Should I Participate in a Police Interview for Drug Possession Charges?

Police cannot force you to participate in an interview for a drug offence.

And it’s generally best to use your right to silence and not participate.

Police can require your identification when arrested for drugs, but you are not legally obliged to answer any further questions.

It is often the case that silence has acquired negative connotations, and perhaps even a sign that you have something to hide.

But this is not legally the case, except in certain circumstances which are discussed later.

If you are nervous, it could be easy to say the wrong thing – even a completely innocent person can have seemingly-minor inconsistencies in their story, particularly over the course of a long and gruelling interview.

Equally, by speaking to police you may say something that prevents you from relying upon a defence at a later stage.

For example, if drugs are found in a common area of your home – such as the lounge room or kitchen – it may be extremely difficult for police to prove ‘exclusive possession’; in other words, to establish that no one else could have possessed them.

If they can’t prove exclusive possession, the case may be thrown out of court.

But if you participate in an interview and say that you knew about the drugs and had access to them, or that no one else was there during the relevant time period, you may not be able to rely on ‘lack of exclusive possession’ later on in the case.

And who among us has never made an innocent mistake about a seemingly-trivial fact?

We are all human and make errors every day, but if you make one in a police interview your credibility could be called into question, or even worse, police may rely upon the mistake to establish what’s known as a ‘consciousness of guilt’ and try to have you found guilty on that basis.

This means that the best thing to do in the vast majority of cases is to remain silent.

So when police ask ‘Would you like to participate in an interview?’, you should say something like ‘My lawyer has advised me not to, so I don’t wish to’.

Police will usually then fill out a notebook that says something like: ‘Q. Do you wish to participate in an interview, A. No’.

There is no problem with you signing that notebook if you wish to, as long as you carefully read it and agree with the contents.

It is important to be aware that even if you’re lawyer advises you over the phone while you are at the police station, it is still the case that no adverse conclusions can be drawn from your silence.

However, due to recent changes to the law, your right to silence has changed in certain limited situations.

Section 89A of the Evidence Act means that, although you still generally have the right to silence, your silence can be used against you in certain circumstances.

For example, if your lawyer is with you at the police station and you fail to mention something that you could reasonably have been expected to have mentioned at the time, and you later seek to rely on this, it could work to your disadvantage.

The reasoning behind the new section is that people should not be able to conveniently come up with a story much later down the track, if they didn’t raise this defence at the start when their lawyer was with them.

However section 89A will only kick in if:

• You are over 18,
• Your lawyer is physically present with you,
• You are suspected of a ‘serious indictable offence’, and
• Police give you a ‘special caution’ that if you don’t say something that you may later wish to rely upon, then your silence may be used against you.

A serious indictable offence is one that comes with a maximum penalty of at least 5 years’ imprisonment.

Drug possession carries a maximum penalty of 2 years’ prison.

This means that if you are only suspected of drug possession, you will not lose your right to silence even if your lawyer is with you at the police station.

However, if you are suspected of a more serious drug charge and your lawyer is present at the police station and police give you a ‘special caution’, then your silence may be used against you at a later time.

Also, you cannot lose your right to silence if you are incapable of understanding the general nature and effect of the caution.

If police are interviewing you over drug possession charges, it is possible that they will need more evidence than they already have to convict you, such as a confession or an incriminating statement.

Without sufficient actual evidence– for example, drugs being found on you during a legal search, or witnesses/video footage of you with drugs – there may not be enough evidence for you to be found guilty.

Your charges may even be thrown out of court if the search was conducted illegally, eg if police did not have a ‘suspicion on reasonable grounds’ to search you.

All of this means that you will likely have nothing to gain from participating in the interview.

Police are trained in interrogation techniques, and so they have an advantage over you.

Silence is not just a trick for the guilty – there are other completely valid reasons for silence other than guilt.

Innocent people can and should be able to rely on their right to silence.

Study after study has shown that people under arrest will experience great stress and pressure, and will often say things that they think will satisfy police and make police treat them better.

But in reality, it’s often the other way around – police will often obtain additional information during an interview that they can use to make their case stronger, or to bring extra charges or more serious charges.

So it’s best to resist pressure and not answer questions.

Don’t answer questions or sign anything except the police notebook (as stated before) and your bail forms (so police can release you from the police station), unless your lawyer has advised you otherwise.

If you are facing drug possession charges, or more serious drug charges, let your lawyer do the talking for you.

An experienced drug lawyer may be able to get the charges dropped or thrown out of court or, if you wish to plead guilty, help you to avoid a criminal conviction by getting what’s known as a ‘section 10 dismissal or conditional release order‘ – which means guilty but no criminal record.