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Criminal prosecution
What happens if I go to the police?
The first step in a criminal prosecution is to report your case to the police. It is best to ring your local police station beforehand, and say that you want to report a past assault or assaults. In most states, the police have special units that concentrate on sexual crimes. They are specially trained and understand that reporting such a crime is difficult.
If you feel more comfortable with female or male police officers you should ask, so that this can be arranged. You can also ask for an interpreter. The police will arrange a time for you to come in. It is okay for you to bring a friend, counsellor or other support person. They can be with you the whole time. The job of the police is to take down all of the information that you tell them. This is called your 'statement'. It is used if you go to court. The police may ask you questions to which you may not know the answer – for example, dates and times. It is okay if you do not know the answer.
The police will want to know about the incident or incidents, and will want detailed descriptions of conversations and acts. Often survivors cannot remember dates, times and places – especially if they were abused over a number of years. Unfortunately the law needs to know about specific incidents. This can be very difficult and traumatic. You can ask for a break at any time if you feel upset. You can also leave at any time.
The police must give you a copy of your statement, or a tape of your interview if it is taped. If they forget, ask them for a copy.
The police will then gather evidence. You should help the police by providing them with as much information as you can. For example, you may have medical reports from your doctor, gynaecologist or hospital. If you disclosed the abuse to anyone (eg. a teacher or counsellor at school), allow the police to interview that person.
The police will usually interview the alleged perpetrator. You may be afraid of retaliation at this point. If so, tell the police that you feel scared. If you know that someone else was abused by the same offender, and that person is willing to help, you should mention this to the police. The more information the police have, the better. Once they have gathered evidence, the police will decide if there is enough evidence to proceed with charging the offender. If the offence is old, sometimes there will not be enough evidence. Remember that, even if the police say there is not enough evidence, this does not mean that they do not believe you. You are entitled to ask the police for written reasons as to why they have decided not to charge the offender.
The law says that, before anyone can go to gaol or be punished, it has to be proven beyond reasonable doubt that they committed a crime. The law has an old saying: 'It is better that nine guilty men go free than one innocent man go to jail'. This can seem really unfair. What if I change my mind? It is okay to change your mind, even after you go home after reporting the offence to the police. At any time you can make what is called ‘a statement of no further police action’ or ‘No Complaint’ which indicates that you want nothing more to do with reporting the offence.
Remember that, even if you say this, the police may decide to proceed without your help because they have an overriding duty to enforce the criminal law. For example, if the perpetratormay be a serial rapist and the police want to protect the community. However, in most cases the police will respect your wishes, especially if you are the principal witness. Some survivors who want to stop charges proceeding have told police that they made up their initial report. Some or these have been charged with making a false report or perjury. These are very serious offences – so do not tell the police a report is untrue simply so that they will not proceed.
Going to court
If the police decide there is enough information, the case will go to court. The police will send what is called a "brief" to the Office of Public Prosecutions (OPP) or the Department of Public Prosecutions (OPP) depending on which state you live in. The brief will contain your statement, the statements of anyone else, the charges to be laid against the perpetrator, and all other information. You do not have to pay for any of this.
Lawyers at the OPP will prepare the case. You may have to meet with the OPP and the police again before the case goes to court. The first step is that the case goes to the Magistrates' or Local Court for a committal. Often you do not need to go because the OPP will give the court your statement. The court will decide if there is enough information to go to trial. If so, they will set a date and decide whether the case will go to the County or District Court, or the Supreme Court.
If the court says there is not enough evidence, this does not mean that the perpetrator is not guilty or acquitted. It just means that there was not enough evidence to try the person. Some survivors are satisfied to get to this stage, as it means the perpetrator has at least had to appear in court to face what they did. If the perpetrator pleads guilty, that is the end of it. If they plead 'not-guilty', it will go to trial. If the case is set down for trial, you (and any other witnesses) will be sent a subpoena or a summons, which tells you when and where the trial will be held. You may also receive a travel allowance with your summons to pay your costs of getting to court. Remember that it is not you bringing the action, it is the State (or R, meaning 'the king' or 'the queen') who charges the person. You are a witness. It sounds strange to be called a witness when you were the one assaulted or abused. Often you are the only witness.
