If police want to interview you, the right answer is usually no.

Police have asked you to come in for a chat. Or they have phoned and left a message. Or two officers are at your door and want to "clear something up." In almost every case, the right answer is no. Not aggressive, not theatrical, just no. This note explains why that answer is rarely a sign of guilt, why the law in New South Wales has been built to protect it, and the narrow exception you need to know about before you walk into an electronically recorded interview.

The legal hook. Silence is a right, not a confession.

Section 89 of the Evidence Act 1995 (NSW) sets the default rule. In a criminal proceeding, an unfavourable inference must not be drawn from evidence that a person failed or refused to answer a question put by an investigating official. The section codifies what the High Court said in Petty v R (1991) 173 CLR 95: a person under investigation has the right to remain silent, and the exercise of that right is not evidence of guilt.

The police know this. That is why the caution they are required to give you under section 122 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) tells you, in terms, that you do not have to say or do anything. The words on the caution card are not a formality. They are a statement of the law.

Why "I'll just explain my side" is the wrong instinct.

Most people who agree to a police interview agree because they want to be helpful, or because they think a refusal will look bad, or because they are sure their version is so obviously right that nothing they say can hurt them. All three instincts are wrong, and the third is the most dangerous of the three.

An Electronically Recorded Interview with a Suspected Person, the ERISP that gives this note its name, is the prosecution's first piece of evidence. Every word is recorded. Every pause is recorded. Every detail you get wrong, every date you misremember, every name you put in the wrong sequence becomes available for cross-examination if your matter is later contested. The officer asking the questions has the brief in front of them; you do not. You are reconstructing events under stress. They are testing for inconsistency.

Even an account that is entirely true will lock you into a version. If a new piece of evidence emerges later, or if your lawyer identifies a defence you did not know existed, the recorded interview is the anchor the prosecution will use to argue you have changed your story. Saying nothing is not a tactic. It is the absence of a tactic, and the absence of a tactic is what gives your lawyer room to work.

The narrow exception. Section 89A and the special caution.

There is one place in the New South Wales scheme where silence can be used against you, and it is narrower than the headlines about its introduction suggested. Section 89A of the Evidence Act 1995 (NSW), inserted by the Evidence Amendment (Evidence of Silence) Act 2013 (NSW) and in force from 1 September 2013, allows an unfavourable inference to be drawn from a failure to mention a fact during official questioning, but only if all of the following are true:

• The offence is a serious indictable offence. That means an indictable offence punishable by life imprisonment or by 5 years or more (section 4 Crimes Act 1900 (NSW)).
• A "special caution" was given by an investigating official who had reasonable cause to suspect you of that offence.
• The special caution was given before the silence.
• The special caution was given in the presence of an Australian legal practitioner acting for you, and you had an opportunity to consult that lawyer about the general nature and effect of the special caution.
• You are not under 18 and not a person incapable of understanding the caution.
• The silence is not the only evidence of your guilt.

The special caution is the one in the standard wording: you do not have to say or do anything, but it may harm your defence if you do not mention when questioned something you later rely on in court.

The practical reading is short. If you are at a police station, you are suspected of a serious indictable offence, your lawyer is in the room, and a special caution has been given, the calculation about whether to remain silent is one only your lawyer can help you make. Outside that narrow setting, the section does no work. Silence in the back of a divisional van, silence at the kerb when officers first approach you, silence in a phone call to your local station, silence at a doorstep visit: none of these is silence in response to a special caution given in the presence of your lawyer. Section 89A does not bite.

What "no" actually sounds like.

The script is short. You do not need to memorise it; you need to know the shape of it.

1. "I have been told I do not have to say anything. I am exercising my right to silence."
2. "I would like to speak with a lawyer."
3. If pressed: "I am not going to answer questions today."

That is the whole of it. You do not need to explain why. You do not need to apologise. You do not need to engage with reassurances that this is "just a chat" or that "we just want to hear your side." A chat is not a chat once it is on tape, and your side is not your side once it is reduced to a recorded interview by someone whose job is to test it.

Do not engage in small talk. Talk about the weather, about football, about your family, about the traffic on the way in: any of it can be admissible. The recording is on. Officers are trained to keep a conversation going, and a relaxed conversation produces statements that later read very differently in a transcript.

Identity, traffic, and the conversational trap.

There are three places where the right to silence narrows, and you need to know them so that exercising the right does not turn into an additional charge.

Identity. Where police lawfully require you to give your name and address under the LEPRA powers (for example, when investigating an indictable offence under section 11, or when issuing a move-on direction under section 197), refusing to provide that information is itself an offence. Give name and address. Then stop.

Driving. The road transport legislation imposes separate duties to provide information after a crash, to identify the driver of a vehicle on request, and to comply with breath analysis directions. Those duties are not displaced by the right to silence and refusing them carries its own penalty. If you have been in a motor vehicle incident, the duty to give particulars under the Road Transport Act 2013 (NSW) operates regardless of any criminal exposure.

The conversational trap. Admissions made in informal conversations with police are admissible against you in indictable proceedings only if there is a tape recording of the conversation, or the prosecution establishes a reasonable excuse for the absence of one (section 281 Criminal Procedure Act 1986 (NSW)). That sounds protective. In practice it is not, because the police now carry body-worn cameras and every interaction at a station or in a vehicle is recorded. Treat every conversation with an officer as evidence. Including the friendly ones.

If officers turn up at your home or workplace.

The rules at the doorstep are different from the rules at a station, and the difference matters. Step outside. Close the door behind you. Ask: "Am I under arrest?"

If the answer is no, you are free to go. You do not need to invite officers in, you do not need to answer questions, and you do not need to consent to a search. Politely state that you will not answer questions without speaking to a lawyer, take a card or the officer's name and station, and leave.

If the answer is yes, you give your name and address and nothing else. You ask to speak with a lawyer. You do not consent to a search of your phone, your car, or your residence. If a search warrant has been executed, ask to see it and keep a copy: the warrant defines what officers can lawfully take, and a search that goes beyond the warrant is open to challenge under section 138 of the Evidence Act 1995 (NSW) at any later hearing.

The lawyer in the ERISP room.

Once a lawyer is in the room, the dynamic changes, but the default still holds: in almost every case, the answer is still no. The lawyer's role at an ERISP is procedural. The lawyer cannot answer questions for you, cannot speak across questions, and cannot direct the conversation. What the lawyer can do is pause the interview, take you outside the room for private advice, and ensure that the cautions and procedural requirements are being met.

The serious indictable cases under section 89A are the only category in which a lawyer-present ERISP becomes a real strategic question rather than a default decline. Even there, the answer is usually no. The cases where a defendant in a serious indictable matter is better served by participating in a recorded interview are rare, and they are identified by the lawyer after seeing the brief, not on the day at the station.

One last note.

The police interview is not a chance to clear things up. It is the moment in the investigation at which the prosecution decides whether to charge, and what to charge. Silence is the lawful response to that moment for almost every accused person, in almost every offence, in almost every set of facts. The exceptions are narrow and they are for your lawyer to identify.

If officers have asked you to come in, or if officers are at your door, the right answer is to take their card, decline the interview, and call a criminal lawyer before any further conversation happens. The phone call is what protects you. The recorded interview, almost always, is not.

This note is general information about New South Wales criminal procedure and is not legal advice for any particular case. The Evidence Act 1995 (NSW), LEPRA, and the case law on the right to silence change. For advice on a real matter, contact us through our contact page or phone 0421 717 019.

← Back to all insights