8 Things Not to Say in a Police Interview

The police have asked you to “come in for a chat”. Maybe it was a phone call, maybe an officer at your door. You said yes because saying no felt worse, and now you are lying awake wondering what you are allowed to say and what could land you in real trouble.

Here is the first thing to get straight, because it changes everything. A police statement and a police interview are not the same thing, and what not to say is different in each. The short answer is say as little as possible until you have spoken to a lawyer.

I have practised in NSW since 2013, and I have sat across from a lot of people who talked first and got advice second, in that order, and wished they had done it the other way round. Let me walk you through it so you do not have to learn the hard way.

Police statement or police interview: which one are you in?

This is where a lot of people get caught out. They do not realise which one they are in, so they do not realise which rules apply to them.

A police statement is usually a witness or victim account. You are telling police what you saw or what happened to you, and you are generally not the person under suspicion.

A police interview is questioning where you are the suspect. The whole point is to gather evidence about you, and yes, potentially to get an admission.

So what does that mean for you? Your rights and what you should say are different in each. If you are the suspect, the caution “anything you say can be used against you” is not a formality. It is the literal truth. And if you are not sure which one you are in, treat it as the more serious one until a lawyer tells you otherwise.

Your right to silence in NSW (and the catch)

You have heard you have the “right to silence”. You do. But the version most people carry in their head, that you never have to say a word and it can never count against you, is not quite the NSW position, and getting this wrong is dangerous.

The general rule: you have the right to stay silent, and as a rule a court will not draw a negative conclusion simply because you did not answer questions (under the Evidence Act 1995 (NSW), s 89).

Here’s the catch. For a serious indictable offence, police can give you what the law calls a “special caution”. If they give you that caution while you have a lawyer with you, and you stay silent about something you later rely on at your trial, a court can be invited to draw an adverse inference against you (under Evidence Act 1995 (NSW), s 89A).

That sounds alarming, so let me put fences around it. The special caution only bites for serious indictable offences (broadly, those carrying a maximum penalty of five years or more). It does not apply to anyone under 18. And it only applies where you have actually had legal advice about the caution. For most day-to-day matters the general right to silence in s 89 is what protects you. But this is exactly why you want a lawyer before you decide whether to speak: the right thing to do depends on which rule you are under.

Further reading on how NSW courts treat silence: Judicial Commission of NSW, “Silence, evidence of”.

What not to say in a police statement or interview

Whether you are giving a statement or being interviewed, these are the ones that cause the most damage.

1. Do not volunteer extra information. Answer the question in front of you and stop. Every “and another thing” is a new thread someone can pull.
2. Do not guess or speculate. “I don’t know” and “I don’t recall” are complete, honest answers. A guess that turns out wrong looks like a lie later.
3. Do not lie or exaggerate. Depending on what you say, being untruthful to police can be an offence in itself, and either way it destroys your credibility on everything else you say.
4. Do not make self-incriminating admissions. This is the whole reason the right to silence exists. Use it.
5. Do not discuss the matter with other witnesses or suspects. It can look like collusion or tampering, even when it is innocent.
6. Do not argue or get confrontational. It changes nothing legally and it can make a bad situation worse.
7. Do not make jokes or sarcastic comments. They read very differently in a transcript than they felt in the room.
8. Do not interrupt or fill silences. Let the question finish. A pause is not your job to fill.

Notice the thread running through all eight: the less you improvise, the safer you are. That is your right to silence doing its job.

Know your rights, and protect your position

• Stay calm and take your time. You are allowed to pause and think.
• Be respectful. You can be polite and still say almost nothing.
• Listen to the whole question before you answer.
• Say plainly that you want a lawyer before you answer anything. This is a right, not a request for a favour.
• Ask for a support person to be present. You are entitled to have someone with you.
• Ask for an interpreter if English is not your first language, or if you would simply be more accurate in another language. That is your entitlement too.
• Keep your answers short and clear when you do speak.

Can you be forced to give a statement?

Short answer: generally, no.

If you are a witness, you are usually not obliged to give a statement to police (there are limited exceptions, and a court can compel evidence in some situations, which is different from a police station chat).

If you are the accused, you are not obliged to answer questions or give any account of yourself at all. That is the heart of the right to silence.

Here’s the part people miss. A “voluntary” statement feels helpful in the moment, but it locks you into one version of events. If you remember something differently later, or a detail you were unsure about turns out to matter, you now have to explain why your story changed. Silence gives you nothing to walk back. That is why “say as little as possible until you have advice” is not lawyer paranoia, it is just sensible.

If your situation involves an AVO or police at the door in a domestic context, our AVO lawyers can talk you through where you stand before you say anything.

The bottom line

A statement and an interview are not the same thing. Your right to silence is real, but in NSW it has a catch for serious matters, so knowing which rule applies to you matters. And the single safest move, in almost every case, is to say as little as possible until you have spoken to a lawyer.

If the police have asked you in and you are not sure what to do, book in a chat with me and my team before you say a word to anyone. No pressure, no judgement, just honest advice on where you actually stand. Call 1300 614 732 or send us a message.