Court can be a very scary place. It can be a good idea to go to the court before the day of the hearing to familiarise yourself with the place. Even simple things like knowing where the toilet is or what parking is like can make your day in court easier. On the day, consider bringing people to support you (such as people from ASCA!). This can be especially helpful as there will be someone to keep you company: there can be a lot of waiting around at court which can make you very anxious. Before court, re-read the statement you gave the police, and any other documents about the case.
The lawyer for the OPP will call you when it is your turn to give evidence. They will ask you to swear an oath (which they say and you repeat back). You can swear on a bible or other religious book. If you are not religious or do not want to swear on a religious book you may wish to make an affirmation which means that you are swearing that what you are saying is true. It is very serious to lie under oath so you must tell the truth.
Iin the witness box you will be asked to give your name, occupation and sometimes your address. If you do not want to give your address in public, tell the OPP lawyer beforehand.
The OPP lawyer will ask you questions first. Usually this will be the same information as you gave the police in your statement. You can ask for permission to look at your statement if your mind goes blank. When you give evidence remember the following:
 take your time to answer questions;
try to look calm and confident even if you are nervous;
if you don't understand a question, ask for it to be repeated;
do not guess if you don't know an answer – it is okay to say 'I don't know'.
speak loudly and clearly.
Don't worry if you get upset or emotional. If you want a break, ask for one.
If someone in the courtroom makes you feel upset or threatened (such as the perpetrator) remember that you do not have to look at them.
Next, the lawyer for the perpetrator (the defence lawyer) will ask you some questions. This is called "cross-examination" and is the hardest part. The role of the defence lawyer is to defend the accused person. He or she may use tactics to put you off your guard, embarrass you or make you angry. They may ask you questions that sound like they don't believe you, or that you don't remember what happened. Some defence lawyers have suggested to survivors that they made the abuse up, or that they "wanted it". Sometimes they may make out that you are crazy or mentally unwell. They might also ask you questions that seem irrelevant. It is best to try and stay calm and stick to the truth, even though you may feel really upset. You might consider asking a friend to practise asking the types of questions that a defence lawyer may ask so that you are a little better prepared. It is best not to fight or argue with the defence lawyer. It is often a good idea to look at the judge or a friend or support person in the courtroom, even when you are speaking to the defence lawyer. This sometimes helps because you avoid seeing their body language or expressions.
Sometimes the judge or magistrate will also ask you questions. If there are other witnesses, you may be asked to leave the room while they give evidence. Usually there is a jury (although in some states and in some courts there isn’t). Once everyone has given their evidence (including the accused sometimes), the jury will go away to decide whether the perpetrator is guilty or not guilty. If there is no jury, the judge will announce the verdict. If the offender is found guilty, another date will be set for the judge to decide on the sentence. You may be entitled to prepare a Victim Impact Statement, which the judge will read when he or she sentences the offender. In that statement, you can set out the ways the crime affected you (eg. nightmares, physical sickness, damage to relationships etc).
Taking your perpetrator to court is a difficult process, but having a court find the perpetrator guilty can be a major milestone in your healing. It is a major affirmation by society that you were the victim of a horrible crime. You may feel that the sentence or punishment is not enough to compensate for what happened to you. For example, the offender may get a good behaviour bond instead of a prison sentence. Some survivors wonder if the whole process is worthwhile if the offender gets a short sentence. If the sentence is unreasonably light, the OPP or the DPP may appeal it. The DPP/OPP cannot appeal against the verdict – only the sentence.
Even if the court decides that the offender is not guilty (usually because of a lack of evidence to prove the case beyond reasonable doubt), many survivors feel that they have got some justice; the perpetrator has been publicly accused, and the police and the OPP believe your case. Also, survivors may feel that they have finally been given a voice, and a space, to tell their story.
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