The Police Want to Interview Me: What Should I Do?

A phone call from a police officer asking you to come in for a chat, an approach on the street, or a knock at the door is stressful. The natural instinct — to cooperate, to explain, to clear things up — is not always the right one. Police interviews are conducted to gather evidence about specific offences, and what you say, and how you say it, can shape whether you are charged and how any prosecution runs.

This article sets out, in practical terms, what to do when police want to speak with you in Victoria. It describes the different kinds of police contact, the rights that apply in custody under Part III of the Crimes Act 1958 (Vic), the operation of the right to silence and s 89 of the Evidence Act 2008 (Vic), and the sensible steps to take before, during and after any interaction. It is general information, not advice tailored to a particular allegation.

The different kinds of police contact

Police contact is not one thing. Your rights and options depend on what stage the interaction is at:

• A voluntary conversation — an officer asks a few questions at the scene of an incident or over the phone. You are not obliged to answer beyond providing name and address when lawfully required.
• A request to attend a station — an invitation to come in and be interviewed. Attendance is voluntary unless and until you are arrested.
• Investigative questioning without arrest — you are being questioned but have not been arrested. You may generally leave, subject to the officer's power to arrest if grounds exist and to any other lawful power that can require you to remain temporarily.
• Arrest — you have been told you are under arrest, or your liberty has been restrained. The custody provisions of the Crimes Act 1958 (Vic) apply from that point.
• Custody and formal recorded interview — you have been taken to a police station or other approved place, cautioned, and questioned on the record.

If you are unsure, ask three questions politely and clearly: “Am I under arrest?”, “Am I free to leave?” and “What power are you relying on?” Not being under arrest does not always mean you can walk away — police may lawfully require you to remain temporarily under other powers, for example roadside procedures under the Road Safety Act 1986 (Vic), execution of a search warrant, a move-on direction, or protective or statutory detention. If the encounter is confirmed as voluntary and no other detention power applies, you may decline further questions and leave. Do not obstruct, resist or attempt to escape a lawful direction — objections are raised through a lawyer, not by physical resistance.

The right to silence, correctly stated

The right to silence is a foundational protection: the prosecution bears the burden of proof, and an accused is not required to assist that process. In Victoria, it is not an absolute right to refuse every question.

You must comply with defined statutory requirements to give identifying information. Section 456AA of the Crimes Act 1958 (Vic) allows a police officer, in specified circumstances, to require a person's name and address where the officer believes on reasonable grounds the person may be able to assist an investigation into an indictable offence that has been, or may have been, committed. The Road Safety Act 1986 (Vic) separately requires a driver, registered operator or effective controller of a vehicle to identify the driver of a vehicle at a particular time. Some agencies and regulators also hold compulsory examination powers that can displace the general right to silence in defined circumstances. Whether a particular obligation applies is fact-specific, and silence does not override a valid statutory requirement.

Outside those defined obligations, you may decline to answer questions about an alleged offence. Under s 89 of the Evidence Act 2008 (Vic), an inference unfavourable to a party generally cannot be drawn from that party's failure or refusal to answer questions put by an investigating official. Victoria has not adopted the New South Wales special caution regime that allows adverse inferences from pre-trial silence for serious indictable offences; that scheme has no application in a Victorian prosecution.

“No comment” is not, however, magic wording. It does not prevent police from charging you on other evidence, and it does not shield partial or selective answers from being used. Answering only the easy questions, denying some allegations while declining others, or agreeing with the officer's framing before clarifying later, can create serious evidentiary and credibility problems. The safest course before advice is to say nothing about the substance of the allegation, and to say so calmly and consistently.

Declining to answer is different from giving a false account. A false or shifting account is not protected by the right to silence: it can be used to attack credibility, it can be led as evidence of a consciousness of guilt in some circumstances, and it can make a plea in mitigation harder later. Depending on what is done and with what intention, conduct such as fabricating or destroying evidence, coaching witnesses or misleading police may also amount to a separate offence, including attempting to pervert the course of justice. Not every untruth is such an offence, but the evidentiary damage is close to inevitable.

