Prosecution and Court Processes
Prosecution describes the process where a criminal charge against a defendant is presented to the appropriate court, and where the evidence to support the charge is presented.
In most Australian jurisdictions, the prosecution of minor or summary matters is conducted by police prosecutors in local or district courts; and the prosecution of serious or indictable matters is conducted by independent prosecutors in the higher courts. The ACT is the only jurisdiction where all prosecutions are handled by one independent prosecuting authority.
Prosecutors and Victims of Crime
The prosecutor is independent and acts on behalf of the community as a whole. That is, the prosecutor must decide “in the public interest” about whether to prosecute or not. It is not the victim’s decision. However, a victim can be consulted about the decision and, at the least, informed about it.
The prosecutor is not the victim’s lawyer although he or she has important responsibilities towards victims. Sometimes this reality can feel difficult for victims. In other situations it can relieve the pressure of responsibility that victims sometimes feel.
The prosecutor has a duty to ensure that all material evidence, even if it is not helpful to the prosecution, should be presented to the court. The prosecutor also has a duty to ensure that a fair trial is conducted.
Most victims’ ‘rights’ legislation in most Australian States and Territories includes provisions about the responsibility of prosecutors towards victims of crime. In particular, victims should be advised about:
- their rights and responsibilities as a witness,
- the decision to prosecute,
- any decision to modify charges or to accept a plea
- relevant information about bail and its conditions
- information about when and where to appear at court
- opportunities to present a Victim Impact Statement
- the outcome and consequences of a matter at court
- any appeal and the outcome of the appeal.
The Decision to Prosecute
There are a number of important and separate decisions made about a criminal charge within the criminal justice system.
First, there is the decision by police whether there is sufficient evidence to charge a person, what charge and how to bring the charge before a court (arrest or summons for example).
There is a further decision made about the charge(s) and that is whether it will proceed to prosecution. In most Australian jurisdictions the prosecution guidelines specify that there must be:
- sufficient evidence to prosecute
- the public interest in prosecution must be satisfied, and
- there must be a reasonable prospect of conviction.
The decision whether or not to prosecute is the most important step in the prosecution process. In every case great care must be taken in the interests of the victim, the suspected offender and the community at large to ensure that the right decision is made. A wrong decision to prosecute or, conversely, a wrong decision not to prosecute, both tend to undermine the confidence of the community in the criminal justice system.
How Much Crime Gets Prosecuted?
Only a very small proportion of the crimes that are committed actually get into the criminal justice system. This is a feature of many countries other than Australia. See the International Crime Victim Survey at http://www.unicri.it/wwd/analysis/icvs/index.php A discussion about the Australian component of the Survey is at http://www.aic.gov.au/publications/rpp/64/index.html
As a broad indication, for each 1000 “crimes” committed in the community, about 400 are reported to police. Of these approximately 320 are recorded by police as crimes, and – in general terms – about 64 are detected. That is, a person is identified as having committed the offence, caught and charged. Of these, about 43 result in a conviction at court. Of those convicted, one would receive a custodial sentence (1).
Crime and the Courts
About 97% of crime charged and prosecuted are finalised in magistrates courts across Australia. Of the 88% that were “adjudicated”, that is, where the court made a determination of the defendant’s guilt or innocence of the offence(s) with which they were charged, 96% were proven guilty.
In the higher courts, there were 13,169 defendants proven guilty, which represents 91% of all adjudicated defendants. Of those defendants proven guilty, 88% pleaded guilty and 12% were found guilty following a trial.
The Court Process
As described in the section about police assistance, there are a number of ways that a person charged can be brought before a court. That is, the person can be arrested or a summons can be issued, or the person can voluntarily agree to attend court.
A prosecutor (a police prosecutor or an independent prosecutor) then assumes the responsibility for prosecuting the case.
When a charged person enters the court system he or she becomes known as ‘the defendant’. At a higher court level, the person is called ‘the accused’.
The vast majority of cases are dealt with fully in the local or district courts in Australia (or the Magistrates Court in the ACT). Serious or indictable matters will go to the lower court first for preliminary or committal proceedings, and usually from there to the higher court.
Sometimes, when a person is arrested and held in custody, she or he can come before the court the following day. If, on first appearance, this person pleads guilty, then the Magistrate may pass sentence immediately. It is almost impossible in these circumstances to involve the crime victim in proceedings.
Many jurisdictions now use ‘case management’ processes to deal more efficiently with the volume of cases. So a defendant may have one or two appearances before a plea is heard and certainly will have a number of appearances before an actual hearing takes place.
According to data supplied to the ABS, in Australian Magistrates Courts, 3 out of 4 defendants are finalised in less than 13 weeks, compared with one in 4 for the same period in Higher Courts (2).
A plea is where a defendant – usually through a defence solicitor – will say if he or she is guilty or not guilty. A hearing describes the occasion in a lower court where all the evidence and witnesses are presented (or ‘contested’) and a magistrate makes a decision, or ‘adjudicates’.
Usually on the first appearance before court, the defendant will be placed on bail. This describes the conditions of their release into the community prior to the hearing. These conditions may include not approaching the victim, to reside in a certain place and not intimidating witnesses for example. A defendant is presumed innocent til a court makes a finding or until a plea is entered.
At a hearing in the lower court, a magistrate is presented with all the evidence and hears argument from a prosecutor and from the defendant’s lawyer. Usually a victim will have been told in advance if they are required to give evidence. In some situations victims are issued with a summons to appear in court.
