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Justice Journey: Information for victims of crime about going to court in NSW                

Transcript of video program                

     

    Chapter 1: Introduction

    HOST

    You are watching this program because you have been a victim or a witness to a crime, and someone has been charged by the police for committing that crime. By now you have made a statement to the police and you have been asked to come and tell the court about what happened, what you saw or what you heard. Most people feel nervous or worried about going to court and giving evidence. This video explains what your role is as a witness for the prosecution, what to expect in court, and some tips on how to get through the process.

    The formality and legal language of courts can be confusing; you may be worried about coming face to face with the person who has been charged by the police; and there’s the natural fear that if you make a mistake, maybe they could get away with their crime. But while this is a new experience for you, it’s something that is played out in the courts every single day. So having a good idea of what happens in court, who the main people are, and what is expected of you when you give evidence will help you cope with this often bewildering experience. It’s important to remember that there are trained people who can help you through the process, because you have a VERY important job to do. You are not only a victim of crime - you are a WITNESS. Sometimes the most important witness.

    Chapter 2: Before you get to court

    POLICE OFFICER

    Good afternoon, sir

    ABORIGINAL MALE

    Good afternoon. I’d like to report my laptop’s been stolen.

    HOST

    Your journey through the justice system starts long before you even set foot in a courtroom. As a victim or witness of a crime you would have given a statement and the person who committed the crime has been charged with breaking the law of NSW. As far as the law is concerned, the "alleged victim", is one of the witnesses – often the main witness – who can help the prosecution prove the crime.

    POLICE OFFICER

    So tell me exactly what happened. What you heard. What you saw.

    FEMALE

    Jack, my ex-boyfriend – was at my door. He was yelling and screaming at me to let him in but I was so scared. I wouldn’t open the door. I was ringing the cops when I heard Dan came home. I wasn’t expecting him home so soon. I heard Jack and Dan yelling at each other and then I heard this thumping sound. I opened the door and saw Jack standing there. Dan was lying on the ground. Jack had the knife in his hand. There was so much blood.

    POLICE

    Did you actually see Jack stab Dan?

    FEMALE

    No, but I know he did it. He always carried that stupid flick knife with him. He said he needed it to feel safe. God knows why he needed to feel safe. Everyone was scared of HIM and his crazy temper.

    HOST

    The detailed statement you give the police, the physical evidence they collect from you, and their other investigations, all form the basis of the case that will be bought against the person accused of the crime.

    If the case is prosecuted by the Office of the Director of Public Prosecutions in the District or Supreme Courts, the NSW Witness Assistance Service can put you in touch with any welfare, health, counselling and legal services you may need to get you through this difficult time.

    Specially qualified staff will work with children and other groups with specific needs.

    DETECTIVE

    Do you want to start by telling me about what happened?

    TEENAGE GIRL

    I was running down the street, hoped that I wouldn’t be late. He drove by in his car and he pulled over and opened the door and said ‘you look like you are in a bit of a hurry there. Would you like a lift to school?’ I said yes, so I got in and gave him directions to my school.

    HOST

    If you are an Indigenous Australian or come from a non-English speaking background, your culture will be respected at all times, especially around complex and sensitive issues such as family and community connections and beliefs.

    POLICE

    Do you know her name?

    ABORIGINAL MALE

    No.

    POLICE

    It’s very important that we try and identify her. To do that we need to try and get as much detail from you.

    ABORIGINAL MALE

    She was wearing a black hoodie.

    POLICE

    So you said… roughly what time did this occur?

    ABORIGINAL MALE

    Roughly about 6 or 7 pm.

    MOTHER

    So what happens now, will you charge him?

    PLAIN CLOTHED DETECTIVE

    Not at first. We give him the opportunity to come in for an interview and if he is charged with an offence, the matter goes to the Local Court. If the Court decides the evidence is strong enough to convince a jury that he committed an offence, the Magistrate will refer your case to the District Court and it is heard in front of a Judge and Jury.

