How sexual crimes are handled in court
In Victoria, the Office of Public Prosecutions (OPP) 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.
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 Criminal Procedure Act 2009 (Vic) (‘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.
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. 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
- the extent of any proposed admissions; and
- the probative value of the proposed evidence of the witness; and
- the issues in dispute; and
- the weight of the proposed evidence of the witness; and
- any statements of other witnesses that contradict the proposed evidence of the witness.
A specified witness includes the complainant in relation to a charge for a sexual offence, or an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008 (Vic).
If the matter does not resolve, then the victim/complainant may need to give evidence at trial. If the complainant is an adult, and does not have a cognitive impairment, they must attend court.
Evidence from people with a cognitive impairment may be taken at a special hearing, and then provided to the jury at the trial via video.
Where the complainant is a child, evidence given to support the prosecution will generally be in the form of a tape-recording of the statement the child gave to police officers.
A complainant cannot be directly cross-examined by the accused. There are restrictions on what sorts of questions a complainant can be asked in court.
When a complainant gives evidence in court, the court can provide alternative arrangements to make the complainant as comfortable as possible (e.g. evidence can be given by closed-circuit television, so the complainant doesn’t have to be in the court room). Also, sometimes at the County Court and Magistrates’ Court, a private room is available for complainants to wait in before their court appearance. For more information about the facilities available for complainants, contact Court Network or the criminal registry at the court (see ‘Contacts’).
If the accused pleads guilty, the complainant does not need to give evidence.
Any information that identifies a victim of a sexual offence usually cannot be published.
Either after a guilty plea or a guilty verdict, the accused will be sentenced. The judge or magistrate may consider a range of factors when sentencing, including aggravation (e.g. the use of weapons, infliction of physical injury, or threats), the accused’s character, the need for punishment, and the need to deter the accused and others from committing offences, as well as the potential for the accused to be rehabilitated.
The judge or magistrate may also consider the impact on the victim and those associated with the victim. The impact is mainly determined by the victim impact statement.
A victim impact statement outlines how the crime has affected the victim. The victim impact statement must be prepared prior to sentencing and made available to the prosecutor, the court and the accused’s lawyer.
The accused may appeal against the conviction and/or sentence.
Under section 85B of the Sentencing Act 1991 (Vic), a victim of sexual assault can seek a court order for compensation for loss, destruction or damage of property, and for pain and suffering caused by the assault. An application for a compensation court order must be made within 12 months of the offender being found guilty (s 85C), although an extension of time can be granted (s 85D). The victim should seek legal advice before applying for compensation.
A victim of sexual assault may also seek victims of crime compensation. See Chapter 10.6: Assistance for victims of crime.
For more information about these options, contact a community legal service, Victoria Legal Aid or a private lawyer (for contact details, see Chapter 2.2: How legal aid can help, and Chapter 2.4: Legal services that can help).