Going to Court

Court can seem formal and scary but you can have support people with you. Sometimes you will not even have to be in the court room, you may be able to give evidence from another room using closed circuit television.

Being a witness at court

As the victim you will be the prosecution’s main witness. You do not need a lawyer.

You will be subpoenaed (a legal written notice sent to you) if the police want you to be a witness. If you need to pay travel costs to attend court you should contact the police to tell them you need money for travel costs.

What if I don’t want to go to court?

Witnesses have to turn up to court or you might be brought before the court under a warrant.

If you really emphasise to the police that you do not want to press charges early on, they may decide not to proceed, it depends on the crime and what other evidence they have. This may be different if you are a child or young person (see Mandatory Report to Community Services).

Ultimately the decision to go to court is for the police and prosecutor but as the main witness it helps the police if you are willing to go to court.

Can I tell them I made it up so it will all go away?

No. It is a crime to make a false statement, so saying you made it all up will not necessarily make it all better. You could be charged with giving a false statement. If you are found guilty you may be given a penalty and you will have a criminal record.

If someone is pressuring you to withdraw your statement you should tell the police and get legal advice.

How can I make court easier?

Understanding things can make them less scary. Before your court date you can prepare yourself by:

• Going to the court where the hearing will be held and just sit in the public viewing seats in one of the court rooms;
• Reading your statement;
• Asking a friend or relative to come with you for a practice run getting there and home;
• Organising a friend or relative to come with you on the day; or
• Planning to see your counsellor the day before and after the court day.

The Witness Assistance Service can also help you prepare. Any witness in a sexual assault matter will be referred to them by the DPP. See Contacts for contact information.

Will it actually go ahead on that day at court?

Courts quite often cannot go ahead with a matter on the date it is set for. Sometimes they just run out of time to hear everything on the list for the day.

When this happens there is usually an “adjournment” where the lawyers and judge agree on the next suitable court date for the matter. The prosecutor will usually check with you but unless you will be interstate, overseas or in hospital, they will expect you to be free for that next court date as a witness.

No bills

The prosecutor said my case was a no-billing case – what does this mean?

This means the DPP has decided the case should not proceed. Usually it means the evidence against the defendant is not strong enough to get a conviction. It can be very hard to prove beyond reasonable doubt that sexual assault occurred. It is not always possible to get sufficient evidence to convict and the DPP cannot continue to pursue a case if they believe that it’s unlikely to succeed because it is not in the public interest for them to spend limited funds on cases that will not result in a conviction. It is also called No Further Proceedings (NFP).

The trial

What happens at a trial?

It is the main court event for a criminal matter. If a defendant has pleaded ‘not guilty’ then a trial will be organised. This will be the time when both the DPP prosecutors and the defence lawyers will present their case to the judge and jury. Part of the prosecution case will be your evidence (see page 31 for more details on giving evidence).

At the end of the trial a decision will be made and presented by the jury. If the jury finds the defendant guilty then the defendant will be sentenced (usually at a later date). If the defendant is found not guilty they will be acquitted.

Giving evidence

Giving evidence in court can be difficult and many people find it intimidating and scary. The following points may help you:

Prepare by reading your own statement

Go over dates, times and your own words in the statement you gave police.

Remember you only have to answer the question asked

You do not need to give any more information than is asked for.

If you cannot understand the question, don’t answer it until you do

You can ask the judge or the lawyer to repeat any questions you don’t understand or to re-phrase it to make it easier. Don’t answer it until you really know what they are asking. If you do not know the answer then just say you don’t know.

The defence may make you look like you are not telling the truth

It may be difficult and upsetting when the defendant’s lawyers suggest you are not telling the truth. Try to remember it is part of their job to test your evidence and they do not personally have a problem with you.

Do not discuss the case with other witnesses before or during the trial

Having a trusted friend or counsellor is important during this time but it is important not to discuss your evidence with other people, especially other witnesses. If you have questions about your evidence you should speak with the police or prosecutor from the DPP.

Guilty or not guilty

The jury (or the judge in ‘judge only’ trials) has the job of deciding whether the defendant is guilty or not guilty. This is measured by the criminal law standard beyond reasonable doubt.

This is a very high standard and it exists so we do not find defendants guilty unless it is clear that they did commit the crimes they are charged with.

It can be hard to establish that someone is guilty ‘beyond reasonable doubt’ in sexual assault cases. There is a lower rate of conviction for sexual assault than for other crimes.

You might feel discouraged from reporting to the police because you have been warned how difficult it can be, but you should know that this system is in place to protect you too.

Sentencing

In NSW if a defendant has been found guilty of a crime they will receive a sentence. This is not always a prison sentence. Depending on the guilty person’s criminal record it may be:

• A Good Behaviour Bond (with various conditions similar to bail conditions);
• A suspended sentence;
• A Community Service Order;
• Weekend Detention or Periodic Detention; or
• A full time Custodial Sentence – detention in a correctional centre (prison).

Generally all the punishments carry certain conditions that restrict the guilty person from their usual freedoms such as supervision by the Community Corrections Office (Probation and Parole) and the threat that if they do not behave they will end up with more severe penalties.

See the Staying Safe page if the defendant in your matter has been allowed to serve a non-custodial sentence (that is, if they did not go to prison).

Appeals and retrials

Even when a jury or judge has found the defendant to be guilty there is the chance the defendant will appeal. Notice of an appeal is usually required within 28 days after the trial ending or sentence being given. The defendant may appeal the conviction and/or the severity of the sentence.

Retrial is necessary when for some reason the jury was unable to perform its duties, or when something happens that means it would be unfair to decide the case without some change either to the judge or the jury. If a retrial is necessary you may have to give your evidence again.