Silence is Golden—or is it?*

When a person is suspected of committing a crime he is likely to be questioned by the police, when he may choose either to answer the police questions or to remain silent. If prosecuted, he has a right at trial to give sworn evidence on his own behalf, but he may again choose not to do so. In neither instance, whether at the police station or in court, can he be forced to speak. However, a question arises: can his failure to answer the police questions or testify at trial be held against him as evidence of his guilt, and if so in what circumstances? This is a very controversial and sensitive question. The Royal Commission took one view; the government of the day took another. Professional opinion was, and remains, divided. This chapter examines the right to silence and how it differs from the right not to incriminate oneself, the well-known privilege against self-incrimination.