Police questioning can be either formal (i.e. at a police station with a record of interview made of the proceedings) or informal. Formal interviewing usually occurs after an arrest has been made, however, informal questioning can occur under a wide range of circumstances (e.g. when pulling over a vehicle in relation to a traffic offence). Young people are particularly likely to be subject to informal questioning as they are often present in public places and it is common practice for police to stop and question them.
The right to remain silent is a fundamental right for all people when being questioned by police. It stems from the basic common law principle that it is the state’s role to prove the guilt of an accused person, not the accused’s. Additionally, no negative conclusion can be drawn from an accused relying on their right to silence when the matter goes before the courts.
An accused person who does not wish to say anything to the police should make that decision clear. They must state their name and address and tell the police something along the lines of ‘I do not wish to say anything further’.
If the police ask further questions, the accused person should repeat ‘I do not want to say anything’. If this is the advice received from a lawyer or legal adviser, they should say ‘I do not wish to answer any questions on the advice of my legal adviser’.
In reality invoking the right to remain silent can be extremely difficult. In high pressure situations such as a police interview people often feel an overwhelming need to provide information in the belief this will assist them and that the police will go easier on them because of their cooperation. It is also difficult for most people to assert themselves when dealing with people in authority. In addition, interviews will always start with questions about name and address which must be answered. At this point the accused person has already been placed in a position of having to cooperate and it can be very difficult to invoke the right to refuse to answer questions and be ‘uncooperative’ from this point onwards.
Also please note that you must answer certain questions in the following situations:
- where police reasonably suspect a person has committed or is about to commit an offence (giving name and address);
- drivers of motor vehicles;
- proof of age of people on licensed and regulated premises;
- to customs officers regarding drugs;
- to avoid assisting an offender; and
- in relation to firearms.(See the sections on Being questioned for the details about what you must answer in relation to each of these areas).
The risks of answering some questions but not others
It is extremely important that an accused person who makes a decision not to answer questions (apart from the ones that are required by law) should stick to that decision, rather than answer some questions and not others. Answering questions selectively, that is, answering some and refusing to answer others, may later be interpreted by a court as consciousness of guilt.
If a person decides to make a statement, a lawyer should always be consulted first so that the statement can be made in the presence of a lawyer or prepared with the help of a lawyer and then given to police. It may be in a person’s best interest to make a statement, for example, where a person has a valid explanation. However, this should only be done after obtaining legal advice.
Where police fail to observe proper procedure
If the police do not warn someone of the right to remain silent any evidence gained through questioning may not later be admitted as evidence against the person. Should the police overstep the mark in interviewing a person, again any evidence gained from their questioning may be excluded. For example, if a person indicates that he or she does not want to answer questions but the police ask more questions, or use an inducement such as promising bail in return for cooperation, and answers eventually are given, it is possible that those answers may be excluded.
When a person is arrested they have the right to telephone a relative or friend to inform them of their whereabouts. They also have the right to have a friend, relative or solicitor be present at interview. However, police can refuse communication with another person or their attendance at interview where they suspect they are an accomplice or will assist the person in avoiding apprehension or destroying evidence.
Right to an interpreter
An arrested person has a right to be assisted by an interpreter if English is not their native language. Even where a person is assisted by an interpreter the right to remain silent still stands and they do not have to answer questions.
Questions that must be answered
It is important to note that there are some questions you must answer (for example, providing your name and address). The police should make it clear when they are asking a question you are required to answer.
The police are experts at getting information from people. A person may be told 'it will be easier if you make a statement', or 'bail will be granted more quickly if a statement is made'. Do not fall for tricks such as 'a co-offender has told us the whole story'. Any incentives offered by the police should be ignored if the person does not wish to answer questions.
Written and verbal statements can be used in evidence. Any conversation with the police can be used in evidence. Hence any suggestion that a conversation between a suspect and the police is 'off the record' should be ignored.