Cautions and what they mean

Before official questioning of a person suspected of committing an offence, an investigating official is required to caution the person that they do not have to say or do anything but that anything they say or do may be given in evidence. The caution is a warning; it does not itself create rights or waive them. A person in custody must also be informed of the offence for which they are being held (s 464A(3)).

Rights in custody

The general custody and questioning provisions begin at s 464 of the Crimes Act 1958 (Vic), in Subdivision (30A) — “Custody and investigation” — of Part III Division 1. The same Subdivision also contains the separate fingerprinting and forensic procedure provisions discussed below. The provisions that matter most in practice are:

• Section 464A — reasonable time for questioning. A person in custody may be detained for a period that is reasonable in all the circumstances to permit questioning and lawful investigative procedures. What is reasonable is assessed against the factors set out in the section — for example the number, seriousness and complexity of the matters, the need to move the person, the time taken for lawful procedures, rest and refreshment, and the availability of interpreters, lawyers and independent persons. There is no fixed universal maximum and no separate judicial extension scheme of the kind that exists in some other jurisdictions. If detention exceeds a reasonable time it may be challenged, and evidence obtained may be exposed to exclusion.
• Section 464C — communication with a friend, relative and a legal practitioner. Before any questioning or investigation under s 464A(2) commences, the investigating official must inform the person in custody that they may communicate, or attempt to communicate, with a friend or relative to inform that person of their whereabouts, and with a legal practitioner. Unless an exception applies, the official must then defer the questioning and investigation for a time that is reasonable in the circumstances to enable that communication, must afford reasonable facilities as soon as practicable, and must allow the person's legal practitioner or their clerk to communicate with the person in circumstances in which, as far as practicable, the communication will not be overheard. The exceptions are common to both rights: they apply where the official believes on reasonable grounds that the communication would result in the escape of an accomplice or the fabrication or destruction of evidence, or that the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed. The section does not impose any rank threshold. It does not apply to questioning or investigation in connection with an offence under s 49(1) of the Road Safety Act 1986 (Vic). The right is a right to communicate with a lawyer; whether a lawyer physically attends depends on availability and the circumstances.
• Section 464D — interpreters. Where the person does not have sufficient knowledge of English, questioning must be deferred until the services of a competent interpreter are obtained.
• Section 464F — foreign nationals. A person in custody who is not an Australian citizen must be informed of their right to communicate with their consular office.

These are the statutory floors. Police procedures often layer additional steps on top; both apply.

Children, First Nations people and people with disability

• Section 464E — people under 18. An investigating official must not question a person under 18 in custody, or carry out an investigation under s 464A(2), unless a parent or guardian is present or, if a parent or guardian is not available, an independent person is present; and unless, before any questioning or investigation begins, the child has been allowed to communicate with that parent, guardian or independent person in circumstances in which, as far as practicable, the communication will not be overheard. The exceptions are limited and mirror those in s 464C: escape of an accomplice or the fabrication or destruction of evidence, or urgency having regard to the safety of other people. A parent or guardian and an independent person are not both universally required.
• Section 464FA — Aboriginal and Torres Strait Islander people. Where a person is taken into custody and either states that they are an Aboriginal person or a Torres Strait Islander, or the investigating official knows or is of the opinion that they are, the official must notify the Victorian Aboriginal Legal Service. Notification must be made within one hour of the person being taken into custody or, if that is not practicable within the hour, as soon as it is practicable to do so. As soon as practicable after the notification is made, an investigating official must inform the person that it has been made. The duty sits on the official: the section does not provide a mechanism for the person to decline or opt out of notification. Whether a lawyer or support person then attends is a separate question from whether the notification was made.
• People with a cognitive disability or mental illness. The child-specific framework in s 464E does not apply to adults. Under Victoria Police procedure, an Independent Third Person coordinated through the Office of the Public Advocate attends police interviews involving a person with a cognitive disability or mental illness — whether the person is a suspect or offender, or a victim or witness — so that they are not disadvantaged in the interview process. The role is to help the person understand what is happening and their rights, and to assist communication. An Independent Third Person is not a lawyer, does not give legal advice and does not replace legal representation. The safeguard is supported by the evidentiary fairness discretions in the Evidence Act 2008 (Vic).

