Navigating the Justice System

The Criminal Justice Process

If a sexual offence has occurred, you can report it to the police. This is the first step in bringing criminal charges against the perpetrator. Most sexual offences in the ACT are tried in the ACT Supreme Court. To learn more about making a report to police, see the Police and Investigation page.

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When will a matter proceed to court?

Once police have investigated a sexual violence matter and have decided that there is a basis to lay charges, the matter is given to the ACT Office of the Director of Public Prosecutions (DPP), who will evaluate whether it should proceed to court.

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Not all sexual violence matters proceed to court, even after a police investigation. Prosecutors must consider a range of factors in their evaluation, including:

• Whether there is sufficient evidence

• Whether there are reasonable prospects of the case being argued successfully and a conviction being obtained, and

• Whether bringing the matter to court is in the public interest.

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When is a matter in the ‘public interest’?

If a prosecutor is satisfied that there is sufficient evidence and a likelihood of conviction, they will then determine whether pursuing a conviction is in the public interest. Many factors are relevant in determining public interest and are assessed on a case-by-case basis. Examples of factors taken into account are:

• The seriousness of the alleged offence

• The youth, age, background, physical health, mental health or special vulnerability of the perpetrator, a witness or victim-survivor

• The availability and effectiveness of alternatives to prosecution

• The likely length and expense of a trial

• The views of the victim-survivor.

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This is a non-exhaustive list and many factors can be taken into account. While victim-survivors cannot decide whether a matter ultimately proceeds to court, their views are often given significant weight by the DPP (especially in sexual offence cases).

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Victim-survivors whose matters proceed to court are often called to give evidence during the trial, which can be very distressing. This means that the DPP must also consider whether the victim-survivor will be able to cope with giving evidence and experiencing a potentially lengthy criminal trial. Prosecutors will also need to assess the reliability and credibility of the evidence - this is a question of whether the jury or judge would be satisfied that the offence occurred, based on the evidence, beyond a reasonable doubt. This is a very high standard of proof. However, if the perpetrator of the sexual offence pleads guilty, they may be sentenced without the matter proceeding to a trial.

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It may take years for a trial to begin in court after the incident was first reported to police. There is no standard length of time from initial police report to the beginning of court proceedings. There will likely be frequent delays which also lengthen the criminal justice process. However, if the victim-survivor is deemed to be a 'vulnerable adult', they may be able to give evidence at a pre-trial hearing so their involvement in the trial process can be finalised earlier. Due to this lengthy process, there is potential for re-traumatisation and further harm to occur. The criminal justice process may not be the right avenue for many individuals. It is important for victim-survivors to seek legal advice and professional support for more information about the criminal justice process.

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Important organisations and services to know

ACT Office of the Director of Public Prosecutions (DPP)

The DPP are the lawyers responsible for prosecuting criminal offences in court on behalf of the ACT community. This means that, in sexual violence matters, the DPP are responsible for deciding whether a matter will proceed to court and then proving that the sexual offence occurred beyond a reasonable doubt.

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Victim-survivors whose matters proceed to court will often be called as witnesses by the DPP to give evidence against the perpetrator. The DPP takes the victim-survivor’s interests and wishes into account throughout the prosecution. However, while the DPP may seek to prove that a sexual offence was committed, they do not represent victim-survivors in court.

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Witness Assistance Service (WAS)

The Witness Assistance Service (WAS) is part of the DPP and is staffed by witness liaison officers. WAS gives priority to vulnerable witnesses, such as victim-survivors of sexual offences, people under the age of 18 or witnesses with a disability or mental health concerns.

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WAS can assist victim-survivors whose matters proceed to court by:

• Organising and attending meetings between victim-survivors and DPP lawyers in preparation for trial

• Providing updates on the matter as it proceeds in court

• Providing information to victim-survivors about their rights, any special provisions for giving evidence and available support services

• Arranging court visits so that witnesses can familiarise themselves with the court environment

• Assisting witnesses to prepare Victim Impact Statements

• Providing information about verdicts and sentencing at the end of the trial.

