The Police have asked you to participate in an interview – what are your obligations, and what are theirs?



NSW Police must follow their Code of Practice for Crime to ensure they follow procedures correctly. If they do not conduct themselves correctly, they are at risk of losing a case or even having an investigation deemed malicious. There is a comprehensive set of rules, essentially, that the Police must follow when investigating a crime. If you are the suspect in a crime, there is express provision for everything; from obtaining your consent, notifying you of your rights, to the questions they may ask and how they let you respond. They must ensure that your support person (if you are under 18 years of age or deemed a vulnerable person) does not lead you to answer questions in a certain way or answer questions on your behalf. Extra care is taken when interviewing vulnerable persons, and different procedures are used for interviewing Aboriginal and Torres Strait Islanders, foreign nationals, people whose first language is not English, and those with a disability.

What about when procedure is not followed, and the Police use excessive force? Have a read.


It is always best to seek legal advice before deciding to participate in a police interview. This is not always possible, however, and so your right to silence should be utilised in these circumstances. It follows that our fundamental legal principle, the presumption of innocence until proven guilty, allows for practicing the right to silence not to cause any adverse inference for you in due course.


The Law Enforcement Powers and Responsibilities Act 2002 (NSW) (‘LEPRA’) governs what the NSW Police can and cannot do. A chapter in the Code of Practice for Crime is dedicated to Questioning suspects. The following rights suspects have, are expressed as a matter of importance:

  • First and foremost, the Police do not have any power to detain or arrest someone merely to question them;
  • Second to that is the Common Law right to silence, except where the law requires information to be provided.
  • Part 9 of LEPRA deals with investigations and questioning. Under this part, individuals have a right to ask for someone else to be present during Police questioning. There are some limited exceptions to this general rule.

If the observer interferes, Police are obliged to stop them and explain their role to them. An observer should only be removed in EXCEPTIONAL circumstances. If the person interviewed is a child or vulnerable person, the Police must ensure an appropriate support person is present before questioning.

If you are under the influence of alcohol or drugs, you are not supposed to be interviewed until you are no longer affected. It is not clear exactly how this is determined, however. This could pose problems for the Police later down the track when proceedings are underway. It is imperative that you, as a suspect, have understood the process, your rights, and what is being put to you during interview. If the police cannot establish that you were no longer intoxicated, any evidence you did provide could be inadmissible in court.


Basically, a Caution is when the Police inform you of the process and your rights before an interview. In general, they state that you are being interviewed, that the interview is being recorded, that you do not have to do or say anything you do not wish to, and that anything you do say or do may be used later in evidence. You will also be asked if you consent to being interviewed, and to the recording of the interview. Remember, you do not have to consent! Before interviewing, Police must be satisfied that you understood the caution, and the implications of the interview that is to follow. They are to ask clarifying questions if they feel the caution is not understood.

A caution occurs in the following circumstances: once Police arrest you, or believe there is sufficient evidence to establish that you have committed the offence which is the subject of the questioning, or would not allow you to leave if you wanted to, or have given you reasonable grounds to believe that you would not be allowed to leave if you wanted to. This is crucial because if the Police fail to caution you at the appropriate time, or if you do not fully understand the caution, any subsequent conversation or admission might be ruled to be improperly obtained and inadmissible. This has a huge impact on the case that follows and could potentially save you from conviction.


Once you have made it clear you will not answer anymore questions, the Police are required to put details of the allegations to you as a matter of fairness. If you comment on or answer the allegations, they can continue questioning you about it. If you are not prepared to answer their questions once the allegation is put, however, they must not continue questioning you.


If you are suspected of a serious indictable offence, this being an offence punishable by a term of imprisonment for five years or more, the police must give you a special caution, on top of the ordinary caution. The special caution must notify you that if you fail to mention a fact that you could reasonably be expected to mention during the interview, and you wish to rely on it later in proceedings, an unfavourable inference can be drawn from this failure. When you are receiving a special caution, your lawyer must be there with you in person, it is not enough to have spoken to them on the phone. For this purpose, the Police are required to allow you a reasonable opportunity to contact your lawyer before proceeding to questioning. If this does not occur, then no unfavourable inference can be drawn in court.


During the interview, your lawyer can intervene in the interview to seek clarification, challenge or object to improper questions, and to give legal advice. A Police officer will be forced to take drastic action by asking your lawyer to leave if they are found to be answering questions on your behalf or writing down replies for you to say out loud.

If you need assistance in figuring out how to choose a criminal lawyer, have a read of our discussion here.

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