Going to court

If the police have decided to charge the perpetrator, the matter will go to court.

Attending court

The police will let you know if you need to attend court. You usually don’t need appear in court, except as a witness for the trial. Even if you’re not required to attend court, you can attend when your case is being heard if you want to.

There may also be times when courts make changes to their usual way of operating. This could be for reasons such as COVID-19 restrictions, flooding, or some other natural disaster. Before your court date, it is a good idea to check with the registry of the court where your matter is listed to see if there are any changes in the court’s operations.

Counselling records

Counsellor’s notes and other medical notes should not be given out to just anyone. They are usually kept confidential.

Sometimes in a criminal trial for a sexual offence either the defence or prosecution may subpoena records from a victim’s counsellor. There is a special law that exists to protect these types of records from being shared in court and it is called the Sexual Assault Communications Privilege (SACP).

If you have a counsellor, you can ask them to contact you if anyone contacts them for your counselling records. If your counsellor contacts you about a subpoena for your records, you or your counsellor should seek legal advice from Legal Aid SACP Unit. See ➤ Useful contacts for their contact details.

Preparing to give evidence

If the defendant has pleaded ‘not guilty’, then a trial will be organised. This will be the time when both the ODPP prosecutors and the defence lawyers will present their case to the judge and jury. Part of the prosecution case will be your evidence. You are the witness for the police case against the perpetrator. You do not need your own lawyer. The perpetrator is called the defendant.

If you need to pay travel costs to attend court, you should contact the police to tell them you need money for travel costs.

If the police do not think you will come to court to give evidence at the trial, they may give you a subpoena (a legal written notice) requiring you to attend court. You need to comply with a subpoena to attend court, otherwise you might be brought before the court under a warrant.

Understanding things can make going to court less scary. Before you are due to go to court to give evidence, you can prepare yourself by:

• going to the court where the hearing will be held and just sitting in the public viewing seats in one of the court rooms;
• reading your statement;
• asking a friend or relative to come with you to the court for a practice run getting there and home;
• organising a friend or relative to come with you on the day; and
• 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 violence matter will be referred to them by the ODPP. See ➤ Useful contacts for their contact details.

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

• 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, do not answer it until you do;
• you can ask the judge or the lawyer to repeat any questions you do not understand or to re-phrase it to make it easier;
• don’t answer a question until you really know what they are asking;
• if you do not know the answer, then just say you do not know;
• it may be difficult and upsetting when the defendant’s lawyer suggests 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;
• 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 ODPP.

Giving evidence remotely

If the defendant has been charged with a domestic violence offence, you have the right to give your evidence remotely via audio-visual technology or by some other arrangement that means you don’t have to see the defendant face-to-face.

If the police video recorded your statement, they can play your statement instead of you having to give that evidence again.

If the defendant does not have a lawyer, they cannot personally ask you questions when you are giving your evidence. The court will appoint someone, or the court will use technology, to ask you questions on the defendant’s behalf.

Directions to the jury

The legal system is aware that jurors may hold certain opinions about victims of sexual violence, which may affect how they decide whether the defendant is guilty.

To try to overcome this, judges in sexual offence trials must give one or more of the following directions to the jury:

• non-consensual sexual activity can occur in many different circumstances and between different kinds of people including people who know one another, who are married, or are in an established relationship with one other;
• they must avoid making assessments based on preconceived ideas about how people respond to non-consensual sexual activity because there is no typical or normal response and people can respond in different ways, including by freezing and not saying or doing anything;
• people who do not consent to a sexual activity may not be physically injured or subjected to violence, and the absence of this does not necessarily mean that a person is not telling the truth about an alleged sexual offence;
• trauma may affect people differently, with some people showing obvious signs of emotion or distress when giving evidence in court about an alleged offence. Others may not and this presence or absence does not necessarily mean that a person is not telling the truth about an alleged sexual offence;
• it should not be assumed that a person consented to a sexual activity because they wore particular clothing or had a particular appearance, or consumed alcohol or another drug, or were present in a particular location.

The court’s decision

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 committed the crimes they are charged with.

Even if the defendant is found not guilty, the court will still consider whether an AVO should be made to protect you from the defendant (if one was applied for). The court only has to be satisfied on the civil law standard of proof, which is lower than the criminal law standard, that an AVO should be made.

The court will make an AVO to protect you if it is satisfied, that on the balance of probabilities (more likely than not), you fear the defendant has, or will likely, commit a personal violence offence against you (assault, stalking, intimidation, harassment or property damage) and that you have reasonable grounds to fear that this will or has occurred.

Sentencing

If a defendant has been found guilty of a crime, they will be sentenced. This is not always a prison sentence. Depending on the charges and also 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.

Appeals and retrials

Even when a jury or judge has found the defendant guilty of an offence, there is the chance the defendant will appeal that decision. Notice of an appeal is usually required to be filed within 28 days after the trial ending or sentence being given. The defendant may appeal the conviction and/or the severity of the sentence. The ODPP can also appeal a decision that the defendant was not guilty or appeal 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 to either the judge or the jury. If a retrial is necessary, you may have to give your evidence again.

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