A lawyer is not a support person

Legal advice from a lawyer is confidential and protected by legal professional privilege. Communications with a support person, an independent person, an Independent Third Person, a family member or a friend are not ordinarily privileged merely because that person is there to provide support. Whether anything said in their presence is admissible, and whether they can be compelled to give evidence about it, depends on the context and the applicable rules. A support person may be important for wellbeing, and in some cases is required, but they are not a substitute for legal representation.

Recording, confessions and admissibility

Two provisions are commonly confused. Section 464G is a recording obligation: where a person is in custody in relation to an indictable offence, an investigating official who is required by ss 464A(3), 464C(1) and 464F(1) to give the person certain information must record, by audio or audiovisual recording and if practicable, the giving of that information and the person's responses, if any.

Section 464H is the main admissibility regime. Evidence of a confession or admission made to an investigating official by a person who was suspected, or ought reasonably to have been suspected, of having committed an offence is inadmissible against that person in a proceeding for an indictable offence unless one of the recording or confirmation routes set out in the section is satisfied and the recording is available to be tendered in evidence. Section 464H(2) allows a court to admit evidence that would otherwise be inadmissible where the party seeking to adduce it satisfies the court, on the balance of probabilities, that the circumstances are exceptional and justify receiving the evidence. The section also requires a copy of the recording to be provided to the person or their legal practitioner without charge.

It follows that an unrecorded statement is not invariably inadmissible. The s 464H regime is directed to proceedings for indictable offences, and the exceptional-circumstances route remains available. Not every interaction with police is audiovisually recorded — casual encounters at the roadside or on a doorstep may not be — but what is said can be recorded contemporaneously in an officer's notebook or on body-worn camera and later relied on. The practical assumption is that anything said to police is capable of becoming evidence.

Searches, devices, fingerprints and samples

Police powers to search, seize or take samples are source-specific. Depending on the situation, an officer may rely on a warrant, a statutory power (for example under the Drugs, Poisons and Controlled Substances Act 1981 (Vic), the Firearms Act 1996 (Vic) or the Control of Weapons Act 1990 (Vic)), or your consent. Consenting on the spot can waive protections you did not know you had.

• Person and vehicle searches. Ask what power is being relied on. Do not physically obstruct a lawful search; raise objections later through a lawyer.
• Fingerprints and photographs. Sections 464K to 464P govern when fingerprints may be taken, including from people in custody suspected of indictable offences and from children, subject to additional safeguards.
• Forensic procedures. A forensic procedure may be conducted on a suspect on one of three bases: the suspect's informed consent; an order of the Magistrates' Court; or, for specified non-intimate compulsory procedures in defined cases, an authorisation given by a senior police officer. Different rules apply to children and to people who are incapable of giving informed consent.
• Electronic devices and passcodes. A search warrant issued under s 465 may authorise a police officer to give a direction under s 465AAA requiring a specified person with relevant knowledge to provide information or assistance that is reasonable and necessary to allow access to, or copying of, data on a computer or data storage device. Where that authorisation exists and the direction is validly given, it is a direction rather than a request, and failing to comply without reasonable excuse is a summary offence carrying up to two years' imprisonment; the privilege against self-incrimination is not an excuse. A warrant does not automatically compel a passcode, and many requests to unlock a phone are simply requests. Ask whether a direction under s 465AAA has been authorised, and obtain advice before providing a passcode.

Witness, suspect or compelled attendance

The label police attach — assisting with enquiries, witness, person of interest, suspect — matters less than the substance of the interaction. Being treated as a witness can shift to being treated as a suspect during the same conversation. If there is any realistic possibility your account could expose you to liability, or that a workplace or internal investigation could refer the matter to police, take legal advice before providing a statement.