    HOST

    Your safety and privacy is important - especially if you have been a victim of physical or sexual violence. You should be told if the accused has been granted bail and is back in the community, and you can be protected from contact with the accused and their witnesses. You will also be consulted if they want to plead guilty to a less serious charge in exchange for dropping other charges.

    PLAIN CLOTHED DETECTIVE

    He has been granted bail but he has been instructed not to come within 500 metres of your house or approach you or your family when you are out and about.

    TEENAGE GIRL

    I’m scared, I don’t want to look at him, I don’t want to see him – do I have to see him when I go to court?

    PLAIN CLOTHED DETECTIVE

    No – you will be in a special safe room with Closed Circuit TV cameras. This means the Judge and everyone else can see you on the monitor in the courtroom but you won’t see the accused. You can also have a support person with you when you give evidence.

    HOST

    There is a lot that has to happen before you get to court. Once charges are laid against the accused, the court process starts in earnest. The prosecutor, or your court support person, will keep you updated about how the trial process works, what you have to do, and where and when the trial will take place.

    PROSECUTOR

    These are pretty serious charges against the accused. Your husband died as a result of this fight. Jack could go to prison if the charges are proved against him.

    FEMALE

    I don’t understand - what do you mean proved? Jack stabbed him. What happens next?

    PROSECUTOR

    Jack has been charged with murder and he will be committed to stand trial in the Supreme Court. "Proved" means that the jury will have to decide if there is enough evidence for them to say that the crime was committed by him beyond a reasonable doubt.

    FEMALE

    When will I have to go to court?

    PROSECUTOR

    Generally you won’t need to give evidence at the Committal Hearing in the Local Court, but you will have to give evidence at the trial in front of the Supreme Court Judge and Jury. It’s going to be a long haul I am afraid.

    Chapter 3: Overview of the court system

    HOST

    The primary role of the State court is to deal with State law. There are three tiers in the general court system in NSW: the first is the Local Court, the second the District Court, and the third is the Supreme Court.

    The Local Court is the first tier of the Justice System. It hears the vast majority of cases in NSW – from the less serious cases such as driving offences, stealing and property damage – to more serious cases such as assaults where injuries are caused, housebreaking and drug related crimes.

    The most serious matters are referred from the Local Court to either the District or Supreme Courts.

    The District Court is the next highest court after the Local Court. It is presided over by a judge and hears more serious matters than the Local Court, including all indictable criminal offences except murder, treason and piracy.

    In criminal trials, there will often be a jury of 12 people and the judge controls proceedings and decides questions of law.

    The Supreme Court generally hears matters involving only the most serious criminal cases.

    Chapter 4: The local court

    POLICE PROSECUTOR

    So have you read through your statement?

    ABORGINAL WITNESS

    Yep, I think I’ll remember it all but I’m a bit nervous.

    POLICE PROSECUTOR

    Yes, that’s normal. Remember, as the witness you are there to explain exactly what happened as you saw it. All you can talk about is what you know so try to think of what you saw, what you felt, what you heard and what you did.

    ABORGINAL WITNESS

    Thanks, that helps. Any other tips?

    POLICE PROSECUTOR

    Yes, sure. When you get into the courtroom you might feel a bit awkward. Remember to listen carefully to the questions being asked. Speak clearly so the court can hear you properly and if you don’t know the answer to a question just say so. If they ask you a question and you need them to repeat it, don’t be afraid to do so and they will rephrase it for you. Also take a couple of deep breaths before you go into the witness box. It helps to calm the nerves.

    ABORGINAL WITNESS

    Okay, I think I’m ready. When are we on?

    POLICE PROSECUTOR

    We are set on at 10 o’clock today. Why don’t you go and sit in the public gallery and you can get a feel for what’s happening in the court today.

    HOST

    Cases in the Local Court are heard by a Magistrate, rather than by a Judge and Jury. The Magistrate will determine the matter and may impose a sentence if the accused is found guilty.

    If the case is more serious, the Magistrate will decide if the case should be committed to the District or Supreme Courts to be heard before a Judge and possibly a Jury. This is called a Committal Hearing. Most likely you won’t be asked to attend a Committal Hearing, but you may choose to go along to see how the court process works. And whilst it is possible you might be called to give evidence at the Committal Hearing, this is generally not the case.

