The Law Handbook 2024

Chapter 3.3: Sexual offences 165 Going to court for a sexual offence How sexual crimes are handled in court In Victoria, the Office of Public Prosecutions ( OPP ) or Victoria Police acts on behalf of victims to prosecute people accused of sexual assault. The victim is a witness in the OPP’s case and is known as the ‘complainant’. The alleged offender, known as the ‘accused’, has a right to be presumed innocent and a right to be legally represented. The prosecution must prove the case against the accused beyond reasonable doubt. Serious sexual crimes (indictable offences that cannot be heard and determined summarily) are heard in the County Court before a judge. Other sexual matters are heard in the Magistrates’ Court before a magistrate. Ground rules hearings are hearings at which the court considers the communication, support or other needs of witnesses and decides how the proceeding is to be conducted to fairly and effectively meet those needs (s 389AB CP Act). This applies to witnesses who are complaints in sexual offences and witnesses which are children and adults with cognitive impairments. The court may direct that a ground rules hearing is to be held in a proceeding for a sexual offence, a family violence offence, indictable offence which involves an assault on, or injury or a threat of injury to, a person; or a summary common law assault or aggravated assault offence (s 389A CP Act). A ground rules hearing must be held if there is an intermediary appointed under Division 2 of the CP Act or a witness is a complainant in relation to a charge for a sexual offence (s 389B CP Act). Intermediary schemes aim to facilitate vulnerable witnesses to give their best evidence. Intermediaries are trained professionals, who are officers of the court, with specialist skills in communication. If a ground rules hearing is to be held, it must be held before the commencement of any hearing at which a witness is to give evidence (s 389C CP Act). The prosecution and defence representatives must attend the ground rules hearing; as well as any intermediaries appointed. A witness/complainant is not required to attend a ground rules hearing (s 389D CP Act). At a ground rules hearing, the court may make or vary any direction for the fair and efficient conduct of the proceeding; including the manner and duration of questioning a witness, the questions that may or may not be put to a witness and the aides to help communicate a question (i.e. maps, plans, models) (s 389E CP Act). The Magistrates’ Court of Victoria Practice Direction No. 5 of 2023 sets out the process of these ground rules hearings. If a matter is being heard in the Magistrates’ Court and the accused pleads not guilty, the victim will proceed to a contest mention hearing, where matters set out in section 55 of the CP Act are discussed; these matters include the time estimated for the hearing, the availability of witnesses (including the victim/complainant), and what evidence will be relied on. If the matter does not resolve at the contest mention hearing, then it will proceed to a contested hearing. If the complainant is an adult, and does not have a cognitive impairment, they must attend court and be examined (i.e. questioned by the prosecuting lawyer) and cross-examined (i.e. questioned by the accused’s lawyer). If the matter is being heard in the County Court and the accused pleads not guilty, the matter will proceed to a committal hearing (s 128 CP Act) in the Magistrates’ Court before it is heard in the County Court. At a committal hearing, the magistrate will determine if there is sufficient evidence for a jury to find the accused guilty. Pursuant to section 123 a magistrate must not grant leave for a complainant/witness who is a child or a person with a cognitive impairment to be cross-examined in a sexual offence proceeding. For a specified witness to be cross-examined, they must be granted leave by a magistrate under section 124 of the CP Act. When deciding whether to grant leave, the magistrate must have regard to: • the need to minimise the trauma that might be experienced by the witness in giving evidence; and • any relevant condition or characteristic of the witness, including their age, culture, personality, education, and level of understanding; and • any mental, intellectual, or physical disability to which the witness is, or appears to be, subject and of which the court is aware; and • the importance of the witness to the case for the prosecution; and • the existence or lack of evidence that corroborates the proposed evidence of the witness; and