Being questioned by the Police is always a difficult and stressful thing.   Often however the ultimate result in Court will depend on what you do, or don’t do, when first questioned by Police.

Our law has traditionally recognised that an accused person (or a “suspect”) has a right to silence, i.e., a right to refuse to answer any questions on the ground that the answers may incriminate that person.   This right to refuse/decline to answer questions is absolute unless there exists some legislation (i.e., an Act of Parliament) that takes away or reduces that right “in very clear terms”.

There are only a very small number of situations in NSW where the law has reduced the right to silence.    Generally the situations where such special laws have been created are very unusual and involve laws which most people will never have any contact with such as laws relating to Terrorism or Bikie Gangs.

We have always advised our clients that the Police are often entitled to ask anyone for their name and address.   This right however does not normally entitle Police to then force a person to answer any other questions.

The Supreme Court of NSW recently confirmed that if the Police think you are a possible suspect in regard to a crime they can ask you to identifyyourself, and a refusal to do so is a criminal offence for which the Police can then arrest you.   However, if you answer the question(s) as to your identity, you are then entitled to refuse to answer any other questions at all.   The Police cannot arrest you for the purpose of interviewing you or requiring you to take part in an identification parade.

If, after you identify yourself, you tell the Police you do not want to answer any questions, the Police then either have to arrest you and charge you with an offence or let you go.    It is always sensible to politely answer any request for you to identify yourself (which could include a request to produce your Licence or other proof of identity) and to then again politely (and if necessary repeatedly) refuse to answer any other questions or to take any part in a Record of Interview.

The Police may say something like:-

“We just want to give you a chance to give your side of the story” or

“If you don’t answer our questions you will look guilty”.

However, if you do not want to answer their questions then you should politely continue to refuse to do so.    There is no inference of guilt arising from the mere fact that you refused to answer the questions of the Police.

Even if the Police do charge you with something, or they take you into custody, you can still refuse to answer their questions and the law says that the Police cannot just keep you in custody indefinitely.   Once you are charged you are entitled to be released or should be brought before a Court as soon as possible if the Police are not prepared to grant you Bail and release you.    If they are not going to charge you with something then the Police are required to release you.

If the Police breach these laws then they may be prevented from using any evidence against you that arises from their unlawful detention or arrest of you and you may be able to sue the Police for wrongful arrest, unlawful imprisonment or malicious prosecution.   We have successfully handled such cases.

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