Main steps in the prosecution of a serious crime

Serious criminal cases can be before the courts for many months, or even years. It can be a very stressful and uncertain time for victims and other witnesses. So you know what to expect, we describe below the main steps in a criminal prosecution.

If you are a victim or witness in a serious crime, police will ask you to make a statement about what happened to you, or what you saw or heard, as part of their investigation. They will type up what you say and ask you to read what they have typed, and to sign it. By signing it you are agreeing it is a true account of your experience so be sure to read it carefully first. If you are distressed or in shock when you make your statement and realise later that you forgot to mention something, let the police officer in charge of the matter know as soon as possible, even if you don’t think what you have remembered is important. You can make a second police statement about this new information.

If you are under 16 years of age or have a cognitive impairment, police might make an audio or video recording of their interview with you rather than typing up a written statement.

If you are a victim of domestic violence, you also might not have to make a written statement if police recorded your evidence or statement either at the scene or later.

Photo of man in handcuffsWhen they have enough evidence, the police will arrest and charge the person/s they believe responsible for the crime (‘the accused’). They will photograph and fingerprint them, to formally identify them. 

Police will usually refuse bail when the charges are serious and take the accused to the Local Court, where they can apply again to the magistrate.Drawing of bail application steps

For some serious crimes involving sex, violence or firearms, a bail application has two steps.

First, the accused has to show that keeping them in custody isn’t justified. This is called ‘showing cause’. If the accused isn't successful in ‘showing cause’, the magistrate or judge will refuse bail. 

If the accused does show that keeping them in custody isn’t justified, the magistrate or judge will go to the second step in the process. This is to consider whether there are ‘unacceptable risks’ in releasing the accused – that is, risks that they will fail to appear in court, commit a serious crime, threaten someone’s safety, or interfere with witnesses or evidence. If these risks exist, the magistrate or judge will refuse bail, or grant bail with conditions.

If the accused is charged with a crime that doesn’t require them to ‘show cause’, the magistrate or judge will go straight to the second step and consider whether it would be an unacceptable risk to release them.

The court will take into account the views of the victim and their family members when deciding on bail. You will not have to appear in court, but be sure to tell the police officer in charge if you have any fears or other concerns about the accused being released from custody

Bail conditions

Bail conditions the court can impose on the accused to protect victims and witnesses include:

  • a curfew
  • not making contact with victims and witnesses
  • not going near victims and witnesses.

Other bail conditions the court can impose include:

  • surrendering a passport
  • reporting to police on a regular basis
  • depositing a large sum of money that will be forfeited if bail is breached
  • living at a certain address
  • not drinking alcohol
  • attending drug and alcohol courses or rehabilitation
  • attending medical appointments.

While the steps for granting bail in the Supreme Court are the same as in the Local Court, Supreme Court bail applications are normally a more formal process, and the accused will usually appear from prison via AVL link rather than in person.

If you are a victim of a serious personal crime, the police or ODPP will contact you if the accused is granted bail. 

Nearly all criminal cases start off in the Local Court before a magistrate.

If the crime is serious (an ‘indictable offence’), the ODPP takes over the prosecution from police. We also take over all child sexual assault matters.

Under NSW law, many serious criminal matters are transferred from the Local Court to the District Court and the most serious (such as murder) are transferred to the Supreme Court. Other serious crimes (for example, armed robbery, or dangerous driving causing death) can be prosecuted in either the Local Court or the District Court.

Local Court prosecutions are less complex than those in the higher courts and typically take less time. This means less stress and uncertainty for victims and other witnesses and less demand on the court system. However, while the District and Supreme Courts can impose the maximum penalties available for crimes, there is a cap on the sentences the Local Court can give. (For example, the maximum prison term the Local Court can impose for a single offence is two years, and for multiple offences, five years.)

For these reasons, the ODPP prosecutes crimes that are likely to result in a high penalty in the District or Supreme Court and we prosecute crimes in the Local Court if the likely penalty is within the range it can impose.

Police prosecute less serious crimes (‘summary offences’) themselves, in the Local Court.

Before a serious criminal matter is transferred to a higher court, it goes through what is called the ‘committal’ process in the Local Court.Photo of contents of a brief

During this stage, police send us, and the accused, the evidence they gathered in their investigation, called a ‘brief’. A brief can include witness statements, the charges laid, bail documents, results of forensic pathology tests (for example, blood and hair samples), results of medical examinations, photographs of the crime scene, and other relevant material.

