Table of contents
Appendix A: Overview of the criminal trial process for victims
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:
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
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:
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
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
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
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.
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:
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 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
The victim’s role may be that of witness
The structure of the trial is as follows:
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:
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.
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
Appendix B: Submissions
- 1 Australian Law Reform Commission
- 2 Seppy Pour
- 3. Melville Miranda
- 4. Victorian Equal Opportunity and Human Rights Commission
- 5. Centre for Rural Regional Law and Justice, Deakin University Law School (Centre for Rural Regional Law and Justice)
- 6. Confidential
- 7. Youthlaw
- 8. Mary Iliadis
- 9. Associate Professor Tracey Booth
- 10. Victoria Legal Aid
- 11. Sandra Betts
- 12. Arnold Dallas McPherson Lawyers
- 13. David Levesque
- 14. Victims of Crime Commissioner, Victoria
- 15. Kristy McKellar
- 16. Name withheld
- 17. Office of the Public Advocate
- 18. Women with Disabilities Victoria
- 19. Dr Tyrone Kirchengast, University of New South Wales
- 20. Phil Cleary
- 21. Dianne Hadden
- 22. Joy and Roger Membrey
- 23. Director of Public Prosecutions Victoria (DPP)
- 24. Fiona Tait
- 25. Law Institute of Victoria
- 26. Victoria Police
- 27. Supreme Court of Victoria
- 28. Chris Gill
- 29. Victorian Bar and Criminal Bar Association
- 30. Loddon Campaspe Centre Against Sexual Assault
- 31. Professor Jonathan Doak, Nottingham Trent University
- 32. Professor Edna Erez, University of Illinois at Chicago
- 33. Professor Jo-Anne Wemmers
- 34. Northern Centre Against Sexual Assault
- 35. Annalise Roberts and Miranda Escott-Burton
- 36. Centre for Innovative Justice, RMIT University (Centre for Innovative Justice)
- 37. Dr Margaret Camilleri
- 38. Name withheld
- 39. Safe Steps Family Violence Response Centre (Safe Steps)
- 40. Victim representatives on the inaugural Victims of Crime Consultative Committee (Former VOCCC victim representatives)
- 41. Colleen Murphy (Kelly)
- 42. Vixen Collective
- 43. Liberty Victoria
Appendix C: Consultations
Consultations were held in Ballarat, Bendigo, Geelong, Melbourne, Mildura, Morwell, Shepparton, Sydney, Warrnambool and Wodonga.
The Commission consulted separately with the people and organisations listed below
in chronological order.
- 1. A victim
- 2. Commissioner for Victims’ Rights, South Australia
- 3. Parent of a victim
- 4. Parent of victims
- 5. Sue and Don Scales, Mildura
- 6. Magistrate Lesley Flemming
- 7. Aimee Mazaa, Mallee District Aboriginal Services
- 8. Parent of a victim
- 9. Magistrate Ron Saines
- 10. A victim
- 11. Parent of a victim
- 12. Parent of a victim
- 13. Parents of a victim
- 14. A victim
- 15. Director of Public Prosecutions Victoria (DPP)
- 16. Judges of the County Court of Victoria
- 17. Dr Robyn Holder, Griffith University
- 18. Child Witness Service, Department of Justice and Regulation
- 19. Victims of Crime Commissioner, Victoria
- 20. Parent of victims
- 21. Victoria Police
- 22. Professor Jonathan Doak, Nottingham Trent University
- 23. Court Network staff and a Court Networker—County Court
- 24. Justin Lewis, Crown Prosecutor
- 25. Aboriginal Family Violence Prevention & Legal Service Victoria
