that you have the right to remain silent.

This means you do not have to say anything, answer any question or make any statement unless you wish to do so.

However, if you do say something or make a statement, it may later be used as evidence.

Do you understand?’.

(2) If the police officer reasonably suspects the relevant person does not understand the caution, the police officer may ask the person to explain the meaning of the caution in the person’s own words.

(3) If necessary, the police officer must further explain the caution.

(4) If questioning is suspended or delayed, the police officer must ensure the relevant person is aware the person still has the right to remain silent and, if necessary, again caution the person when questioning resumes.

(5) If a police officer cautions a relevant person in the absence of someone else who is to be present during the questioning, the caution must be repeated in the other person’s presence.

Breaches of the ‘right to silence’ by police

If the right to silence is infringed in some way, any statements made by an accused person – even if completely incriminating – may be ruled inadmissible by a court. Such a ruling means any confession or admissions cannot be relied upon by the prosecution in proof of the charge.

The effect of section 10 of the Criminal Law Amendment Act 1894 (Qld) is that confessions or admissions made involuntarily must be rejected. Beyond that law, the common law gives judges the ability to make discretionary decisions about whether there is a reason to exclude voluntary statements by an accused person from the evidence. The nature of this discretion was explained in the High Court case of Pollard v The Queen (1992) 176 CLR 177 by Justices Brennan, Dawson and Gaudron at page 196:

Even if it was voluntary, the trial judge has a discretion to exclude it if it would be unfair to the accused to admit it. In addition, the trial judge has a separate discretion to exclude, on the grounds of public policy, evidence which has been improperly or illegally obtained.

Beyond those two discretionary bases, a further basis for the rejection of a statement by an accused person was explained by the High Court in the case of The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159 by Justices Toohey, Gaudron and Gummow at page 189:

The question is not whether the police have acted unfairly; the question is whether it would be unfair to use his statement against him … Unfairness, in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.

As is clear from the above, in cases where an accused person has had their right to silence overridden, courts have a clear power to remedy the situation by excluding the evidence if it is considered to be unreliable or would otherwise be unfair to allow the prosecution to rely on it.


How the right to silence is qualified

When police have the power to require answers

In Queensland, there are a number of laws that give police officers the power to require answers. This includes:

  • Under section 41 of the Police Powers and Responsibilities Act 2000 (Qld), a police officer may require a person to provide their name and address to police in prescribed circumstances, such as if they are reasonably suspected of having committed an offence.
  • Under section 55 of the Police Powers and Responsibilities Act 2000 (Qld), a police officer may require information that will help identify or help identify the person in control of a vehicle during a suspected contravention of road laws in Queensland.
  • Under section 56 of the Police Powers and Responsibilities Act 2000 (Qld), a police officer may make any reasonably necessary inquiry, investigation, inspection, examination or test in relation to a relevant traffic incident (ie, where death or injury is caused to a person, or damage is caused to property), which may including requiring a person to answer any relevant questions or provide information relevant to the incident.
  • Under section 156 of the Police Powers and Responsibilities Act 2000 (Qld), a police officer may be permitted under a search warrant to require a specified person to give access information (eg, a password or code) to enable the officer to gain access to the device.

One of the important roles of a criminal lawyer is to assist people facing investigation or charges to understand the interactions between different laws, such as how the laws that protect the right to silence interact with the above laws. In particular, there may be limitations on the power to require answers or information in certain circumstances or because of other legal principles, such as ‘client legal privilege’ or ‘legal professional privilege’.

Coercive investigations by law enforcement agencies

There are a number of law enforcement agencies with powers that expressly abrogate the right to silence and the privilege against self-incrimination. This includes:

The way different law enforcement agencies may use any compelled answers or information they obtain differs. Anybody facing a police investigation or coercive investigation by a law enforcement agency ought to obtain advice from an experienced criminal lawyer to ensure they understand their legal options and rights.


The consequences of remaining silent

Relevance in criminal trials

In cases where the issue arises, judges will often direct juries that silence is not evidence against an accused person and that it is wrong to think that the refusal to answer police questions must be because they have something to hide or are guilty of some offence.