The matter is then adjourned so a senior ODPP prosecutor can examine the evidence to make sure it supports the charges laid. Sometimes the ODPP will ask the police to lay different, or extra, charges. For example, we might decide there is not enough evidence to support the police charge of inflicting grievous bodily harm, but that the evidence supports a charge of assault occasioning actual bodily harm.

The ODPP then has to ‘certify’, or tell the court, which charges we will go ahead with. If the charges were laid on or after 30 April 2018, this will be the first time we appear in court in the matter, instead of the police.

After the ODPP confirms which charges we will continue to with, the magistrate will order the prosecution and defence lawyers to meet at least once for what is called a ‘case conference’. This is to see whether the accused is willing to plead guilty at this early stage, or, if not, to resolve as many issues in dispute as possible before the trial process begins.

 

During the case conference, the accused, through their lawyer, might agree to plead guilty to less serious charges than those we have ‘certified’, or to a smaller number of charges. For example, the accused might agree to plead guilty to reckless grievous bodily harm if we drop the more serious charge of grievous bodily harm with intent.

                        

Charge negotiations

 

We weigh up many factors when deciding whether to negotiate any changes to the charges. These include whether the charges the accused is willing to plead guilty to reflect the seriousness of the crime and are likely to result in an appropriate penalty; whether the victim is likely to be further traumatised by having to give evidence in a trial if we refuse the accused’s offer; and the savings in cost and time of not going to trial. Before the ODPP agrees to any changes to the charges, we will ask the victim and the police officer in charge for their views. (Negotiations about charges can take place at other times, not just at case conferences.)

 

Case conferences aren’t held if the accused doesn’t have a lawyer, or has already pleaded guilty to all the charges, or if there are questions about whether they are mentally ill or impaired.

If the accused pleads 'guilty', the magistrate will commit (transfer) them to the District or Supreme Court, where a judge will sentence them. If the accused pleads 'not guilty', the magistrate will commit them to the District or Supreme Court for trial, before a judge and usually a jury.

If you are a victim of violent crime, you are very unlikely to be called to give evidence while the matter is still in the committal stage before the Local Court. If the accused wants to cross-examine you, they have to show the magistrate there are ‘special reasons’, in the interests of justice, why you should give evidence — which is difficult to do. This step is so victims usually only have to go through the trauma of appearing in court once, during the trial.

Sexual assault victims who are under 16 years old or cognitively impaired cannot be called to give evidence at this stage of the prosecution.

Generally, witnesses who are not victims are also not called to give evidence during the committal process. Unless the prosecution and defence lawyers agree a witness should appear, the magistrate has to be satisfied there are ‘substantial reasons’ in the interests of justice to call them. This is not as difficult as showing there are ‘special reasons’, but it is still a barrier.

If the magistrate does agree to you being cross-examined as part of the committal process, the ODPP prosecutor and your WAS officer, if you have one, will contact you to make sure you know what to expect on the day you go to court.

Photo of Wollongong CourtThe first time the accused appears in the District or Supreme Court, it is before a judge only. The charges are formally read to them and they are again asked to plead. This is called an ‘arraignment’. The accused can plead differently at their arraignment to how they pleaded in the Local Court.

If the accused pleads 'guilty', a date will be set for a sentence hearing. Witnesses do not have to attend sentence hearings but in serious criminal matters involving violence, sexual assault, death or injury, victims will usually be able to make a victim impact statement, if they want to.

If the accused pleads 'not guilty' a date for their trial will be set. This means witnesses will be called to give evidence.

Before the trial starts, the prosecution and defence lawyers will usually attend court a number of times for what are called ‘pre-trial conferences’ or ‘call-overs’. Witnesses don’t have to attend these.

When a trial date has been set, you will receive what is called a ‘subpoena’ in the mail. This means you are required to go to court and give evidence. It will tell you which court to go to, and the date to be there. The ODPP prosecutor will also write to you with this information.

The court date in the subpoena is the date the trial is due to start. Sometimes this will change, or the trial will start on that date but witnesses won’t be called on the first day. The ODPP prosecutor and the police officer handling the matter will stay in touch with you about when you are to be in court. If you have a WAS officer, they will also talk to you about where to go and when to be there.

