Police approach people for questioning far more often than most people expect, and the instinct to just explain yourself and clear things up is exactly how people talk their way into trouble. Nothing said in that moment is off the record. Knowing your rights, and actually using them, is the strongest defence available to you.
In New South Wales, the presumption of innocence sits at the centre of the criminal justice system. The burden of proof rests entirely with police. Proving your innocence was never your job. That is where the Right to Silence comes from.
You are under no legal obligation to answer police questions, take part in a formal recorded interview (ERISP), or provide a written statement. If police put questions to you, you can simply say: "I do not wish to answer any questions or make a statement." Officers sometimes suggest cooperating will "look better for you." It rarely does.
The right to silence has limits. In specific circumstances you must still provide basic identification: if police suspect on reasonable grounds you can assist with investigating an indictable offence, or you are the driver involved in an offence or accident, you must give your name and address. If you are driving, you must also produce your licence. Refusing to identify yourself in these circumstances is an offence in its own right.
Police will often invite you to "come down to the station for a chat." Ask them directly: "Am I under arrest?" If the answer is no, you are free to leave, and you do not have to go voluntarily.
If you are formally arrested, you will be taken to the station, where police must read you your rights, including the right to contact a lawyer and the right to silence. None of that changes once you are under arrest: you still do not have to answer their questions, and you are entitled to answer "No comment" to every one of them.
The single most useful thing you can do when police want to question you is ask to speak to a lawyer immediately. Police are required to give you the means to do that. A lawyer can tell you exactly what you are being accused of and how to handle the interview from there. This is usually a short phone call, not a long process, and it is worth insisting on even if police suggest there is not time.
If you are under investigation, understanding your rights when arrested matters more than ever. Speak to our experienced criminal law and bail applications lawyers before you say anything to police. Protecting your silence early protects your freedom later.