The same is often true when a defendant in a trial chooses not to give evidence in their own defence. There can be many reasons why a defendant may choose to not testify. In such cases, judges will generally direct a jury that a defendant has a right to not give evidence and that they are entitled to insist on the prosecution to prove the case against them. In essence, they are reminded that because of the presumption of innocence, the silence of an accused person cannot be used to fill any gaps in the prosecution case.

In rare and exceptional and exceptional cases, a judge may outline how an adverse inference may be drawn against a defendant who maintains their silence in the face of significant facts led by the prosecution that could only be explained or contradicted by further evidence peculiarly within their knowledge. In such cases, the jury may consider if an inference in favour of guilt is “strengthened” by the decision of the defendant not to offer an innocent explanation to the prosecution case given such evidence could not come from any other source.

Relevance to sentencing hearings

In sentencing hearings in Queensland, the Penalties and Sentences Act 1992 (Qld) requires a court to consider a range of factors relevant to the punishment to be imposed. Included in those factors is the requirement for a court to consider “how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences”. For that reason, a person faced with a police investigation may consider not only how any statements they make may be used for or against them, but also how a court may use it both at trial and sentence. If a person exercises their right to silence they may not be additionally punished for that decision during sentencing, however, they may also not receive any benefit for cooperating with police or law enforcement agencies in the investigation.


Although based in Brisbane, Anderson Legal is frequently engaged to defend people facing criminal allegations across Queensland. If you are dealing with a criminal law issue and need advice and representation, particularly concerning the right to silence, Anderson Legal provides comprehensive criminal defence services to its clients. This includes:

  • providing advice relating to allegations made or documents served on our clients;
  • identifying the strengths and weaknesses of the case alleged against our clients;
  • advising clients on options relating to obtaining evidence, including expert evidence;
  • communicating on behalf of its clients with police, courts, and others;
  • resolving, where appropriate, criminal charges through negotiation;
  • applying to the courts for orders and rulings, including to exclude police evidence;
  • representing clients in trials and sentences before all courts; and,
  • filing and litigating appeals against wrongful convictions and unjust sentences.

This firm places an emphasis on providing clear guidance so that our clients are placed in a real position to make informed decisions about their options and their preferred path forward. Anderson Legal provides clear, transparent disclosure of its legal costs at every stage.

  • Andrew Anderson, Legal Director, is an experienced lawyer who has been independently described by the Courier Mail as “one of the best legal minds” and a “leading corporate and white-collar crime lawyer” (16 December 2021).
  • Having successfully represented litigants in the High Court of Australia, Queensland Court of Appeal, Royal Commissions, and multiple other courts dealing with trials and other hearings, Andrew Anderson has a demonstrated record of success in complex and difficult cases.
  • Prior to operating a law firm, Andrew Anderson worked as a Principal Crown Prosecutor in Queensland and barrister in private practice at 8 Petrie Terrace Chambers in Brisbane. His depth of courtroom advocacy experience ranges from straightforward cases right through to complex homicide trials and appeals.
  • Anderson Legal is a law firm that is dedicated to the best ideals of the legal profession. Seeking to exceed client expectations and fighting for justice is an everyday pursuit.

Limitations on general information

Each legal issue is unique. The information on this page and website cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature if you want to learn more about the right to silence, particularly as it relates to anybody facing an issue of this kind in Queensland. Anybody dealing with a police or other investigation ought to obtain expert legal advice and guidance as soon as possible.

No content accessible on the website is created to provide specific legal answers or advice. It is designed to provide general information about legal matters and related concepts. It should not be used as, or in substitute of, your own legal advice or other advice as appropriate.

To the extent allowed by law, no warranty, condition, or guarantee is provided in relation to the accuracy or reliability of any information contained on this site. Content may be changed from time to time without notice.

If you face an investigation or charge and need advice and representation, contact Anderson Legal. This firm provides expert advice and representation for people needing assistance to defend themselves against unjust accusations.

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