The Rules Relating to Police Interviews in New South Wales

The Law Enforcement Conduct Commission last month released its Operation Mantus report, which investigated allegations that New South Wales police officers used excessive force on arresting a 14-year-old First Nations boy, as well as clear issues around how attending officers set about interviewing him.

The sole NSW police watchdog found that the custody manager at the regional police station placed a phone call to the Aboriginal Legal Service about the boy, as per protocol, and an ALS lawyer then advised him of his right to silence, and told the manager that his client wanted to exercise this right.

Despite the teen’s decision not to be interviewed, two officers conducted one later that morning: the 12th September 2022. And the LECC found evidence that he’d changed his mind regarding the interview unsatisfactory, and the transcript has him initially refusing to partake in it.

The LECC found that the interviewing of the 14-year-old Aboriginal boy reflected systemic issues regarding interrogations of vulnerable people. And even though 2005 NSW Police Force protocols stipulate that young people can exercise their right to silence, these appear to have been forgotten.

Exercise the right to remain silent

A person who is arrested and taken to a police station on suspicion of a criminal offence will generally be offered the opportunity to participate in a police interview.

In the vast majority of cases, it is advisable to decline the opportunity to be interviewed, as participating will almost invariably lead to the elicitation of information that is adverse to the arrested person’s position, and make it more difficult for their criminal defence lawyer to achieve a positive outcome.

Participating may even result in more serious or additional charges being brought than that or those for which the arrested person was initially suspected.

For these reasons, defence lawyers will almost always advise clients to decline an interview, and to also refuse to enter the interview room if asked by police to do so. This is because some unscrupulous police officers who ask arrested persons to record the refusal to be interviewed may instead proceed to ask questions or put the allegations to the arrested person despite the formal refusal. 

Some will even lie to lure a suspect into participating and/or lie during the interview itself to elicit previously unknown information or admissions.

Only in very rare cases will a good defence lawyer advise a client to participate in a police interview, and such advice will only be given after very careful consideration of the allegations, the client’s instructions and any other material or evidence that is available at that time.

So as a general rule, it’s best to state that you decline to be interviewed based on legal advice and that you also do not wish to enter the interview room for the recording of your refusal to be instead.

You can instead say you are prepared to sign an entry in a police notebook which simply states that you declined an interview.

Conduct and use of interviews

In the event an arrested person agrees to participate in an interview, the procedure will normally be conducted by two officers in a dedicated room and be electronically recorded by way of both audio and video.

Subject to the police having complied with the law and the rules of evidence in the conduct of the interview, the electronic recording will be admissible as evidence in any subsequent defended hearing in the Local Court or jury trial in the District or Supreme Court. 

Cautioned at the station

The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) contains the most prominent law enforcement powers bestowed upon the NSW Police Force. Part 9 division 3 of what is commonly referred to as the LEPRA contains safeguards relating to police interviews.

Section 122 of the LEPRA provides that, in cases like that of the First Nations teenager, the custody manager must caution the person, outlining that anything they do or say can later be used against them as evidence in court. And this makes the person aware of their right to silence.

The custody manager must provide a form to the arrestee summarising the regulations in part 9 of the LEPRA, relating to custody and interrogation, and the individual in police custody must sign an acknowledgement that they’ve received this information, which is also known as part 9 rights.

The official cautioning that happens at the station usually comes following arrest on the beat and transport to the station. And while it might appear that anything said at this time is “off the record”, it can be used against an accused later down the track, so it’s best not to say anything to officers.

Special cautions 

However, the right to silence has been under attack in NSW, as, since 2013, section 89A of the Evidence Act 1995 (NSW) stipulates that the exercising of one’s right to silence during police interrogation can later be cited in court and a negative inference can be drawn from it.

An unfavourable inference can be taken from a silence, where a fact could have been presented, in cases where an arrestee is at least 18 years old and has received a “special caution” regarding the negative inference pertaining to silence during questioning.

Such a caution must be given in front of an Australian legal practitioner for it to valid, and the accused must be charged with a serious indictable offence carrying at least 5 years prison time.

This law was passed by the NSW government in 2013 to appease state law enforcement, which had been calling for measures to dissuade legal practitioners from attending police stations to be present during the questioning of their clients.

Rights on arrest

There are a number of other part 9 rights that apply when being taken into custody. Prior to any investigation proceeding, the custody manager must advise the arrestee that they are able to contact a lawyer of their choice who can attend the station and be present during inquiries.

This stipulation is contained in section 123 of the LEPRA, as are requirements that the manager make the detainee aware that they can contact a friend, relative, guardian or independent person to inform them of their whereabouts and ask them to attend the station if need be.

In terms of a foreign national taken into the custody of police, the custody manager must inform them orally and in writing that they have the right to contact a consular official from the country of which they are a citizen, and this official can be requested to attend the station, under section 124.

Section 128 of the LEPRA provides an arrestee with the right to an interpreter if needed. Section 129 stipulates that the custody manager must seek medical assistance for a detainee if necessary. And section 130 bestows the person in custody with the right to refreshments and to use facilities.

Improving vulnerable persons interviews

As part of Operation Mantus, the LECC found that police officers have been asking vulnerable persons to confirm in recorded interviews that they don’t want to proceed with an interview, and they’ve been conducting informal interviews using body worn camera to record what is said.

The state police watchdog also heard evidence that officers were suggesting to vulnerable people that they could attain bail if they sit for an interview first, as well as officers proceeding to interview an arrestee after they’ve told the custody manager they refuse to do so, yet this was not noted.

The LECC recommended that custody managers ensure that interview refusals are recorded, that young people should not be asked to sit an interview to confirm that they don’t want to partake in one, and there should be better training overall in this regard.

Going to court?

If you find yourself at the police station under these circumstances or if you are required to appear in court to face a charge, call Sydney Criminal Lawyers anytime on 9261 8881 to arrange assistance from one of our experienced defence lawyers, or for a free first conference to assess your options.