If the police ask you to participate in an interview, you can decline. Client’s often ask whether they should do so. We will address some of the considerations in this article.
Right to silence
You have a right to remain silent and, for the most part, this cannot be held against you. However, you should be mindful of the following:
- in many circumstances, if a police officer asks your name and address you are obliged to tell them; and
- if you’re questioned in relation to a serious indictable offence (punishable by gaol for five years or more) and you provide a defence later that you could have raised at an earlier opportunity, the court may doubt the veracity of this belated defence.
If the police suspect you have been party to a crime, they will likely arrest you and/or ask you to take part in a recorded interview – an ERISP. ERISP stands for Electronic Record of Interview with Suspected Person.
If you are asked by police if you wish to participate in an interview or “answer a couple of questions” – and you do not want to – simply say words to the effect of “I don’t wish to be interviewed,” or “I don’t wish to answer any questions.”
Section 89 of the Evidence Act 1995 (NSW) (Act) states that, in criminal proceedings, a judge cannot make a negative inference – in relation to the suspect’s guilt or credibility – from their silence.
However, section 89A of the Act, as briefly touched upon above, states that if:
- the charge is a serious indictable offence (punishable by gaol for five years or more);
- you have a defence you should be able to recall;
- you choose not to tell this to the authorities when given the opportunity; but
- choose to rely on it later,
the judge or jury may doubt the credibility (of both the defence and the accused) and hold the accused’s silence against them.
Importantly, there are some protections so that you can’t be ‘caught out’ by section 89A. You must be given a special caution that the investigation is about a serious indictable offence in the presence of your solicitor. You must also be given the opportunity to receive legal advice from your solicitor away from the interviewing, or any other, officer.
Position at common law
The High Court of Australia says that the right to silence it is not merely a rule of evidence, but a basic and substantive common law right (see Reid v Howard (1995) 184 CLR 1).
Why it exists
This right has been provided as a protective balance against the significant resources available to police to investigate charges against an accused person.
Not compelling an unwilling witness to speak is thought to:
- fortify the presumption of innocence;
- ensure the burden of proof remains on the State;
- prevent authorities from coaxing or cajoling an interviewee to give information the authorities want; and
- reduce the rates of false confessions and other false evidence which is later found, at great expense, to be erroneous.
We have heard some interesting stories of things that have been told to clients prior to them participating in an interview.
One of our favourites is that it is seen as being cooperative and that is relevant to any bail application. Nonsense. Utter garbage. Whether a defendant participated in an ERISP has no bearing whatsoever on a bail application.
Be mindful of what you hear or what you are told. Always seek legal advice.
In closing, you do not have to speak to authorities if you do not want to and, in the majority of circumstances, it cannot be held against you in any way. The risk if you do give an interview is that an answer you give can be used as evidence against you in court – which may provide the prosecution with additional evidence that they would not have otherwise had.
We recommend in the strongest terms possible that you first obtain legal advice before deciding whether to give an interview to the police.
The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.