If the police contact you and ask you to attend a police station for an interview, you may be uncertain about what you are required to do.
You might be told that police simply want to hear your side of the story, or that attending an interview will help them clear up an allegation.
However, what you say to police can have important consequences, even if you have not been charged with an offence.
Here are ten questions people commonly ask when police want to interview them in New South Wales.
1. Do I have to attend the police station if an officer asks me to come in?
Not necessarily.
Police can ask you to attend a station voluntarily to answer questions about an alleged offence.
Generally, you are not legally required to attend merely because an officer requests it.
The situation is different if you have been lawfully arrested or are subject to another legal requirement.
If police contact you, it is sensible to establish whether they are requesting a voluntary interview or directing you to attend under a particular legal power.
You should consider obtaining legal advice before agreeing to an interview.
2. Do I have to answer police questions?
In most criminal investigations, a person suspected of an offence has a right to silence.
This means you are generally not required to answer questions about the allegation.
There are exceptions. For example, legislation may require you to provide your name, address or other specified information in particular circumstances. Certain traffic and regulatory investigations also involve separate statutory obligations.
It is important to distinguish questions you are legally required to answer from questions about an alleged criminal offence that you may decline to answer.
Your right to silence is an important legal protection, but it is not an answer to every request for information made by police.
3. Can I refuse to participate in a recorded police interview?
Generally, yes.
If the interview is voluntary, you can decline to participate. Even if you have been arrested, you generally cannot be compelled to answer investigative questions simply because police wish to conduct a recorded interview.
You do not ordinarily have to enter an interview room merely to make a recorded statement that you are refusing to answer questions.
However, you should seek advice about the particular circumstances, especially where special statutory powers or obligations may apply.
4. Can police arrest me because I refuse to answer questions?
Refusing a voluntary interview does not, by itself, ordinarily provide a lawful basis for arrest.
Police must have a lawful reason to arrest someone.
Under section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), an arrest without warrant generally requires reasonable grounds to suspect that the person is committing or has committed an offence, together with a statutory reason making arrest reasonably necessary.
Police may already have sufficient grounds to arrest or charge a person independently of any refusal to participate in an interview.
If you are arrested, remain calm, do not physically resist and ask to obtain legal advice.
5. Can I have a solicitor present during police questioning?
If you have been arrested and detained, you generally have rights concerning communication with a legal practitioner, subject to statutory qualifications.
A solicitor may advise you about the allegations, your right to silence and whether participating in an interview is appropriate.
It is important to obtain advice before an interview rather than assume that having a solicitor present automatically makes the interview safe.
For certain serious indictable offences, section 89A of the Evidence Act 1995 (NSW) provides for a special caution procedure. If its requirements are satisfied, failure to mention a fact during questioning may have consequences if that fact is later relied upon in the defence.
The rules governing special cautions are technical and do not apply to every offence or interview.
Your solicitor can explain whether those provisions are relevant to your circumstances.
6. What happens if I have already spoken to police or made admissions?
Do not assume that nothing can be done.
Statements made to police may become evidence in criminal proceedings, but their admissibility and reliability may depend on how they were obtained.
Issues can arise concerning the circumstances of questioning, whether appropriate cautions were given, the accuracy of the record and whether the statement was made voluntarily.
A solicitor can examine the available material and advise whether there is a proper basis for challenging any evidence.
You should provide your solicitor with a complete account of what you said, including any informal conversations before or after a recorded interview.
Do not attempt to contact witnesses to influence their accounts or alter or destroy potentially relevant evidence.
7. Can police search my mobile phone?
The answer depends on the circumstances.
Police may have powers to seize a telephone where it is relevant to an investigation, including under a search warrant or another applicable statutory power.
However, taking possession of a telephone and accessing the information stored on it are not necessarily the same thing.
Different legal requirements can apply to searching digital information, obtaining access to a device and requiring assistance with passwords or other security measures.
In some circumstances, police may seek a digital evidence access order requiring specified assistance.
If police ask you to unlock your telephone or provide a password, you should ask about the legal authority for the request and seek legal advice. Do not physically obstruct officers exercising a lawful power.
8. What is the difference between being arrested and being charged?
Arrest and charge are separate legal steps.
An arrest involves taking a person into custody under a lawful power.
A charge is a formal allegation that a person has committed a criminal offence.
Someone may be arrested and later released without charge.
A person may also be charged without first being arrested, for example by being served with a Court Attendance Notice.
If you are arrested, police may detain you for a legally permitted investigation period, subject to statutory limits and exclusions. After the relevant procedures, you may be released, charged or brought before a court.
Being charged does not mean you have been found guilty.
9. Should I give police a written statement explaining my side of the story?
Not without first considering the implications.
A written statement may appear to be a simple way to explain what happened. However, once provided, it may become evidence and may contain statements that police or prosecutors later seek to rely upon.
There are situations in which providing an account to police may be appropriate. That decision should ordinarily follow consideration of the allegations, the available evidence and the client’s legal position.
An account prepared without knowing what evidence police possess can sometimes create difficulties that could otherwise have been avoided.
Obtaining legal advice before providing a written statement is generally a sensible precaution.
10. What should I do if police telephone me and say they want an interview?
The most important thing is not to feel pressured into making an immediate decision.
Remain polite and establish the officer’s name, station and contact details.
You can ask what matter they wish to discuss and whether you are suspected of committing an offence.
If police are requesting a voluntary interview, you can explain that you wish to obtain legal advice before deciding whether to attend or participate.
Do not assume that an informal telephone conversation is automatically off the record. Statements made outside an interview room may also become relevant evidence.
Where police are exercising a compulsory power, the position may be different, and you should obtain advice about the obligation involved.
Criminal Law Advice in Tweed Heads
I have practised law since 1986 and have extensive experience advising and representing clients in criminal proceedings.
My practice includes police interviews, assault and domestic violence allegations, drug offences, dishonesty offences, bail applications, guilty pleas, defended hearings and appeals.
If police wish to interview you, obtaining advice before deciding how to respond can be important.
When you engage my practice, you deal directly with me. I can explain your options, consider the circumstances of the investigation and advise you about the appropriate course.
For further information, visit my Criminal Lawyers Tweed Heads page.
Carl Edwards Solicitor — Tweed Heads
Telephone: 0421 196 608
This article provides general information about NSW law. Different rules may apply depending on the offence, the person’s age and the powers police are exercising. It is not a substitute for legal advice about an individual matter.