Appendix A: Overview of the criminal trial process for victims

Phase

Victim’s role

Decision to prosecute

Victoria Police decides to charge a suspect, sometimes after obtaining advice from the Office of Public Prosecutions.1

The victim’s views may be considered but the decision to charge a suspect is based on an assessment of the evidence, the law and the public interest.

The Office of Public Prosecutions must inform the victim, as soon as reasonably practicable, about the offences charged or why no offence is charged.2

Commencement of criminal proceedings in the Magistrates’ Court

There are three ways to begin a criminal prosecution:

A police officer or other public official files a charge sheet containing a charge with the Magistrates’ Court.3

The Director of Public Prosecutions or a Crown Prosecutor files a direct indictment in the Supreme or County Court.4

A judge directs that a person be tried for perjury.5

The victim has no role.

Decision to continue or discontinue a prosecution

The Director of Public Prosecutions may decide to discontinue a prosecution at any time during proceedings, except during a trial.6

The Office of Public Prosecutions must inform the victim, as soon as reasonably practicable, of a decision not to proceed with a prosecution.7

The Director of Public Prosecution’s policy

is that:

the victim’s views should be taken into account but are not determinative

the victim should be informed of

a decision to discontinue before it

is publicly announced.8

Plea negotiations

Plea negotiations between the prosecution and the accused can occur in a range of circumstances for a range of reasons.

The accused commonly offers to plead guilty to an offence with a lower penalty if a more serious offence is discontinued, or to plead guilty to a more serious charge if an agreement can be reached about the facts on which the plea is based.

The prosecution may be disposed to negotiate rather than proceed to trial because of:

an evidentiary problem that will make it difficult to prove a necessary element of an offence

a legal issue that undermines the strength of the prosecution case

an issue with the availability, reliability or credibility of crucial prosecution witnesses

some other reason in the public interest.

The Office of Public Prosecutions must inform the victim, as soon as reasonably practicable, of a decision to substantially modify or not to proceed with a charge, or to accept a plea of guilty to a lesser offence.9

The Director of Public Prosecution’s policy

is that:

when considering a plea of guilty, the views of the victim must be taken into account but are not determinative

the prosecution should consult the victim prior to the resolution of a prosecution by a plea of guilty to lesser charges

the victim should be informed if a prosecution resolves in a plea of guilty, regardless of whether the plea of guilty is to lesser charges.10

Hand-up brief at committal mention hearing

At a committal mention hearing, the accused may waive the right to a committal hearing and proceed by way of hand-up brief.

If so, the prosecutor submits (hands up) to the magistrate the evidence against the accused, including witness statements and exhibits.

The accused then either

pleads guilty and is committed to the Supreme or County Court for a sentence hearing if the magistrate is satisfied that there is enough evidence to support a conviction.11

pleads not guilty and elects to stand trial. The accused is then committed for trial in the Supreme or County Court if the magistrate is satisfied that the accused understands the nature and consequences of the election.12

The victim has no right to participate in the committal mention hearing.

Application at committal mention hearing for leave to cross-examine witnesses

If the accused wishes to exercise the right to a committal hearing, the court is informed at a committal mention hearing and the committal hearing is scheduled.

If wanting to cross-examine witnesses (including the victim) at the committal hearing, the accused must apply at a committal mention hearing for leave to do so.13 The magistrate must not grant leave unless satisfied that cross-examination of the witnesses is justified, having regard to factors set out in the Criminal Procedure Act 2009 (Vic).14

The cross-examination of child victims and cognitively impaired victims in sexual assault matters is absolutely prohibited.15 The crossexamination by the accused of any victim of a sexual offence or family violence is also prohibited.16

The victim has no right to participate in the committal mention hearing and there is no obligation on the prosecution to consult the victim before deciding whether to consent

to or oppose an application to cross-examine witnesses.

Committal hearing

If the magistrate grants all or part of the accused’s application to cross-examine a witness or witnesses, a committal hearing is held and the relevant witnesses are required to attend court.17

At the conclusion, the magistrate must either find that there is enough evidence to support a conviction and commit the accused to stand trial in the Supreme or County Court, or discharge the accused.18

If the committal hearing involves a sexual offence, the only people permitted to be present in court while the victim is giving evidence are the police officer, the accused, a support person, the lawyers for the prosecution and the accused, specified court officials and anyone authorised by the court.19

A victim who is a witness may be crossexamined on the issues that the magistrate has permitted.20

If the victim is to appear as a witness, the Office of Public Prosecutions must ensure that the victim is informed about the process of the hearing and the victim’s role as a witness for the prosecution.21

Directions hearings in the Supreme and County Court

Typically, two directions hearing are held: one immediately after the accused has been committed for trial and a second in the lead-up to the trial. The purpose of these hearings is to make any necessary orders for the fair and efficient conduct of the proceedings.22 These pre-trial procedures play an important role in shaping the future conduct of the trial by narrowing the issues and evidence in dispute and setting the limits on what evidence can be used.

The victim has no role in directions hearings.

