It is important that people who are the subject of an investigation into alleged sexual offences are informed of their rights and receive advice in relation to strategy, particularly considering affirmative consent laws in Victoria which place a new evidentiary burden on those accused of sexual offences.
Understanding Police Interviews in Sexual Offence Cases
If a person is asked to attend a police station to speak to police or attend an interview, it generally means they are under investigation. These interviews are recorded and can later be used in court as evidence. Police conduct interviews for the purpose of gathering evidence, and to build a case against the person who is being interviewed. Any person intending to participate in an interview should obtain legal advice before attending the police station.
In many sexual offence cases, the issue of consent and whether an accused person had a reasonable belief in consent in the circumstances is a central matter in dispute. The affirmative consent model requires a person to take steps to confirm the other person was consenting to the sexual acts, and to be able to demonstrate what they said or did to check they had consent to the sexual acts. This is complex, and means pre-interview legal advice, and strategy, is crucial.
Case Study: A Strategic Decision That Avoided Criminal Charges
In a recent example, a client was contacted by police about a rape investigation. As he was a teenager, he attended a police interview with a parent and exercised his right to silence by making a 'no comment' interview. It is often the case that exercising the 'right to silence' is often an appropriate course, and this child had obtained standard legal advice before attending the interview. However, in this case, the absence of the child's version of events limited the opportunity to address consent-related issues with police.
The client sought a second opinion from Doogue + George Defence Lawyers following his interview with police. He was supported by his family and anxious to take pro-active steps to avoid criminal charges, if it was possible.
Upon reviewing the allegations, considering his instructions and the broader context to the allegations, our lawyers advised that providing a version of events could significantly strengthen his position and potentially prevent charges being laid. Why?
- The central issue was reasonable belief in consent; and
- We provided police with evidence that aimed to persuade them that a prosecution would be unlikely to succeed.
We requested a secondpolice interviewand worked closely with the client to prepare:
- A written statement outlining his account of events;
- Review of digital material (e.g. text messages, videos, photos and location data) for supporting evidence; and
- Interview preparation and technique.
During the second interview with police, our client presented a detailed and consistent account of events. His version undermined the complainant's version of events and could be corroborated by other prosecution witnesses. Ultimately, the police decided not to authorise a brief of evidence, and no charges were laid.
This favorable outcome spared our client the stress of criminal proceedings and the long-term consequences of being charged with a serious offence. The young person and his family were thrilled.
What To Do If You're Contacted by Police About a Sexual Offence
If you are under investigation or asked to attend a police interview, here are the critical steps you should take:
- Do not attend the interview without legal
advice.
Even if police tell you it's 'just a chat,' what you say can and will be used as evidence. It is not prejudicial to exercise your legal right to advice. - Do not rely on general advice.
The decision to remain silent or provide a version of events depends entirely on your specific circumstances. - Contact an experienced criminal defence lawyer
immediately.
A lawyer can assess the allegation, advise on your legal risks, and help you plan the best course of action. - Do not discuss the case with anyone
else.
This includes friends, family, or the alleged complainant. Anything you say may be disclosed later. - Preserve any potential evidence.
Save messages, photos, or communications that could support your version of events.
Frequently Asked Questions (FAQs)
Should I always say "no comment" in a police interview?
No, not always. While staying silent is a right and often the safest approach early in an investigation (particularly when you have no idea what the investigation is about, or the allegations are historic), it may not always be the best strategy, particularly in sexual offence cases where consent is an issue. Tailored advice is essential.
Can I have a lawyer in the interview room with me?
Yes, you can have a lawyer attend a police interview with you, even in circumstances where police may say it is not permitted. In our experience, there is a great level of support and police accountability when lawyers attend interviews.
What are affirmative consent laws?
Under Victorian law, among other things, a person must take active steps to ensure the other person is consenting to sexual activities. They must say or do something to make these enquiries. If charged, you may need to demonstrate (on the balance of probabilities) that you did or said something to confirm you had consent to sexual activities.
What if I've already done a police interview and stayed silent—can I go back and add more later?
Possibly. As in our case study above, it's sometimes possible to request a second interview and provide a version of events, but only if done strategically and with proper legal preparation. Police can also refuse to re-interview an accused.
Will I look guilty if I don't attend the interview or say "no comment"?
No. You have the legal right to remain silent, and police cannot treat your refusal to comment as an admission of guilt. Exercising your right to silence can be the right choice, depending on the circumstances you face. It is important to exercise your right to silence particularly in the absence of legal advice.
Talk to a Criminal Defence Expert Before You Speak to Police
Sexual offence allegations are serious and can carry lifelong
consequences, even if charges are never laid. If you are under
investigation or facing a police interview, your first call should
be to a lawyer who understands the law and specialises in sexual
offence allegations.
At Doogue + George, we take a strategic, evidence-based approach
to every matter. Whether the goal is avoiding charges, defending in
court, or navigating consent-based issues, we bring the experience
and clarity you need.
Don't take a risk with your future. The right
advice at the right time can change everything.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
