Your rights in a police interview (ERISP)
What the recorded interview is, why it exists, your right not to participate, the special caution that changes the calculation, and what to do if you are asked to attend one.
The ERISP is the recorded interview police conduct with a suspect, and it is evidence, not a conversation. In most cases you do not have to participate and you should not without legal advice. The one exception that matters is the special caution for serious indictable offences, given with your lawyer present, after which staying silent can count against you. Say you want a lawyer, then say nothing else.
- If police have asked you to attend for an interview, do not go until you have spoken to a lawyer; the interview can waitSection 7 of this guide
- Save the words in section 2 on your phoneSection 2 of this guide
- If you have already been interviewed, tell your lawyer exactly what was said and what you were told beforehandSection 6 of this guide
If you are under 18, if police have said the words special caution, or if the offence is one that can carry five years or more in prison, the rules are different and a lawyer needs to be in the room, not on the phone.
| What it is | Electronic Record of Interview with a Suspected Person. Audio and video. Played in court |
| Do you have to | In most cases, no |
| Say this | I do not wish to participate in an interview until I have received legal advice |
| The exception | Special caution, s 89A, serious indictable offences, lawyer present |
| Police must | Caution you, allow you to contact a lawyer, a support person if under 18, an interpreter if needed |
| If done unlawfully | The recording can be excluded under s 138 |
1What an ERISP is
Start here
An ERISP is an interview conducted at a police station with a person suspected of an offence, recorded on audio and video. The recording is the evidence. It is transcribed, served in the brief, and played in court. Everything on it is available to the prosecution: what you said, how you said it, what you did not say, how long you paused, and what your face did when a question was put.
Police conduct interviews because they help prosecutions. An interview can supply the admission that proves an element, lock you into a version of events before you have seen the evidence, and provide inconsistencies to cross-examine you on later. An interview that helps the suspect is rare. Nobody has talked their way out of a charge in an ERISP who could not have been advised to say nothing and achieved the same result through a lawyer.
2Your right to refuse
The default
You are not required to participate in an interview, answer questions, or provide an explanation. The right to silence is a common law right preserved by the Evidence Act, and in an ordinary case a court cannot draw an unfavourable inference from your refusal. Police will often say that the interview is your chance to tell your side, that it will look better if you cooperate, or that they only need to clear a few things up. None of those is a reason to participate.
I do not wish to participate in an interview until I have received legal advice.
Say it at the start, say it again if asked, and do not add anything. "I don't want to do an interview but I'll just say that I wasn't there" is an interview.
Legal basis: Evidence Act 1995 (NSW) s 89. This is a summary for general understanding. The full provision is more detailed and may not apply in all circumstances.
3The special caution
The exception
For serious indictable offences, those carrying five years or more, police may give a special caution before or during the interview. It tells you that if you fail to mention something you later rely on in your defence, the court may draw an unfavourable inference from that failure. The special caution can only be given in the presence of your lawyer, after the lawyer has had a chance to advise you, and it does not apply to people under 18 or to people incapable of understanding it.
The special caution changes the calculation. Silence is no longer free. It does not make participation the right choice; it makes the decision one that must be taken with a lawyer in the room, weighing what the prosecution has against what you would say. If you hear the words special caution, that is the moment to say nothing further until your lawyer arrives.
Legal basis: Evidence Act 1995 (NSW) s 89A. This is a summary for general understanding. The full provision is more detailed and may not apply in all circumstances.
4What police must do first
Safeguards
Before an interview, police must caution you that you do not have to say or do anything and that anything you say or do may be used in evidence. They must give you a reasonable opportunity to contact a lawyer and, if you are a vulnerable person, a support person; for people under 18 a support person must be present. They must arrange an interpreter if you need one. You are entitled to know why you are being questioned. You can be detained for investigation for a limited period, four hours as the starting point, extendable by warrant, and the time you spend waiting for a lawyer does not count against it.
Legal basis: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Part 9, ss 114 to 133; Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) Part 3 (vulnerable persons). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
5Your right to a lawyer
Before anything
Ask for a lawyer as soon as you are told you are a suspect or asked to attend the station. Police must give you a reasonable opportunity to contact one before questioning. If you have a lawyer, phone them. If you do not, ask for Legal Aid, which runs a custody advice line, or for the Aboriginal Legal Service if you are Aboriginal or Torres Strait Islander. Do not take police advice about whether you need a lawyer, and do not accept an assurance that it will be quicker without one.
I want to speak to a lawyer before I do anything.
Legal basis: LEPRA ss 122, 123. This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
6If the interview was conducted unlawfully
Exclusion
If police failed to caution you, did not allow you to contact a lawyer, questioned you after you had said you did not want to answer, or interviewed a child without a support person, the recording may be excluded from evidence. Exclusion is not automatic. The court weighs the seriousness of the breach against the value of the evidence and decides whether admitting it would be unfair or contrary to the public interest. The argument is made by your lawyer at the hearing. You preserve it by stating your objection at the time and by telling your lawyer exactly what happened, in order, as soon as you can.
Legal basis: Evidence Act 1995 (NSW) ss 85, 90, 138, 139. This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
7If you are asked to attend an interview
Right now
Police sometimes phone a person and invite them to come in for an interview, before any charge. You are not required to attend. Attending voluntarily is attending an interview, with everything above applying. Do not go until you have spoken to a lawyer, and if you go, go with one. If police say they will arrest you if you do not attend, that is a matter for the lawyer to deal with, not a reason to go alone.
If you have been asked to attend, phone a lawyer today. If you cannot reach one, phone Legal Aid NSW. Do not phone the officer back first.
If police have asked you to attend, or have given a special caution
The decision whether to participate in an interview is the decision that shapes the whole prosecution, and once made it cannot be unmade. A consultation with the lawyers who built Standard before you attend the station is the right step.
Request a consultationGeneral information only, not legal advice. NSW-specific. Every matter turns on its own facts and laws can change. Reading this guide does not create a solicitor-client relationship between you and the lawyers who produced it.