Should you agree to a police interview?
Should I do a recorded interview with police?
This is a tricky question and the answer may not always be straightforward.
If police suspect you have committed a criminal offence, but you have not been arrested you are not obliged to attend the police station or participate in a record of interview. If you have been arrested, police will take you to a police station, but you are still not required to answer any questions police ask, other than your name, address and date of birth.
Police routinely ask suspects whether or not they would like to do an interview. The answers given in the interview will form part of the evidence police gather to prosecute you.
NSW Police often refer to the interview as an ERISP, or an Electronic Record of Interview of a Suspected Person. The Australian Federal Police refer to the same thing as a TROI, or Taped Record of Interview.
Can I refuse to do an interview?
The answer to this is yes. If you’re asked by police to take part in an interview, remember that it is a completely voluntary interview. Other than your name, address and date of birth, you are not obliged to answer any other question.
Police will sometimes set up the interview room and commence recording to see whether or not you will answer questions. The police are allowed to do this but it doesn’t mean that you need to answer the questions if you don’t want to. The fact that they might continue to ask questions doesn’t take away your right not to answer.
If you are under 18 years of age, police cannot conduct an interview with you unless there’s another person present. This can be a lawyer, a friend or relative or another support person.
In some instances, it may be in your best interests to do an interview and in other circumstances, it may not be. It is important to obtain legal advice from an experienced defence lawyer before making the decision to do the interview or not.
What will police ask me?
Police will ask a series of questions about what happened. It is important to remember that it’s not necessarily a search for the truth. Police conduct interviews to gather evidence against you. They will likely put the allegations to you to comment on and this is where many people can get frustrated and angry, and may lead you to say something you don't mean to say. Remember, it’s the police's job to prove an offence – it’s not your responsibility to disprove it.
It’s often the case that people who’ve never been in trouble with the police before want to assist in every way they can. Cooperation is really important, however, don’t believe that by doing the interview and telling the truth, the police won't charge you. This is not the purpose of the interview.
Should I have a lawyer with me at an interview?
Whether you need a lawyer present at the interview, if you decide to do one, depends on the circumstances of your matter. The one important thing to remember is to always get advice before doing the interview.
In some circumstances, depending on the crime alleged, the police have the power to give you what is known as a “special caution”. If you are arrested for a serious indictable offence and you fail or refuse to tell police a fact that is later relied upon in your defence in court, the court may be permitted to use your silence against you. Police may only give a special warning when:
You are arrested for a serious indictable offence
You have had the opportunity to obtain legal advice from a lawyer, and
The special caution is given to you in the presence of your lawyer.
In those circumstances, your lawyer may tell you that it is not in your best interests for a lawyer to attend the police station with you. Learn more info about special cautions and what happens at the police station.
What happens after I do an interview?
The police will provide you with at least an audio recording of the interview. The recording will later be transcribed and this transcription will be included in the brief of evidence. The video recording will later be used by police or the prosecutor in court as part of the evidence against you.
You also might be charged with the offence that the police were investigating. This could happen straight away or the police can send or give you the charges and Court Attendance Notice later down the track. We’ve put together some FAQs about going to court here.
This article is a summary only and does not constitute legal advice. It is recommended that if you are charged with an offence that you seek legal advice.
