Criminal Law News & Current Affairs

By Tom Taylor


“You do not have to say or do anything”: Why you should not answer police questions

It is a scenario any one of us could face when we least expect it and a client’s most common question. Should I be answering police questions? Whether innocent or otherwise, police may be at your house, work, streets, or already have you arrested at a police station alleging your involvement in a crime. The natural social instinct is to feel like you should answer any police questions put to you. After all, someone in uniform with apparent authority expects it.

The golden rule is to exercise your right to silence and never, ever, answer incriminating questions asked of you by police or participate in a record of interview. The exceptions are very rare and should only arise after you have sought legal advice from an experienced criminal defence lawyer. For example, there are very limited obligations, depending on what State or Territory you live in, to provide your name and address, or basic information if involved in, or a witness to, a motor vehicle accident.

No adverse inference can be drawn at a hearing or trial from exercising your right to silence. [1] It is an overarching principle in criminal law that the onus rests on the prosecution to prove an accused is guilty beyond reasonable doubt and it is not for the accused to prove their innocence.

I have heard the same rhetoric time and time again: “If I don’t say anything then it looks like I’m guilty” or “I need to tell my side of the story”. In our experience these ideas are completely misguided. In the great majority of cases, when police are asking incriminating questions or offering a recorded interview they have already decided you will be charged and want a little more to bolster their case; or they need that last piece of the puzzle (your admissions) to secure enough evidence to charge.

Even if you think you are confident police could not have sufficient evidence or you have done nothing wrong, do not do an interview. Agreeing to any seemingly innocuous question put by police has the potential of corroborating a crucial part of their case. It is very rare to see police declining to charge because of things said during a recorded interview.

It is a well-established legal principle that previous silence about a defence raised at trial by an accused is not a proper basis for inferring guilt or that the version is a new invention and some way unacceptable.[2]

When questioned by Police you must be provided with a caution.[3] Such as, “You do not have to say or do anything but anything you do say or do may be used in evidence.” These words are extremely important and all too often go in one ear and out the other in the pressure of the moment. Similarly, when granted the right to speak with a legal practitioner always do so. Do not wait until the interview is complete.

Ultimately if charged the opportunity to tell your side of the story will come at the hearing or trial. There is no greater value in telling your side to police than in court. To the contrary, evidence given in trial commonly carries greater weight because it is made under oath or affirmation.

If you come to be questioned by police resist the urge to talk and contact an experienced criminal defence lawyer immediately.

[1] Evidence Act 2011 (ACT) s 89 provides “In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or someone else failed to answer 1 or more questions; or to respond to a representation put or made to the party or other person by an investigating official who at the time was exercising functions in connection with the investigation of the commission, or possible commission, of an offence.”

[2] Petty and Maiden v The Queen (1991) 173 CLR 95; R v Stavrinos [2003] NSWCCA 339.

[3] Evidence Act 2011 (ACT) s 139(c)


Tom Taylor