Legally, sexual assault is a crime against the state as opposed to a crime against the victim. The victim will be a witness in the case. As a witness the victim may be cross-examined by the lawyer of the accused. Compensation is available to victims in some circumstances.
It is important to know that sexual assault is a crime against the state. The victim has the status of a witness. Throughout the proceedings the victim is known as “the complainant”. Being a witness means that the complainant does not have their own lawyer. The OPP appoints a lawyer to act for the state, and the complainant is their primary witness.
The alleged offender, known as “the accused”, has a right to be presumed innocent. The accused also has a right to be represented by a lawyer, who can cross-examine all prosecution witnesses. The prosecution must prove the case beyond reasonable doubt.
The police will notify the complainant if charges are laid, and the OPP will inform the complainant of when they are required to attend court. Before attending court, the OPP’s solicitor will meet the complainant and explain their role and the court process.
If the accused’s lawyer wishes to cross-examine a witness (including the complainant), they must apply to do so at the committal hearing (see “The committal”). An indication has to be given in advance of the matters about which cross-examination is proposed.
A complainant cannot be personally cross-examined by the accused.
Under the CP Act, the cross-examination of the complainant in sexual offence proceedings at committal and trial is limited by:
•a prohibition on cross-examination about prior sexual history without the special leave of the court;
•a prohibition on cross-examination about chastity;
•a prohibition, except in certain circumstances, on cross-examination about evidence that suggests the victim was accustomed to engage in sexual activity;
•the forbidding of questions or inquiries that the court regards as scandalous;
•a prohibition on judges suggesting in any way to the jury that the law regards complainants in sexual cases as an unreliable class of witness;
•a requirement that if evidence about the delay in making a report is raised, the judge must both warn the jury that a delay does not necessarily indicate that the allegation is false, and inform the jury that there may be good reasons why a complainant may hesitate to report a sexual offence (the law also allows the judge to make any comment they wish about this issue in the interest of justice);
•a prohibition, in most circumstances, on citing the records of any confidential communication between a doctor or counsellor and a complainant; and
•the abolition of the requirement that the evidence of a young person, or of a person with “impaired mental functioning”, be corroborated.
The CP Act also provides for the protection of witnesses giving evidence in sexual assault proceedings.
Children and “cognitively impaired” complainants cannot be cross-examined at committal (see “The committal”) if:
•they have already made a statement to police in relation to the matter; or
•they have already been examined at a compulsory hearing – and that hearing and the evidence they gave was recorded, and a copy of the transcript of that recording has been provided to the prosecution and defence.
At committal, the evidence-in-chief will be the statement the complainant has already made to police investigators.
In a committal or a trial relating to sexual assault, the court must direct that alternative arrangements be made for complainants giving evidence (other than those who are under 18 or cognitively impaired). Such arrangements include:
•permitting the evidence to be given from a place other than the courtroom by means of closed-circuit television or other facilities that enable communication between that place and the courtroom;
•using screens to remove the accused from the witness’s line of vision; and
•permitting a person to stand beside the witness while their evidence is being given, in order to provide emotional support.
In sexual assault proceedings, the Magistrates’ Court is usually closed during the complainant’s evidence. The County Court may also be closed if, on the application by the prosecutor, the judge determines that it will prevent the complainant from being unduly distressed.
If the above alternative arrangements are made for the witness giving evidence, the judge must warn the jury that they cannot draw any adverse inferences about the accused, or give the evidence of the witness greater weight because these special arrangements have been allowed to be made.
Publication is not allowed of any information to the public that would identify a victim of sexual assault from the time the offence is reported to the police.
An accused whose knowledge of English is not sufficient to enable them to understand the proceedings must be provided with an interpreter. Although no such right exists for witnesses, it is important that the prosecutor is made aware if a complainant needs an interpreter so that appropriate arrangements may be made.
At the County Court and Melbourne Magistrates’ Court, a special room is put aside in which victims can wait. For more information, contact the Court Network (see “Contacts”).