Compulsory processes are different. A subpoena, a summons to give evidence, a coronial summons, or a notice under a specific statute (for example under the Major Crime (Investigative Powers) Act 2004 (Vic) or IBAC's compulsory examination powers) must be complied with. Do not ignore, evade or destroy documents in response to compulsory process — obtain advice about claims for privilege or public interest immunity.

What happens after questioning

After questioning, several outcomes are possible:

• Release without charge. Police may decide there is not enough to charge, or that further enquiries are needed. Investigations can continue for weeks or months.
• Charge-sheet and summons. A charge-sheet is filed and the accused is served with a summons to answer the charge on a future date. You are not detained.
• Notice to appear. In some matters an accused is served with a notice to appear at court on a specified date, and a charge-sheet is filed afterwards.
• Arrest, bail or remand. An accused who has been arrested and charged may be released on bail by police, or brought before a bail justice or the Magistrates' Court for a bail decision under the Bail Act 1977 (Vic). Where bail is refused, the accused is remanded.

What the prosecution must disclose, and when, depends on the charge and the procedural stream the matter falls into, not simply on the fact that a charge has been laid. So does the first listing: a summary matter commenced by summons or notice to appear commonly begins with a mention, a matter heading into the indictable stream begins with a filing hearing, and a person held in custody may first appear at a bail or remand hearing. Our guide to criminal and traffic matters in the Magistrates' Court explains each of those pathways. Any bail undertaking, notice, summons or charge-sheet should be read carefully and provided to a lawyer immediately.

A practical checklist

Before contact goes further:

• stay calm; be polite;
• ask “Am I under arrest?” and “Am I free to leave?”;
• provide only legally required identifying details;
• ask to speak to a lawyer before answering questions or consenting to searches;
• do not discuss the matter with witnesses, complainants or co-accused;
• preserve messages, emails and documents — do not delete anything.

During custody or interview:

• wait for legal advice before participating in a recorded interview;
• ask that a friend or relative be notified of your location under s 464C;
• request an interpreter, an independent person, an Independent Third Person or Victorian Aboriginal Legal Service involvement where applicable;
• do not obstruct a lawful search or procedure — reserve objections for later;
• do not sign anything you do not fully understand.

After release:

• note officer names, station, times and what was said while your memory is fresh;
• do not post about the matter on social media or in messaging groups;
• provide any summons, notice, bail paperwork or charge-sheet to your lawyer;
• confirm any bail conditions, reporting obligations and the date and place of the first listing.

How Parke Lawyers can help

Our criminal law team advises Victorians on how to respond to police contact — before, during and after any interview — and appears in the Magistrates' Court and higher courts across the State. We act on a private retainer basis and do not act in Victoria Legal Aid-funded matters. If you may be eligible for legal aid or need free initial help, contact Victoria Legal Aid, which can advise on eligibility and duty lawyer services; Aboriginal and Torres Strait Islander people can also contact the Victorian Aboriginal Legal Service. We advise within the ordinary professional framework: we do not guarantee outcomes, we do not offer 24-hour or out-of-hours urgent telephone advice, and we have no special relationship with police, prosecutors or the courts.

If you have been contacted by police or expect to be, contact our Criminal & Traffic Law team during business hours on 134 134 or submit an enquiry through our online enquiry form.

Official sources

• Crimes Act 1958 (Vic) — arrest, custody and questioning (ss 464 onwards), recording obligations, fingerprints, forensic procedures and s 465AAA assistance directions.
• Evidence Act 2008 (Vic) — s 89 (silence) and the admissions, unfairness and discretionary exclusion provisions.
• Road Safety Act 1986 (Vic) — driver identification duties and s 49(1) offences.
• Bail Act 1977 (Vic) — bail decisions after charge, conditions and remand.
• Office of the Public Advocate — Independent Third Persons — the ITP program for police interviews involving people with a cognitive disability or mental illness.
• Victorian Aboriginal Legal Service — Custody Notification Service — what happens after a s 464FA notification.
• Victoria Legal Aid — contact and help — eligibility, duty lawyer services and free initial information.

Frequently asked questions