Going to court for a sexual offence
TRIGGER WARNING: Please note that this chapter (and pages it links to) contains information about sexual assault and violence that may be triggering to victim/survivors.
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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 (CP Act s 389AB). 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 (CP Act s 389A). 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 (CP Act s 389B). 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 (CP Act s 389C). 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 (CP Act s 389D). 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) (CP Act s 389E). 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 (CP Act s 128) 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
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.
The Magistrates’ Court must not grant leave to cross-examine a witness unless the court is satisfied that the accused has identified an issue to which the proposed questioning relates and has provided a reason why the evidence of the witness is relevant to that issue and cross-examination of the witness on that issue is justified. If leave is granted the court must state the reasons why and identify each issue on which the witness may be cross-examined (CP Act s 124A).
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 the trial. If the complainant is an adult, and does not have a cognitive impairment, they must attend 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 does not 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’ at the end of this chapter). 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.
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Either after a guilty plea or a guilty verdict, the offender 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.
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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 (see Chapter 2.3: Legal services that can help).
Going to court for a sexual offence
Chapter: 3.3: Sexual offences
Contributor: Suzan Gencay, Family Violence and Victims Legal Service Coordinator, South-East Monash Legal Service
Current as of: 2 September 2024
Law Handbook Page: 146
Next Section: Contacts
