Should you take part in a police interview

Generally speaking, no, you should not take part in a police interview. Police and some lawyers will argue that the clear benefits for a client in taking part in a record of interview with police are:


1. Co-operation which is acknowledged under s 9 of the Penalties and Sentences Act 1992 (“PSA”).

2. Increased chance of watch house or Court bail.


Dealing firstly with the co-operation argument.


Co-operation is but one factor listed under s 9 of the PSA. A plea of guilty either by way of an ex-officio indictment or without cross examination at a committal hearing, s 13 of the PSA and other relevant factors in s 9 PSA will more than compensate for a defendant’s apparent lack of co-operation by refusing to answer police questions.


A refusal to take part in a record of interview might result in a formal objection to bail by the prosecution at the initial mention before the Court. However, refusal by a defendant to answer questions is not a s 16 Bail Act consideration and certainly does not lend weight to any police submissions in objecting to bail.


On the contrary, a recorded interview involving admissions will most definitely be relied upon by the prosecution in objecting to bail as it is a relevant consideration under s 16(2)(d) of the Bail Act 1980 which refers to “the strength of the evidence against the defendant”.


The role of a properly prepared defence lawyer at a police station at the time of arrest cannot be overstated. Consider this passage below by Dr Cosmas in his 2008 publication “Criminal Discovery. From Truth to Proof and Back Again”, published by the Sydney Institute of Criminology:


“The low visibility, pre-interview exchanges between police and suspects have been described by McConville, Sanders and Leng as a means by which police may acquire information on a suspect’s hopes, fears, concerns and lifestyle. This places the police in a position where they can have a manipulative influence when the official interview takes place. Of significance to these police-suspect exchanges are negotiations concerning cautioning, charge selection and bail. If an accused is in custody at the time of a police interview, the exercise of police discretion on the subject of bail can have a significant bearing on the conduct of the interview. Police officers are not officers of the Court with an equivalent ethical responsibility.


Despite the availability of legislation requiring the audio or videotaping of police interviews, the potential remains for admissions or confessions to be tainted by police conduct, both prior to the interview and at the interview through suggestive questioning.” (pge 130).


It should be a rare occurrence for a criminal defence lawyer to advise a client to take part in a Record of Interview.

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