A victim is not always required to give evidence especially if the defendant has made a plea of guilty. A victim who is a witness may be required to give evidence under oath or affirmation, and may be cross examined usually by the defence lawyer. If a victim has been advised that they are not required as a witness and nevertheless wish to attend court proceedings in the matter, it is suggested that the victim speaks first with the police investigator or with the prosecutor beforehand. Difficulties can arise in the case if the victim attends court without telling the prosecutor.
If a victim is required to give evidence at court it can sometimes help to visit the building beforehand and have things explained. Some victim support agencies can assist with court support or information about attending court.
Some jurisdictions have special staff in prosecution offices called Witness Assistants. These staff can be important links for victims and their families and often provide a lot of support. Ask the prosecutor if there is one available to help you.
If you have any concerns about your safety in or around court, always advise the police officer dealing with your case or approach a court officer on the day.
Victims who are called to the witness box are first asked questions by the prosecutor. It can sometimes help to answer these questions towards the magistrate, the judge or jury. Many find it easier to avoid looking at the defendant. Try not to rush your answers. Consider carefully and respond honestly. If you do not understand a question, ask for it to explained or repeated. If you are finding it difficult to hear or you are getting distressed tell the magistrate or judge.
For certain categories of witness, a request can be made to the court by the prosecutor for the court to be closed or for you to give evidence via closed circuit TV. The decision is governed by different laws in different jurisdictions and can be at the discretion of the magistrate or judge. A victim can also ask that their address not be read out in court or written in public documents.
In the lower courts, if the offence is not proved, the charges will be dismissed. If the defendant is found guilty, the magistrate may pass sentence immediately or adjourn to consider the matter further. Sometimes a pre-sentence report (PSR) on the offender is requested. A PSR is a report by a Community Correctional Officer on the circumstances of the defendant, for example, whether s/he has employment or a place to live.
After hearing all the evidence in the higher court and having explained that evidence to the jury, the judge will ask the jury to retire to consider its verdict. This may happen quite quickly or may take some hours or even days. The foreman of the jury will read out the verdict in court. If it is not guilty the accused is acquitted and will be free to go. If the verdict is guilty, the accused will be sentenced straight away or at a later date fixed by the judge. Again, a PSR or other document may be requested.
If the offence is found not proved this does not necessarily mean that the magistrate or jury did not believe you. It simply means that they were not convinced, beyond reasonable doubt by the evidence before them, that the defendant was guilty.
Victim Impact Statement
In most jurisdictions in Australia, victims (and sometimes their families) may be able to submit a Victim Impact Statement (VIS) to the court. This will take place after a person has been convicted of an offence and usually before the magistrate or judge passes sentence.
A VIS is a statement that is usually in your own words about the effect of the offence on you. It is not the same as the statement you gave to the investigating police about the offence. A victim does not have to complete a VIS if she or he does not wish to. Victim support agencies in your jurisdiction may be able to help in completing the VIS.
Each jurisdiction has different laws. Some will only allow written VIS and some allow verbal ones. There are likely to be other rules as well about the format and even the content. Many people write about the personal impact (emotional, social, physical and financial) the crime has had on them and changes they have had to make as a result. The defence will receive a copy and it is possible though not common that a victim will be cross examined on its contents in court by the defendant’s lawyer or the defendant.
The sorts of sentences that a magistrate or judge can hand down can include a term of imprisonment, periodic detention, a fine, reparation order, community service order, a good behaviour bond, and supervision and treatment orders. It is also possible that a person can be convicted without passing to sentence. The type of sentence that a magistrate or judge may give will depend on the offence and its circumstances, and a lot of other criteria that is in legislation.
In some circumstances, a victim may seek reparation or restitution from the offender at the sentencing stage for the loss they have incurred. The request is made by the prosecutor for consideration by the magistrate or judge. Usually any reparation order would be paid by the defendant in instalments to the court and then the court would pay the victim.
Decisions on whether to appeal about a decision of any court will be made by the prosecution or by the defence as the case may be. There are different grounds for appeal. A higher court will decide on the application for leave to appeal and, if granted, the appeal itself.
It is the responsibility of correctional authorities and of probation and parole to manage the sentence (including any rehabilitation or community programs). The States and Territories each have different laws about what information victims may receive about offender management, and what involvement victims may have.
In most Australian jurisdictions, if the offender is sentenced to a term of imprisonment, a victim (or their family) may be able to register to be advised when a person becomes eligible for parole and to be advised if there are any changes to the prisoner’s status whilst in custody. Victim support agencies should be able to provide you with information about these options.
Mental Health Issues
Sometimes the mental health of a person charged with a criminal offence can become an issue at court. It may be argued that a person was insane at the time that he or she committed the offence; or that the defendant is unfit to plead; or that the person should otherwise be dealt with by mental health professionals rather than in the criminal justice system.
These issues can be dealt with in very different ways in each State and Territory. The police officer dealing with the case, the prosecutor and victim support agencies should be able to assist with information.
If the crime resulted in a death an inquest may be held, although this may be dispensed with. At the inquest the Coroner will have to investigate and make a finding as to the manner and cause of death. This may end up in criminal proceedings. A post mortem may be required.
Many crime victims feel quite deflated or depressed especially if the offence was not proved or the sentence does not seem appropriate. Court proceedings can provide a focus for your energy and when this is finished you have to face ‘ordinary’ life again. Be prepared for this. Sometimes it can be helpful to talk over what happened at court with someone from a victim support agency. Some prosecution authorities can also provide time to help victims and their families understand what happened.
- Hogg & Brown (1998), Rethinking Law and Order, Annandale, Pluto Press, p.10. The data derives from that published by the Australian Institute of Criminology.
- ABS, Criminal Courts 2003-2004, Canberra, pp35-37.