Do you know what you should and shouldn’t do in a police interview in NSW?

Police interviews: The guidelines for New South Wales

The Legal Enforcement (Rights and Responsibilities) Act 2002 also known as ‘LEPRA’ sets out the guidelines in which must be followed by police when conducting an interview along with the rights of the interviewee.

What is a police interview?

A police interview is part of the investigation process in which the police try to determine whether a crime has been committed. The aim of a police interview is to get the accused to give as much information as possible so that they can determine which way a matter may need to proceed and whether they need to prosecute the accused for the alleged crime.

The reasons you may be asked for an interview

1. It has been alleged that you have were involved with or committed an offence.
2. You are witness to an incident/offence.
3. You are the alleged victim in a matter.

What should you do and not do during an interview?

Should:

1. You should ask whether you are under arrest and what it is relation to.
2. You should ask to talk to a lawyer prior to doing any interview. This is your right.
3. You should be consistent if you are not answering questions, selective answering may be used against you
4. You should always be polite and show respect as this will go further than being hostile or abusive.

Shouldn’t:

1. You shouldn’t answer any questions at all except for the personal identification ones (name and address) without getting legal advice.
2. You shouldn’t make any statements in writing without getting klegal advice.
3. You shouldn’t sign anything without getting legal advice.
4. You do not need to go into the interview room if you have told the police you are not participating in an interview.
5. You shouldn’t partially or selectively answer any questions during the interview – consistency to your right to silence if exercised is key.
6. You should not plead guilty to anything until you have spoken to a criminal defence lawyer.

Are you under 18?

If you are under 18 but older than 14, you have the right to a support person and can choose who this is. However, if you are under 14, the police need to contact a parent or guardian to be present during the interview.

How long can you be held for?

Be aware that the police can only hold you for 6 hours, however, can get a detention warrant to extend another 6 hours if reasonably necessary.
The interview may be informal whereby the police office takes notes and could be on the street or at the accused’s house. Or it could be more formal and is recorded via camera in a station interview room. An interview can be a daunting and stressful process and if you form the view that answering questions may assist you, we recommend that you clarify this with a lawyer. There are limited situations in which there may be an advantage to answering questions and you should discuss your unique situation with a lawyer.

Pros:

• If the police accept what you deny as being the truth you will not be charged.
• Depending on the circumstances, it may be better to admit to an offence if the police confirm they will issue a caution/warning however, this SHOULD NOT be done without the advice of a
• Senior Criminal Lawyer.
• Your version of events may be accepted by the courts because you have not seen any other evidence relating to the offence.

Cons:

• Giving an interview could mean you incriminate yourself and give the police reason to charge you and bail you or issue you with a summons for court.
• The interview environment can be one of high intensity, allowing you to feel stressed and anxious and revealing the events in the wrong order or mixing it up completely.
• Doing an interview will not get you bail but cooperating in other ways may put forward a good case towards obtaining bail. For example, going into the police station when asked shows that you will more than likely you will attend court (one reason bail may be refused).

It is important to note that you cannot be seen as uncooperative for not answering questions and bail cannot be refused on this basis.

Right to silence

The right to silence is governed by s89 of the Evidence Act 1995 (NSW) In most circumstances, a right to silence does not mean you are guilty of an offence. It is an effective method to protect a party being compelled to answer questions by the police. In NSW, you have the right to refuse an interview with police, answer any questions you may be asked as well as enter the interview room or give a statement.

It is important to note that if you merely choose to exercise your right to silence police cannot classify you as uncooperative or use this as a reason to refuse you bail. Repute Law has a team of highly experienced Senior Criminal Defence Lawyers who can assist when it comes to police interviews and dealing directly with the police. Prior to talking to the police give our team a call to discuss the matter with a senior criminal defence lawyer.

The ‘Special Caution’ – the exception to the right to silence

Section 89A of the Evidence Act 1995 (NSW) was amended in 2013 to take into account serious indictable offences (offences that carry imprisonment of 5 years and up) and when the right to silence may be used against you.

It states that in serious indictable matters, courts may draw an unfavourable inference against a suspect based on the fact that they failed to disclose in a police interview something that they subsequently advanced as a defence which they could have reasonably been expected to have outlined in the interview. This requires a “special caution” to the accused to be operable with the caution generally being required to be given in the presence of your lawyer.

Repute Law can assist when faced with the daunting task of a police interview and whether or not you should provide any information. Our team consists of senior criminal defence lawyers who pride themselves on giving our clients the best possible advice in their circumstances. Do not wait, contact Repute Law today.

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