Everyone has heard of the “right to silence”, yet people regularly fail to exercise it to their great detriment. Our advice is that you never, under any circumstances speak to the police without obtaining professional legal advice first. Reasons not to do so include:
- Once you say something on tape, you can never take it back.
- You will likely be nervous and anxious during the interview, which can make you appear guilty and affect your ability to answer questions properly. You may give inaccurate, confused or incomplete answers which will later be used against you by the prosecution.
- You may inadvertently implicate yourself or others in other offences.
- It is a very bad idea to give your version of events without knowing what evidence the police have against you. If you are charged, you will eventually be given copies of all the prosecution evidence. Do not guess – you may underestimate how much the police know. It is prudent to be in full possession of the facts before you do anything.
- There is likely to be a lengthy period between your interview and any subsequent trial. If you do give evidence at trial, your evidence is likely to be slightly different than what you told the police. This is perfectly natural as a result of the frailties of the human mind and the passage of time. This will not stop the prosecution from using any minor discrepancies to accuse you of lying.
In short, it is an extremely bad idea to speak to the police without discussing it with a lawyer first.
Yet people do it all the time. Why do people speak to the police when they shouldn’t? In our experience, there are two main reasons.
First, people get flustered and think that they have to speak to the police.
Secondly, many people think that if they don’t speak to the police they will appear suspicious to the police or that, if they are charged, it will look bad in court. Basically, they think they should try to talk themselves out of it.
The first thing to understand is that (with a few notable exceptions referred to below) the police have no greater powers than anyone else to question or speak to anyone. They are just public servants. Do not allow the police to pressure you into speaking to them. You are well within your rights to decline.
But won’t it look bad if you don’t talk? The police may well find it suspicious. But they are not going to charge you with an offence simply because you decline an interview. If they want to interview you in connection with an offence it is generally because they have already formed the view that you are guilty of that offence and view the interview as an opportunity to obtain a confession or to give you an opportunity to make statements that will damage your defence. They may use the interview as an opportunity to plug holes in their case against you. No matter how friendly and reasonable they seem, they will generally have only one thing in mind – obtaining evidence that can be used to prosecute you. Nothing is “off the record”.
You should keep this in mind: ultimately, what the police think about you is irrelevant. They do not decide your guilt or innocence in a legal sense. That is for a magistrate, judge or jury.
You may be thinking – if I decline a police interview, won’t the judge or the jury find that highly suspicious? In most cases a judge or jury will never even hear about it if you simply decline an interview. References to you asserting your right to silence are generally inadmissible. Certainly the prosecution cannot suggest to a judge or jury that your silence is evidence of guilt. Similarly, giving a version of events for the first time at trial cannot be used as a basis to suggest that you have recently made up that version of events. The prosecution cannot suggest that you should have told the police earlier if, indeed, your version of events is true. To do so would be to undermine your fundamental right to remain silent. The courts will not allow it. If you decide to give evidence, you cannot be questioned about why you didn’t speak to the police earlier.
The best course to take is simply to resist the urge to speak. Many, many people have been convicted of offences because they spoke to the police. On the other hand, declining to speak to the police is very unlikely to do you any harm in the long run.
The proviso to the above is that there are certain questions that you are required to answer by law. For example, you may be required to give the police your personal details (name, address etc) if they reasonably suspect you of an offence. You may be required to give details of the driver of a motor vehicle. There are some other instances where you are obliged to answer some limited questions. If you are unsure, you should ask the police whether you are legally obliged to give an answer. You should also ask to speak to a lawyer.
You should always seek professional legal advice as soon as possible. The time to speak to a lawyer is when you think you are suspected of an offence – not when you’ve already been charged.
Please call Dewar Legal on (08) 8311 3964 if you require advice or representation in relation to any criminal matter in South Australia. You can also contact us by clicking here.