Investigation

After the completion of your statement, an investigating officer should take carriage over your investigation. This may first involve passing your case on to a designated sexual offence investigation team, if applicable in your state, or to the station closest to where the assault occurred, if you had not already been reporting there.

The investigating officer will take statements from other witnesses, such as family members or friends who had significant engagement with the perpetrator, or significant engagement with you in relation to your assault. The crime scene may be examined, and your text messages and photos may be downloaded if relevant (this often takes several hours). The investigating officer might reach out to the perpetrator to ask that they participate in an interview (which they can decline), or, they might not actively engage with the perpetrator.

The time it takes to gather evidence to corroborate your story varies for each case, but usually takes several months.

Charges

Once all information has been obtained, the investigating officer and any consultant officers will make an assessment about whether there is sufficient evidence to bring the matter before the courts. If so, they will charge the perpetrator with sexual assault, and/or any other criminal offenses they have committed.

Before arrest, the perpetrator will often be given the opportunity to interview. In films and TV shows, perpetrators almost always choose to exercise their right to remain silent. This is true for real life too, as most legal representatives will advise their clients to remain silent. In these cases, police must consider if the evidence is sufficient to charge an offender in the absence of their version of events.

The perpetrator will be notified when charges against them are laid, either by a summons or court attendance notice, to appear in court on a certain date, or being arrested and granted bail or kept in custody until the prosecution finishes. 

The perpetrator will be required to pay bail should they wish to be free in society until the court case. This is about ensuring that the perpetrator attends court, and that the victim is safe until the matter is resolved. Bail conditions will vary depending on the seriousness of the charge/s – e.g. some perpetrators will be allowed to travel interstate, others will not. However, some perpetrators, especially those experiencing intersectional discrimination, will be refused bail. This is particularly true for Indigenous defendants, who statistically are less likely to receive bail. Police may decide to refuse bail if the perpetrator is especially dangerous, although this can be overturned by the courts, and often is. It may feel disappointing if the perpetrator is offered bail, but this is common, often due to the fact that this may be their first reported offence. Being offered bail is not an indication of whether police believe you.

The perpetrator now becomes known as a defendant. They might be issued a personal protection order or a domestic violence protection order. The names of such orders differ across states, but function in the same way – to attempt to minimise certain types of contact from the defendant to the protected person. Any domestic violence protection order is automatically valid across all states as of 2017. Where an order is breached, the matter becomes a criminal offence.

If police are unable to charge the perpetrator, it does not mean that they don’t believe you. It just means that they do not have enough evidence lay charges. Sometimes more information may emerge at a later date, and a perpetrator can be charged years after a sexual crime was committed.

Director of Public Prosecutions

The case will now be handed over to the Office of the Director of Public Prosecutions (DPP). The DPP is the independent prosecuting authority of serious crimes under law in each state on behalf of the community. The DPP’s role is to decide whether the prosecution of a defendant should proceed, and then to represent the safety of the community by presenting the case in court. This is an odd distinction – the DPP will assign a solicitor to the case, and later a Crown prosecutor or external contracted barrister who will lead the prosecution team, but they are not representing you; this isn’t even your case – you are the key witness in the state’s case against the perpetrator, who is a threat to the safety of the community. All criminal matters are handled by the state in this way.

Officers of the DPP will comb through the brief of evidence given to them by police, and determine whether the proposed charges are fitting. They might add or eliminate certain charges, and then they will certify them, which simply involves paperwork.

In some states, the decision of whether to proceed with the prosecution of charges goes through a committal hearing, where a magistrate considers the evidence that the DPP intends to use, and decides if the matter will proceed to trial. There is no jury present for a committal hearing.

Keep in mind that, similar to the potential rotation of investigating officers involved in giving your statement, the solicitor assigned to the case may change in the time preceding trial – again, it is important not to get too attached early on.

Court Process

Australia has three levels of court for criminal matters. Cases are allocated depending on how serious the offence is, and which state or territory the matter is heard in. Sexual offence cases are considered serious, or indictable offences, and so are heard in a higher court. 

After the case has been taken on by the DPP, there will be a number of court listings. There are a few types of court listings that a case can go through, and these do not always occur in the same order – it depends on what issues come up and when. Court listings will be happening all the way up until trial.

You may feel like you are ‘out of the loop’ during this time, but the bulk of court listings are purely administrative, and do not involve you. You can ask to be updated about the progression of the case by your Witness Assistance Service Officer (WAS), who is allocated to you by the state.

