Written by Bill Doogue. Partner, Doogue O’Brien George Criminal Defence Lawyers.
We were speaking among ourselves in the office recently about the types of police interviews that clients end up giving and how there seems to be some misunderstanding about what the options in an interview actually are.
Defence lawyers often need to give advice over the phone to people as they are held at the police station. In that context, it can be extremely difficult to explain what a “no comment” interview actually means.
In explaining the questions that you should answer, the questions that you shouldn’t answer and how you should answer them, it often gets quite confusing.
I thought it would be a helpful to summarise what the options in an interview are:
- A “no comment” interview;
- Reading a pre-prepared statement; and
- Answering all the questions in the interview fully.
A “No Comment” Interview
Below is an example of the basic questions that are asked that begin an interview. These questions are mainly to establish your personal details and have nothing to do with the allegations themselves. As to the reason for doing the no comment interview it is explained more fully in various blogs such as this one about interviews. Basically, a no comment interview is recommended because an interview is only assisting the police at a point which they have determined to charge you anyway. An interview is not a search for the truth, it is the search for admissible evidence which is then used to prosecute someone. It goes without saying that most of the time people who understand their rights choose to exercise them. Therefore, most people would not talk in an interview they would reserve their right to talk in Court or to provide a statement to police subsequently.
The basic questions put at the start of an interview are .
NO COMMENT INTERVIEW
THIS IS A RECORDED INTERVIEW BETWEEN [NAME OF POLICE OFFICER] AND [CLIENT] OF [ADDRESS], CONDUCTED AT THE ____ POLICE STATION ON [DATE]
ALSO PRESENT IS MY CORROBORATOR [NAME]
Q 1 DO YOU AGREE THAT THE TIME IS NOW ******?
Q 2 WHAT IS YOUR FULL NAME AND DATE OF BIRTH?
[STATE YOUR NAME]
Q 3 I INTEND TO INTERVIEW IN RELATION TO THE OFFENCE OF [SPECIFIC OFFENCE] BEFORE CONTINUING I MUST INFORM YOU THAT YOU DO NOT HAVE TO SAY ANYTHING BUT ANYTHING YOU SAY OR DO MAY BE GIVEN IN EVIDENCE. DO YOU UNDERSTAND?
Q 4 I MUST ALSO INFORM YOU OF YOUR RIGHTS. YOU HAVE THE RIGHT TO COMMUNICATE WITH OR ATTEMPT TO COMMUNICATE WITH A FRIEND OR RELATIVE TO INFORM THAT PERSON OF YOUR WHEREABOUTS. YOU HAVE THE RIGHT TO COMMUNICATE OR ATTEMPT TO COMMUNICATE WITH A LEGAL PRACTITIONER. IF YOU ARE NOT A CITIZEN OR A PERMANENT RESIDENT OF AUSTRALIA YOU HAVE THE RIGHT TO COMMUNICATE WITH OR ATTEMPT TO COMMUNICATE WITH THE CONUSLAR OFFICE OF THE COUNTRY OF WHICH YOU ARE A CITIZEN. DO YOU UNDERSTAND?
Q 5 DO YOU WISH TO EXERCISE ANY OF THESE RIGHTS BEFORE THE INTERVIEW PROCEEDS?
Q 6 OK WHAT IS YOUR AGE AND DATE OF BIRTH?
[STATE YOUR AGE AND DATE OF BIRTH]
Q 7 ARE YOU AN AUSTRALIAN CITIZEN?
Q 9 ARE YOU A PERMANENT RESIDENT OF AUSTRALIA?
Q 10 ARE YOU OF ABORIGINAL OR TORRES STRAIT ISLANDER DESCENT?
[AFTER THIS QUESTION, YOU ARE TO ANSWER ‘ MY LAWYER SAID TO SAY NO COMMENT IN ANSWER TO ALL OTHER QUESTIONS’]
The only other thing to be wary of is if your car is involved in the crime you are required to tell the police who the driver was, if asked. There is a specific law that makes it an offence not to tell them the identity of the driver (if this information is known).
Reading a Statement
This is a less often-used approach to an interview; where a person is intending to make some general admissions about having done something in the past but is not keen to be cross examined by police officers. The reson would read a prepared statement to police along these lines;
I am here in relation to historical sexual abuse allegations. I have decided because of what happened with xxx that I wanted to take positive steps in regards to those matters. This has not been dealt with all those years and I want to deal with those issues. I wanted to find the best avenue to proceed and as I did not know what to do, I contacted a solicitor to seek advice. As a consequence of an advice from Mr Doogue, a decision was made that I would make a statement regarding what occurred between xxx and myself. I now propose to read the statement at this stage. I have been advised by my solicitor to read it at the commencement of the interview and to answer no further questions.
The reason for the reluctance to talk is that the client is not sure about the surrounding circumstances and does not want to make the situation worse for themselves.
This approach would be to attend interview and answer all the questions that the police may have to ask during the interview. This is done, after advice and discussion with a lawyer, with the knowledge that they intend to use the answers against you if possible. The Police will be looking to trip you up on minor details to show some inconsistency at a later point.
Obviously a client can choose not to answer questions and then return at a later point and offer to be interviewed.
The interesting process, from our perspective, is trying to convey these options and the various options to someone that is about to be interviewed. It is also important to remember that, at this point in time, the person is extremely stressed and is trying to take in an enormous amount of material. If there are any other permutations anyone has encountered, please email us or let us know in the comments, we’d like to include that information in our post.
The crucial thing is to seek advice from a lawyer before an interview is undertaken, if possible. When there is any allegation that arises you should talk to a lawyer immediately. The advice they will give is something that you can think about over a period of time, hopefully you will never have to use it. If you need to use it, you will understand the process better.