Understanding your legal rights during a police interview in NSW is crucial to ensuring your protection and fair treatment.

Understanding the Right to Silence in NSW

The right to silence in NSW is a fundamental legal principle that allows an individual to refuse to answer questions or provide information that may incriminate them. This right is deeply rooted in common law and protected under the Evidence Act 1995. Section 89A of the Evidence Act specifically addresses the use of evidence of silence in criminal proceedings for serious indictable offences. While it allows unfavourable inferences to be drawn from a defendant’s silence under strict procedural safeguards, it does not abolish the right to silence itself.

Cases such as R v Ryan and R v Scott emphasize that an accused is entitled to exercise the right to silence during police interviews and at trial, and this cannot be used against them. The right to silence serves to protect individuals from self-incrimination and is central to the accusatorial system of justice in NSW.

Do You Have to Participate in a Police Interview?

In NSW, you are not legally required to participate in a police interview. You have the right to remain silent, and anything you say can be used as evidence against you. The police may ask you to participate in an interview, but you are under no obligation to do so.

If you choose to speak to the police, it is important to be aware that your statements can have legal implications. Therefore, it is often advisable to seek legal advice before deciding whether to participate in a police interview.

Deciding Not to Participate: What You Should Know

If you decide not to participate in a police interview, it is crucial to clearly and respectfully communicate your decision. You can do this by stating that you are exercising your right to remain silent. It is also advisable to ask to speak to a lawyer.

If you decide to participate in a police interview, you can change your mind at any time including while the interview is being conducted. You must communicate your decision to withdraw your consent to be interviewed to the police conducting the interview. You do not have to explain your decision to police. You should refuse to answer any further questions and request to be removed from the interview room immediately. 

Understanding your rights and the potential consequences of remaining silent is essential. While exercising your right to silence cannot be used as evidence of guilt, certain procedural safeguards under Section 89A of the Evidence Act 1995 may allow for limited adverse inferences to be drawn from your silence in specific circumstances.

The Risks and Benefits of Participating in an Interview

Participating in a police interview can have both risks and benefits. One of the main risks is that anything you say can be used as evidence against you in court. This can include statements made under pressure or without a full understanding of the legal implications.

On the other hand, cooperating with the police may demonstrate your willingness to assist in the investigation and can be a good strategy if made for the right reasons. However, it is important to weigh this against the potential risks and seek legal advice to ensure you make an informed decision.

Steps to Take Before a Police Interview

Before participating in a police interview, it is important to take several steps to protect your rights. First, seek legal advice from a qualified lawyer who can provide guidance specific to your situation. Your lawyer can help you understand the implications of the interview and advise you on how to proceed.

Ensure that you are aware of your right to remain silent and that you are not obligated to answer any questions. If you choose to participate, ensure that the interview is recorded, as this can provide an accurate record of the proceedings. Additionally, if you are a vulnerable person, such as an Aboriginal person, you have the right to have a support person present during the interview.