If you are a suspect for a criminal offence, or are being investigated for a crime, the Police may want to ask you questions. You do not have to answer these questions. In fact, you have a right to silence. Your right to silence means you do not have to answer police questions, do not have to make a statement, and do not have to participate in a police interview unless you choose to.


The right to silence is literally the right to remain silent. You have the right to say nothing. Police are not allowed to infer any guilt just because you chose not to speak or respond to their questions. The onus is on the prosecution to prove you are guilty and you do not have to prove your innocence. You are innocent until you are proven guilty.

Section 89 of the Evidence Act 1995 (NSW), provides the common law right to silence. This provision provides that no adverse inference is to be drawn, based on evidence, that a person failed to answer the questions. This follows through with the common law principle that the prosecution bears the burden of proving a person guilty and the accused is innocent until proven guilty. However, section 89A provides that in, serious indictable matters, courts may draw an unfavourable inference towards a suspect who failed to assist police in interviews and subsequently advanced a defence. This adverse inference is only to be drawn when a person has been given a ‘special caution’ that consists of a warning that remaining silent may actually harm their defence. If such a caution has not been given, no adverse inference may be drawn. Therefore, remaining silent in very serious indictable matters could be seen as detrimental to the accused.


The police may want to ask you questions in relation to what had happened and confirm your involvement in the matter or if anyone else was involved. There is a chance that the police will show you some sort of evidence. For example, images and CCTV footage may be shown to you to confirm the identity of the offenders. This is the police’s job and they have the right to ask you these specific questions but, again, you do not have to answer these questions or give information. Generally speaking, it is advised that you exercise your right to silence.


The police may want to take a buccal swab from you as DNA samples are considered to be more effective in solving crimes than fingerprints. The advantages that come from DNA samples are that it speeds up the investigation and assists the police in very serious criminal matters.

DNA samples involve an extent of intrusion to your body, which can either be done by your consent, the force of police through the powers of the court and can also be done without your permission.

Police are allowed to ask you to consent to give samples of your DNA. If, however, you do not agree to provide a sample to the police they may use reasonable force to carry out a DNA sample. This police power is outlined in section 47 of the Crimes (Forensic Procedures) Act 2000 (NSW).  The court has the power to make an order to carry out of a forensic procedure on an untested offender which is pertained under section 75M of the Crimes (Forensic Procedures) Act 2000 (NSW).

If you are a suspect of a criminal offence, or are being investigated for a crime, exercise your right of silence, and speak to one of our lawyers. Our lawyers will provide you advice in relation to your matter. Call our office today and speak to one of our friendly staff.

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