Charged with Sexual Assault in NSW: What Happens From Police Interview to Court

Being accused of a sexual offence is frightening, and the first days often decide how the case unfolds. A phone call from police asking you to “come in and tell your side”, an arrest at home, or a charge that arrives months after the events can each leave you unsure what to do and who to trust. This guide explains how the law works, what the process looks like from police contact to sentence, and what you can do now. It is written for people who have been accused, and for their families.

In NSW, sexual assault is charged as sexual intercourse without consent under section 61I of the Crimes Act 1900, which carries up to 14 years’ imprisonment (20 years if aggravated). The prosecution must prove beyond reasonable doubt that the sexual intercourse happened, that the other person did not consent, and that the accused knew they were not consenting.

Key Takeaways

• Don’t answer police questions before you’ve had advice. You have a right to silence, and anything you say can be used in evidence.
• Do not contact the complainant, directly or through other people. Doing so can lead to further charges and affect bail.
• The law of consent changed on 1 June 2022. The prosecution must show you knew there was no consent, and a belief in consent isn’t reasonable if you did nothing to check.
• Penalties are serious. Sexual intercourse without consent carries up to 14 years’ imprisonment, with a standard non-parole period of 7 years in the higher courts.
• There is a lot to test. Consent and knowledge, identification, the reliability of the evidence, messages and other material can all be examined, and a lawyer can assess them once the brief is served.
• Early advice makes a difference, because the choices at the start (interview, bail, evidence) shape the rest of the case.

The Main Sexual Offence Charges

“Sexual intercourse” is defined in section 61HA. It covers penetration of the genitals or anus by a body part or an object, oral sex, and continuing intercourse after consent is withdrawn. “Sexual touching” and “sexual act” were introduced on 1 December 2018 and replaced the old offences of indecent assault and act of indecency.

An offence is “aggravated” in specified circumstances, such as where actual or threatened violence is involved, where the offence is committed in company, or where the other person is under a certain age or has a serious cognitive impairment. Charges involving children are subject to different rules and higher penalties. See our page on child sex offences.

You can read about the individual charges on our pages for sexual assault, sexual touching and aggravated sexual assault in company. For a short overview of the penalties, see what is the penalty for sexual assault?

How the Law of Consent Works

Consent is at the centre of most sexual assault cases. Since 1 June 2022, the Crimes Act has set out in detail what consent means and when someone is taken to know there was no consent. The rules apply to conduct on or after that date.

What consent is. A person consents if, at the time of the sexual activity, they freely and voluntarily agree to it (section 61HI). Several points follow from the Act:

• Consent can be withdrawn at any time, by words or conduct. Sexual activity that continues after consent is withdrawn is without consent.
• Not offering physical or verbal resistance doesn’t, by itself, mean someone consented.
• Consent to one kind of sexual activity isn’t, by itself, consent to another. For example, consenting to sex with a condom doesn’t mean consenting to sex without one. Our guide to stealthing explains this further.
• Consent on one occasion, or with one person, doesn’t automatically extend to another occasion or person.

When a person doesn’t consent. Section 61HJ lists circumstances in which a person does not consent. They include saying or doing nothing to communicate consent, lacking the capacity to consent, being so affected by alcohol or another drug that they are incapable of consenting, being unconscious or asleep, taking part because of force, coercion or fear of serious harm, and being mistaken about the nature of the act or the identity of the other person. The list isn’t exhaustive. See our guides on whether you can give consent when drunk or high, what consent means in sexual assault cases and sexual assault by deception.

What you must have known. The prosecution also has to prove you knew the other person wasn’t consenting. Under section 61HK, you are taken to know there was no consent if you actually knew, if you were reckless as to whether there was consent, or if any belief you had in consent was not reasonable in the circumstances. Two points matter in practice:

• A belief in consent is not reasonable if you did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consented. An exception applies if a cognitive or mental health impairment was a substantial cause of your not doing so.
• Your own intoxication, if self-induced, is disregarded when deciding what you knew or believed.

The Crown carries the burden of proving that your belief was not reasonable. These provisions are technical, and how they apply to a particular set of facts is the heart of many defences.

What Happens After an Allegation

1. Police contact

Police may ask you to attend a station for an interview, arrest you, or search your home or phone. The first contact is often a phone call. You don’t have to attend a voluntary interview, and you don’t have to answer questions beyond giving your name and address. Read our guide to the right to silence.

