Privilege against self-incrimination

The traditional right of a defendant or witness to withhold from evidence information, the disclosure of which would tend to expose him or her to a criminal charge, a civil penalty, or a sanction.

In Australia, this is a long held common law right, as well as a rule of evidence. The High Court described it as follows:

“A person may refuse to answer any question, or to produce any document or thing, if to do so ‘may tend to bring him into the peril and possibility of being convicted as a criminal”.

The principle behind this privilege is an aspect of one’s legal right to silence. Therefore, even where a person is legally compelled to answer questions, they may not also be compelled to answer self-incriminating questions.

This right may be more commonly known by its operation in the United States. In the fifth amendment to their Constitution, this right was introduced. As such, individuals refusing to give testimony where it may incriminate them is popularly known as ‘pleading the fifth’.