CHANGE IN LAW MEANS YOU MAY NOT WANT A LAWYER AT POLICE INTERVIEWS

The right to silence in the criminal justice system is fundamental.

The right itself is simple. It means that a person has the right to refuse to answer police questions (except, in certain circumstances, questions relating to the person’s identity).

With the introduction of section 89A of the Evidence Act in New South Wales, the protection afforded to accused persons exercising their right to silence has been compromised in particular circumstances.

The section only applies to serious indictable offences and to adult accused persons.

 

The effect of section 89A is that an unfavourable inference can be drawn from an accused person’s failure or refusal to answer police questions.

However, the unfavourable inference can only be drawn where the accused person:

1. a. fails to mention a fact to the police that the accused person could reasonably have been expected to mention in the circumstances existing at the time;
2. b. relies on the fact in their defence;
3. c. has been given a ‘special caution’ by the police in the presence of their lawyer; and,
4. d. has had a reasonable opportunity to consult with their lawyer in relation to the nature and effect of the special caution.

The upshot of section 89A is that you may not want your lawyer present at a police interview. If a lawyer does not attend the interview, then section 89A does not apply, and you may exercise your right to silence without fear of it coming back to bite you in court.

For experienced advice on criminal matters in NSW or Victoria, do not hesitate to contact the solicitors at Burt & Hanke Legal in Albury.