    MAGISTRATE

    Well, given the serious nature of this offence – bail is refused and the accused shall remain in custody pending the case being heard in the Supreme Court.

    HOST

    Local Courts can be busy, crowded places, and often feel quite chaotic. Lists outside the courtroom have information about your case and tell you what court to go to.

    Multiple cases may be heard in a day, and decisions are often made swiftly.

    It can be important to have a support person with you to help you get through the day.

    Regardless of which court you are in, the courtroom is a formal place and there are a few rules to obey.

    Dress appropriately and in a way that shows respect to the court. Take off your cap, hat or sunglasses. Sometimes courts can be air conditioned so it is a good idea to bring a jacket with you. Switch off your mobile phone. People entering or leaving the courtroom should bow towards the Magistrate or Judge as a mark of respect for the court.

    Some cases will be finalized in the Local Court, and you may be called to give evidence during the hearing process. But if your case is set to be heard in a higher court, then your journey through the Criminal Justice System will continue on another day. The legal process can take a long time and you may have to wait for some months for your next court date.

    If your case is finalised, this will be the end of your justice journey.

    Chapter 5: Preparing for the hearing

    HOST

    Before going to court, it is important to read your police statement to refresh your memory. The Judge and Jury will not have a copy of your police statement and need to hear all the details from you in court. Depending upon where your matter is heard, you may meet the Prosecutor at a pre-trial conference. This is your chance to discuss the case, ask questions and talk about any of your concerns. It’s important to remember that charges can be withdrawn or negotiated at this or any other stage throughout the legal process. This will be a decision made by the Prosecutors in consultation with you.

    FEMALE WITNESS

    But I am so nervous, what if I get it wrong or I accidentally contradict myself. If I blow it in the courtroom, could he walk free?

    PROSECUTOR

    Just try and stick to what you know and always tell the truth. And if you get upset, don’t worry. You can ask for a break.

    HOST

    Try to remember the details of the incident such as dates, times, descriptions, actions and the exact words used in conversations. It is also important to remember that what you have to say is only part of the whole case against the accused.

    Remember, the Prosecutor represents the community and is not YOUR lawyer – it is their job to prosecute the accused on behalf of the State of NSW. Your job is to simply tell the truth, and so you will be asked to swear an oath or affirmation promising this once you get to Court.

    FEMALE WITNESS

    Is that when I have to swear on the bible? I myself am not religious, so is there any other way I can take an oath?

    PROSECUTOR

    No – you can choose to make what we call an Affirmation – where you promise to tell the truth. So you will be told what to say, and when to say it, when you enter the witness box.

    Chapter 6: In the courtroom

    HOST

    Before you give evidence it helps to know the role of everyone in court. Everyone has an important part to play.

    The Judge or Magistrate presides over the court and, depending on which court you are in, may wear a wig and gown.

    The Judge’s Associate helps with case documents or exhibits.

    A Court Reporter or Monitor keeps a record of exactly what is said in the course of the trial.

    The Sheriff’s Officer is responsible for security in the court.

    The case may also be heard in front of a Jury - these are 12 members of the public who have been selected at random from the electoral roll. They won’t know you or the accused. Their job is to hear all the evidence and decide beyond reasonable doubt if the person is guilty or not.

    In the middle of the courtroom is the Bar Table - this is where the Crown Prosecutor and the Defence Team sit.

    The Prosecution Team is led by a Barrister - known as a Crown Prosecutor - and includes an Instructing Solicitor who will assist him or her. You are going to be in contact mainly with the Prosecution Team, who will do their best to help you feel comfortable on the day."

    The Defence Team may include a Barrister as well as a Solicitor, who represents the accused.

    In the District and Supreme Courts, the Barristers will usually wear wigs and gowns.

    The Accused may sit behind their Defence Team, or they will sit in a special place in the court known as the "dock".