If you’re arrested, you can ask to speak to a lawyer before an interview. Interviews are recorded and can be played in court. Anything you say can be used, including something you say believing it will clear things up.

2. Charge and bail

If you are charged, you will be released on bail or held in custody until a court decides. Whether you must show cause why your detention isn’t justified depends on the charge and your history, and a lawyer can tell you which test applies. Bail conditions commonly include living at a set address, reporting to police and having no contact with the complainant and possible witnesses. Read our guides to the new Bail Act, show cause bail and what happens if bail is refused, or see our bail application page. Breaching a condition has serious consequences. See what happens when you breach bail conditions.

3. The Local Court

Your first appearance is a mention in the Local Court. See what happens at a Local Court mention. Some lower-level charges can be finalised there. Sexual intercourse offences are more serious and proceed to the District Court.

4. The police brief and preparing the case

Police serve a brief of evidence, which usually includes the complainant’s statement, a recorded interview, messages, medical or forensic material and witness statements. Your lawyer reviews it, identifies the issues and advises on your options, which include negotiating the charge, pleading guilty, or contesting the allegation at a hearing.

5. Trial or plea

Cases in the District Court are normally heard before a judge and jury, although in some circumstances a judge alone can hear the matter. The complainant gives evidence, special protections apply to how they give it, and your lawyer is entitled to test it in cross-examination. You don’t have to give evidence, and the prosecution carries the burden throughout. If you are found not guilty, the case ends. If you’re found guilty or plead guilty, the court proceeds to sentencing. The process often takes many months.

What May Be Changing

The NSW Government introduced the Criminal Procedure and Other Legislation Amendment (Victim Experience Reforms) Bill 2026 on 22 September 2026. As at mid-October 2026 it had not become law. If passed, it would:

• allow a complainant’s recorded police interview to be used as their main evidence in more sexual offence cases, including those involving adults
• introduce “ground rules” hearings before a complainant gives evidence, setting directions about how questions are asked, as a pilot in certain District Courts
• tighten the circumstances in which a court may access a complainant’s counselling records

The reforms don’t remove cross-examination or change the prosecution’s burden of proof. How they would operate, and from when, depends on the final law. A lawyer can tell you what applies to your case.

What the Court Considers When Sentencing

If you are convicted or plead guilty, the court looks at the seriousness of the offence and your circumstances. Points to know:

• A standard non-parole period of 7 years applies to sexual intercourse without consent in the higher courts, and 10 years for the aggravated offence. It’s a reference point, not a fixed sentence.
• A prior relationship doesn’t reduce the seriousness. The courts have said that the objective seriousness of a sexual offence cannot be reduced because the parties knew each other.
• Breach of trust or authority is an aggravating factor.
• Non-custodial outcomes are unusual. An intensive correction order is not available for a prescribed sexual offence, and a sentence that isn’t full-time custody is regarded as appropriate only in unusual or exceptional circumstances.
• Personal factors still count. Your record, age, prospects of rehabilitation, an early plea, remorse and the effect on your family are considered.

Possible Defences and Challenges

Whether any of these apply depends on your evidence:

• Consent. That the other person consented, which is a factual issue for the jury.
• Reasonable belief in consent, and knowledge. That you did not know there was no consent. Since 1 June 2022, this is closely tied to what you said or did to check consent.
• Identification. That the person accused is not the person who committed the offence.
• Reliability and credibility. Inconsistencies in the complainant’s accounts, other witness evidence, messages, CCTV and forensic results can all be tested.
• Delay. Where an allegation relates to events long ago, the passage of time can make evidence harder to test, and the court must take that into account.
• Challenges to how the evidence was obtained. The legality of searches, or of how a statement or phone data was obtained.

These are fact-specific. A conviction is possible on the complainant’s evidence alone if the jury accepts it beyond reasonable doubt, which makes the preparation of cross-examination and the other evidence critical.

Consequences Beyond Court

A charge or conviction for a sexual offence can have wide effects, including on:

• Employment and professional registration, especially roles working with children or vulnerable people. A Working With Children Check can be affected by a charge as well as a conviction
• Travel and visas. See travelling overseas with a criminal record. If you’re on a visa, get migration advice as well as legal advice
• Family and living arrangements, including bail conditions that may require you to move

For a conviction, read is a criminal record forever?