Mentions
Mentions are simply check-ins with the prosecution and the defence to: ensure administrative paperwork is in order, ask how much time the defence needs to examine the brief of evidence before deciding if they want to plead, arrange any hearings, and determine whether the case will be heard in the local or district court. Although short (literally minutes), mentions are drawn out over several months. As mentions are purely administrative, you will not be required to attend. The defendant will typically attend the first mention with their solicitor/s, and then is usually not required for the remaining mentions. Eventually there will be an arraignment mention, after which, if the accused pleads not guilty, a trial date will be set.

Hearings
A hearing is a court listing where something substantial is being argued by the defence or prosecution. A common hearing is one that relates to a Sexual Assault Communication Privilege Act (SACP) or equivalent. Such Acts aim to protect any confidential communications between a victim and a counsellor. Provisions are most commonly formulated as a privilege (a right to resist disclosing information that would otherwise be disclosed) or an immunity (prevention of the disclosure of information when the public interest in non-disclosure is greater than the interest in disclosure).

These Acts are important to the extent that the defence applies for access to a complainant’s medical history in an attempt to:

• Find discrepancies between a victim’s potential first disclosure at a clinic or practice and their statement, in order to discredit the victim’s memory during cross-examination
• Find the victim to be in poor mental health, in order to argue them to be ‘unreliable’ or ‘unstable’ during cross-examination

Such defences are archaic, and are thankfully somewhat negated by SACP or equivalent legislation. After the application has been made by the defence, both parties present evidence as to why access should or should not be denied at an interlocutory hearing. Then, a final hearing will determine the outcome of the issue.

Voir Dire
A voir dire is a pre-trial procedure to determine the admissibility of a particular piece of evidence, held when one party challenges the admissibility of that piece of evidence. Such a challenge may be on the basis of hearsay or prejudice, for example. The court will make findings of fact after hearing submissions from both sides.

Plea

Once charges have been certified, the allocated DPP solicitor and the defence solicitor/s will meet to negotiate how the accused will plead. A Crown Prosecutor or external contracted barrister may participate in this part of the process to assist the DPP solicitor. Ideally, the Crown Prosecutor or external barrister who is allocated will be the same for this process as for the trial, so that they are familiar with the case. However, this rarely happens due to high turnover of cases.

The aim of plea bargaining is to give both parties an opportunity to avoid going to trial, should they wish. The defendant may plead guilty to less severe offences if the prosecution agrees to drop weightier offences. For example, they may plead guilty to a count of indecent assault, so long as the count/s of sexual assault are removed from their record.

Being offered a plea deal can be a sick twist of irony – you are finally given decision-making power to make an incredibly difficult decision that you almost wish you didn’t have to make. It is important (although really hard) not to make your decision based on outcomes, because you cannot predict what will happen should you go to trial. Instead, it may help to imagine how you are going to feel if you take a plea deal, versus if you go to trial and do not achieve the outcome that you want. You have time to consider a plea deal, and if by the date of the next mention you have not made a decision, the DPP may offer to extend negotiation time. Our forum can provide unique guidance about what other victims chose to do and why. If you accept the plea deal, the defendant will be entitled to a 25% reduction in sentencing. This reduction will decrease the closer the plea deal is offered to the trial. If you do not accept the plea deal, a trial date will be set.

In most cases, the defendant will not offer a plea deal at all. They will plead ‘not guilty’ to all charges and a trial date will be set. Given the state of our legal system, this often involves waiting in a queue for a date.

Trial

When a trial date has been set, victims and other witnesses will receive a subpoena in the mail and by email, requiring attendance at court. The DPP solicitor and Witness Assistance Officer will meet with you shortly prior to trial to prepare you to give evidence, although this will not be detailed. You may ask to tour a courtroom to familiarise yourself. By this time, you will have been assigned a Crown prosecutor or external contracted barrister, who will lead the prosecuting team.

Being allocated an external barrister rather than a Crown Prosecutor is not any indication of the severity of your matter – some states simply contract external barristers, who are skilled in prosecuting criminal matters, but do not work solely for the DPP.

As sexual assault is a crime against the state, the name of the trial will be Regina V “last name of perpetrator”. If there were to be a King, the name of the trial would be Rex V “last name of perpetrator”.

Jury empanelment will take place after a Judge and a courtroom have been assigned to the trial. Twenty potential jurors will be called for jury duty. The prosecution and the defence will select four jury members each to exclude so that twelve jurors remain. Exclusion aims to eliminate jurors who may be biased one way or another in their verdict. For example, the defence may try to eliminate young women, who are more likely to be sympathetic to your case. Any jury member with knowledge of any person involved in your court case, or even knowledge of someone who knows someone involved in your court case, will be eliminated. Aside from this, any juror with experience of sexual assault, including exposure through work, such as social workers, will also be eliminated. Jury empanelment can sometimes take a full day.

