It is important to know your rights should you ever face the unfortunate situation of being arrested or questioned by police who suspect or allege you have committed an offence.
The police may approach you and ask you to answer questions or participate in an interview. They can do this even if you have not been arrested or charged with any offences.
Your right to silence
If you are arrested in NSW you must be given a caution as soon as practicable after you come into custody by the police officer who has responsibility for your detention.
The caution must be given to you verbally and in writing and it must state that you do not have to say or do anything but that anything you do say or do may be used in evidence. These words are immensely important and are often not understood in the heat of the moment.
The same requirement exists in the ACT where police are required to caution you prior to asking you questions. In both NSW and the ACT a person also has the right to communicate with a friend relative or a legal practitioner. If you want to make contact with one of these people police must delay questioning to allow you to do so.
If you are not arrested but the police suspect you have committed an offence and want to interview you, they must give you the same caution you would receive if you had been arrested.
Because you have a legal right to remain silent you do not have to answer police questions or participate in a police interview. The Evidence Act makes clear that in a criminal proceeding there can be no unfavourable inferences made against a person who fails or refuses to answer questions. In other words, nothing can be held against if you choose not to answer police questions or participate in a police interview. A jury would be told it is completely irrelevant if someone declines to participate in an interview.
Should I participate in a police interview?
Unless you have had the time to carefully consider your position with a lawyer, your default position should always be that you should not do an interview.
If you are a suspect or a person of interest police may well be trying to obtain evidence they can use against you and you may inadvertently say something that supports the police case. This is far more likely to be the motivation of a police officer than any claim they simply want to hear your side of the story to let you go without charge.
Once you give the police answers or a version of events you will very likely be locked into that version. If you make a mistake or forget something important during your interview it might be very difficult to explain it later.
Being interviewed by the police is very stressful. It can be difficult to stop an interview or not answer questions once you are in the interview room and the tapes are recording, even if you change your mind or don’t want to answer a question.
Most importantly, police will not have or provide you all the relevant evidence at that time of interview. Police officers are trained to conduct interviews in a way to maximise the amount of information you tell them. They generally always have the advantage because, they have access to material you may not be aware of.
More broadly, if you did agree to an interview, think about how well you are able to cope with stressful situations. Would you be able to explain yourself and articulate answers well? Could you easily keep your cool, or are you the kind of person who could get angry or emotional in an interview and say things you might regret.
A jury, judge or magistrate cannot hold it against you if you only give your version of events for the first time in the defence case towards the end of a hearing or trial. That is perfectly normal and is your right. The great benefit, of course, is that at this stage you have the benefit of knowing the strengths and weaknesses of all the police evidence against you.
The rare examples where an experienced criminal lawyer may advise you to do a police interview may be where police have indicated they would only give you a warning or refer the matter to restorative justice without charging. It is safest to assume this is indeed very rare.
In some other rare cases police do decide not to charge someone after an interview is conducted. The problem is that these situations are so uncommon and it is so hard to predict when this would apply that there is a far greater risk of giving police something to use against you in their charges.
If you engaged in an interview without legal advice, and assuming the version given holds up relatively well, another uncommon benefit is that it might support a decision to not then decide to give evidence at a hearing or trial and subject yourself to cross-examination.
Can you have a Lawyer present during a police interview?
The short answer is yes, you can have a lawyer present during a police interview. Except in rare cases where a lawyer advises you press ahead in answering police questions there is often no need to consider this issue. The more fundamental question is whether you should be continuing an interview at all.
Do you ever have to answer police questions?
There are some narrow exceptions to the right to silence when it comes to police questioning. The first relates to requests to identify yourself to police or to provide a driver licence or other identification card. Another exception is when being questioned by police following a motor vehicle accident. If you are unsure about exactly what your rights are in these circumstances you should contact a criminal defence lawyer immediately.
In NSW if you choose to participate in a police interview accompanied by a lawyer who is representing you in relation to a serious offence police may issue you with a “special caution”. This is another important exception to the right to silence. If the “special caution” is issued and you do not answer questions about things you later rely on at a trial a jury might be able to draw an adverse inference against you. Because of this an experience criminal defence lawyer will advise you that in most cases it is better they are not present at an interview at all (and instead give advice over the phone) so that police are not able to issue the “special caution”.
Adrian McKenna , Partner