What to Do Now

• Get legal advice before any police interview, even if police say it’s voluntary or “just a chat”.
• Don’t contact the complainant or ask others to. Don’t comment on the allegation online.
• Don’t delete messages, photos or social media. Preserve everything and give it to your lawyer. Deleting material can make things worse.
• Write down a timeline of events as you remember them, for your lawyer only.
• Follow every bail condition exactly.
• Look after yourself. An allegation is stressful. Talk to someone you trust, and if you need support, ask your lawyer or GP for options. Lifeline is available 24/7 on 13 11 14.

Do You Need a Sexual Assault Defence Lawyer?

Yes. This is one of the most serious areas of criminal law, with heavy maximum penalties, complex rules on consent and evidence, and consequences that last. A sexual assault defence lawyer can:

• be with you for the police interview, or advise you not to take part
• apply for bail and negotiate the conditions
• review the brief of evidence and identify weaknesses, including the law of consent and knowledge
• prepare the case for hearing or sentence, including character evidence and reports
• appear for you in the Local Court and the District Court

Our sexual assault lawyers act for people accused of sexual offences across Sydney and NSW, and every enquiry is treated confidentially and without judgement.

Two Illustrative Examples

These are illustrative examples, not real clients. Outcomes depend on individual circumstances and are never guaranteed.

A call from police. Daniel is 29. A detective phones to say a complaint has been made about a night out three weeks ago and asks if he can come to the station to give his side. He thinks that explaining will clear it up. Before attending, he calls a lawyer, who explains that the interview is voluntary, that anything he says is recorded, and that he can decline or have a lawyer present. The question for Daniel is whether to take part at all, and if so, on what basis. A lawyer would want to see what police are relying on before deciding.

An old allegation. Priya is 41. She is charged with an offence said to have happened more than a decade ago, based on a complaint made last year. There is no forensic evidence, and the case depends on the complainant’s account and a handful of messages. The issues include the delay, what the messages show, and how the law at the time applies. Her lawyer focuses on obtaining the full brief, getting the relevant records and testing the account through cross-examination. The outcome depends on what the evidence shows.

Frequently Asked Questions

What is the penalty for sexual assault in NSW?

Sexual intercourse without consent (section 61I) carries a maximum of 14 years’ imprisonment, with a standard non-parole period of 7 years in the higher courts. Aggravated sexual assault carries up to 20 years, and aggravated sexual assault in company carries life imprisonment. Sexual touching carries up to 5 years. The actual sentence depends on the circumstances of the offence and the offender.

Do I have to go to a police interview?

No. If you’re not under arrest, attending is voluntary. If you are arrested, you can still decline to answer questions apart from giving your details. Get legal advice before you decide, because your interview can be played to the jury.

Can I be convicted on one person’s word?

Yes, a conviction can be based on the complainant’s evidence alone if the jury is satisfied of guilt beyond reasonable doubt. That is why the reliability of the evidence, inconsistencies and any other material are examined closely.

Does it matter if I was drunk?

If you were intoxicated by your own choice, that is disregarded when deciding what you knew or believed about consent. If the other person was so affected by alcohol or drugs that they were incapable of consenting, the law treats that as no consent. See our guide on consent when drunk or high.

Can I get bail for a sexual assault charge?

Bail is decided under the Bail Act 2013 and depends on the charge, your history, the strength of the case and the risks the court considers, such as flight or contact with the complainant. Many people are granted bail with strict conditions, but it is not automatic. Get advice about your own position.

What if the allegation is from years ago?

Delay doesn’t prevent a charge, but it can make evidence harder to test and the court takes it into account. Different law may apply depending on when the alleged events occurred, so a lawyer will check which version of the offence and which rules apply.

Will I go to jail if I’m convicted?

Imprisonment is the usual outcome for sexual intercourse offences, and non-custodial sentences are unusual. For lower-level charges such as sexual touching, a wider range of outcomes is possible. The court considers the circumstances of the offence and your personal circumstances.

Talk to Us in Confidence

If you or someone close to you has been accused of a sexual offence, speak to a lawyer before you speak to police or take any step. Call LY Lawyers on 1300 595 299 for a free, confidential consultation, available 24/7, or contact us online.

This article is general information only and is not legal advice. The law changes, and this article is current as at 2 November 2026.