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Going to court for a sexual assault case

The process for bringing a sexual assault case to court and what victims can expect if they are called as a witness in court.

If the police decide there is enough evidence that a sexual assault happened, they can start criminal proceedings (the court case). Your role in court is as a witness.

There are advantages and disadvantages to going to court. These depend on many things, such as:

  • how the sexual assault happened
  • if you have friends, family and services to help you
  • how you are coping.

Talk to a counsellor or advocate at a Centre Against Sexual Assault or a lawyer if you need help to decide.

Who brings a case to court?

The police investigate a complaint of sexual assault and decide whether or not to charge a perpetrator. If charges are laid, the Office of Public Prosecutions (OPP) usually brings the case to court. The OPP will work closely with the police who investigated the case.

How does the OPP decide whether to go to court?

The OPP will usually work with the police to help the police decide whether to charge the perpetrator. This is because the OPP will generally only prosecute the charges in court if there is enough evidence or a reasonable chance of conviction. This means the OPP needs to decide if the evidence will convince a jury to decide that the accused is guilty of the offence beyond reasonable doubt. It can be hard to prove that someone is guilty beyond reasonable doubt.

If the OPP decides to take a case to court, a lawyer will prepare the case and give the police information to a prosecutor (a specialist lawyer). The prosecutor is trained in sexual assault matters and will present the case in court.

What if I do not agree with the OPP’s decision?

If the OPP decides not to go ahead with the case and you do not agree with this decision, you can ask to meet with the director of Public Prosecutions to discuss it. However, you have no formal right to appeal the decision.

What happens before the court case?

Before any court case, the OPP should meet with you. This meeting is to give you information about the court process. The OPP has a Witness Assistance Service, which supports victims of crime. If you are under 18, the Child Witness Service can give you support and information.

How long will a case take?

The police investigation and court process can take time. Court cases about sexual assault are given priority. The community and the courts know how hard this process is for victims, and how delays can make things harder. There are rules that children or people with a cognitive impairment must be able to go to court and can give evidence within a strict time limit.

For adults who do not have a cognitive impairment there can be delays and in country courts the case can sometimes be adjourned (put off) more than once. The OPP should tell you if your case is going to be delayed.

Which court will I go to?

Subject to COVID restrictions, some sexual offences can be dealt with in the Magistrates’ Court without a jury. In these cases the magistrate will hear all of the evidence, reach a verdict and, if the verdict is guilty, decide on a sentence. Courts deal with sexual assault hearings separate from other hearings. These types of cases are specially managed as going to court can be hard for victims. For more information about whether court is open due to COVID restrictions, see COVID-19 and criminal hearings in the Magistrates’ Court.

What will happen at court?

You will not usually have to go to court if the accused pleads guilty (admits) to sexually assaulting you. However, you have the right to be there and can have a support person with you in court if you choose to go.

If the accused is pleading not guilty, you will usually have to give evidence. You are usually the main witness for the prosecution. You have the right to give evidence by closed circuit television or you can choose to give it in the courtroom. The prosecutor will ask you where you would like to give your evidence from before the court date so that you have time to decide.

When you give evidence, you are cross-examined. This means the accused’s lawyer will ask you questions to test your evidence. Sometimes you will have to give evidence and be cross-examined twice, first at the committal hearing and then at the trial. If there is an appeal you may have to give evidence more than twice. You will not be cross-examined at the committal if you are under 18 or have a cognitive impairment.

What will happen at committal hearing?

If a case will be heard in the County Court (a court for more serious offences), a committal hearing is usually held before trial.

Committals are heard at a Magistrates’ Court. The purpose of a committal is to decide if there is enough evidence to go to trial. The magistrate makes this decision after finding out what evidence there will be. If the accused is pleading guilty, there is no need for you to give evidence but the committal still happens.

The committal hearing should happen within three months of charges being laid but there are often delays. These delays have been made worse by the courts closing due to COVID-19.

What will happen in a trial?

A trial is a court case which takes place before a judge and jury at the County Court. The judge’s role is to make decisions about the law, including what evidence can be heard, and tell the jury about the law. It is up to the jury, not the judge, to decide if the accused is guilty or not.