You will be the first witness called to testify – you are known as the ‘evidence in chief’. You have the option of providing evidence by video link from a private room, or from the courtroom. In both cases you may take a support person of your choosing with you. If you choose to give evidence from the courtroom, you can expect to see the judicial officer, known as the Judge in the District and Supreme courts and the magistrate in the Local and Children’s courts; the Judge’s associate, who is helping the judicial officer with any documents used, such as exhibits; court staff, who help with administration and give the affirmation to each witness; the sheriff’s officer, who is responsible for security; a court recorder or monitor, to record the trial; the jury, should the matter be a jury trial; the Crown Prosecutor and solicitor from the DPP; the defence solicitor/s; and the perpetrator. You will sit in the witness box next to the judicial officer, facing the defence team and the prosecution. The perpetrator may be permitted to sit behind the defence team, otherwise they will be in a special area called the dock.

Unless an order is made for a closed court, members of the public, including media persons, are allowed to view the trial from the public gallery. Closure orders are generally mandatory in cases involving children, while there is a presumption that a court will be closed during evidence from complainants of sexual offences in both adult and child cases. For all other witnesses in adult sexual assault cases, the court is open to the public. If a media person is allowed to sit in a closed court after seeking permission, they must still comply strictly with non-publication and suppression orders about which details can be made public, like the names of witnesses or any other information that might identify them.

Your evidence will likely be recorded to minimise the likelihood of you being called back should the case be re-trialled. However, in some cases you may be called back for further questioning from the defence.

The Crown Prosecutor will begin by asking you open-ended questions so that you can retell your story. They will continue to ask you questions until they are satisfied that they have covered all of the necessary parts of your statement, which they will hold a copy of. The jury will not have access to your statement, so as overwhelming as it is, this is your time to speak your truth. Once the Crown Prosecutor is satisfied with your retelling, they will end their questioning.

You will then be cross-examined by the defence solicitor or barrister. This experience is known to be re-traumatising. The defence will try to discredit you. They will challenge your truths. They may bring up your state of intoxication, your sexual history with the defendant (not in general – see mythbusting) and your emotional state. They aim to highlight inconsistencies in your evidence, which will often lead you to second guess yourself. They will propose wild alternatives to your story about what happened and try to deem your protests as hearsay. They will insist that you did consent to the sexual assault. A closed-questioning strategy will be used, which limits your voice and the reasoning of your actions. A defence barrister may move to strike some of your sentences from the record, in the hopes of getting you to say ‘yes’ rather than ‘yes, but…’. They may also interrupt you to prevent you from explaining further, or ignore or smirk at your responses. Please search our forum or ask your own questions about how other victims side-stepped this strategy and were able to tell their story how they wanted to.

After the defence cross-examines you, there will be an opportunity for the Crown Prosecutor to reexamine you. This may include giving you a chance to elaborate on parts of your evidence that the defence would not let you explain, or presenting an alternative or opinion to events that the defence have tried to describe negatively.

Other witnesses may then be called to give evidence, including the Officer in Charge (the investigating officer). Each Crown witness will be cross-examined by the defence after they have testified. The cross-examination of the Officer in Charge is likely to be just a question – whether the defendant has any prior charges to their name. Cross-examination of other Crown witnesses may be longer and more complex.

Once you have given evidence, you can go into or stay in the courtroom to watch the trial, or you can exit. The same applies for witnesses once they have given evidence. No witness is able to watch another witness give evidence until they have testified themselves. The goal is for each witness to tell their own truth, regardless of how that may vary from other witnesses. You may be advised not to watch other witnesses testified, despite already having testified yourself. This is to prevent evidence contamination in the event of a retrial. In addition, some solicitors advise that it is ‘not a good look’ for you to appear too interested in the trial.

After any witnesses have given evidence, the defendant is given the choice to take the stand, but rarely does. The defence may call other witnesses, including family members, partners or friends of the defendant. For witnesses called as character references for the defence, we advise that you don’t listen; it doesn’t matter how ‘nice’ that person thinks the perpetrator is, if they weren’t a witness to the crime, their opinion is irrelevant.

Both the prosecution and the defence will give closing statements, which involves summarising what they consider to be the parts of the evidence from all witnesses that the jurors should especially take note of. It can be compared to the closing of an essay. Again, you may choose to enter or exit the courtroom, or listen remotely to the closing statements. The judge will then make closing remarks.

