Should I Bring a Lawyer to the Police Station? The Special Caution in NSW

Yes, you still have a right to silence in NSW, and in most cases a court cannot hold your silence against you. The exception is the special caution: for a serious indictable offence, if police give it while your lawyer is present, a court may later draw an unfavourable inference if you did not mention something you then rely on in your defence. Knowing how the special caution works is the best reason to get legal advice before any police interview.

Reviewed by Sam Saadat, Principal Lawyer, Invictus Legal. Last reviewed: 8 October 2026

Do I have a right to silence in NSW?

Yes. Under section 89(1) of the Evidence Act 1995 (NSW), a court in a criminal proceeding must not draw an unfavourable inference from the fact that you failed or refused to answer questions put to you by police (or another investigating official) during an investigation. That rule is subject only to section 89A, the special caution provision explained below.

When you are detained at a police station, the custody manager must caution you, orally and in writing, that you do not have to say or do anything, but that anything you say or do may be used in evidence (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 122(1)). That caution does not override other laws that require you to answer particular questions or do particular things (s 122(2)), which is one more reason to get advice early.

What is the special caution in NSW?

The special caution is a caution to the effect that you do not have to say or do anything, but it may harm your defence if you do not mention, when questioned, something you later rely on in court, and that anything you say or do may be used in evidence (Evidence Act 1995 (NSW) s 89A(9)). Section 89A came into operation on 1 September 2013.

When can my silence be used against me?

Only when every condition in section 89A is met. In a proceeding for a serious indictable offence, a court may draw such unfavourable inferences as appear proper if, during official questioning, you failed or refused to mention a fact that you could reasonably have been expected to mention at the time and that you later rely on in your defence (s 89A(1)). Section 89A does not apply unless:

• a special caution was given by an investigating official who, at that time, had reasonable cause to suspect you had committed the serious indictable offence;

• the special caution was given before you failed or refused to mention the fact;

• the special caution was given in the presence of an Australian legal practitioner acting for you at that time; and

• before then, you had a reasonable opportunity to consult that lawyer, away from police, about the general nature and effect of special cautions (s 89A(2)).

A serious indictable offence is an indictable offence punishable by imprisonment for life or for 5 years or more (Interpretation Act 1987 (NSW), Schedule 4). Police must not give a special caution unless they are satisfied the offence is a serious indictable offence (s 89A(4)).

Who does the special caution not apply to?

Section 89A does not apply to a person who was under 18 at the time of questioning, or who could not understand the general nature and effect of a special caution. It also does not apply if your failure to mention the fact is the only evidence that you are guilty (s 89A(5)).

Why does it matter whether my lawyer is there?

Because the special caution only has its effect if it is given while your lawyer is present and after you have had a chance to consult them privately. A lawyer attending the police station can explain what the special caution means for your situation, advise you whether to answer questions, and help protect your interests during the interview. That decision is too important to make on your own in an interview room.

What are my rights if I am taken to a police station?

If you are arrested, police may detain you to investigate the offence for a reasonable time, up to a maximum investigation period of 6 hours unless that period is extended by a detention warrant (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 114, 115). Before any investigative procedure starts, the custody manager must tell you, orally and in writing, that you may:

• contact a friend, relative, guardian or independent person to tell them where you are, and ask them to attend; and

• contact an Australian legal practitioner of your choice and ask them to attend and to be present during any investigative procedure, such as an interview (s 123(1)).

The custody manager must give you reasonable facilities to make those calls, as far as practicable in private, and must defer the investigative procedure for a reasonable period so that you can make the call and so the lawyer can arrive and consult with you (s 123(2)–(3)). If you are not an Australian citizen or permanent resident, you may also contact your consulate (s 124).

What should I do if police want to interview me?

• Stay calm and polite, and give your details if you are required to.

• Tell police you want to speak to a lawyer before any interview, and ask for your lawyer to be present.

• Do not discuss the allegation with police, other people in custody or on social media before you have advice.

• Call us as soon as you know police want to speak with you. We can often advise you before you attend.

What does it cost for a lawyer to attend a police station?

Our fixed fee for attending a police station with you is $660 incl. GST in the Sydney metropolitan area, and $1,210 incl. GST plus travel disbursements if required outside Sydney. Our fixed fees apply to criminal and traffic law matters only. They are solicitor fees only and do not include Counsel (barrister) fees or any other disbursements, and we issue a costs agreement before we commence any work. See our criminal law services for help after a charge is laid.

Talk to a Sydney criminal lawyer before you speak to police

Call our office on 02 8553 0500, or our 24/7 urgent line on 0410 600 230 if police want to interview you now or you have just been arrested. You can also book a consultation online.

This article is general information only and is not legal advice. Contact Invictus Legal to discuss your situation.