Giving evidence

There are limits to the sort of questions defence lawyers can ask, to help reduce your stress when giving evidence. You can give evidence by:

  • using closed circuit television
  • having support people standing or sitting beside you
  • having screens placed so you cannot see the accused.

You can also ask for the courtroom to be closed or for certain people not to be allowed in the courtroom, in some circumstances.

The judge decides which of these arrangements will be made.

Children and people with a cognitive impairment

A child victim or someone with a cognitive impairment will give evidence at a special hearing which is recorded by video. This evidence is presented later to the court. The accused will not be in the same room unless the person giving evidence chooses to do this in court. As the evidence is video recorded, it can be used in future hearings, so a child or a person with a cognitive impairment should only have to give evidence once.

Will I be cross-examined?

Yes, you will be asked questions to test the evidence. Cross-examination is usually the most distressing part of the court case. Many questions are designed to make your story look doubtful, or sometimes, wrong. The judge can stop you being asked questions that are deliberately meant to confuse, annoy, or insult you. If you are under 18 or have a cognitive impairment, the judge must not allow these types of questions. In some cases, the judge has a separate hearing with the prosecution and defence to work out what kind of questions the defence lawyer is allowed to ask you when they are cross-examining you.

Cross-examination can last for several hours or even days.

Generally you cannot be asked about your past sexual history, including past sexual activities with the accused. Strict rules apply before the judge can allow this type of question.

The judge can declare that you are a protected witness. A protected witness cannot be personally cross-examined by the accused, but the judge can order that a lawyer cross-examines you on behalf of the accused.

Because it is up to the prosecution to prove the case, the accused does not have to give evidence. If the accused does decide to give evidence, they will be cross-examined by the prosecutor.

Consent is a major issue at many sexual assault trials. For example, the accused may agree that sexual activity happened but say that you consented (agreed) to it.

If relevant, the judge must tell the jury that if you did not say or do anything to show that you agreed to a sexual act, this is enough to show that the sexual act happened without your agreement.

If relevant, the judge must also tell the jury that it does not mean you agreed to a sexual act because you:

  • did not say no or protest
  • did not try to stop the accused
  • did not have any physical injuries
  • had agreed to have sex or do sexual acts with the accused, or anyone else, in the past.

The verdict – guilty or not guilty?

A not guilty verdict means that the jury (or magistrate) was not satisfied beyond reasonable doubt that the accused sexually assaulted you. It does not mean the court found that you were not telling the truth. A not guilty verdict means that the accused will not face a criminal penalty.

If the accused is found guilty, the judge or magistrate will sentence them. A sentence is an order that sets out a suitable punishment for the crime. It can be several weeks before a sentence is handed down.

Sometimes the jury cannot make a decision. Then the case will either be heard again before a different jury or stopped altogether. If your case needs to be heard again, your recorded evidence from the trial may be used, or you may need to give evidence again.

What happens at sentencing?

The judge or magistrate decides on a sentence after a plea hearing. At the plea hearing, the perpetrator’s lawyer asks for certain things to be taken into account when the judge or magistrate makes a sentence. For example, how the perpetrator has behaved since the assault and about their family background.

Most people found guilty of sexual offences are sentenced to prison but a non-custodial sentence is possible. A non-custodial sentence means a sentence served outside a prison. These kinds of sentences are called community corrections orders.

You can make a Victim impact statement about how the crime affected you. The judge or magistrate may take this into account when sentencing. Your statement can also include photos, drawings, poems and other material. The perpetrator or their lawyers will get a copy of the statement. You can read it out aloud to the court or choose someone else to do this. You may be cross-examined about what you wrote but this is rare.

Because crimes are considered offences against the whole community, the judge or magistrate will also consider other things. These include:

  • if the perpetrator is likely to sexually assault other people
  • if the perpetrator has broken the law before
  • if rehabilitation will help the perpetrator so they are unlikely to assault again
  • the need to stop people in the community from sexually assaulting others.

What if there is an appeal?

The perpetrator can appeal against the sentence and the conviction. Successful appeals against conviction can mean another trial where the whole process is repeated, except that your recorded evidence may be used.

The OPP can appeal against the sentence if they think it is too light. It cannot appeal against a verdict of not guilty.

Other support

Find out how you can get other support for relationships.