Being subject to a police interview can be very daunting and stressful, particularly when you have been arrested. However, knowing your rights and what you are required to do can ease the stress of a police investigation. There are a few rights you are entitled to whilst in a police interview:

The Right to Silence:

Police during an interview, are likely to ask questions, make statements or show you evidence (photos, CCTV, etc) but you are not required to respond or say anything regarding those materials to the officers.

Under s89 of the Evidence Act (NSW), your silence cannot be used to make an “unfavourable inference” during trial. This means that the jury or the judge cannot use your silence as evidence indicating that you are guilty or that you have less credibility.

There are a few exceptions to this rule. One of which is that if the offence you are charged with is a serious indictable offence, then s89A of the Evidence Act is likely to be applied. S89A states that unfavourable inferences can be made on your silence if you failed to mention a fact that you were expected to mention, and you relied on that fact in proceedings. An example could be the failure to mention your licence plate, where you have relied on this fact in trial to show you had an alibi for the offence. Some other requirements under s89A regarding the special caution include:

• Officers ascertaining it is an indictable offence
• Officers ensuring the caution is said before any failure or refusal to mention the fact
• Must be in the presence of the defendant’s lawyer
• The defendant should be given a reasonable opportunity to consult with their lawyer.

NOTE: s89A does not apply to persons under 18 years old and offences that are not indictable offences.

Another exception relates to disclosing your identity. Under s11 and 19 of LEPRA, a police officer can require you to disclose your identity if they have reasonable belief that you have information which can assist their investigation of a serious indictable crime. Failure to disclose your identity when requested by an officer is an offence (s12 LEPRA).

It is recommended that you use your right of silence during police interviews, at least until legal representation can better advise you on your rights and prospects regarding your case.

Buccal Swabs:

Buccal swabs are a means to obtain DNA evidence, usually, by rubbing a Q-tip on the inside cheek of your mouth. DNA samples are pertinent in most criminal cases as it allows police to speed up their investigation and assists in solving cases.

Under s5 of the Crimes (Forensic Procedures) Act, Police can only obtain a buccal swab by informed consent from the person OR by order of the court. Informed consent requires that a person have a legal practitioner or an interview friend to be present when consent is given (s99 Crimes (Forensic Procedures) Act).  However, under s47, Police may use reasonable force , without your consent, to do a buccal swab procedure if there is a risk that the evidence would be lost, destroyed, or contaminated. Usually, if force is used to obtain the DNA evidence, the Police remove hair samples rather than obtaining a forced buccal swab.

Different avenues for gaining approval for the buccal swab procedure are available to police. For example, an untested former offender can be ordered by the court to undertake a buccal swab as per s75M Crimes (Forensic Procedure) Act.

Right to contact a relative, friend or consular official:

If you are under arrest, you have the right to request a phone call to contact any relative or friend (s123 LEPRA) as well as consular official (s124 LEPRA) if you require them to be present.

Right to an interpreter:

You also have the right to request an interpreter if you require one. An interpreter may be requested where a person suffers from a disability impairing speech or where a person’s fluency in English is inadequate to communicate (s128 LEPRA). The custody manager will provide an interpreter for the interview.

Note that where an interpreter has been requested, the police must wait until the interpreter is present to start the questioning.

Detainment Time:

A person can be detained for investigation for a maximum of 6 hours, which can be extended by Police application of a detention warrant. However, there are factors listed under s116 LEPRA, which should be considered by Police that warrant a shorter investigation time. For example, age, physical capacity, and mental capacity.

Note that the detainment time for investigation do not include certain periods such as waiting time for facilities, waiting time for legal representatives, guardians, and interpreters as per s117 LEPRA.

Right to a Lawyer:

A person’s, arguably, most important right is the right to legal representation. A person under arrest and being interviewed by police has the right to request legal representative to be present for the interview & investigations (s123(b) LEPRA).

Subject to discussion above regarding section 89A of the Evidence Act, having a legal practitioner present can assist you in preparing the best defence and ensuring you are well aware of your rights in order to make the most informed decisions. A legal practitioner is also able to advise you of what is required during the interview and other matters moving forward.

If you have been arrested or the police are looking to interview you regarding an investigation, Pannu Lawyers is able to advise you of your rights during the interview and are able to advise you at every step of the criminal investigation & trial process. Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales such as Blacktown Local Court, Mt Druitt Local Court, Parramatta Local Court & District Court, Burwood Local Court, Downing Centre Local Court & District Court, and Penrith Local Court. If your matter is at Blacktown Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.

This above information is intended as general information and is not intended to be relied on as legal advice.