Arrests & sexual offence allegations

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If you’ve been arrested or called for questioning, it is important to remember your presumption of innocence. This is the essence of how the Australian criminal justice system works, and why it is vital that you never speak to a police officer without first talking to a lawyer.

Your obligation is always to first tell the officer of your legal name, your date of birth and your address. In some cases, you may also need to provide identification material such as your fingerprints if you have been served with a certain notice. However, you are not obligated to answer any other question and nor should you do so. That is, you should always exercise your right to silence.

Be cautious of any representation by a police officer of an ‘off the record’ conversation. These simply do not exist and anything you say or do will be used against you at some stage and event limit or prevent strong defences later on.

It is always crucial to immediately seek legal advice as anything you say will be held against you later, and is likely to have a significant impact on the outcome of your matter.

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Charges of rape or sexual assault despite obtaining consent

There are specific elements to prove rape and sexual assault offences, and prosecution must be able to later prove that the complainant or alleged victim did not consent.

There are defences that can apply to consent, such as the complainant voluntarily consenting to the conduct or where the defendant believed consent existed, and this belief was objectively honest and reasonable.

The onus of proof (meaning the party who must prove it) is on the prosecution to show that consent did not exist. It is not the defendant to show who is obligated to show this.

Therefore, you need to get legal advice without delay from an experienced lawyer, who has extensive court experience. You should also consider saving and protecting all the evidence you may have to support the idea of consent being given. This could include text messages, online messages, social media messages or even finding witnesses in relation to the interactions you have had with the complainant leading up to the alleged sexual offence.

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The complainant has contacted me, what now?

It is first crucial to avoid putting yourself into a position where a complainant is attempting to either gather evidence or alternatively build a case against you

Where you may have spoken to the complainant and alleged victim, it is important to consider noting what was said and immediately inform your lawyers.

It is a known strategy of police officers to work with the complainant and engage in strategic ‘pretext’ phone calls. This is where the complainant will call the alleged offender with police presence (and recordings) to extract statements or evidence to later use during a criminal prosecution.

In some cases, and depending on your jurisdiction, you may also have a right as a party to a conversation to record the other side.

Whatever the situation is, you need to talk to one of our lawyers without any delay so that you can get the right advice and be protected.

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Types of Sexual Offence in Queensland

• Possessing child exploitation material

• Sexual assault

• Rape, digital rape and oral rape

• Unlawful carnal knowledge

• Unlawful sodomy of an intellectually impaired person or a person under 18 years

• Procuring prostitution

• Knowingly participating in the provision of prostitution

• Incest

• Distribution of child exploitation material

• Using a carriage service (the internet for example) to procure sexual abuse from a child under 16 years

• Wilful exposure

• Indecent treatment of a child

• Involving a child in the making of child exploitation material

• Making child exploitation material

• Maintaining a sexual relationship with a child

• Permitting sodomy by a male person under 18 years