Pre-trial applications

Matters identified at the directions hearings that require pre-trial resolution or rulings by the judge are generally addressed at the commencement of the trial, before the jury is empanelled. Such matters might include:

general evidentiary applications

arguments about whether multiple charges or charges against co-accused should be heard within the same trial or in separate trials

evidence of the victim’s prior sexual history

publication of the identity of the victim

confidential communications

special hearings.

Applications to cross-examine or admit evidence about the victim’s sexual activities must be made at least 14 days before the trial.23 There is no obligation to serve the notice on the victim or for the victim to be informed that the application is being made.

Any party who seeks to subpoena, produce or adduce a confidential communication must give each party in the proceedings, the informant and the medical practitioner or counsellor, at least 14 days notice.24 The informant must give a copy of the notice to the victim within a reasonable time.25

Victims have no role in any pre-trial matters, apart from applications relating to confidential communications (discussed below) and, if relevant, as a witness.

The accused can request that the victim not be present in court when an application to cross-examine or admit evidence about the victim’s sexual activities is heard. If this occurs, the court must order that the victim not be present.26

The victim may seek permission from the judge to appear in court and make submissions in relation to any confidential communications. As the recipient of the subpoena, the medical practitioner or counsellor may also appear and make submissions.27

The trial

The first step in the formal trial is when the charge(s) on the indictment are read out to the accused, who pleads not guilty28 in the presence of a panel of potential jurors.29 A jury of 12 people is then selected.30

The victim is not present during, and has

no input into, the selection of the jury.

The victim’s role may be that of witness

for the prosecution.

The structure of the trial is as follows:

The judge gives preliminary instructions to the jury about the trial process and procedures.

The prosecutor gives an opening address to the jury setting out the prosecution case against the accused.31

The accused’s lawyer presents to the jury a response to the prosecution’s opening.32

The prosecution case is presented to the jury, through the evidence of witnesses and exhibits.

Each witness for the prosecution, including the victim, gives evidence in three stages: evidence-in-chief, where open-ended question are asked by the prosecution; cross-examination by the accused’s lawyer; re-examination by the prosecutor.

The accused may give evidence and call other witnesses to give evidence but is not required to do so.33

After the jury has heard all the evidence, the prosecutor and accused’s lawyer make submissions to the judge about what directions of law should be given to the jury.34

The prosecutor, followed by the accused’s lawyer, make closing addresses to the jury ‘for the purpose of summing up the evidence’.35

The trial judge gives directions of law to the jury, ‘so as to enable the jury to properly consider its verdict’.36

The jury deliberates and decides whether the verdict is guilty or not guilty.

If the victim is to appear as a witness, the Office of Public Prosecutions must ensure that the victim is informed about the process of the trial and the victim’s role as a witness for the prosecution.37

At the start of the trial before the jury the judge will often make an order that all witnesses are to remain outside the courtroom until they have given their evidence. This is to prevent them from being influenced by what is said by the judge, prosecutor, accused’s lawyer or other witnesses.

This general order does not apply to victims. Rather, judges may only exclude victims at this stage if they consider it ‘appropriate to do so’.38 The judge can order the victim to leave the court at any time after he or she has given evidence.39

Prosecutors make numerous decisions in the lead-up to and throughout the trial. These decisions generally relate to what evidence to put before the jury, which witnesses to call and how to respond to defence cross-examination questions, legal applications and witnesses.

In making these decisions, the prosecutor has considerable discretion, which is limited by general principles of fairness. The victim has no say in these decisions.

Sentencing; compensation and restitution

Once an accused has been found guilty by jury verdict or has pleaded guilty, the matter proceeds to a sentencing hearing (also known as a plea hearing). Most matters are resolved by a plea of guilty.

Unless the judge orders otherwise, sentencing hearings are conducted in open court. The victim and any of their support people may be present, as may support people for the offender, members of the public and the media.

The factors which the sentencing court must have regard to include:

the impact of the offending on any victim

the personal circumstances of any victim

any injury, loss or damage resulting directly from the offence.40

Following a sentence, the judge may also consider making an order that the offender pay compensation or make restitution to the victim. These orders are ancillary to the sentencing orders.41

The victim may present a victim impact statement to the court about the impact, injury, loss or damage resulting from the offence, and may read it out in court.

The Office of Public Prosecutions must inform the victim, as soon as reasonably practicable, of the outcome of the criminal proceeding, including any sentence imposed.42

The victim can apply for an order that the offender pay compensation or make restitution for harm caused as a direct result of the offence. In certain circumstances, the Director of Public Prosecutions will apply on the victim’s behalf.

Appeals

The prosecution or the offender may appeal to the Court of Appeal during the trial process against an interlocutory decision made by a trial judge (a decision made either before or during the trial). The prosecution or offender may also appeal against a sentence imposed after conviction. An offender may appeal against a conviction. The prosecution may apply for a fresh trial after acquittal in limited circumstances.

The victim has no role in interlocutory appeals, appeals against convictions or appeals against a sentence.

The Office of Public Prosecutions must inform the victim, as soon as reasonably practicable, when an appeal has been instituted, the grounds of the appeal and the result of the appeal.43

If the Court of Appeal sets aside an offender’s conviction and is considering whether a compensation or restitution order made in connection with that conviction should not take effect, the Supreme Court rules state that victims ‘may be heard’ in the appeal.44