Right to Silence in South Australia: Police Interviews & ‘Answering Questions’


Despite some recent indications that one fundamental aspect of criminal law, the right to silence, is at risk of being disturbed to a degree by the South Australia Labor Government, the right to silence when being interviewed or questioned by Police still holds an immensely important place in the South Australian criminal justice system. There are some important legislative exceptions, such as providing ones name and address or, in particular circumstances, naming the driver of a motor vehicle however in a general sense declining to answer questions is still a valuable tool in protecting one’s rights against criminal prosecution. ‘No comment’ interviews do not indicate any guilt and an accused that so protects their rights cannot be subject to the crown drawing an inference of a guilty mind from a person who does not wish to speak with Police.

It is important to consider each case on its individual merits but in a broad sense it is always risky to agree waive one’s right to silence without seeking the advice of a criminal lawyer first. Culshaw Miller Criminal Lawyers are available 24 hours a day to assist persons under arrest or being questioned by Police on 0423 534 621. It is important to remember that if you choose to answer questions then those answers can be presented to a Court and may form partial or entire admission of a material fact that may assist the prosecution in obtaining a conviction.

Sometimes, during the stress of being interviewed people can say things while trying to assist Police that may inadvertently link them to an offence or indirectly indicate some form of guilt from which a prosecution may flow. Regrettably some people mistakenly believe that nothing that they say can be used in Court unless Police have delivered a formal caution, sometimes referred to in other jurisdiction as “reading a suspect their rights” (although in South Australia a criminal caution is vastly different from the “Miranda Rights” that are seen on American television) the reality, however, is that a caution is only required once a person becomes a ‘suspect’ thus, should one say something that may implicate them, directly or indirectly in a commission of an offence during the course of Police inquiries, than that admission will likely be admissible as evidence in Court whether a caution was delivered or not. The question of precisely when a person ‘becomes a suspect’ and thus entitled to criminal caution is one that has been closely examined by the Criminal Court of Appeal.

It is important to fully consider your position and that of the Police prior to answering any questions. Sometimes an accused person will answer seemingly innocuous questions hoping to “clear things up”  which, the Police knowing the full circumstances of the alleged offending will allege goes toward proving a material fact against the defendant, this can prove to be severely prejudicial to any case for the defence.

If you have been asked by Police to attend an interview, even if you do not think you are a suspect, it is advisable to seek legal advice from a criminal lawyer before agreeing to do so. Call Culshaw Miller Criminal Lawyers on 08 8486 0033 or 0418 421 153 to arrange for one of Culshaw Miller Criminal Lawyers to attend your interview with South Australian Police today.