In Australian criminal law, the right to silence is fundamental. An accused person is not required to give evidence, and a court must not treat the exercise of that right as proof of guilt. That principle is well recognised in both statute and common law.
However, that protection is often misunderstood. It does not mean that remaining silent is always the best forensic choice.
Where you are raising a statutory or common law defence—such as self-defence or duress—you carry what is known as an evidential burden. This means there must be some evidence capable of supporting the defence before the court is required to consider it. In many cases, the only person who can properly raise that evidence is the accused.
For example:
- In a self-defence case, the court needs evidence about what you believed at the time, why you acted as you did, and whether your response was reasonable in the circumstances.
- In a duress case, there must be evidence of threats, lack of choice, and proportionality of response.
If that evidence is not before the court, the defence may never properly arise—even though the prosecution still bears the ultimate burden of proving guilt beyond reasonable doubt.
This becomes even more critical in domestic violence–related allegations, where cases often turn on competing versions of events. If the prosecution presents a coherent narrative and there is no alternative account from the defence—whether through the accused or other evidence—the magistrate or jury may be left with only one version to assess. While they cannot assume guilt from silence, they are still entitled to decide the case based on the evidence that is actually before them.
In practical terms, remaining silent can sometimes:
- Limit the availability of certain defences
- Prevent the court from hearing your explanation of events
- Increase the risk that the prosecution’s case goes unchallenged in substance
That said, giving evidence also carries risks—particularly under cross-examination—so the decision must always be made carefully, strategically and after lengthy discussion with your legal counsel.
Why You Should Get Legal Advice Before Deciding Whether to Give Evidence
Every case is different. The decision to give evidence at a trial or hearing is one of the most important strategic choices an accused person will make. It requires careful consideration of the strength of the prosecution case, the availability of other evidence, and whether a defence needs to be actively raised.
If you are facing criminal or traffic charges, speak to an experienced lawyer about your options and the best approach for your case.
Contact us today to discuss whether giving evidence is in your best interests.
