The Right to Remain SilentThe police, like anyone else have the right to ask questions however a suspect retains the right to silence (see Rice v Connolly). Silence then does not usually amount to an offence (although see exception if fail to comply with valid request for identification).
Generally no adverse inference to be drawn at trial from the exercise of this right: Petty and Maiden v The Queen (1991) 173 CLR 95. If police engage in or direct questioning for investigative purposes there are protections afforded to an accused. Some of these protections are afforded pursuant to the Police Powers and Responsibilities Act to relevant persons and if this legislation applies and police breach these provisions confessional evidence may be subject to exclusion, sometimes on a mandatory basis and sometimes under the unfairness or public policy discretion. Other protections are afforded even where someone is not a relevant person (for example where undercover operatives are involved, where a secret recording has taken place or in relation to questioning around non-indictable offence), particularly where the confession is involuntary or where it would be unfair to allow it. |
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