The right to silence in NSW.

A right, with edges.

The right to silence means that, in general, a person does not have to answer police questions or take part in an interview, and cannot be punished simply for staying silent. It reflects the principle that it is for the prosecution to prove its case, not for the accused to talk their way out of it. But the right is not absolute. There are things you must tell police, and one situation where silence can be used against you.

This is general information, not advice on your matter, and it is one of the areas where general information is no substitute for advice on the spot. The single most important thing to know is that you can, and usually should, get legal advice before deciding whether to answer questions. Our note on the police interview and the ERISP explains how that decision plays out.

What does the right to silence protect?

The core protection is that you do not have to participate in a police interview or answer questions about an alleged offence, and your silence generally cannot be treated as evidence of guilt. If you decline to be interviewed, the prosecution cannot stand up at a hearing and invite the court to infer that an innocent person would have spoken. The burden stays on the prosecution to prove the case from its own evidence.

This matters because people often feel a strong pull to explain themselves, especially when they believe they are innocent. But an interview is not a conversation; it is the gathering of evidence, and an account given under pressure, without advice and without knowing the case, can do far more harm than good. The right to silence exists precisely so that a person is not forced to hand the prosecution its case in the first hour.

What must you tell police?

The right to silence is not a right to tell police nothing at all. You generally must provide your name and address when lawfully required, and there are specific situations, such as certain driving matters, where the law requires particular information, for example the identity of the driver of a vehicle. Refusing to give information the law requires you to give can itself be an offence, separate from the matter being investigated.

So the practical position is that you give the identifying details the law requires, and beyond that you are generally not obliged to answer questions about the alleged offence. Knowing the difference, between the limited information you must provide and the account you are not obliged to give, is part of why advice matters, because the line is not always obvious in the moment.

When can silence count against you?

There is one significant qualification. For serious indictable offences, the law allows an unfavourable inference to be drawn in limited circumstances where a person, after being given a special caution in the presence of their lawyer, fails to mention something they later rely on in their defence. This special caution rule is narrow: it applies to serious matters, and it only operates where the special caution has been given and a lawyer is present.

In practice this makes advice more important, not less. Because there is a situation where silence can count against you, the decision about what to say has to be made knowing whether that situation applies, and that is a judgment for a lawyer. Outside the special caution rule, the ordinary position holds: you do not have to answer questions, and your silence is not evidence against you. The rule is an exception, not the general position.

Why get advice before you answer?

Because the decision about whether to be interviewed is one of the most consequential in the whole case, and it is made at the worst time, early, under stress, without the brief, and without knowing what the police have. A lawyer can advise on whether to answer questions, what the risks are, whether the special caution rule applies, and how to protect your position. That advice is available and you are entitled to it.

An account given without advice can lock in a version that later proves wrong, or fill a gap the prosecution could not otherwise fill. Once said, it cannot be unsaid. The right to silence gives you the space to get advice before you commit to anything, and using that space is almost always the right call. There is rarely a cost to staying silent until you have spoken to a lawyer, and often a high cost to not doing so.

How does the right to silence continue through the case?

The right does not stop at the police station. At a defended hearing or trial, the accused cannot be compelled to give evidence, and a decision not to give evidence is a legitimate forensic choice, discussed in our guide on the defended hearing. The prosecution must prove the case, and the accused is entitled to require it to do so without contributing to it.

So the right to silence runs from the first contact with police through to the hearing itself. At each stage, whether to speak is a decision made with advice, weighing what is to be gained against what is to be lost. Understanding that the right is there, and using it wisely, is one of the most important things a person facing charges can do, and it starts the moment police begin asking questions.

Primary sources: the right to silence and the limits on drawing inferences from silence are dealt with in the Evidence Act 1995 (NSW), including the special caution provisions in section 89A, and the cautioning of suspects is governed by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). NSW decisions on the right to silence are searchable on JADE. This note is general information; get advice before deciding whether to answer police questions.

Common questions

What is the right to silence in NSW?

It means that, in general, you do not have to answer police questions or take part in an interview about an alleged offence, and you cannot be punished simply for staying silent. Your silence generally cannot be treated as evidence of guilt. It reflects the principle that the prosecution must prove its case, not that the accused must explain themselves.

Do you have to give police your name and address?

Generally yes. The right to silence is not a right to tell police nothing at all. You must provide your name and address when lawfully required, and in some situations, such as certain driving matters, the law requires particular information. Refusing to give information the law requires can itself be an offence, separate from the matter being investigated.

Can staying silent be used against you?

In limited circumstances. For serious indictable offences, an unfavourable inference can be drawn where a person, after a special caution given in the presence of their lawyer, fails to mention something they later rely on in their defence. The rule is narrow and only operates where the special caution was given and a lawyer was present. Outside it, silence is not evidence against you.

Should you answer police questions?

Not before you get advice. The decision whether to be interviewed is one of the most consequential in the case, and it is made early, under stress, without knowing what the police have. A lawyer can advise on whether to answer, the risks, and whether the special caution rule applies. An account given without advice cannot be unsaid, so getting advice first is almost always the right call.

Does the right to silence continue at trial?

Yes. At a defended hearing or trial the accused cannot be compelled to give evidence, and a decision not to give evidence is a legitimate choice. The prosecution must prove the case without the accused contributing to it. The right runs from the first contact with police through to the hearing, and at each stage whether to speak is a decision made with advice.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 30 August 2026. It is general information and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. The law changes and procedure varies from case to case. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More commentary by Aaron Kernaghan.

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