“You have the right to remain silent, but anything you say can be used as evidence against you in a court of law. Before questioning, you have the right to speak with a lawyer. During questioning, you also have the right to have a lawyer present. If you cannot afford a lawyer, one can be appointed to you by the court if you wish. If you decide to answer questions now without a lawyer present, you also have the right to stop answering at any time.”

This passage is the famous Miranda warning from the American legal system, and it leads into today’s topic of discussion.

The Right to Silence

When it comes to the right to silence, most of us have some familiarity with it through films and TV. Typically, when a righteous police officer subdues a suspect and recites the Miranda warning, it generally signals that the case is solved — a happy ending.

However, from a legal perspective, once the police recite the Miranda warning, the long judicial process is really just beginning.

Does the right to silence really concern you?

You might think that, as a law-abiding person who is unlikely to be questioned by police, the right to silence has nothing to do with you.

However, learning the basics of how to deal with police is very important for anyone living in Australia.

Due to differences in culture and legal systems, having the police come knocking is not out of the question. You may even find yourself unknowingly caught up in an unpredictable dispute, and a lack of basic legal knowledge can lead to extremely unfavourable legal consequences.

The Right to Silence vs. Answering Truthfully

Australia’s legal system inherits the right to silence as set out in Anglo-American common law. That is, when a suspect is questioned by police, they may choose to cooperate or remain silent. When a suspect is required to appear in court, they may also choose to remain silent and are not required to prove their own innocence. Police cannot convict someone simply for refusing to cooperate with questioning, nor can they assume the person has done something wrong, because that person has no obligation to answer police questions.

The right to silence is often challenged on the grounds of reasonableness, reflecting different underlying value priorities. Different legal systems take different stances on the right to silence.

Under the Chinese legal system, criminal suspects are required to answer investigators’ questions truthfully. The logic behind this is that if the suspect has not engaged in criminal conduct, then answering questions truthfully will not result in any negative consequences for them. Solving criminal cases protects the public interest, and citizens have a duty to cooperate with police investigations in order to safeguard that public interest.

In Australia, by contrast, the reasoning behind the right to silence leans more toward protection of individual rights, namely a strict ‘presumption of innocence’. A suspect is presumed innocent until proven guilty, and only a court can convict a suspect. As an innocent person, one naturally has no obligation to cooperate with police questioning. A suspect, being presumed innocent, has no obligation to prove their innocence by answering police questions or producing evidence.

On the contrary, the task of proving guilt falls to the police and the prosecution. The charge is only formally established once the court is pers\uaded by the prosecution’s evidence and delivers a guilty verdict against the suspect. In other words, from the moment a suspect is questioned by police until the final determination of guilt or innocence, they may choose to remain silent throughout.

In other words, questioning is the police’s job, not answering is your right, and whoever accuses me of a crime bears the burden of proving it — I do not need to tell you why I am innocent, because that is not my duty.

But the right to silence is not a free pass — you can’t just walk away!

So does the right to silence mean that when you are questioned by police, you can casually toss out a line like, ‘I don’t want to be questioned,’ and then stay silent? In theory, yes, but exercising the right to silence is not necessarily the best choice. Let’s look at a few cases:

1. A married couple, Xiaoming and Xiaohua, have an argument over everyday trivial matters. In the heat of the moment, Xiaoming pushes Xiaohua. The argument is witnessed by neighbours, who call the police, and both are taken to the station for questioning.

2. An 8-year-old child proactively reports to a teacher at school that they have been hit by their parents, and the parents are taken away by police for questioning.

3. During a routine customs check, Xiao Zhang is found to have several “prohibited films” stored on his electronic devices. Xiao Zhang is taken away for questioning.

4. Zhang San, alone in a hotel room and partially dressed, asks a staff member to come in to clean the room and makes physical contact with them. The staff member calls the police and accuses Zhang San of sexual harassment, and Zhang San is taken away by police for questioning.

In these cases, particularly those involving arguments between spouses and the discipline of children, traditional thinking holds these to be family matters — as long as they don’t get out of hand, they are not the police’s business. However, what we might consider a normal argument or disciplining a child may already constitute family violence or child abuse under Australian law. So what are the outcomes of these cases? Let’s pause and briefly review Australia’s judicial process.

When a person is taken in for questioning by police on suspicion of a crime — like the parties in the cases above — the judicial process has already begun the moment they are taken in. It can develop in one of three main directions:

– If, after questioning, the police consider that no crime has been committed, they will decide not to prosecute and release the person.

– If, after questioning, the police consider that a crime has been committed, and it is a less serious criminal offence, the police will prosecute the matter themselves. In other words, the person becomes the defendant, with the police as the prosecutor.

– If it is a serious criminal offence, the matter is handed over to the prosecution, i.e. the Director of Public Prosecutions (DPP), to bring the charges. In this case, the DPP becomes the prosecutor.

It’s clear that the outcome of police questioning is key to whether the police decide to prosecute. To establish that a charge can be made out, police must consider both intent and actual conduct. Any answer you give can be used as evidence in court. For the same event, different ways of answering or describing what happened can lead to different levels of liability. An unsuitable answer may increase the sentence a judge imposes. Equally, fully exercising the right to silence can lead police to view a person as ‘dishonest’ and prosecute them, when they could otherwise have been released without charge.

Now let’s look at the outcomes of the cases:

In case 1, during questioning Xiaoming and Xiaohua panicked, and many of their answers worked against them. Xiaoming later retained an experienced criminal lawyer and spent a great deal of money that could have been avoided before the matter was finally resolved.

In case 2, the parents did not take the matter seriously enough. During questioning they repeatedly tried to explain to the police why they had hit the child, which effectively amounted to an admission of using violence against a child, and they were ultimately prosecuted.

In case 3, Xiao Zhang urgently consulted a lawyer before being questioned, and attended the interview with the lawyer present. With reasoned answers to the police’s questions, after several hours of questioning the police concluded the evidence was insufficient and he was released without charge.

In case 4, Zhang San thought the best approach was simply to deny everything, and kept answering “no” throughout the questioning. He was ultimately prosecuted.

Final Thoughts

As these cases show, if you are ever questioned by police due to an unexpected situation, the best approach is to stay calm, immediately consult an experienced criminal lawyer, and only decide whether to participate in police questioning after receiving the lawyer’s professional assessment. Blindly exercising the right to silence, answering in a way you think is reasonable, or selectively answering only some of the police’s questions can all lead to consequences that are difficult to undo.