Questioning

If you’ve been arrested, police will usually want to question (interview) you.

You have the right to remain silent.

The right to silence means that, in court your silence cannot be used as evidence against you. For example, refusing to answer all questions can’t be used to as evidence that you were trying to hide something.

Apart from your name and address, you don’t have to answer any other police questions.

You have the right to ask for a lawyer. If you want to speak to a lawyer, keep asking until it happens. If the police question you before you have received legal advice, you should answer “no comment” to all questions.

You should refuse to answer any questions, apart from your name and address, until you have had an opportunity to speak to a lawyer.

Do NOT answer some questions and not others. This waives your right to silence. If you do this, the police can use your non-answers (your silence on some questions) as evidence that you are guilty or being deceptive.

Anything you do say to the police can be used as evidence against you in court, or in the police decision whether or not to charge you.

You can ask for an interpreter. If you need an interpreter, the police should not conduct an interview until an interpreter is available.

You must be allowed to speak to a lawyer in a private space, where police cannot hear the conversation.

If you think the police can hear you:

• tell the lawyer on the phone, and
• don’t go into details over the phone.

If you have asked for a lawyer and the police have refused but are interviewing you anyway:

• say clearly during the interview that you refuse to continue with the interview until you have received legal advice; and
• answer “no question” to all questions (except for your name and address)/

 

Other help

If you aren’t an Australian citizen you have the right to contact your embassy or consular office.

In addition to calling a lawyer, you are allowed to call a friend or family member.

The police may only deny you this right if they believe that your call may:

• help someone else involved in the crime might get away;
• help someone destroy or tamper with evidence; or
• put other people in danger

Different rules about police questioning apply to driving matters involving alcohol or drugs.

 

Talking to police

You shouldn’t have any conversations at all with the police, no matter how innocent or irrelevant they seem, until you have spoken to a lawyer, your family and/or an independent third person (a person required to be at an interview if you are a child or have an intellectual disability).

Try not to let the police questioner intimidate you.

The police may tell you that by saying “no comment” you are risking being charged with a more serious offence, or that you will not be released on bail.

This is not true. Don’t believe these threats. Don’t tell the police anything until you have spoken to a lawyer.

The police must record the questioning (called the record of interview) if you are charged with a serious (indictable) offence.

Police are not required to tape record interviews where you are to be charged with a less serious (summary) offence.

If you are charged with a serious (indictable) offence, the police must also tape record the following caution being given to you before you are questioned:

‘I must inform you that you are not obliged to say or do anything but anything you say or do may be given in evidence. Do you understand that? I must also inform you of the following rights: You may communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts. You may communicate with or attempt to communicate with a legal practitioner.‘

The police must also tape any questioning and your answers. If you are charged and your matter proceeds to court, this tape may be transcribed and presented as evidence.

The police must give you a copy of the tape. You should get this to your lawyer as soon as possible.

Note that for less serious offences, known as summary offences, the police do not have to conduct a taped record of interview. They may simply write down any questions and answers and this record may be used in court.

If you are under 18 years of age

The police MUST NOT formally question you unless your parents or guardian or an independent person is present during questioning.