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Police Interviews : The Right to Silence

This article discusses several aspects of police interviews including the right to silence, the exceptions to the right to silence, the advantages and disadvantages of providing a police interview and the legislation underpinning police interviews and the right to silence.

LEPRA

The powers that police have are set out in the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). This legislation states that police cannot arrest a person for questioning or require a person to accompany police to a station for questioning unless the person has been arrested for an offence. 

If you have been arrested in relation to an offence or have been requested by police to attend the station, you have a right to silence.  This means that you do not have to answer police questions, you do not have to participate in an interview and you do not have to make a statement.  The only information you must provide to police is your name, address and date of birth.

It is important to note that there is no informal or off the record discussions with police officers.  Anything you say to a police officer can be admissible as evidence in Court. 

Police Interviews

During the investigation of an offence, police will usually ask suspects to participate in an interview.  However, a person who is asked to participate in an interview, does not need to do so. 

Before beginning an interview with a person, the police are obliged to give a warning pursuant to LEPRA, which involves telling an individual that they have a right to silence, they do not have to answer any questions, and that anything they do or say may be used as evidence against them in Court.  Any evidence provided in an interview is inadmissible if police do not provide a proper caution. 

Additionally, a person under the age of 18 must have a responsible adult, usually a parent or guardian, to be present with them during the interview and the police are not allowed to interview any person who is intoxicated, sick, tired, hungry, or distressed.

For further information about police powers in general, please see our dedicated article police powers in nsw, what you need to know.

How Long Can Police Keep Me At A Police Station?

If you have been arrested on suspicion of an offence, section 115 of LEPRA states that the police only have a reasonable amount of time to carry out their investigation or interview a person. In general, you cannot be detained for more than 6 hours unless the police gain an extension through a detention warrant.  At the end of this period, the police must either charge you, or release you without charge. 

This six hour period does not including any time outs, such as resting, using the bathroom, refreshments or obtaining medical attention. 

Exceptions To The Right To Silence

There are certain limits on the right to silence. For example, it is an offence to refuse to answer a police question if you are concealing information relating to a serious indictable offence that would lead to a prosecution. 

A serious indictable offence is one that holds a maximum term of imprisonment of 5 years or more. The penalties involved when failing to answer police questions in relation to a serious indictable offence are 2 years imprisonment, increasing to 5 years if you gain any benefit from the information. 

Should I Accept A Police Interview?

Accepting a police interview is a difficult decision as there are advantages and disadvantages for each unique scenario. The advice that we provide in relation to this question varies from case to case. It is always advisable to speak to a lawyer before agreeing to do an interview with police.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Advantages of Agreeing to a Police Interview

There are several advantages to accepting a police interview, including:

  • If you are guilty, an interview may allow you to show remorse for the offence.  The court can take this into account on sentence.
  • If your denial and answers are accepted, the police may choose not to charge you.
  • If you agree to an interview and are then charged, your version of events may be given more weight by the Court because you told police what you knew at the time of your arrest.

Disadvantages of Agreeing to a Police Interview

There are several disadvantages to accepting a police interview, including:

  • Others may become implicated by your information.
  • At the point of the interview, police often do not have enough evidence to charge you. You may assist the police by answering a question that helps the police prove the case against you.
  • Police interviews can often be very stressful, which may lead you to answer a question mistakenly, or provide an incorrect version of events. 

NSW Legislation regarding the Right to Silence

An individual’s right to silence is detailed in section 89A of Evidence Act 1995 (NSW) which states that no adverse inference is to be drawn from a person if they fail to answer the questions of authorities. 

The concept of Unfavourable Inference

In 2013, the legislation was amended in relation to matters involving serious indictable offences.  That is, the court may draw an unfavourable inference against a suspect who fails to participate in a police interview and subsequently provides a defence that they ‘reasonably could have been expected to have brought up during their interview.’  For example, if a person is accused of robbery and during the initial police questioning fails to mention a defence that later becomes a crucial part of their defence in court, the judge can draw an unfavourable inference against that person.

There are exceptions to the 2013 provision, which mean that unfavourable inferences can only be drawn if certain conditions are met.

  • A special caution must have been given to the defendant by an investigating official who, at the time the caution was given, had reasonable cause to suspect that the defendant had committed the serious indictable offence.
  • The special caution must have been given before the failure or refusal to mention the fact.
  • The special caution must have been given in the presence of a lawyer who was acting for the defendant at that time.
  • The defendant must have been allowed a reasonable opportunity to consult with their lawyer, in the absence of the investigating official, about the general nature and effect of special cautions, before the failure or refusal to mention the fact.

If the police follow these proper procedures, their caution to the defendant can serve as the basis for a judge to draw an unfavourable inference from the defendant’s silence during official questioning.

Since this amendment, while the right to silence still exists under NSW law, remaining silent is now a less attractive option in serious indictable matters. 

Why BSM Lawyers?

The criminal lawyers at Brander Smith McKnight have extensive experience across all aspects of criminal charges.  We are able to provide you with critical and up to date information regarding whether it is advisable to participate in a police interview.  We can represent you during police questioning and strongly advocate for you in court.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

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