Most of the time, contact with Police is fleeting and innocent. Like, when you need a statutory declaration witnessed or you are handing in a lost wallet. However, if you are a suspect in a criminal matter, the contact that you have with Police will not be fleeting but it will be stressful. Sometimes you won’t even know what is happening until you are in an interview room waiting to conduct a Record of Interview, wishing you had spoken to a criminal defence lawyer first. The following are some things to know when dealing with Police members who wish to speak with you.
- It’s never just a chat…
If you are suspected of committing a serious criminal offence, the Police will want to speak with you. However, what they often don’t want you to know is exactly what they want to speak with you about, that the “chat” will be recorded and what you say could be used against you. Countless clients have told us that they have been called by Police, requesting that they come to the station for a “chat”. It’s never just a chat. A chat can happen over the phone. When they say “chat”, they really mean “record of interview”. Police won’t tell you that they are looking to formally interview you because it will make it less likely that you will agree to go and more likely that you will get advice from a lawyer.
However, now that you know this, you will be prepared and will (please!) get advice from a competent and experienced criminal defence lawyer. You can attend (or not) the record of interview in the knowledge that you have gone prepared and will leave once the interview is conducted.
2. Don’t let them rush you…
Police will want to get you into the station straight away. There may be a number of reasons for this, including that they don’t want you to sit down with a lawyer to prepare for the interview. Rather, they want to get a Legal Aid Duty Lawyer on the phone when you are already at the station and wondering what to do now! Getting urgent advice over the phone from a person you haven’t met isn’t ideal. So, when they ask for you to come in, don’t let them rush you. Instead, tell them that you will be seeking legal advice and that your lawyer will be in contact.
3. They won’t want you talking to us…
Whilst you are entitled to legal advice and they have to offer you the opportunity to speak with a lawyer, they don’t want you to be prepared for interview. Some Police will even downplay the seriousness of the “chat” so that you don’t feel like you need a lawyer. Wrong. Having a lawyer involved before an interview occurs gives you various advantages. Your lawyer will contact the Police member seeking the interview, whom we refer to as the Informant, and get details about the allegations. Your lawyer should also reach an agreement for you to be released following interview. And you get the benefit of preparing for the interview with a lawyer whom you have met, chosen and trust. If you want our 8 tips for choosing the best criminal defence lawyer for you, go to our guide.
4. You will be placed under arrest but don’t panic!
The moment a Police member advises a person that they are under arrest, the blood usually starts draining from their head. But don’t panic! If attending a record of interview by appointment, there will be no need for the cuffs. But, Police have to place you under arrest in order to interview you (cuff free). You have to be told that you have certain rights: the right to remain silent, the right to legal advice, the right to contact a family member or friend to advise them of your whereabouts. If they don’t caution you as part of the arrest process, they aren’t obeying the law. Now, if you have already retained a criminal defence lawyer, you will already know the process, know your rights and know what will happen next. But just remember, the arrest process is there to protect you. Oh, and don’t panic!
5. This isn’t America, your Lawyer doesn’t attend the interview with you…
Whilst many interviewees would love to have a lawyer sitting next to them during an interview, telling them when to answer and arguing with the Police member, alas this is not what occurs in Victoria (unless you are a child, a vulnerable person or of Aboriginal or Torres Strait Islander descent). If a competent adult goes into an interview room with their lawyer, their lawyer becomes a witness in the proceedings (if anything occurs) and will not be able to represent you moving forward. Also, from a tactical point of view, criminal defence lawyers don’t want to be in the record of interview if their client is charged and the interview is played to a jury. It makes the interview look staged. Better that the accused is alone, answering the questions to the best of their ability without the apparent protection of a criminal defence lawyer. In any event, if your criminal defence lawyer has done a good job preparing you, you don’t need them in the room anyway!
6. If you take your phone, be prepared to leave it there…
What you take with you to the Police station will be lodged into property. That means your phone. Most of us rely on our phones for a number of reasons, including for business, personal and child care purposes. To suddenly lose it can lead to all manner of disasters. However, if the Police members interviewing you think that your phone has any relevance to the investigation, they can seize it as part of the investigation. After your interview, they will then serve you with a notice requiring you to provide them with the pin code to the phone or face a criminal charge. Investigations can take months and criminal proceedings can take years. That’s a long time to be without your phone! Particularly if, after all that, there is nothing of relevance on it to begin with. When in doubt, leave the phone at home.
7. They will leave you in an interview room or cell for a while before you are interviewed…
If you weren’t nervous enough, many investigators will leave you to sweat in a cell or interview room before you are interviewed. They may also leave the room to “make enquiries”, part way through your interview, only to leave you there for an hour wondering what’s going on. This is a tactic to make you nervous and paranoid. Nervous people talk more and make mistakes. Just remember to remain calm. This will end.
8. Don’t agree to an interview in the afternoon or on a Friday without first consulting your lawyer…
If there is a possibility that the Police are going to oppose your bail, any lawyer worth their retainer will tell you to arrange an interview first thing in the morning on a weekday when your lawyer is available. The reason for this is to ensure that, if Police oppose your bail, the lawyer is available and prepared to apply for bail before a Magistrate when you are taken into Court following your interview. If left too late in the day or on a weekend, you are left to the mercy of the Bail and Remand Court in the late hours of an evening or over a weekend. Not ideal!
9. Talking when the tapes off…
Ahhhh, the age old trick of talking when the tapes are off. Whether it is a casual chat, or something more sinister, it happens. If you are in a record of interview and they turn off the tapes, only to say something concerning to you, once the tapes are on and you are re-cautioned, mention it on tape: “I just want to mention something with you which we discussed before. You mentioned in the break XXXX. Can you tell me why you brought that up?” That way, there is a recording that something was said. Your lawyer might want to ask the Informant about that when they are in the witness box!
10. Lawyer up!
You have been interviewed and then…
In our experience, interviews occur at the beginning or the end of an investigation. When they occur at the end, in all likelihood you were arrested after a knock on the door and they are now affording you the opportunity to tell “your side of the story”. However, if you have been contacted to “come in for a chat”, they are likely at the beginning of an investigation. A complaint has been made, or you have come to their attention, and they want to talk to you about it before taking the investigation further.
That is a good thing because it gives you the chance to “lawyer up” and prepare for the interview. However, it also means that, after the interview, the investigation will continue until you are told that the file has been closed or that you will be charged. That can take months. Sometimes over a year. How long it takes can depend on a number of factors. Are there forensic results pending? How many witnesses do they have to speak to? How high in their list of priorities is this investigation? Is there a pandemic going on? However, if you retain an experienced criminal defence lawyer, that lawyer will receive and watch your record of interview, be the point of contact between you and the Police and, will keep on top of whether they have finalized the investigation and what the result will be.
We hope this has been helpful. If you or a loved one has been invited for a “chat” with Police, come and actually chat to us. Contact us here.
