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it is important that an individual who is arrested or invited by police to attend an interview as a suspect in an offence understands their rights before attending a recorded police interview.
A recorded police interview is an essential component of an alleged offence, and the decision whether to charge a suspect may often be determined at the conclusion of the interview.
In Victoria, pursuant to the Crimes Act 1958 (Vic), police must notify the individual of their rights, and if necessary, explain those rights to them before they can begin questioning. The police will provide the suspect with a caution to ensure that the suspect understands that they are not obliged to answer any questions, and any answers provided will be recorded and may be used against them as evidence in a Court. A suspect has the right to decline answering police questions, other than those required by law such as (for example) providing your name, date of birth, and address.
The burden of proving guilt rests at all times with the prosecution.
In most circumstances, police have already obtained enough evidence in their investigation prior to the interview, to determine whether they will arrest the suspect or not.
People often mistakenly attend a recorded police interview thinking that police are providing them an opportunity to explain their version of events. However, in our experience, this is usually not the case, but rather an opportunity for police to obtain further admissible evidence, strengthening their case against them (or another suspect).
As offences may have been committed prior to the interview, or years earlier, the suspect’s recollection of events may be slightly mistaken or distorted in some way, until they are provided with evidence by the police. This is often to assist the suspect remembering the events which occurred, however, may also assist the prosecution’s case against the suspect, if their version of events changed after being shown evidence. The result of this is that the suspect’s credibility may be jeopardised, and other answers provided which may have otherwise been truthful, may be discredited.
Police interviews are regularly scheduled by a telephone call from police, requesting that the suspect attend a particular police station for an interview. We recommend clients seek legal advice prior to attending any such interview. The suspect should still attend the police station for an interview, even if they do not propose to answer any questions put to them. This is because avoiding a police interview may lead the police to vising the suspect’s residence, or place of employment, or their last known address, which may create an awkward or embarrassing situation for the suspect that may have otherwise been avoided.
If suspects intend on exercising their right to silence and refuse to answer any police questions, it is not necessary to have a lawyer present. There is often the misconception that by refusing to answer questions in the interview, it indicates that the suspect is hiding something or may be guilty. The right against self-incrimination is fundamental to our criminal justice system in Australia. A Magistrate or jury can make no adverse inferences by a suspect exercising their legal right to silence by refusing to answer questions in a recorded interview.
Typically, the police officer will let you know that:
You must give your name and address when asked by a police officer.
The main questions to ask prior to attending the interview would be:
After you have provided your name, date of birth, and address, if you choose to remain silent, do so for every question and answer with the words, “I decline to answer the question”, or simply say “No comment”.
If you do decide to provide a “no comment” interview, then you say “no comment” to every question. You cannot decide to answer some questions and say “no comment” to others, as this is a partial “no comment” interview, which may be used against you.
The informant (the police officer who may charge you) and a corroborator (another police officer who witnessed the offence), in addition to yourself, and your lawyer if you have one.
The police may: