Last Updated: November 2, 2026
Being asked to sit down for a police interview in New South Wales can feel daunting, but you have more options than many people realise.
The short answer is that an interview can be challenged in court if it was obtained unfairly, unlawfully, or in breach of the rules that protect suspects. Whether the evidence is excluded depends on the circumstances, which is why professional advice matters.
Police may ask you to attend a voluntary interview, or they may arrest you and question you while you are in custody. The difference matters because your rights and the procedures police must follow change depending on which applies.
A voluntary interview means you agree to attend and can usually leave. An arrest means you are detained, and different rules apply to how and when you can be questioned. Police must follow formal procedures during detention, including recording the interview in most cases.
Confirm your status early. Ask whether you are under arrest and whether you are free to leave.
You generally have a right to remain silent when police question you. This means you are not required to answer questions beyond giving certain basic details, such as your name and address.
In practice, staying silent can be a useful protection, but it is not always simple. Silence may affect how a case is presented later, so it is worth getting legal advice before deciding how to respond.
You have the right to request a lawyer before and during questioning. Say clearly that you want to speak to a solicitor before answering any further questions.
Police should give you a reasonable opportunity to contact a lawyer. Do not sign anything or make a statement until you have had that chance.
A challenge to a police interview is not a general complaint about how you were treated. It is an argument that the interview, or part of it, should not be admitted as evidence because of the way it was obtained. In New South Wales that argument is run under the Evidence Act 1995 (NSW), and it helps to understand the specific grounds a court will consider rather than treating ‘unfairness’ as a single catch-all.
At common law, a confession or admission is only admissible if it was made voluntarily. If police used threats, promises, or other conduct that overbore your will, the interview may be challenged on that basis. The test is not whether you felt uncomfortable, it is whether your answers were the product of a free choice.
Separate from voluntariness, a court can exclude evidence where the questioning was oppressive or improper. This can include prolonged questioning without breaks, questioning while you were affected by illness, injury, or intoxication, or conduct that exploited a vulnerability such as age, language difficulty, or a mental health condition.
New South Wales has specific safeguards that apply when a suspect is in custody, and a failure to follow them is often the strongest ground for a challenge. These include:
These safeguards are not absolute, there are limited exceptions, such as where a lawyer or support person would be reasonably available within a short period, so the precise facts of your detention matter.
Even where a safeguard was breached, the interview is not automatically excluded. Under the Evidence Act 1995 (NSW), courts have a discretion to exclude improperly obtained evidence, and they weigh the competing considerations in each case. Your solicitor can advise on how those considerations apply to your interview.
A challenge to admissibility is different from a complaint about police conduct. If you believe an officer acted improperly, that may be a separate matter for a complaint to the NSW Police Force or the Law Enforcement Conduct Commission, but it does not by itself remove the interview from evidence.
Watch out: Do not assume that a single procedural slip will exclude the whole interview. Courts often exclude only the specific admissions affected by the breach, so your solicitor needs to identify the disputed passages precisely.
Strong evidence makes a challenge more persuasive. Gather and keep any material that shows how the interview was conducted, since it can decide whether you challenge police interview evidence successfully.
Preserve everything. Do not delete messages or notes, even if they seem minor.
The period between the interview and any court date is where a challenge is either built or lost. Most of the evidence that supports an exclusion argument is created at or near the time of the interview, and it becomes harder to obtain the longer you wait. The steps below are the practical sequence a NSW criminal lawyer would typically work through.
If the interview was electronically recorded, which is standard for a formal interview at a police station, the recording is the central piece of evidence. Your solicitor can request it through the prosecution’s disclosure obligations. If it is missing or incomplete, that itself may be a point to raise.
Beyond the recording, ask for the custody management record, the charge sheet, and any notebook entries or running sheets relating to your arrest and detention. These records show the timeline: when you were arrested, when you asked for a lawyer, how long the delay was, and whether a support person or interpreter was arranged. Discrepancies between the custody record and the recording are often the most useful material in a challenge.
Watch or listen to the recording with your solicitor and note the exact passages you say should be excluded. Identify the question and answer, the time stamp, and the reason, for example, that you had asked for a lawyer and questioning continued, or that a promise was made. A challenge is far stronger when it points to specific passages rather than asserting the interview was unfair as a whole.
Keep any documents, messages, or notes that show your state at the time, for example, medical records if you were injured, unwell, or affected by medication, and details of any interpreter or support person. If there were witnesses to your arrest or to what happened at the station, record their details. Do not delete anything, even if it seems unhelpful; your solicitor needs to see the whole picture.
Admissibility issues are usually raised before trial, and in some matters at a voir dire, a separate hearing where the judge decides whether the evidence can be used. The timing depends on the court and the charges, so raise the issue as soon as you have the recording. Your solicitor will advise whether to object to the interview, seek its exclusion in full or in part, or use the circumstances of the interview in another way.
If the challenge succeeds, the interview or the disputed admissions may be excluded, which can significantly change the prosecution case.
Watch out: Do not discuss the interview, your arrest, or your intended challenge on social media or with other people involved in the matter.
The table below summarises the key steps to take after a police interview, with the timing and purpose of each, as set out in the article.
| Step | What to do | Timing or focus |
|---|---|---|
| 1. Obtain recording | Request the interview recording or transcript | Central evidence; standard for formal interviews |
| 2. Request records | Ask for custody and interview records | Shows timeline and any discrepancies |
| 3. Review recording | Mark disputed passages with time stamps | Point to specific passages, not the whole interview |
| 4. Preserve evidence | Keep documents, messages, notes and witness details | Do not delete anything |
| 5. Raise the issue | Speak to your solicitor as soon as you have the recording | Admissibility is usually raised before trial |
| 6. Understand outcomes | Know what success or failure may mean | A conduct complaint is separate and does not affect admissibility |
If you are facing a police interview or have already been interviewed, a free phone consultation can help you understand your options. At Maatouks, our team can review what happened and explain whether a challenge may be available.
The consultation gives you a clear view of your rights and next steps without any obligation.
In NSW, you are generally not required to answer police questions beyond providing certain personal details when lawfully asked, such as your name and address in some circumstances. You do have a right to silence, which means you can decline to answer questions about the matter under investigation. If police are exercising a statutory power to compel information, a failure to comply may itself be an offence, so it is worth seeking legal advice promptly. Staying calm, stating clearly that you wish to speak to a lawyer, and asking whether you are under arrest are practical steps to take. A criminal defence lawyer can explain which obligations apply to your specific situation.
Yes. Evidence obtained from a police interview may be challenged in court if it was obtained improperly, unfairly or in breach of the rules that govern questioning. The Evidence Act 1995 (NSW) gives courts discretion to exclude certain evidence, and your solicitor can advise how that discretion applies to your interview. Common grounds include questioning without proper cautions, denial of a lawyer or support person, oppressive conduct and misleading questioning. A challenge is typically raised before or during the trial, so records and details of the interview should be preserved as soon as possible.
Refusing to participate in a voluntary police interview is generally lawful in NSW, as you have a right to silence. However, the consequences depend on whether you are under arrest or being asked to attend voluntarily, and on any statutory powers police are relying on. Declining to answer does not remove your right to contest the case later in court. Before deciding how to respond, it is sensible to speak with a criminal lawyer, who can advise whether attending with legal representation or declining altogether is the better course for your circumstances.
Yes. In NSW, you are entitled to request a lawyer before and during questioning, and police should give you a reasonable opportunity to contact one. Having a lawyer present helps protect against misleading questions, coercion and unfair conduct, and it gives you someone to advise you on how to respond. If you are arrested, you also have rights to communicate with a lawyer and a support person. Make your request clearly and avoid answering questions while you wait. A free phone consultation can help you understand your options before an interview takes place.
Frequently Asked Questions
Yes, you generally have the right to remain silent. Silence can have consequences, so get legal advice before deciding how to respond.
A court may exclude an interview if it was obtained unfairly or improperly. Whether this applies depends on the specific facts, and a lawyer can assess your situation.
