A report released on Monday found in a significant number of cases police had carried out interviews with vulnerable people after their lawyers said their clients did not consent.
It followed an investigation by the state's police watchdog, the Law Enforcement Conduct Commission, into the questioning of a 14-year-old Indigenous boy who was arrested in northern NSW, on September 11, 2022.
The boy was tackled to the ground by plain clothes officers and suffered a head injury requiring treatment in hospital before he was discharged back to the local police station.
Despite telling his lawyer from the Aboriginal Legal Service over the phone he wanted to exercise his right to silence, the boy was questioned by two officers later that morning.
Neither the custody manager nor interviewing officers were aware of all their legal obligations and NSW Police was to blame for failing to provide proper guidance, the investigation found.
The commission said it was not an isolated incident, but no action had been taken by police to address those issues despite examples being raised by the courts over several years.
Investigating officers and custody managers are directed to make a record of when a young person exercises their right to silence.
"These protocols seem to have been forgotten by the NSW Police Force," the commission said.
Instead, police in many cases asked the person to confirm their decision to remain silent in an electronically recorded interview, which too often resulted in further questions being asked of them.
The report also found some investigating officers discussed bail with young persons in a way that suggested participating in an interview could lead to their conditional release.
Chief commissioner Peter Johnson SC said it was the responsibility of the NSW Police Force to give clear and accessible guidance to officers about interviewing vulnerable people in custody.
"The system where telephone advice is given to young persons by the Aboriginal Legal Service or Legal Aid is of fundamental importance to the criminal justice system in this state," he said.
The commission made 19 recommendations including that police should urgently advise custody managers to make a record when a young person declines to be interviewed either directly or through a lawyer.
It also recommended that only custody managers and not investigating officers could discuss bail with suspects, and that body-worn camera protocols applied to plain clothes officers.
A system should be urgently developed to allow for court decisions relating to policing to be promptly brought to the attention of the NSW Police executive to ensure appropriate steps were taken.
NSW Police has been contacted for comment.
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