The committal is a hearing held in the Magistrates’ Court that determines whether there is sufficient evidence for a case to proceed to trial in the County Court before a judge and jury. Sometimes, a case will proceed by what is termed the “hand-up brief” procedure, which does away with the need for the witness to attend to give evidence. The prosecutor should keep a victim informed about the progress of the case.
The hearings of sexual offence matters are given priority – this is in recognition of the trauma suffered by the victim. The CP Act states that committal proceedings must occur within three months of the commencement of the criminal proceeding for a sexual offence, unless a longer time is needed “in the interests of justice”.
Prior to the committal proceedings, an administrative hearing, called a committal mention, is held. The victim usually does not need to attend this hearing. At this stage, it is important to inform the public prosecutor, the police or the CASA counsellor/advocate if the special facilities for giving evidence are required at the committal (e.g. closed-circuit TV).
If the accused enters a plea of not guilty, evidence will need to be given at the trial about what happened. If the complainant is an adult, and does not have a cognitive impairment, they will be required to attend the court and be examined-in-chief (questioned by the prosecutor in this case) and cross-examined (questioned by the accused’s lawyer) in the usual way. If a complainant must give evidence, they will generally do so by alternative means, unless that is not their wish (see “Protection of complainants”).
The evidence at trial for child complainants and those with a cognitive impairment may be taken shortly after the committal at a special hearing, and then provided to the jury at trial by way of video. Where the complainant is a child, evidence-in-chief (evidence given to support the prosecution) will generally be by way of the tape-recording of the child’s statement, which is given to police investigators.
If the accused pleads guilty, the complainant will not be required to give evidence.
Once guilt has been established, whether because of a guilty plea or as a result of a trial, the accused will be sentenced. The magistrate or judge may take into account a range of factors when sentencing, including aggravation (e.g. the use of weapons, infliction of physical injury, or threats); the accused’s character; the need for punishment and deterrence of the accused and others like the accused; as well as the potential for the accused to be rehabilitated. The protection of the community is the most important sentencing consideration.
The judge may also take into account the impact of the sexual assault upon the victim and those associated with the victim. The impact is principally ascertained through the Victim Impact Statement tendered by the prosecution (see below).
The judge may also take into account mitigating circumstances relating to the accused.
The victim has no right of appeal. The victim may request that an appeal be lodged, but the ultimate decision to appeal is that of the Director of Public Prosecutions (DPP).
The accused may appeal against the conviction and/or sentence. Both of these possibilities are outside the control of the DPP.
Victims of crime, including sexual assault, may choose to present a Victim Impact Statement, which is a statement of the effects of a crime upon them.
A Victim Impact Statement can be prepared by the victim (by filling out a form provided by the police), although the informant (i.e. the police officer) who charged the accused will usually assist to complete the statement. Medical and psychological reports may be included with the statement (see below). This statement must be prepared prior to sentencing and made available to the prosecutor, the court and the accused’s lawyer.
If a complainant is making an application for compensation against the accused under section 85B of the Sentencing Act 1991 (Vic) (“Sentencing Act”), it is important to attach to the Victim Impact Statement some supporting material explaining the impact of the offence on the victim. It could be evidence from a general practitioner, a psychiatrist, a psychologist, a counsellor or a family member.
The victim may be cross-examined about the information in the statement, although this happens very rarely. In this circumstance, the options for giving evidence outlined in “Protection of complainants” are not available.
It is wise to get advice before completing a Victim Impact Statement.
A victim of sexual assault can seek an order (from the court that finds the assailant guilty) for compensation for pain and suffering caused by the assault under section 85B of the Sentencing Act. Substantial awards of compensation have been made by the County Court in such contexts.
Applying for compensation can be worthwhile if the accused has assets. It can result in a higher compensation payout than can be made by the Victims of Crime Assistance Tribunal and is simpler, quicker and cheaper than suing the accused in separate civil proceedings.
Independent legal advice should be sought before making such an application. It should also be supported by documentation from a psychiatrist, psychologist or counsellor about the effect of the assault. For further information, see Legal representation.