Written by Bill Doogue. Partner, Doogue & O’Brien Criminal Defence Lawyers
I am frequently contacted by people about to be interviewed at a police station in relation to sexual assault allegations.
And the questions I am asked generally fall into the following three categories:
- Do I talk, or do I answer questions in a police interview?
- What is the procedure in a police interview?
- Do I need a lawyer to attend?
Obviously the person on the other end of the line is extremely stressed because an allegation of sexual assault has been levelled against them, an allegation that carries hefty ramifications outside of possible legal penalties. Their concerns at this stage of the process are primarily because:
- They want certainty about whether they should answer questions
- They want you to confirm what they think is the best strategy.
Starting with the last proposition; I have lost count of the number of times people have contacted me to become their Melbourne criminal lawyer while bearing the thought process, “I can’t afford to be charged with sexual assault so I am going to tell them everything. I have done nothing wrong.” Unfortunately they are missing a very important point.
It is an adversarial system. The Police are not searching for the truth. They have a statement alleging some form of sexual assault and they will pursue it. If the interviewee gets confused or makes a simple error in the interview, then that tiny error may be the very detail that could have them convicted and sentenced to gaol.
In the current climate, we see sexual assault cases get prosecuted that are deeply flawed. Leaving aside the reasons underpinning that you need to protect yourself if an allegation is made, regrettably, the truth shall not always set you free.
As an experienced lawyer would know, if the central allegation is being denied then the interview becomes about tripping up the interviewee. The person might feel compelled to agree or attest to something fairly innocuous at the time, however, if the Police can prove this is not true, they can and will present this to a jury and say, “he lies, don’t believe his denials.”
This does not mean you never talk in a police interview. It just should be a considered decision. Many lawyers seem to have a default position. They will either advise to attend the interview and answer questions or to conduct a “no comment” interview.
I wish life was so straight forward.
A lawyer really needs to have enough information to make some assessment of what evidence will be relied on and how to help.
It should also be considered that it is possible to make a statement at any time and evidence can be given in Court. An interview is generally just a free hit for the Police.
One area of sexual assault allegations that raises many interesting issues are historic sex offences. We have many a client come in clutching charge sheets relating to sex allegations from 30 or 40 years ago.
This is a subset of allegations where you would, by and large, never talk in an interview. Often the allegations are so hazy and wrong that people think they should explain the problem (“But, I didn’t even live in Melbourne in 1982!”).
Then they are very surprised when there is a further statement from the complainant, that on reflection, the alleged event occurred in 1983.
All an interview would serve to accomplish is to help the prosecution. If they make allegations, then they should prove them. And not just move them to meet what you so helpfully tell them.
In preparation of a case, I will make a chronology of events as a starting point. In exceptional circumstances, a copy might be given to the police, as I did in a sexual assault interview last week.
If you are attending an interview at a Police station for a sex matter, then take note of the following points, this information might just change the outcome for you:
- Prepare to wait around! The police will make you wait. Often in the interview room and often for hours. Some because they know it will stress you further. Some because they don’t like you. Some because they genuinely do have tother matters to attend to.
- Having a lawyer does help. These tactics are often moderated when you are accompanied by a lawyer. It is harder to bully someone with a lawyer.
- Countless times we are told that clients have been advised that if they don’t talk in the interview they won’t get bail. If you attend with a lawyer that sort of comment is never made, primarily because it isn’t true.
- Having a lawyer with you at an interview also introduces us to the investigators and we can often pick up interesting information about the allegations.
There is one downside of having a lawyer with you and that is simply expense. And you alone can justify the expense of legal representation Vs the cost of the allegations being brought against you.
If you are going to “no comment” interview, does a lawyer add enough to justify the cost?
That answer is one that is based on your circumstances. If it were my decision, I would have a lawyer with me.
But there can be no question that you need proper advice prior to the interview. You will need proper legal representation if you are charged with a sexual assault. And it makes the process much easier for you if you have followed a sound strategy from the outset. In a recent interview I provided a draft chronology for the Police in a sexual assault interview, as mentioned above. The reasons why that was deemed the right tactic are complex but were founded on the evidence and circumstances in that case. It was the right thing to do but was only done after some reflection and discussion with our client.
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