Steps in the Prosecution Process

Below is a brief overview about the ways a criminal prosecution may proceed. ODPP lawyers and Witness Assistance Officers can provide you with more detailed information about the prosecution process.

Brief Overview

  • A complaint is made to police, or police are notified that a crime has been committed
  • Police conduct an investigation

  • Based on the police investigation, a person, or persons, is arrested in connection with the crime

  • Police charge a person, or persons, with the crime(s) committed. Those charged with the offence are now called ‘the accused”

  • The accused may apply for bail and if it is refused by police, the accused is entitled to go to the Local Court and ask a Magistrate for bail

  • Bail may be allowed or refused. If they are refused bail at the Local Court, the accused can apply for bail to the Supreme Court

  • Dates are set in the Local Court so that the matter can be prepared for hearing. These are usually called mentions or call overs

  • The police send a brief of evidence to the ODPP. A brief can include the statements of the witnesses, the charges that have been laid, bail documents, results of forensic pathology tests (blood and hair samples, for example), results of medical examinations, photographs of the crime scene and other relevant material found during the police investigation. Some or all of these may be tendered to the Court during a trial  

  • The case is allocated to an ODPP lawyer to prosecute at the Local Court

  • Some cases can be dealt with in the Local Court but others have to go to the District Court or the Supreme Court.

  • In the Local Court the Magistrate decides if there is enough evidence for the case to go to trial, before a Judge and jury. This is known as a Committal hearing

  • If the Magistrate decides that there is enough evidence, the case is then transferred to the higher court for trial

  • The accused is able to plead guilty to the charges at any time during this procedure

  • The accused appears in front of a Judge in the District or Supreme Courts. This is called an ‘arraignment’. The charges are read to the Court and the accused may enter a plea of not guilty. If they do, a date is set for trial

  • Sometimes the accused will plead guilty and a date for sentence will be set

  • If there is a date set for trial, the witnesses, including the victim, will receive notices, called subpoenas, requiring them to attend court to give evidence. The subpoena will tell the witness when they will be required to give evidence

  • The Crown Prosecutor or Trial Advocate who is conducting the trial may ask you to come and speak to him/her about the case before the trial. This is called a conference.  Conferences are held at the ODPP office

  • The trial is held in front of a Judge and usually a jury. All witnesses, including the victim, will give their evidence and will be questioned by the prosecutor. The witnesses are then cross-examined by the lawyer representing the accused

  • The accused may or may not give evidence

  • The jury have to decide if the accused is guilty beyond a reasonable doubt. If there isn’t a jury, the Judge will decide

  • If the accused is found not guilty, this is called an acquittal and they are free to leave the court

  • An acquittal can not be appealed

  • If the accused is found guilty, the Judge will have to decide on a sentence

  • The sentence is a separate hearing. New evidence may be presented. The Crown and the Defence will make submissions to the Court. These submissions may include material they believe should be considered by the judge, including details about the severity of the crime, and case law from similar matters. The accused may give evidence at the sentence hearing and if they do, they will be cross-examined. Character witnesses may also be called to speak for the accused

  • If you are the victim of the crime, or the family of a victim of homicide, you may make a Victim Impact Statement that you can read to the court, or that can be read on your behalf

  • The Sentencing may take a number of days. The judge will issue the sentence when all the submissions have been made

  • The accused has a right to lodge an appeal to the Court of Criminal Appeal against being found guilty and/or against the sentence

  • The Prosecution can appeal the leniency of the sentence. The Court allows 28 days from the date of sentence to lodge an appeal

  • The Crown Prosecutor will write a report to the Director, who makes the final decision as to whether an appeal will be made. 

Other Ways a Case May Proceed

In less serious cases, the case may be decided in the Local Court with the Magistrate finding the accused is not guilty or guilty.

If the Magistrate decides the accused is guilty the Magistrate will decide on the sentence. The accused can then appeal to the District Court against the conviction and/or the sentence.

The Magistrate may decide there is not enough evidence and discharge the accused.

The ODPP may stop the prosecution from continuing if, for example, there is not enough evidence or the victim doesn’t want to proceed. This is called No Further Proceedings and is commonly referred to as NFP, withdrawing the charges or a no-bill, and can happen in the Local, District or Supreme Court.

The accused can enter a plea at anytime, and they can change their plea. Sometimes the accused may plead guilty but then ask the Court if they can change their plea to not guilty. They can also enter a plea of guilty after having pleaded not guilty at first. 

There can be many adjournments and delays before the case is heard in court. Reasons for these can include witnesses not being available, courts not being available, the accused not having or changing legal representation, the accused requiring professional assessments or the ODPP waiting on crucial evidence before being able to proceed. 

The majority of cases in the criminal justice system are finalised within two years. However, some cases move through the system much more quickly and others much more slowly than this. It is very difficult for the ODPP to predict with any certainty how long it will take for a case to go through the system.