Getting Arrested: The Right to Remain Silent and ‘Miranda Rights’ in Australia

The Miranda Rights are so familiar to those of us who watch US police television shows that we can almost recite the words by memory.  But while the Miranda Rights are a staple of Hollywood movies and  the lives of Americans, they do not exist under Australian law, nor is there a similar counterpart. In fact, Vice president of Queensland Council of Civil Liberties Angus Murray has previously stated that many Australians misunderstand their rights due to their familiarity with American rights. “I think people use rights they see on television, which are often American rights, so unfortunately they don’t know their rights in the context in Australia, ” Murray told ABC News.

While we do not have Miranda Rights in Australia, this does not mean that we don’t have similar rights to those arrested in the United States. The key difference is that Australian police are not obligated by law to recite a statement of rights during an arrest, which means that it is important that you and your loved ones know your rights in the unfortunate event that you are ever taken into custody.

What Are Miranda Rights?

The Miranda Rights are a statement provided by police officers to people being placed under arrest. The term was taken from the 1966 Supreme Court decision which found that Ernesto Miranda’s rights were violated during his arrest. When someone has their rights read to them, this is called being “Mirandized”. The Miranda Rights are familiar to Australians because of their ubiquitous use in Hollywood film and television, however Miranda Rights are exclusive only to the United States of America. The Miranda Rights read as follows:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?”

Miranda Rights only go into effect once the person has been arrested, and again, are exclusive to the United States of America. 

Do I Have a Right to Silence While Being Arrested in NSW, Australia?

While Australian police officers are not obligated to recite the Miranda Rights, nor does Australia even have a comparable version of them, Australians do have a fundamental legal right to silence. This means that you do have the right to remain silent when questioned prior to or during legal proceedings. Basically, you cannot be compelled to incriminate yourself and you have the right to adequate legal representation.

You are compelled by law to provide your personal details if they are requested by a police officer, however that officer must identify themself by surname, rank and identification number, as well as produce their police identification. You have the right to request this information.

Note that there are some rare exceptions to this rule. For instance, in serious criminal matters, exceptional bodies such as the Australian Crime Commission and NSW Crime Commission do have the power to compel witnesses to answer questioning. Refusing to do so is an offence- but any self-incriminating evidence cannot be used against the provider.

Can your right to silence be used against you as evidence of guilt?

Silence cannot be used against you to prove your guilt, generally speaking.  It is not up to you to prove your innocence by refraining from your right to silence. Rather, it is up to the prosecution to prove your guilt beyond a reasonable doubt. Therefore, the jury must rely on facts and evidence to determine innocence or guilt and not on any act of silence. When this fact is brought up in court, it is up to the judge to direct the jury that exercising this right cannot be interpreted as evidence of guilt.

You are not compelled to say anything but exercising your right to silence can be problematic if not saying anything can harm your defence. This is especially true if you do not mention something during questioning that you later want to rely on in court. This is commonly known as the special caution

The “Special Caution”- An Exception to the Right to Silence

On March 13, 2013, a new Bill was enacted to amend section 89 of the Evidence Act 1995 (NSW). The Bill applies only to serious indictable offences (5 years + in prison) and “allows an unfavourable inference to be drawn against certain accused persons who refuse to cooperate with the police during official questioning and who later seek to rely on a fact in their defence at trial that they could reasonably have mentioned during this questioning.” 

Under the amendment the change to caution is as follows: “You are not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something which you later rely upon in court. Anything you do say and do may be given in evidence. Do you understand?”

While this may sound worrisome, you do not have to make any decisions without legal consultation, as the “Special Caution” can only be administered in the presence of a lawyer, who when present, can advise you.

What are the Limitations?

This amendment reform discourages silence by creating the risk of an adverse inference. It will also take away the protection of the right of silence for people who are accused of a crime and who are stressed, confused or in another vulnerable state or who have poor English skills during questioning.

The right of silence has been heavily exploited by criminals who know how to use this law in their favour. However, it does not protect witnesses who expect retribution from offenders because they do not qualify for the right because they themselves are not being charged.

Should I always exercise my right to silence?

As a general rule, it is more often than not best to exercise your right to silence and not answer any questions asked of you by the Police. However, there are several exceptions to the rule and it is important to contact an experienced Criminal Defence Lawyer to ensure that you are properly advised. As previously mentioned, if you refuse to cooperate with police and do not relay reasonable facts to them which you eventually use as evidence for your defence

What Can I Request?

While we do not technically have the Miranda Rights in Australia, we do essentially have all of those same rights stated within them, plus a few more.. If you are arrested, you may request an attorney to sit in on your interviews, you may contact a loved one to inform them and you may request medical attention or a language interpreter, if these are necessary. 

Being arrested can be a scary experience and police often utilise that fear to obtain confessions and make you incriminate yourself. No matter what, the most important thing to know is that you have rights and you are entitled to make requests which are associated with your basic human rights.

Your Rights Against Police in Australia

Australia is a proud representative democracy with a strong set of laws and inviolable human rights. While police are awarded certain powers and abilities to do their job, these powers should not infringe upon citizen’s basic human rights. While police do not have to “Mirandize” their suspects, it is common practice to ensure that people who have been arrested understand their basic rights.  However, we believeIt is better to know them before you ever get into that situation, and to seek legal advice from experienced lawyers.. Rights afforded to an arrested person under our laws include the following:

• The right to remain silent (with aforementioned exceptions)
• The right to contact a lawyer and have them present for the investigation.
• The right to medical attention, if necessary.
• The right to contact a friend or family member.
• The right to utilise an interpreter, if necessary.

Whether you are read your rights by police or not, as an Australian citizen you have inviolable human rights which must be upheld and respected. You have the right to remain silent, although it is possible that your silence may be used by prosecutors later. You also have the right to a solicitor, medical care and translators. If you or someone you know have been arrested, contact LY Lawyers, Sydney’s most trusted criminal lawyers who have offices throughout NSW. Call our 24/7 hotline at 1300 595 299 or book a free online consultation.