Last updated 25 August 2016
There has historically been a rule of thumb that a suspect or accused should not speak to police about the offence under any circumstances. As a general rule, a person should not answer any police questions unless they have first received proper legal advice.
Police may ask a person to attend voluntarily by arrangement. Before attending a police station, you should seek legal advice. You should not speak with police about any matter that police are investigating without legal advice.
An accused who, after legal advice, wants to surrender to police, plead guilty to a charge or provide details of a legal defence (e.g. self-defence) may wish to make a statement to police. The statement can record the exact extent of the accused’s involvement in the offence and any remorse felt by the accused. If this position is taken, the account should be truthful. If an accused does not wish to accept liability or disclose any further details in the absence of careful legal advice, it is prudent to refrain from answering any questions. In general, it is of more benefit to the accused to adopt a blanket position of ‘yes’ or ‘no’. There is almost no benefit to an accused in partial participation. It is always unwise for an accused to tell police lies in an interview. These lies could later be used against the accused to demonstrate an inconsistent version and to attack their credit.
Disputes often arise between police and the accused as to what conversations took place. It must be remembered that no conversations with police or with others while in police custody (other than with a lawyer) are ‘off the record’. An accused or suspect should ask that any conversations be recorded. If this is not possible, the accused should try to remember the names of all persons spoken to and the times of conversations or events, preferably by taking notes at the time or as soon as possible afterwards. Police regularly record all interactions electronically, often covertly, even in cars or watch-house cells. Section 436 of the Police Powers and Responsibilities Act 2000 (Qld) (PPR Act) requires police questioning to be electronically recorded if practicable. If electronic recording is not practicable, police must arrange for any confession or admission of guilt to be recorded in writing (s 437 PPR Act).
Where an accused or suspect has social, intellectual or other disadvantages in dealing with police, the power imbalance makes legal advice a practical necessity as mistakes made in an interview could have an unfair and devastating impact in front of a jury. Making a statement in the absence of legal advice may also prejudice a person’s defence.
Time and lateness of the hour should not affect the making of this important decision. It is better to wait overnight in custody than give an ill-informed response. Police may make inducements (e.g. ‘if you tell us what happened, we won’t oppose bail’). If any such inducements are given, an accused should request that police record such matters. Any deal offered by police in exchange for a statement should only be negotiated through a lawyer. Police may also attempt to gain admissions from a suspect by showing them that another person has made a statement. Any response to these types of questions can also be used as evidence.
However, some protective measures in the statutory framework now underpin the criminal justice system and the realities associated with the trial process. Given these protections and realities, an honest account in a recorded police interview, where a positive defence or explanation will be advanced at a trial, might in some circumstances be the most compelling evidence heard by a jury. An honest and candid account may also have a bearing on police response regarding bail and the charge to be preferred (if lesser alternatives are available). In addition, if a person is convicted of, or pleads guilty to, an offence, this cooperation may well have some bearing on the penalty that is imposed by a court.