After all evidence has been presented, the jury will deliberate. All twelve jurors must come to a unanimous decision in order for the verdict to be delivered. In some cases, if eleven jurors argue one way and the twelfth argues the other, the judge may overrule the disagreeing juror. If they are unable to come to a verdict, the jury is ‘hung’ and there may be a retrial. A not-guilty verdict is not a reflection on your credibility as a witness, nor is it an indication that the crime did not occur. There is just not enough evidence to eliminate the fraction of doubt it takes for a not-guilty verdict. You may choose to be present for the announcement of the verdict, or to find out through the DPP afterwards.

Sentencing

If the defendant is found guilty, a date for sentencing will be set. At a sentencing hearing, both parties present arguments to assist the Judge in imposing an appropriate sentence.

As you have been impacted as a direct result of this crime, you will have the opportunity to provide a ‘victim impact statement’ at sentencing. In some circumstances this may affect what type of sentence is given. Unfortunately, there are many rules regarding your impact statement, and your Witness Assistance Officer and prosecutor will guide you through this. You cannot write about crimes that the defendant was not found guilty of. The defence is permitted to question a witness on their victim impact statement, so the DPP may ask you to remove certain sections that could lead to questioning. You may choose to read your impact statement remotely, or in court, or have a support person read it in court. Alternatively, you may give it directly to the judge to read privately. The perpetrator will have access to your impact statement.

Often the Judge isn’t ready to hand down a sentence on the same day as the sentencing hearing, so they may reserve judgement until a few weeks later.

The defendant’s sentence can range from a fine or a community corrections order (community service and good behaviour bond), to gaol time. Maximum gaol time in NSW is 14 years for sexual assault, or 20 years in circumstances of aggravation. Find the maximum sentences in your state or territory here.

Appeal

After a defendant has been sentenced, they have the option to appeal against being found guilty, and/or against their sentence. The defendant must file a Notice of Intention to Appeal (NIA) within 28 days (which begins from the date of sentence, if they intend to appeal the sentence and not the verdict), otherwise they must file their NIA with an application for an extension of time. After the NIA, if no appeal is filed within 12 months, the Intention expires and the defendant must apply to ‘seek leave’ to file a NIA out of time. This may or may not be granted. Sometimes defendants file a NIA to keep their options open. There is no guarantee that they will appeal.

While the defence’s appeal of a sentence is rarely approved, an appeal of a guilty verdict can initiate a retrial. See ‘other outcomes’ below for more information about retrials.

The prosecution can appeal against a sentence if they believe it to be too light, but cannot appeal a ‘not guilty’ verdict (except under very special circumstances).

Other Outcomes

There are alternative outcomes to a guilty or not-guilty verdict.

Hung Jury

If members of a jury cannot all agree, the jury is called ‘hung’ and may initiate a retrial. Following a hung jury, the defence can submit a ‘No Bill’ application to the DPP, stating that there should not be a retrial because of perceived weaknesses in the prosecution’s case. However, the DPP will usually retry a matter after a hung jury. If there have been two trials with hung juries, a third trial will only occur in ‘exceptional circumstances’.

Mistrial

There are many reasons why a mistrial occurs. A mistrial might occur if a juror is dismissed for misconduct; if the jury is provided with evidence that they should not have heard; if a judge or solicitor becomes unavailable due to sickness or death; or if the jury is hung.

Retrial

Complainants are typically not required to give testimony again in a retrial; the best copy of their evidence in chief and cross examination will be used, i.e. the transcript, an audio recording, or video recording. Witnesses, however, will give their evidence again.

A retrial differs from a trial for several other reasons. Because of double jeopardy, any indictments that the perpetrator was not found guilty of in the first trial, cannot be trialled again. Only the counts that were found not-guilty are retried. Because of the ceiling principle, an offender will rarely receive a harsher sentence or non-parole period than imposed in the first trial. Circumstances where they might receive a harsher sentence include escaping custody or committing offences while on bail.

Discontinuing Prosecution

Occasionally, the DPP will decide not to continue prosecuting a case. Reasons for this include the victim not wanting to proceed, in which case charges will be dropped. Or, the defendant may experience illness, in which case a different legal process, verdict and penalty may apply (see crimes involving mental illness or impairment). Due to this leniency, it is not unheard of for a defendant to check themselves into a mental institution to avoid or to postpone any of the court processes. This is a gross abuse of privilege, and contributes to the misconception that most people who commit sexual crimes are mentally unwell.