Silence, is it a right?

[Andrew Bolt]

Next encrypting your hard drive isn't always a good idea because if you don't hand over the encryption key its 2 years in jail I believe.

Your right to silence is implied in the constitution as per:

In the context of criminal investigation, a suspect has a right to refuse to answer police questions. This right was expressed in the following way by Lord Parker in Rice v Connolly [1966] 2 All ER 649, 652:

It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to the effect, and indeed the whole basis of the common law is that right of the individual to refuse to answer questions put to him by persons in authority.

The scope of this right was defined by the High Court in the case of Petty v R (1991):

A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants, and the roles which they played.[10]

Example: A person is suspected by police of committing an offence. He is interviewed by the police but refuses to answer any questions. By doing so he does not commit an offence.

This first aspect of the right to silence is not the focus of this inquiry. As the Australian Law Reform Commission commented in 1975:

No one can be heard to say that if a person questioned declines to answer he should be compelled by force to do so. The right to silence in this basic sense is not, and never has been, in issue in our society.[11]

The Committee will not, therefore, be considering whether it should be made an offence for a suspect to refuse to answer questions put to him or her by a person in authority. The focus of the Committee's inquiry in relation to pre-trial silence will instead be the issue of whether it should be permissible for a suspect's refusal to answer questions to be used in any way against him or her.

3.1.2 The consequences of exercising the right to refuse to answer questions

What is at issue in this inquiry is the consequences which can flow from the accused's exercise of their right to pre-trial silence. The orthodox view, confirmed by the High Court in Petty v R (1991) 173 CLR 95 is that the pre-trial right to silence can be exercised without penalty. To use the words of Brennan J, `It is a "right" which attracts an immunity from any adverse inference which might otherwise arise from its exercise'. [12] In other words, a suspect has both a right to refuse to answer official questions, and a right to not have that refusal used against him or her at trial. Thus the passage from Petty v R (1991) above was followed by these comments:

An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his failure to answer such questions or to provide such information. To draw such an inference would be to erode the right to silence or to render it valueless " That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.[13]

I would like to see this used against the disgustingly Orwellian "ASIO Super Powers"