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Although WAS works with victims of crime, it does not work for them. WAS does not provide counselling, representation or seek to influence prosecutorial decisions or legal outcomes in any way.

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Victim Support ACT

Victim Support ACT provides support, advocacy and financial assistance to people who have experienced a crime in the ACT. Victim Support ACT also provides a Court Support Program run by volunteers who can provide practical information and assistance to victim-survivors attending the ACT Magistrates Court and the ACT Supreme Court. For more information about Victim Support ACT and their contact details, see page 130.

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Intermediaries

Intermediaries are trained officers of the court who can be appointed in matters involving vulnerable witnesses for sexual violence cases. Vulnerable witnesses include children and can also include adults with a communication difficulty related to disability, trauma or cultural and linguistic background.

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Intermediaries are often health professionals and are impartial, meaning that they do not represent the witness and cannot discuss the matter or content of the case. They do not act as a support person for the victim-survivor, but rather ensure that they are able to communicate effectively and safely with police, legal practitioners and other court staff during proceedings. Intermediaries can also be present during police interviews. For more information about intermediaries, see page 58.

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If deemed necessary, the DPP may apply for an intermediary for a victim-survivor to facilitate communication during questioning at court. Victim-survivors who would like assistance from an intermediary can ask police when making a report or contact Victim Support ACT. The Court may also appoint a witness intermediary if necessary.

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Note: The DVCS Court Advocacy Program can also support victim-survivors during criminal proceedings for sexual violence matters within a domestic and/or family violence context.

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Before court

Prior to the trial, victim-survivors will meet with the DPP prosecutor/s who will be conducting the matter in court. A WAS liaison officer may also be present to support victim-survivors and assist with these preparations. Victim-survivors may be accompanied by a support person during the meeting.

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During the court process

Most sexual offence proceedings in the ACT occur in the ACT Supreme Court, located at 6 Knowles Place, Canberra ACT 2601.

 

The proceedings in the ACT Supreme Court are heard in front of a 12-person jury who are responsible for deciding whether the accused perpetrator (often referred to as the defendant or the accused) is guilty or not guilty beyond reasonable doubt. A Judge is also present to guide the proceedings and sentence the perpetrator if found guilty. Other important people involved in sexual offence proceedings are the DPP prosecution team, the defence team (if the perpetrator has sought legal representation) and witnesses who may be called to give evidence, which usually includes the victim-survivor and investigating officers.

 

Before calling witnesses to give evidence, both the prosecution and defence teams will be given an opportunity to outline their case to the jury. This includes explaining the incident and the nature of the charges brought against the perpetrator.

 

Please note that the identity of victim-survivors involved in court proceedings must be kept confidential from the public and cannot be reported on by the media without the victim-survivor's consent. While this same confidentiality is not given to the perpetrator, their name will be withheld if it reveals the victim-survivor's identity. However, a victim-survivor may choose to have their identity reported on.

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The courtroom and remote witness facilities

In sexual violence or domestic violence matters, victim-survivors sit in a separate room near the courtroom (a ‘remote witness facility’) to give evidence. This is to protect them from seeing the perpetrator directly in the courtroom. Both the remote witness facility and courtroom are linked via videolink, so that everyone in the courtroom can see and hear the victim-survivor give their evidence. A support person, such as a friend or family member, or a support animal, can sit with the victim-survivor in the remote witness facility as long as they are not giving evidence too. Staff from the CRCC or the DVCS can also support victim-survivors while giving evidence. Victim-survivors may also ask to give their evidence in the courtroom if they wish. This decision is a personal choice of the victim-survivor about where they feel best to give their evidence.

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Giving evidence: Examination-in-chief and cross-examination

Victim-survivors will be required to give evidence during the trial by answering questions about their witness statement.

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First, the DPP prosecutor will ask questions about the sexual violence incident and the information contained in the witness statement. If there was a recorded statement made to police, this will be played to the court and the prosecutor may ask follow up questions (to learn more about recorded statements, see page 57). This is called examination-in-chief. The purpose of these questions is to allow the jury, judge or magistrate to understand the victim-survivor’s full account of the facts.

