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How Much Can a Police Interview Really Affect Your Sexual Assault Case? Your Rights & Risks Explained

ByBella Vista Criminal Lawyers

If you’re being investigated for sexual assault in NSW, you may be asked to attend a police interview; sometimes even before formal charges are laid. But should you talk? Or stay silent? And how could your answers change the outcome of your case?

At National Criminal Lawyers®, our top-rated sexual assault interview lawyers in Sydney regularly represent clients accused of serious indictable offences, including sexual assault, aggravated sexual assault, and sexual touching. One of the most critical moments in your case is often what you do or don’t say during that initial police interview.

In this blog, we break down:

What Is a Police Interview in a Sexual Assault Investigation?

When police suspect someone of sexual offending, they may invite (or pressure) them to attend a formal recorded interview. These interviews are audio-visual recorded (known as ERISP – Electronically Recorded Interview of Suspected Person) and often form part of the prosecution’s case.

You are not required to attend unless you’re under arrest, and you’re never required to answer questions (aside from your name and address).

Common misconception: “If I just explain myself, they’ll drop it.”
Reality: Anything you say can be twisted or misunderstood and used against you at trial – especially in sexual assault cases where evidence is already sensitive and emotionally charged.

The Right to Silence: Still Alive in NSW?

Yes, but with serious limitations in indictable offences.

Your right to silence is enshrined in common law and the Evidence Act 1995 (NSW). However, changes introduced in 2013 added section 89A, which specifically affects people being questioned about serious indictable offences like sexual assault.

Section 89A – Evidence Act 1995 (NSW)

s 89A(1): If a person is questioned by police about a serious indictable offence (e.g. sexual assault), and:

  • They fail to mention something they later rely on in court, and

  • They were given a “special caution” (in the presence of a lawyer)
     Then the court may draw an unfavourable inference from their failure to mention it earlier.

In other words, if you stay silent during the interview and later try to present a defence, the court can say: Why didn’t you mention that earlier? Are you making this up?

But here’s the catch: This “special caution” is only valid if your lawyer is present during the interview — yet most people attend interviews alone.

Should You Answer Police Questions?

As experienced sexual assault interview lawyers, we generally advise against answering any questions until:

  • You’ve had a full briefing from a lawyer,
  • You understand the allegations in detail, and
  • Your lawyer has obtained the brief of evidence.

Why? Because:

  • Police can misquote or misinterpret your words.
  • You might inadvertently admit guilt by trying to defend yourself.
  • The complainant’s version may still be incomplete or untested, making it impossible to respond properly.
  • Interview footage may be selectively used to prejudice the jury.

Real-life example: In R v RS [2022] NSWDC 278, the accused admitted to a consensual sexual encounter but made ambiguous statements about consent during police questioning. The jury later found these statements inconsistent with his defence, heavily contributing to his conviction.

What If You Say Nothing?

Saying nothing cannot be used against you unless section 89A applies and a valid special caution is given in your lawyer’s presence.

In most interviews, the special caution isn’t even offered correctly, which means no inference can be drawn from silence.

Even if it is offered, your lawyer can strategically guide you:

  • To remain silent entirely, or
  • To make a brief, lawyer-drafted statement instead.

This protects your rights without contradicting any future defence.

Common Police Tactics (And How We Handle Them)

Police may say:

  • “This is your chance to tell your side.”
  • “If you don’t talk, the court might think you’re guilty.”
  • “We just want to clear things up.”

These are not legal truths, they’re designed to make you speak without legal advice.

At National Criminal Lawyers®, we:

  • Attend police stations with you across Sydney, Parramatta, Blacktown, Wollongong, Penrith, and Mt Druitt
  • Prevent improper questioning
  • Ensure your rights are upheld
  • Identify any police misconduct or improper evidence-gathering methods

How Does This Affect Bail or Later Charges?

If police believe you’ve “refused to cooperate”, they may try to oppose bail. But bail is governed by the Bail Act 2013 (NSW), and refusal to answer questions is not a lawful ground to deny bail.

Similarly, a blank or silent interview may frustrate investigators, but it does not equate to guilt and may later strengthen your position in court if no damaging statements are made.

Relevant Offences Where Police Interviews Matter Most

Police interviews can make or break defences in:

These are all serious indictable offences, carrying maximum penalties of 5–20 years’ imprisonment.

A single wrong word in an interview may destroy a consent defence or contradict a mental health argument under section 32 or 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

Final Word: Don’t Go In Blind

A police interview in a sexual assault case is not a friendly chat, it’s a critical point in the prosecution’s evidence-gathering. What you say or don’t say can become the centrepiece of their case.

Let National Criminal Lawyers® defend your rights from the beginning. Our experienced team of sexual assault lawyers in Sydney, criminal lawyers near you, and police interview lawyers across NSW fight harder to ensure that one moment doesn’t define your future.

📞 Call 1800 CRIM LAW today or book a free confidential consultation.

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