Being questioned by police can be an incredibly stressful experience, particularly when it is unclear whether you are being approached as a witness, a suspect or simply someone who may have information relevant to an investigation.
Police are generally entitled to ask questions, but that does not necessarily mean you are legally required to answer them. In Western Australia, a person has a general right to silence, although there are important exceptions.
To discuss this in greater detail, leading Perth criminal lawyer Andrew Williams explains when you can remain silent, what information police can require you to provide and why seemingly informal conversations with officers should still be treated carefully.
The General Right to Silence
“People often assume that if a police officer asks them a question, they have to answer it,” Williams explains. “That isn’t necessarily the case. There is a general right to silence, although there are some circumstances where the law does require certain information to be provided.”
A person suspected of committing an offence will ordinarily not be required to answer substantive police questions. In Western Australia, the general right to silence allows a suspect to decline to answer questions about an alleged offence.
Before interviewing an arrested person suspected of committing a criminal offence, section 138 of the Criminal Investigation Act 2006 (WA) requires police to inform the person of the offence, caution them before interview and give them a reasonable opportunity to communicate, or attempt to communicate, with a legal practitioner.
The caution explains that the person is not obliged to say anything unless they wish to do so, but that anything they do say may be recorded and used in evidence.
Choosing to remain silent does not, however, prevent police from continuing their investigation. Officers may continue collecting witness statements, CCTV footage, phone records, forensic material and other available evidence.
Information You May Be Required to Provide
The right to silence is not absolute, and there are circumstances in which legislation requires a person to provide particular information.
For example, under section 16 of the Criminal Investigation (Identifying People) Act 2002 (WA), a police officer may request a person’s full name, date of birth and residential address where the officer reasonably suspects that the person has committed, is committing or is about to commit an offence, or may be able to assist with an investigation.
Refusing to provide the required details, or providing false details, can itself have legal consequences, including a maximum penalty of 12 months’ imprisonment.
There are other situations where information may be required by law. Common examples can arise during traffic stops, including requirements to provide a driver’s licence or identify who was driving a vehicle at the time of an alleged offence.
If police tell you that you are legally required to answer a particular question, it is reasonable to ask what law requires you to provide that information and, where possible, seek legal advice about your obligations.
Are You a Witness, Suspect or Person of Interest?
One of the difficulties with police questioning is that a person’s status can change as an investigation develops. Someone initially approached as a witness may later become a suspect as further information comes to light.
For this reason, it is important to understand why police want to speak with you before agreeing to attend a police station or provide a formal statement.
“One of the first things to establish is why police want to speak with you and whether you are actually required to go with them,” Williams says. “A person who voluntarily assists an investigation can find that their position changes as more information becomes available.”
Under section 28 of the Criminal Investigation Act 2006 (WA), where a person who is not in custody is asked to accompany an officer to assist with an investigation, the officer must generally explain that the person is not under arrest, does not have to accompany police and is free to leave unless they are subsequently arrested.
Understanding whether you are there voluntarily or are being detained can therefore be an important distinction.
The Risks of Informal Conversations With Police
The right to silence is not relevant only during a formal recorded interview.
Comments made at the scene of an incident, during transport, over the telephone or while waiting at a police station may potentially be noted, recorded and later relied upon as evidence.
This is one reason seemingly casual conversations with police should not necessarily be treated as being “off the record”.
“People can be very careful once a recorded interview begins but may have already spoken freely to police beforehand,” Williams explains. “Something said casually at the scene, on the phone or while waiting at the station may still become relevant later.”
If a person decides to exercise their right to silence, consistency can also be important. Selectively answering questions that appear harmless may disclose information that becomes relevant to the investigation or complicate a later decision not to answer other questions.
Anyone uncertain about whether to participate in questioning should consider obtaining advice from a criminal lawyer in Perth before agreeing to a formal interview or providing a detailed account.
Can a Court Draw an Adverse Inference From Your Silence?
The right to silence in Western Australia extends beyond the right not to be compelled to answer substantive police questions. An accused person also generally has a right not to give evidence at their criminal trial.
Section 104 of the Evidence Act 2025 (WA) expressly prohibits an “unfavourable inference”, including an inference of guilt or diminished credibility, being drawn from a person’s failure to answer police questions.
A similar principle applies where an accused person chooses not to give evidence at their trial.
There are limited circumstances in which an accused person’s failure to testify may be the subject of judicial comment. One example arose in Weissensteiner v The Queen (1993) 178 CLR 217, which concerned circumstantial evidence and facts that were peculiarly within the knowledge of the accused.
However, the broader principle remains important: choosing to exercise a legal right to silence is not, by itself, an admission of guilt.
Common Misconceptions About Remaining Silent
A common concern is that refusing to answer questions will make a person “look guilty” or appear uncooperative.
Police may encourage a person to cooperate or suggest that answering questions will help resolve the matter. That does not change the person’s legal rights.
“There can be a natural urge to explain yourself, particularly if you believe you have done nothing wrong,” Williams says. “But you should not confuse exercising a legal right with being uncooperative or assume that you have to prove your innocence to police.”
That distinction leads to another important misconception: that a suspect or accused person carries the burden of proving their innocence.
Generally, they do not. In a criminal prosecution, the prosecution bears the burden of proving the charge using admissible evidence to the required standard of beyond reasonable doubt, subject to particular legal exceptions. An accused person is presumed innocent unless and until proven guilty.
Knowing When to Speak — and When to Seek Advice
Police questioning can range from a straightforward request for identifying information to a formal recorded interview about a serious criminal allegation. The important point is that being asked a question and being legally required to answer it are not always the same thing.
There are circumstances where information must be provided, and refusing a lawful requirement can carry consequences. But where the general right to silence applies, a person should not feel compelled to answer questions simply because they are concerned that remaining silent will make them appear guilty or uncooperative.
The safest approach is to first understand why police want to speak with you, whether you are being detained or participating voluntarily, and whether there is any legal requirement to provide the information being requested.
This becomes particularly important where police have seized a phone, executed a search warrant or requested a recorded interview. What is said in the early stages of an investigation can become part of the evidence later, which is why understanding your rights before deciding whether to speak can be just as important as what you ultimately decide to say.