- 26. Magistrate Stella Stuthridge
- 27. Loddon Campaspe Centre Against Sexual Assault
- 28. Laurie Krause
- 29. Parent of victims
- 30. Dr Tyrone Kirchengast, University of New South Wales
- 31. Judge of the County Court of Victoria
- 32. Legal Aid NSW
- 33. Women’s Legal Service NSW
- 34. Office of the Director of Public Prosecutions, NSW
- 35. Parent of a victim
- 36. Magistrate John Lesser
- 37. Centacare, Barwon South West Region
- 38. Executive Officer, Barwon South West Regional Aboriginal Justice Advisory Committee (RAJAC)
- 39. Office of Public Prosecutions Victoria (OPP)
- 40. A victim
- 41. A victim
- 42. Relative of a victim; a victim
- 43. Victoria Police Sexual Offences and Child Abuse Investigation Team, Wodonga (Victoria Police SOCIT, Wodonga)
- 44. Kristy McKellar
- 45. Victims Support Agency, Department of Justice and Regulation
- 46. A victim
- 47. Victoria Legal Aid
- 48. Dr Heather Strang, University of Cambridge
- 49. Commissioner of Victims Rights, New South Wales
- 50. Witness Assistance Service, OPP Victoria
- 51. Criminal Law Section, Law Institute of Victoria
- 52. Emeritus Professor Arie Freiberg AM
- 53. Parent of a victim
- 54. Victorian Bar and Criminal Bar Association
- 55. Professor Edna Erez, University of Illinois at Chicago
- 56. Colleen Murphy (Kelly)
- 57. Victorian Legal Services Commissioner and CEO Victorian Legal Services Board
The Commission convened group discussions with the people and organisations listed below
in chronological order.
- 1. Victim support specialists, Mildura: Mallee Sexual Assault Unit and Mallee DomesticViolence Unit; Victims Assistance Program—St Luke’s
- 2. Legal practitioners, Mildura: Rebecca Boreham, Barrister and Solicitor; Jade Bott & Associates; Martin Irwin & Richards; Mallee District Aboriginal Service; Murray Mallee Community Legal Centre
- 3. Victim support specialists and academic, Geelong: Barwon Centre Against Sexual Assault; Court Network; Victims Assistance Program—Centacare; Ian Parsons, Research Fellow, Centre for Rural Regional Law and Justice, Deakin University Law School
- 4. Legal practitioners, Geelong: Criminal Lawyers Geelong; Office of Public Prosecutions; Victoria Legal Aid; WS Lawyers
- 5. Victim support specialists, Morwell: Court Network; Gippsland Centre Against Sexual Assault; Ramahyuck District Aboriginal Corporation; Victims Assistance Program—Windermere
- 6. Legal practitioners, Morwell: Verhoeven & Curtain; Victoria Legal Aid
- 7. Victim support specialists, Melbourne: metropolitan Victims Assistance Program workers
- 8. Metropolitan Centres Against Sexual Assault: Gatehouse Centre; Eastern Centre Against Sexual Assault; Northern Centre Against Sexual Assault; Western Region Centre Against Sexual Assault
- 9. Victim support and therapeutic specialists, Shepparton: Victims Assistance Program—Gateway Health, and a therapeutic professional
- 10. Legal practitioners, Shepparton: Camerons Lawyers; Deane & Associates; Faram Ritchie Davies; Victoria Legal Aid
- 11. Judges of the County Court of Victoria
- 12. Victim support specialists, Wodonga: Centre Against Violence; Court Network; Victims Assistance Program—Gateway Health
- 13. Victim support specialists, Ballarat: Ballarat Centre Against Sexual Assault; Victims Assistance Program—Centacare
- 14. Legal practitioners, Ballarat: Central Highlands Community Legal Centre; Dianne Hadden Lawyer; Justin Burke Lawyers; Victoria Legal Aid
- 15. Magistrates of the Magistrates’ Court of Victoria
- 16. Community legal centres: Federation of Community Legal Centres (Vic); Goulburn Valley Community Legal Centre; Youthlaw; Eastern Community Legal Centre; Knowmore
- 17. Criminal justice agencies and stakeholder organisations
- 18. Victims of crime