The right to remain silent in common law can be traced back to the principles of English common law. This forms the foundation of the legal systems in many countries, including Australia, United Kingdom and the United States of America.
One of the earliest references to the right to remain silent in common law can be found in the writings of Sir William Blackstone. Blackstone was an influential English jurist and legal commentator who lived in the 18th century.
In his renowned work “Commentaries on the Laws of England,” published between 1765 and 1769, Blackstone wrote that a defendant in a criminal case “is not obliged to accuse himself” and that “the law holds that it is better that ten guilty persons escape, than that one innocent suffer.” This principle, known as Blackstone’s ratio, reflects the idea that individuals should not be forced to incriminate themselves in criminal proceedings.
The right to remain silent in common law was further developed through legal precedents established by courts in England and later adopted in other common law jurisdictions. These precedents recognised that individuals have a fundamental right to refuse to answer questions or provide evidence that could be used against them in a criminal prosecution.
This right is based on the principle of protection against self-incrimination, which holds that individuals should not be compelled to be witnesses against themselves in criminal cases.
In Australia, the right to remain silent is not explicitly codified as a standalone constitutional or statutory provision. However, it is recognised as an important legal principle and is protected through various legal safeguards. This includes common law principles, legislation, and international human rights conventions to which Australia is a party.
The right to remain silent in Australia is primarily derived from the common law, which is the body of legal principles and doctrines that have been developed by courts through judicial decisions.
Australian courts have recognised the right to remain silent as a fundamental aspect of the right to a fair trial, which is protected under the common law principles of natural justice and procedural fairness. This right allows individuals to refuse to answer questions or provide evidence that could incriminate themselves in criminal proceedings, without adverse inferences being drawn from their silence.
In addition to common law principles, the right to remain silent is also protected through legislation in Australia. For example, the Evidence Act 1995, which is a federal statute that applies to both criminal and civil proceedings in Australia, contains provisions that govern the admissibility of evidence and provide protections for witnesses. This includes the right to refuse to answer questions that may incriminate themselves.
Furthermore, Australia is a signatory to various international human rights conventions, such as the International Covenant on Civil and Political Rights (ICCPR), which enshrine the right against self-incrimination. While these conventions are not directly incorporated into Australian domestic law, they can be used as interpretive tools by courts in determining the scope and application of legal rights. This includes the right to remain silent.
It is important to note that the specific legal protections and requirements related to the right to remain silent may vary among different Australian states and territories, as criminal law is primarily governed by state and territory legislation. Therefore, it is advisable to consult the relevant laws and legal authorities in the specific jurisdiction within Australia for a comprehensive understanding of the right to remain silent in that particular context.
There have been several high-profile criminal cases in Australia that have involved issues related to the right to remain silent. Some of these cases have shaped the legal landscape and influenced the interpretation and application of the right to remain silent in the Australian legal system. Here are a few notable examples:
One of the most famous criminal cases in Australia involving the right to remain silent is the Chamberlain case, also known as the “dingo baby” case. In 1980, Lindy Chamberlain and her husband Michael Chamberlain were charged with the murder of their nine-week-old daughter, Azaria, who was allegedly taken by a dingo while the family was camping at Uluru (formerly known as Ayers Rock) in the Northern Territory. During the trial, Lindy Chamberlain refused to answer certain questions, invoking her right to remain silent.
Despite maintaining her innocence, she was convicted and sentenced to life imprisonment. However, years later, new evidence emerged, and the Chamberlains were exonerated. The case had a significant impact on public perception of the right to remain silent in Australia and led to reforms in criminal investigation and evidence collection procedures.
Jaidyn Leskie Case
In 1997, Jaidyn Leskie, a 14-month-old baby, went missing in Victoria, Australia. Gregory Domaszewicz, the boyfriend of Jaidyn’s mother, was charged with murder. During the trial, Domaszewicz chose to remain silent and did not testify in his own defence. He was eventually acquitted, and the case raised questions about the right to remain silent and the presumption of innocence in the Australian legal system.
Mickelberg Brothers Case
The Mickelberg brothers, Ray, Peter, and Brian, were charged and convicted of one of the largest gold bullion thefts in Australian history in the 1980s. During their trial, they chose to remain silent and did not testify in their own defence. Despite their silence, they were convicted and received lengthy full time custodial sentence.
However, the convictions were later overturned due to concerns about the reliability of evidence for a criminal offence and alleged police misconduct. The case brought attention to the issue of the right to remain silent and the potential risks and challenges faced by accused persons who choose to exercise this right in criminal proceedings.
Terry Falconer Case
Terry Falconer, a former police officer, was charged with the murder of his estranged wife in New South Wales in 2001. During his trial, he refused to answer certain questions and invoked his right to remain silent. Falconer was ultimately acquitted, and the case highlighted the significance of the right to remain silent in the context of criminal investigations and trials in Australia.
These are just a few examples of notable criminal cases in Australia that have involved issues related to the right to remain silent. The outcomes of these cases have contributed to the understanding and interpretation of this right in the Australian legal system, and have shaped the development of legal principles and practices related to criminal investigations and trials.
In Australia, there is no specific legal term or concept known as “Miranda rights” as in the United States. The term “Miranda rights” refers to the legal warnings that must be given to individuals in the United States who are in police custody and about to be interrogated, based on the landmark decision of Miranda v. Arizona by the U.S. Supreme Court in 1966.
However, in Australia, individuals who are taken into police custody have certain rights and protections under Australian law. This includes illegal police interviews which may be inadmissible if warning are not provided to accused persons. This may be similar in nature to the Miranda rights in the United States. These rights may vary slightly depending on the state or territory where the individual is in custody, as well as the specific circumstances of the situation. Accordingly, there is no Miranda rights in Australia pursuant to the law in United States.
There are exceptions to the right to remain silent in Australia, where individuals may be required or compelled to provide information or answer questions, even if it may incriminate themselves. Some of the key exceptions to the right to remain silent in Australia include:
It is important to note that the scope and application of the exceptions to the right to remain silent may vary depending on the specific circumstances and the relevant laws and regulations involved. It is advisable to seek legal advice if you are facing a situation where the right to remain silent may be implicated to understand your rights and obligations under Australian law.
If you are taken into police custody, the following are your rights:
You have the right not to answer any specific questions unless compelled by a specific law (such as offences regarding motor vehicles (such as a formal demand) and the investigation of terrorist activities) to do so. Police must inform you that any answers you give may be used as evidence against you in court. Remember that usually silence is not evidence of guilt.
If you have been arrested or charged by police. You should speak to specialist avo lawyers in Sydney. Our team of criminal defence lawyers will provide you a free consultation for 15 minutes to discuss your case with you.