Right to Silence & Police Questions

In NSW, you have the right to remain silent – this means you do not have to answer police questions or make a statement or do an interview unless you really want to. It’s like the 5th amendment in America, where you can remain silent and that silence cannot be used against you in a criminal case.

If police are at your door, or if you have been stopped for questioning or if you are arrested because of an alleged criminal offence, you may want to say “I don’t wish to make a comment” or I want to exercise my right to silence.

The police cannot say (or even think) that you are guilty because you will not talk to them or answer questions. The police need to prove that you are guilty by getting information from you. Remember – you do not need to prove that you are innocent, and many people think they can talk their way out of being charged – well they are wrong.

If you are charged, the Police will use the things you say as evidence in the case against you or other people.

On Arrest or at the Police Station

When police arrest someone or they want to question a suspect they usually caution them by saying something like “I am going to ask you some questions. You do not have to say or do anything if you do not want to. We will record what you say or do and can use this recording in court.”

It is not a good idea to accept an interview and answer only some questions, but others. Similarly, it is not necessary to deny the offence or identify yourself in any involvement because the police have the duty to prove your involvement. If you do not want to speak or be interviewed, just say “I do not want to be interviewed” rather than sitting through an interview saying “no comment” or “no” to each question.

Exception to the right to silence

There are some exceptions to the right to silence. One is when police ask for your identification – this means you need to give them your name and address. In many circumstances, failing to give those details is an offence.

Secondly, if your vehicle is involved in a serious crime, you have a duty to disclose to Police who was the driver and any passengers at the time of the alleged offence.

Should I do an interview or not?

You should always get legal advice from a criminal defence lawyer before you decide whether to answer Police questions or do an interview.

Sometimes our lawyers may advise you to do an interview but they need to fully assess the situation first. Sometimes doing an interview will directly lead to you being charged and make it very difficult for you to defend your case later on in court.

For this reason, you should always talk to our criminal defence lawyers in Sydney and get advice before doing an interview. Call us on 1800 100 529.