This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Police Interviews and the Right to Silence


When exercising police powers, an officer must comply with basic safeguards. Police cannot arrest a person for questioning or require a person to accompany police to a police station for questioning unless the person has been arrested for an offence. When the police invite a person to participate in an interview about an alleged offence, the person has a right to silence. This means that they do not have to participate in the interview or answer any questions, except to give their name and address. The police powers in New South Wales are set out in the Law Enforcement (Powers and Responsibilities) Act 2002.  

Police interviews and the right to silence

When police are investigating an offence, they will often ask suspects to participate in an interview. This may occur after a person has been arrested, or without an arrest occurring. A person who is asked to participate in an interview does not have to do so. The police are obliged to give the person being interviewed a formal caution. This means they must tell them their rights, including:

  • They have the right to silence and do not have to answer any questions;
  • Anything they do say may be used as evidence against them.

The police are not allowed to interview a person who is sick, injured, intoxicated, tired, hungry or distressed.

If the person is under 18, the police must contact a responsible adult, usually, a parent or guardian, to be present with them while they are interviewed.

Detention at A Police Station

Police only have a reasonable time to interview a person and carry out further investigations once they have been detained. A reasonable time may be up to 6 hours, unless the police apply for the period to be extended (by detention warrant) up to a further 6 hours.

Limits on the right to silence

It is an offence to refuse to answer a police question if you are concealing information about a serious indictable offence that would lead to a prosecution.

A serious indictable offence is an offence that has a maximum term of imprisonment of 5 years or more. The maximum term of imprisonment for refusing to answer is 2 years or 5 years if you gain some benefit from the information. A common example of this is when a family member of a drug dealer turns a blind eye to the supply of prohibited drugs.

The police may also require a person to disclose their identity and provide proof of their identity in the situations below. It is an offence in these circumstances to fail or refuse to comply with this requirement without a reasonable excuse. It is also an offence to give a false name, or an address other than your full and correct address.

When do you have to provide your details?

A person must provide their details to the police in the following circumstances.

  • Where the police suspect on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because theu were at or near the place where it occurred. Maximum fine for non-compliance: $200.
  • If the officer suspects on reasonable grounds that an AVO has been made against the person. Maximum fine for non-compliance: $200.
  • The person was a driver, passenger or owner of a vehicle and the officer suspects on reasonable grounds that it is associated with an indictable offence. Maximum fine of for non-compliance $5500 or 12 months imprisonment, or both.
  • The person was involved in a car crash where:
    a. Someone was injured or killed.
    b. They forgot or choose not to give their details to the other driver that was involved in the crash.
    c. Any of the vehicles were towed away; or
    d. A police officer asked for their details.

The details that a person is required to give within 24 hours of a car crash include their name and address, the owner’s name and address and the vehicle registration details. A person will also be required to provide an explanation of the circumstances of the crash. If you find yourself in this situation it would be wise to talk to a lawyer before giving your explanation. The maximum fine for non-compliance is $2200.

Should you exercise your right to silence?

The decision as to whether to take part in an interview is a difficult one to make as there can be advantages as well as disadvantages of doing so. Each case is unique and our advice often varies from case to case. If you would like specific advice, we would be happy to speak with you on either 1300 038 223 or send an email to [email protected]

No unfavourable inference can be drawn from a person refusing or failing to answer questions in the course of official questioning.

Advantages and Disadvantages of Taking Part in a police Interview

If police invite you to take part in an interview, there are advantages and disadvantages to consider when deciding whether to do so. Some of each are listed below. This information is not a substitute for tailored legal advice and it is always wise to speak to a lawyer before agreeing to do an interview with police.

Advantages

  • Your denial, if accepted, may mean that police do not charge you with a criminal offence.
  • If the prosecution goes ahead. your version of events may be more readily accepted by the court because you told the police what you knew at the time of your arrest and before seeing the witness statements.
  • An interview may be an opportunity to show remorse for the offence. The court must take into account your remorse when sentencing you.

Disadvantages

  • Police often do not have enough evidence against you to prove the offence when they question you.  You may say something that may help the police prove the case against you.
  • Providing your version of events to police often will not influence the police officer in deciding whether to issue a court attendance notice.
  • The interview process can be very stressful and this may lead you to be confused or mistaken about what actually occurred. Often suspects who are interviewed will give an incorrect version of events and after reading the witness statements, remember what occurred. It is always difficult for an accused person to convince a court that they were mistaken about the facts and have not changed their evidence to support their case.
  • You may implicate others in the offending.

Four Important Questions to Ask Before Agreeing to a police Interview

Before agreeing to an interview with police, you or your lawyer should ask the police officer investigating your matter these four questions:

  • Will participation in a record of interview affect the police’s decision regarding issuing a court attendance notice?
  • What evidence do the police have against me? (ask them to show you the evidence)
  • Am I likely to be granted bail?
  • Is it an offence to fail to provide an answer to any question?

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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