If NSW Police have asked you to participate in an Electronically Recorded Interview of a Suspected Person (ERISP) interview or come to the station for questioning, understanding your rights is critical. Many people inadvertently incriminate themselves or provide statements that damage their case by not knowing what they must answer and what they can refuse.
NSW law grants you significant protections during custodial questioning, including the right to silence, the right to legal advice, and strict requirements police must follow, regardless of whether the investigation concerns a minor matter or a serious indictable offence.
Key Takeaways
- You have the right to silence during police questioning, except for name, address, and date of birth.
- You have an absolute right to speak to a solicitor before and during any ERISP interview.
- Police must caution you before custodial questioning. Failure to do so may render statements inadmissible.
- ERISP interviews must be video and audio recorded in full. The recording cannot be edited.
- Police cannot coerce, threaten, deceive, or deny you access to legal advice.
- Vulnerable persons, including those under 18, Aboriginal and Torres Strait Islander people, and those with a disability, have enhanced protections.
- If detained without arrest, police can hold you for up to 12 hours initially.
- Do not answer any questions beyond your identity until you have spoken to a solicitor.
Contact O’Brien Criminal & Civil Solicitors Immediately If:
Do not delay. Call O’Brien Criminal & Civil Solicitors on 02 9261 4281 immediately. |
Your Right to Silence and What You Must Answer
You have a fundamental right to silence during police questioning in New South Wales. You do not have to answer police questions except for your name, address, and date of birth, which you are legally required to provide under NSW law. For any other questions, you can remain silent without penalty.
Importantly, silence cannot be used as evidence of guilt at trial. However, if you choose to answer some questions and then remain silent on others, your refusal to answer questions on selective matters may invite unfavourable comment.
In some cases involving an alleged indictable offence, a court or jury may draw an unfavourable inference from silence if you later raise a defence at trial that you could reasonably have disclosed during questioning. The safest approach is to say nothing beyond your identifying details until you have spoken to a criminal lawyer.
ERISP Process and Recording Requirements
ERISP stands for Electronically Recorded Interview with a Suspect Person. NSW Police are required by law to record suspect interviews via video and audio in most circumstances. The entire interview must be recorded without any editing or gaps.
This requirement protects both the accused person and the police by creating an objective record of everything that was said in the interview room, far more reliable than witness statements or notes made after the fact.
Key requirements for a valid ERISP:
- The interview must be recorded from the very beginning.
- You must be informed of your legal rights before the interview starts.
- You have the right to have your solicitor present throughout.
- Any breaks or interruptions must be recorded.
- You are entitled to a copy of the recording.
Right to Legal Advice and Legal Representation
You have an absolute right to legal advice before and during police questioning. This right is non-negotiable. The moment a police officer indicates they wish to question you, you should inform them clearly that you wish to speak to a solicitor and that you will not answer any questions until you have done so.
What happens when you request a solicitor:
- Police must immediately cease questioning.
- They must provide you with a reasonable opportunity to contact a lawyer.
- They must allow you to speak to the lawyer in private.
- Questioning cannot resume until you have had that opportunity.
A criminal solicitor can advise you on what to say (or not say), review the alleged offence you are being questioned about, and protect your legal interests from the outset of the investigation. Early legal advice is one of the most important steps you can take.
Caution Requirements and Your Obligations
Before custodial questioning begins, police must provide you with a formal caution that explains your rights. The caution must advise you of your right to silence, your right to legal advice, and the fact that anything you say may be used as evidence in proceedings against you, including at a hearing before the Supreme Court or lower courts. Police are also required to ascertain that you understand the caution.
Failure to provide the caution before questioning is a significant breach of proper procedure. If police fail to caution you, any statements made during that questioning may be ruled inadmissible by a court. This is a powerful protection, but one that must be raised with your solicitor.
What Police Cannot Do During Questioning
NSW law places strict limits on police conduct during questioning. Police cannot:
- Question you without first providing the required caution.
- Deny you access to a solicitor or prevent you from seeking legal advice.
- Use coercion, threats, violence, or intimidation to obtain a statement.
- Offer inducements or promises in exchange for cooperation.
- Deceive you about the existence or nature of evidence against you.
- Detain you without reasonable suspicion that you have committed an offence.
Breaches of these prohibitions may result in any statements you made being ruled inadmissible at trial. The criminal justice system places these limits on police precisely because the accused is presumed innocent until proven otherwise. If you believe police have acted improperly during questioning, inform your solicitor immediately so they can take the appropriate steps to assist.
Vulnerable Persons and Special Protections
Certain categories of people are entitled to enhanced protections during police questioning. These include persons under 18 years of age, Aboriginal and Torres Strait Islander people, people with a disability or mental health condition, and people who are intoxicated at the time of questioning.
For vulnerable persons, additional requirements apply:
- A responsible adult or support person must be present during questioning.
- Police must take reasonable steps to ensure communication is understood.
- Interviews conducted in breach of these requirements may be challenged.
- Aboriginal and Torres Strait Islander people should be offered a community legal service contact.
If you or someone you know falls into a protected category, it is essential to assert these rights clearly and contact a solicitor before any questioning proceeds.
Frequently Asked Questions
Can police hold me without arresting me?
Yes. Under police powers in New South Wales, officers can detain you without formally arresting you if they have reasonable grounds to suspect that you have committed an offence. That initial detention is limited to 12 hours, though this can be extended with a magistrate’s authorisation in certain circumstances, including through a detention warrant in serious cases. If you are being held in custody, you should request to speak to a solicitor immediately.
Do I have to answer police questions?
You are legally required to provide your name, address, and date of birth. For all other questions, you have the right to remain silent. This right applies whether you are a police suspect, a witness, or have simply been stopped on the street. Exercising your right to silence is not an admission of guilt, and you are under no obligation to assist police in building a case against yourself.
Should I request a lawyer before the interview?
Yes, absolutely. You should request a criminal lawyer at the earliest possible opportunity, before answering any questions. Do not allow questioning to proceed until you have had an opportunity to obtain legal advice. The right to legal advice exists precisely because police questioning can be complex, and any statement you make about an alleged crime can be used against you, whether the matter involves a minor infraction or a serious offence.
What if police refuse to let me speak to a solicitor?
This is a serious breach of your rights. If police refuse to allow you to contact a solicitor, state clearly and calmly that you are asserting your right to legal advice and that you will not answer questions until you have spoken to one. Refuse to continue with the interview. Inform your solicitor of the refusal as soon as possible so appropriate steps can be taken, including any challenge to how police gather evidence obtained during that period.
Can police use statements obtained without a caution against me?
Potentially not. If police fail to properly caution you before questioning, any statements obtained during that questioning may be ruled inadmissible as evidence. A court has a discretion to exclude improperly obtained evidence when deciding a legal matter. Whether it will do so depends on the specific circumstances, including whether you had reasonable excuse for any statements made. Your solicitor can advise you on the strength of any admissibility challenge, and on whether a decision to attend court for a contested hearing is warranted.
If you are being questioned by police, contact O’Brien Criminal & Civil Solicitors immediately on 02 9261 4281 or complete the enquiry form on our website. Time is critical.
