Arrest and Interview

At common law, an accused has the right to remain silent. This right arises from the serious and potentially devastating consequences of criminal conviction upon any accused.

However, an accused should be aware of the Evidence of Silence Act 2013 (NSW) and s89A of the Evidence Act 1995 (NSW) (‘the Acts’).

By the Acts, an accused suspected of a serious indictable offence (being an offence attracting a possible maximum sentence of 5 or more years) may wish to disclose, at an early stage and in certain circumstances, information on which they may wish to rely at any hearing of their matter. These circumstances may include when a special caution is given to the accused with the accused’s lawyer is present.

Otherwise, if the accused raises this information at a later stage, an inference may be drawn against the accused where the court, in effect, asks why the accused did not raise this information sooner if it is in fact true.

Whether or not an accused, or anyone else, should agree to a police interview is a decision that should be made after obtaining legal advice.

However, it should be remembered that:

  • An accused does not, generally, know the law.
  • Anything said to the police, whether during an interview or otherwise, may be used as evidence.
  • The police are experienced at probing an accused for information and may ultimately obtain information from the accused that the accused did not want to provide.

Generally, it is advisable that an accused does not take part in a police interview, or say anything to the police in relation to an offence with which they have been charged or are suspected of committing, whether or not they are in police custody.

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