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Next, the defence team will ask the witness questions about their answers. This is called cross-examination. The purpose of these questions is to test evidence. For this reason, cross-examination can be incredibly distressing or re-traumatising for victim-survivors. If the perpetrator is unrepresented, the court will appoint a registrar to cross-examine the witness on their behalf. There are certain topics that a victim-survivor cannot be cross-examined about, including their sexual history and confidential medical information (including counselling records), without the court's approval.

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Victim-survivors can ask for breaks during examination-in-chief and cross-examination if necessary.

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Child witnesses

For child witnesses in sexual offences, their evidence can also be presented to the court in the form of a recorded interview between the child and the police. A child will still have to attend court (using the audio-visual link) for any further examination-in-chief and cross-examination.

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The verdict

The verdict is the jury’s decision about whether the perpetrator is found to be guilty or not guilty beyond reasonable doubt. If the perpetrator is found guilty in either the ACT Supreme Court or the ACT Magistrates Court the matter will proceed to sentencing. Sometimes the perpetrator is sentenced immediately, but usually a date is set for a future court hearing so that the judge or magistrate can consider the appropriate sentence. If the perpetrator has pleaded guilty, the matter will generally proceed to sentencing.

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If the perpetrator is found not guilty, it does not necessarily mean that the jury, judge or magistrate did not believe the victim-survivor and/or the witness. It means that the charge against them could not be proved beyond a reasonable doubt or an additional factor influenced the verdict (for example, if the perpetrator is found to suffer from a mental impairment). Note: The DPP might choose to appeal this decision.

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After court

Sentencing

If a sentencing hearing has been set after a verdict has been reached, the offender will be required to return to court. Victim-survivors can attend the sentencing hearing but are not required to do so. Each sexual offence in the ACT carries a maximum penalty, but the judge or magistrate will decide the appropriate sentence in each matter. This may be a term of imprisonment, community service, mandatory counselling or some other form of obligation. The WAS and Victim Support ACT are available to explain verdicts and sentencing to victim-survivors during and after trial.

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Victim Impact Statements (VIS)

Victim-survivors have the right to make a Victim Impact Statement (VIS) to the court at the time of sentencing. This is a written or spoken statement which describes to the court the impact of the crime and harm it has caused. This can include physical, psychological and emotional harm, economic loss and/or other damages.

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VIS are voluntary. They can be read aloud in court during the sentencing hearing by the victim-survivor themselves, a support person, the prosecutor or be tendered to be read by the judge or magistrate at sentencing. The court may grant more time for a VIS to be prepared in a sentencing proceeding for serious offences (offences punishable by imprisonment for longer than five years). VIS help the court understand the personal impact of the crime on the victim-survivor and their supporters. A victim-survivor may be cross-examined by defence lawyers about their VIS. As such, a VIS can only refer to crimes for which the perpetrator was found guilty.

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More information about VIS, including the Victim Impact Statement form for witnesses to fill out, can be found on the Victim Support ACT website. Victim Support ACT, DVCS, the WAS and VLOs can also assist witnesses in preparing their statements.

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ACT Victims Register

If the perpetrator has been convicted and sentenced, victim-survivors can elect to have their name and contact details recorded on the ACT Victims Register to receive information about the perpetrator and the administration of their sentence. There are three registers in the ACT:

• The Victims of Adult Offenders Register (generally referred to as the ACT Victims Register)

• The Victims of Young Offenders Register (for perpetrators who were under the age of 18 when the offence was committed), and

• The Affected Persons Register (used when the defendant or offender has been found not guilty by way of mental impairment).

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For adult perpetrators, the information that a victim can receive once registered includes:

• The length of their sentence, the date they will be eligible for parole and their earliest release date

• The correctional centre where they are detained and any subsequent transfers between facilities

• Any changes in their security classification which may result in the perpetrator being eligible for unescorted leave

• Any unescorted leave given to the perpetrator, and

• The death, escape or any other exceptional event relating to the perpetrator.

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Information that is kept on the ACT Victims Registers is confidential and is only used to contact and inform a registered victim about a sentenced offender. Victim-survivors can contact Victim Support ACT for more information. See page 130 for contact details.