How sexual assault crimes are handled in court
In Victoria, the Office of Public Prosecutions (OPP) acts on behalf of victims to prosecute people A person who has been charged with a crime. Also known as a defendant. of sexual assault. The victim is a A person who can provide direct information based on their own knowledge about a relevant fact, and appears in court to give evidence about it. In some cases a witness may provide an affidavit or deposition setting out their evidence if they are not able to attend court. in the OPP’s case and is known as the ‘complainant’.
The Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. A person who has committed a crime., known as the ‘accused’, has a right to be presumed innocent and a right to be legally represented. The The party presenting evidence in court on behalf of the state or Commonwealth government against a person accused of committing a crime. Also called the Crown. must prove the case against the accused The level of proof (or standard of proof) required in criminal trials. If there is any reasonable doubt about the case made by the prosecution, the offence has not been proved, and the defendant will be found not guilty..
If the accused pleads not guilty, Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. needs to be given at the trial about what happened. If the A person who begins a criminal prosecution against another in the Magistrates’ Court, or formally starts an action in a court or tribunal or makes a complaint to a complaint-handling body. In a civil action they could also be referred to as a plaintiff or an applicant. is an adult, and does not have a cognitive impairment, they must attend An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. and be examined (i.e. questioned by the prosecuting lawyer) and cross-examined (i.e. questioned by the accused’s lawyer).
Evidence from people with a cognitive impairment may be taken at a special The time and place at which a court or tribunal hears the parties argue their case and makes a decision., and then provided to the A panel of people selected from the general public to decide whether an accused in a criminal case is guilty or not guilty, or to decide questions of fact and the amount to be awarded as damages in civil cases. at the trial via video.
Where the complainant is a child, evidence given to support the prosecution A document that sets out what a person wants to happen to their money and other property after they die. generally be in the form of a tape-recording of the statement the child gave to police officers.
A complainant cannot be 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, at the County Court and Melbourne 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 the Court Network (see ‘Contacts’, below).
If the accused pleads guilty, the complainant does not need to give evidence.
Any information that identifies a victim of sexual assault cannot be published; this rule takes effect from when the A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). is reported to the police.
Either after a guilty plea or a guilty verdict, the accused will be sentenced. The judge 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 may also consider the impact of the sexual assault on the victim and those associated with the victim. The impact is mainly determined by the A statement made to the court by a victim of a crime. It sets out details of injury, loss or damage caused by the crime..
A victim impact statement outlines how the crime has affected the victim; medical and psychological reports may be included with the statement. The victim impact statement must be prepared prior to sentencing and made available to the prosecutor, the court and the accused’s lawyer.
The victim may request that an The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. be lodged, but the Director of Public Prosecutions (DPP) decides whether to appeal.
The accused may appeal against the conviction and/or sentence. Both possibilities are outside the control of the DPP.
Under section 85B of the Sentencing A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1991 (Vic), a victim of sexual assault can seek a court order (from the court that found the assailant guilty) 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, although an extension of time can be granted. The victim should seek legal advice before applying for compensation.
A victim of sexual assault may also be eligible to take other legal action against an offender through the pursuit of A court order for money to be paid to someone to compensate them for a loss suffered as a result of a civil wrong or breach of contract. For example, a person who caused a serious permanent injury to another person can be ordered by the court to pay damages that compensate the injured person for their loss of income from being unable to work. See also aggravated damages; compensatory damages; general damages; liquidated damages; nominal damages; special damages. for personal injuries or breach of the offender’s An obligation to take reasonable care to avoid harming other people or their property. Breach of a duty of care that causes damage or loss to another may give rise to an action in tort. if, for example, the offender was a doctor, teacher or a parent.
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 Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence., 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).