Don Donna

‘You have the right to remain silent…’ is a well-known refrain that we hear a whole lot when watching American police shows. The reciting of the Miranda warning has certainly turn out to be so ingrained into the awareness of Australians, that on an occasion whenever someone ( hopefully not you ) is caught, there can be an expectation by some that a Miranda warning may be driven towards an accused right here as well : But is this assumption right ? Furthermore, is there a real right to silence in Australian law if an individual of authority does question an accused person? Finally, if a person does stay silent ( paraphrasing an American Miranda warning), will it be used against him or her as proof of the person’s guilt?

Well, According to the Best Criminal Barrister In Melbourne, there are a variety of rights that you can get to us with regards to a police officer, and one of these is the right to silence.

The law along with the right to silence

Common law determines that if somebody has a reasonable perception that they are a suspect in the commission of an offence, a right to abstain from answering any specific questions from an individual of authority is available to the community, particularly in relation to any data surrounding the stated offence , along with the identities of the other alleged perpetrators. Furthermore, common law has mentioned, that no implication can be drawn from somebody who has preferred to exercise their right to silence, and if any specific conclusions are without a doubt made, it will deteriorate the right, or allow it to be worthless, as noted by the High Court Justices in Petty and Maiden v The Queen.

Generally speaking, the right to silence presupposes that when a trial was to occur in the commission of an offence, it is around a jury to figure out the innocence or guilt of a party, counting on the facts of the case, instead of the silence of an accused.

Can a jury be informed that an accused has worked out their right to silence ?

When proof is put forward throughout a trial, that an accused had worked out his or her right to silence, case law has claimed that as soon as the point has been made, the presiding judge must direct the jury that an individual exercising the right, can not be interpreted as proof of their guilt.

The basic approach can be found in Badgery-Parker LJ’s comments in R v Family in which His Honour said:

“…It is that where an accused person responding to a question put by police officers or replies to an invitation to discuss some matter put to him or her, what she or he says is within general well-timed in evidence. If what is stated amounts to around an assertion of the right to silence, it may be confessed but the jury needs to be immediately instructed about the right to silence which no inference adverse to the accused might be drawn for the reason that exercise of it…”

That basically encapsulates the right to silence flawlessly.

Sure Australia might not have Miranda warnings driven to us as seen on televisions cop shows. Nevertheless, the right to silence does exist, and viewers ought to know that no suggestion can actually be comprised of anyone working out this kind of a right