Police can also listen to and note down conversations held by a person with anyone else, except a lawyer, and use it later in evidence against the person.
What is a record of interview?
All police interviews are required to be recorded – this should be by video (audio visual) but can be an audio or written record. The record of interview (whether written or transcript from a video or audio record) is usually presented as evidence in court if the charge or charges proceed to trial.
Do I have to sign the record of interview?
Where a written record is made of an interview the person interviewed will be asked to read and sign it. There is no obligation to read or sign a record of interview.
You should always read the record of interview before signing and can refuse to sign if the police will not allow it you to read it.
Even if unsigned, if you indicate to the court that it was given voluntarily and is accurate, it may be held as an admissible, voluntary and accurate record of interview.
What if I want corrections made?
If you do not agree with information contained in the record of interview, you should ask that it be corrected. Any changes you have requested should then be initialled by you. Caution should always be taken when signing a statement as you are considered to be agreeing with all its contents when you sign.
When do police record interviews?
Under the Summary Offences Act 1953 (SA) 1953 if a person is charged with an indictable offence the police must, if it is reasonably practicable, make and audio visual record of the interview, or if that is not reasonably practicable, make an audio record, however if it is not reasonably practicable to make either then a written record may be made [s 74D Summary Offences Act 1953 (SA)].
Even if an accused does not wish to answer questions the police may ask them to state this on the audio visual or audio record. The police cannot force a person to be recorded and a person who does not wish to be taped should simply tell this to the police. If a person refuses to allow the interview to be recorded, the police may ask him or her to sign a form confirming the refusal. This is not unusual.
When a vulnerable witness is being interviewed as a witness to a serious offence against the person (such as murder, manslaughter, criminal neglect, a sexual offence, abduction, blackmail, unlawful threats to kill, and some other offences [see s 74EA]), police have an obligation to make an audio visual recording of the interview [s 74EB]. Vulnerable witness in this instance refers to a child of or under the age of 14 years or a person with a disability that adversely affects the person’s capacity to give a coherent account of their experiences and answer questions rationally [s 74EA].
Can I see / listen to the audio visual/ audio record of my interview? Can I get a copy?
Police must allow you to view the audio visual record and you are able to obtain a copy of the audio record part of it, but not the visual part. You are able to obtain and listen to an audio record of interview [see s 74D(4) Summary Offences Act 1953 (SA)].
Under the Summary Offences Regulations 2016 (SA) a person who is to be interviewed may be taken to have complex communication needs if the person has significant difficulty in communicating effectively with the interviewer, whether the communication difficulty is temporary or permanent and whether caused by disability, illness or injury. However this does not include if the temporary illness is due to intoxication [reg 18(2)].
If an investigating officer wants to interview a suspect who they believe may have complex communication needs, the officer must make the following arrangements as relevant:
- for the suspect to be accompanied during the interview by a person who is a prescribed communication assistant;
- for the suspect to use, or be provided with, a prescribed communication device for the purposes of the interview.
This is in addition to the requirements of section 74D of the Summary Offences Act 1953(SA) [reg 19(1)]. See further : Police Questioning and Interviewing.
A prescribed communication assistant is a person who provides communications assistance to suspects or vulnerable witnesses while being interviewed and includes communication partners (a person or class of people approved by the Attorney General to be this) and any other person approved for the purposes of the interview by the interviewer [reg 22(1)] .
A prescribed communication device includes:
- text, symbol or picture boards;
- speak-and-spell communication devices;
- voice output communication devices;
- tablets, laptops or other computers or devices equipped with software designed to assist persons with complex communication needs to communicate more readily; and
- any other device, whether electronic or not, as may be approved for the purposes of the interview by the interviewer [reg 22(2)].
However the interview can still go ahead with out a prescribed communications assistant or device if it is not reasonably practicable to have one there (for example one is not available); and the circumstances mean that it is not worth postponing the interview until those arrangements can be made [reg 19(2)-(3)].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.