What you say in a police interview often decides the case. Police usually invite people to an interview before charges are laid, and by the time you are in the interview room the decision you most need advice about has already arrived. McMahon Criminal Defence Lawyers advises people before, during and after police interviews, on fixed fees.
The Right to Silence
With limited exceptions, you are not obliged to answer police questions. Before an interview about an offence, police must caution you that you do not have to say or do anything, and that anything you say or do may be given in evidence.
The main exception is your identity. Under section 456AA of the Crimes Act 1958, police may require your name and address where they believe on reasonable grounds that you have committed or are about to commit an offence, or that you can assist in the investigation of an indictable offence. They must tell you the grounds for that belief. Refusing without a reasonable excuse is itself an offence. Separate rules require drivers to identify themselves under the Road Safety Act 1986.
Beyond that, “no comment” is a lawful answer. Exercising the right to silence cannot be used against you as evidence of guilt.
Your Right to a Lawyer
Section 464C of the Crimes Act 1958 gives a person in custody the right, before questioning begins, to communicate with a friend or relative and with a legal practitioner, and police must defer questioning for a reasonable time to allow this. A lawyer must be able to speak with you in private, as far as practicable. There are narrow exceptions, such as where police reasonably believe a call would allow an accomplice to escape or evidence to be destroyed.
This is the point at which to ring us. A short conversation before the interview begins costs far less than undoing an interview that has gone badly.
How Interviews Work
- Recording: interviews about indictable offences are recorded. Section 464H of the Crimes Act 1958 restricts the use of a confession or admission that has not been recorded as required.
- Time in custody: if you are under arrest, you may be held only for a reasonable time before being released or brought before a court.
- Interpreters and support: an interpreter must be arranged where needed, and additional protections apply to children and to people with a cognitive impairment.
- “Just come in for a chat”: an invitation to attend voluntarily is still an interview, and what you say is still evidence.
- After the interview: you may be charged and bailed, given a summons, or released pending further investigation. If bail is refused, you will be brought before a court.
Should I Answer Questions?
There is no universal answer, and anyone who gives you one without knowing the case is guessing. It depends on what police already have, whether a defence depends on your account, whether you might say something that closes off an option later, and on your own circumstances. What we can say is that this decision should be made with advice, before the interview, not during it.
Common mistakes we see are talking in the car or at the front door before the recorder is switched on, trying to talk your way out of an interview and giving a version that later has to be corrected, and denying something small that turns out to be provable.
How We Help
- Advice before the interview, often by phone at short notice;
- Attending the interview with you where appropriate;
- Dealing with police on your behalf, including arranging a time to attend and answer or decline the interview;
- Bail applications where you are not released after the interview; and
- Advice on what follows, whether that is contesting the charges, a plea of guilty, or diversion.
Interviews frequently arise in assault, family violence, drug, theft and dishonesty and sexual offence matters, and in resist police allegations. If police have contacted you, call us before you attend.
Frequently Asked Questions
Do I have to attend a police interview?
If you are not under arrest, you are generally not obliged to attend an interview at all. If you are under arrest, you must go with police, but you are still not obliged to answer their questions beyond identifying yourself. Either way, tell police you want legal advice first.
Can I have a lawyer present during the interview?
You have the right to speak with a lawyer before questioning begins, and police must allow a reasonable time for that. A lawyer can also attend the interview. Their role is to ensure the process is proper, not to answer for you.
Does saying “no comment” make me look guilty?
It cannot be used as evidence of guilt. Police sometimes suggest that silence looks bad, or that this is your chance to give your side of the story. Whether to answer is a decision to make with advice about your specific case.
Police want me to “come in for a chat”. Is that different?
No. A voluntary attendance is still a recorded interview, and what you say can still be used in evidence. Get advice before agreeing to attend.
What if I have already been interviewed and said too much?
Get advice promptly. What was said can often be put in context, and the circumstances of the interview may themselves be open to challenge, particularly where the caution or the right to legal advice was not properly observed. Bring any paperwork police gave you to your first appointment.
What happens after the interview?
You may be charged and released on bail or summonsed to court, or released while police continue investigating. If you are charged, we can advise on bail, on the evidence once the brief arrives, and on whether to contest the charges.
Get Expert Legal Advice — Fixed Fees, No Surprises
McMahon Criminal Defence Lawyers provides experienced, fixed-fee representation for this charge and all criminal matters, appearing at the Ballarat Magistrates’ Court and across Victoria. Contact us for a free, confidential initial consultation.
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