Photo of meeting roomThe ODPP prosecutor handling the case will want to meet with victims and key witnesses before the trial starts to discuss the legal process ahead. For victims, it is also to make sure you have all the information you need to make decisions in the case.

These meetings, called ‘conferences’, are held at the ODPP’s office. If you have a WAS officer, they can be there too.

The prosecutor is likely to talk about:

  • your witness statement
  • the main steps in a criminal case
  • the role of a prosecutor and your role as a witness
  • what to expect when you give evidence, including when you are cross-examined
  • court behaviour, like bowing when you enter and leave the courtroom and addressing the magistrate or judge as ‘Your Honour’
  • the charges against the accused, and why they sometimes change
  • special arrangements available to vulnerable witnesses, such as giving evidence via CCTV or AVL
  • whether you need an interpreter
  • any special needs you may have
  • travel and accommodation arrangements
  • witness expenses.

You can claim witness expenses for attending a conference at the ODPP, just like you can when you go to court to give your evidence.

Photo of judge in courtTrials in the District and Supreme Courts are before a judge and jury, although both the accused and the prosecutor can apply for the case to be tried by a judge only.

The prosecution is responsible for proving beyond reasonable doubt that the accused committed the offence/s they are charged with.


The prosecution calls its first witness, who gives his / her evidence-in-chief, then is cross-examined by the defence. The prosecution may then ask the witness more questions, in what is called a ‘re-examination’. The judge may also ask some questions.

The prosecution then calls its other witnesses, who are questioned in the same way.

The witnesses for the defence then each give their evidence-in-chief and are cross-examined by the prosecution. The defence may then re-examine the witnesses and the judge may ask them some questions. The accused does not have to give evidence during the trial but if they do it will be as a witness for the defence.

The jury members go into another room to consider their verdict. When they have all reached the same decision, they come back to the courtroom.

If the judge or jury finds the accused is not guilty, the accused is free to leave the court. This is called an acquittal, and cannot be appealed.

Photo of hammer and gavelThe judge does not usually sentence the accused (now referred to as the ‘offender’, as they have been convicted) immediately after the verdict, but sets a date for a sentence hearing.

If the offender pleaded guilty to a serious offence while the matter was still before a magistrate in the Local Court, they will be entitled to a 25 per cent discount on their sentence. This is the maximum discount that can be given. Discounts are not available on life sentences.

If you were harmed as the result of a serious crime involving violence, sexual assault, death or injury, or you are a family member of a victim who died as the result of a crime, you will usually have the opportunity to make a victim impact statement (VIS) to the court.

VISs are made before sentencing, if the offender has pleaded guilty or was found guilty.

If you want to, you can read your VIS aloud in court, or have someone read it for you.

VISs aren’t available in all criminal cases, so if you want to make one, talk to the prosecutor about whether you will be to.

Photo of trolley of documents for appealThe offender has 28 days from a conviction or sentencing to appeal, or let the court know that they are planning to appeal. If a case was dealt with in the Local Court, the appeal will be heard in the District Court. If the trial or sentencing was in the District or Supreme Court, the appeal will be to the Court of Criminal Appeal.

From time to time, the ODPP will decide not to continue prosecuting a case. Reasons we might do this include that the victim doesn’t want to proceed; there is not enough evidence against the accused; or continuing isn’t in the public interest (see  Discontinuing prosecutions in the ODPP's Prosecution Guidelines). If the ODPP discontinues a matter, the judge or magistrate will discharge the accused, meaning they will be free to go. The ODPP prosecutor will always consult with the victim and the police officer in charge before making this decision. Victims who disagree with the ODPP can make a complaint to the Director of Public Prosecutions.

At other times, the judge will decide that the evidence against the accused isn’t strong enough to continue a case, and discharge them.

If there are genuine questions about the accused’s mental health, a matter will also take a different path than usual. The Mental Health (Forensic Provisions) Act 1990 rather than normal criminal law will apply, with can mean a different legal process, verdict and penalties (see Crimes involving mental illness or impairment).

If members of a jury can’t all agree on a verdict, the ODPP will consider whether to run the trial again, before a new jury. We will talk to the victim and the police officer in charge before making this decision. A retrial doesn’t always mean witnesses will have to give evidence again – if you are a vulnerable witness, the courts will usually accept your previous evidence, which will have been recorded. The prosecutor will talk to you about what happens when a matter is retried.