Regardless of how it happens, you have a right to ask to speak to a lawyer before a police interview proceeds.
Interview Dos and Don'ts
There are a number of ways in which the police will get in contact with you if they want to interview you for a criminal offence, if you are not already in police custody. It will normally depend on how serious or how recent the offence in question is. At the more serious end of the scale, the police will attend your home or place of business and take you into custody immediately for a police interview. At the less serious end of the scale, you will probably receive a phone call and be asked to make an appointment for an interview at the police station in the following weeks.
The conversation with your lawyer, if held in police custody, should, as far as practicable, be in private and out of hearing of other persons. If you cannot reach a lawyer to get advice, you also have the right to ask that the interview not proceed until you have spoken to one. If all reasonable attempts have been made to contact a lawyer and a reasonable period of time has been allowed in which to do so, then the interview will proceed.
If you are not in custody, once you have received advice from a lawyer, do not delay making an appointment with police. If the police want to speak with you, eventually they are going to make it happen. Being proactive helps you to retain some control over the date and time of interview.
Ask Questions Before Being Questioned – But Not Too Many
As soon as possible before being interviewed, you should ask why you are being arrested or what the police want to interview you about. The police must inform you of the charges and they may give you more information which may help you to prepare.
In some cases, the contacting police officer may vaguely ask you to attend the police station to 'discuss a matter' or 'make a statement'. You should clarify whether you are being interviewed as a person suspected of committing an offence or whether you are making a statement as a witness to an offence.
You should relay this information to your lawyer when you speak to them prior to the interview. If you have received a voicemail or a business card on your doorstep and you are yet to make an appointment with police for the interview, one of the best ways to protect yourself is to handover contact to your lawyer. We can contact the police officer, make the arrangements for the interview and try to glean as much information as possible. Additionally, it can be very easy to say too much in those initial contacts with police, removing yourself ensures you do not say anything unhelpful, even if you have done nothing wrong.
If you are attending the interview on your own or managing dealings with police yourself, be courteous but cautious. Being abusive or impolite will not improve the situation or make the charges go away. If you are rude or aggressive, the police officer is going to write that in the brief of evidence that is prepared if you are charged. You may also want to ask the police officer to recommend you for the Diversion Program (see blog) and while there are other avenues, it is helpful to keep the police officer on side for a recommendation. Most importantly, if you want bail, an annoyed police officer will not help.
You must give your name and address. Do not give false details as it is a criminal offence.
Hot tip: dress well for the interview. In the event it must be played in a Court room to 12 jurors deciding your fate, looking clean and respectable is important.
The Police Interview
Decide before the interview whether you are making a no comment interview or whether you are responding to the police officer's questions. If you decide to make a no comment interview then it is vitally important that you stick with it. If you answer some questions but not others (aside from the initial formality questions of name, date of birth, address, citizenship and Aboriginal or Torres Strait Islander), the police will keep at you. The more you derogate from your plan, the longer the interview will take.
If you do answer no comment without change, the police will ask you whether you intend to make a full no comment interview and when your answer is again "no comment" they will start to wrap up the interview. It will happen faster than you expect.
Once they have determined that you are not going to answer any questions, the police are obligated to tell you what the allegations are. This is your opportunity to learn exactly what is being said against you. If you have a lawyer with you, we will be taking notes and forming a picture of where the case may be headed. It may even assist us to formulate some questions to ask the police officer while your fingerprints are being taken. If you do not have a lawyer with you, while it is an extremely overwhelming situation and you may be distracted, it can be very helpful to try to remember those allegations.
If you answer the questions, be very careful. The interview is recorded and can be used against you later. The police will ask you questions from their angle. Your point of view might not be recognised. You can always tell your side of the story at a later date, preferably through your lawyer.
Do not make a written or a verbal statement, do not sign anything and do not plead guilty to anything unless you have spoken to a lawyer first.
After the Police Interview
When the interview is over, one of three things will happen:
- You will be released pending summons or a decision as to charging;
- You will be charged and released on bail;
- You will be remanded in custody.
If there is a possibility you are going to be kept in custody, you should ask for bail. The police officer may ask for some justification as to why you should be given bail or they may present you before a Bail Justice. If this happens and you do not have a lawyer present, do not talk about the charges, but provide some reasons as to why you should not be held in custody, such as – you can provide a surety, you will attend Court dates without issue or you have stable accommodation and a family to support.
You will be provided an audio copy of your interview. If you are released, you should contact your lawyer as soon as practicable afterwards and make an appointment.
It is always a good idea to tell your lawyer before you go into the interview that you are at the Police Station and then to confirm with them that you were released. That way we can know whether we should be getting down to the Court as soon as possible to do a bail application.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