    There are a number of different ways for you to give evidence in a court case. If you are a child under the age of 16, are cognitively impaired, or a victim of sexual assault, you may be able to use a screen in the court room or closed circuit television in a remote witness room to see what is going on in the court room.

    This is so you don’t have to face the accused while you are giving your evidence. You will be able to see, hear and speak to the magistrate or Judge and the Prosecutor and Defence Lawyer. Everyone else in the Court will be able to hear and see you too. Although you can be seen by all the people in the courtroom, remember that only the Judge or Magistrate or Prosecutor and Defence lawyer can talk to you.

    The Magistrate or Judge might ask you if you can see and hear them. Sometimes there can be problems with the equipment. If you can't see the Magistrate's or Judge's face on the screen, just say so. If you can't hear what is being said clearly, let the Judge know.

    If your statement was recorded beforehand on audio or video tape by the police, it too can be played in court.

    Chapter 7: Your time at court

    FEMALE WITNESS

    I feel sick. I can’t believe it has come to this. I know he can’t hurt me but I am terrified to see him again. I feel like he still has power over me.

    SUPPORT PERSON

    Just stay focussed and tell the truth. That’s all you have to do. And remember, we’ll be here for you.

    HOST

    When the day comes for you to appear in court, you will have to face the accused as they have to be present to hear all the evidence against them. There is the possibility that you could run into the accused, or their family or friends, around the court complex, or entering and leaving through the same public entrance as you.

    If the accused is being held pending the hearing, they will be brought to the court on the day of the trial and kept in a cell before entering through a separate entrance.

    If you are worried about this happening, or feel threatened, talk to the police, the prosecutor or your victim support contact and they may make arrangements to ensure your safety.

    ACCUSED MOTHER (SHOUTS)

    This is all your fault. If you hadn’t done what you did we wouldn’t be here today. My son is a good boy. It’s all your fault. We shouldn’t be here.

    SHERIFF speaks quietly.

    HOST

    There may be a security check at the entrance to the Courthouse to ensure that nothing prohibited is allowed in. You must remember to not take photos or video recordings once you are in the courthouse.

    Make sure you arrive in plenty of time, and once you get there let the Prosecutor or the officer in charge of your case know. You won’t be able to enter your assigned courtroom until it is your turn to give evidence - and this could take a long time depending on the complexity of your case. Sometimes you won’t even be called to give evidence on the day you thought you would, and you will have to come back on another day.

    PROSECUTOR

    Look, it may be some time before you are called on to give evidence this morning. The court has a lot of other legal arguments to go through first. I hope you’ve got something with you to keep you busy?

    FEMALE WITNESS

    Yes but I thought we would be first up today. Are you saying I could be here all day and nothing may happen?

    PROSECUTOR

    I am afraid so. I will try and get a sense of when we might go in and let you know but for the moment you will just have to be patient. Just try and relax.

    HOST

    Make sure you are prepared for a long wait and you have a friend or family member for support and company. Bring something to eat and drink, and something to keep you occupied while you wait, like a book or magazine.

    The most important thing is to be as relaxed as you can while you wait.

    Chapter 8: Giving evidence

    HOST

    When it is your turn to give evidence in the Court, the Court Officer will call your name. They will then take you and your support person into the courtroom. You will stand in the witness box and swear an oath or make an affirmation to tell the truth.

    In some cases you will be asked to give your full name and address. If you don’t want to give your address because you are afraid of the accused finding out, tell the Prosecutor beforehand.

    It is very important that you tell the truth during all court proceedings. While people do make mistakes, to deliberately lie under oath is called perjury and is a criminal offence.

    COURT OFFICER

    Do you solemnly and sincerely declare and affirm that the evidence you shall give will be the truth, the whole truth and nothing but the truth? To adopt this affirmation, please say I do.

    FEMALE WITNESS

    I do

    HOST

    The first part of your evidence is known as Evidence in Chief. It’s at this point the court hears all the evidence against the accused, including your evidence. You will be asked questions by the prosecutor about what happened to you or what you witnessed. These questions will be based on what you told the police in your statement.

    FEMALE WITNESS

    I was at home making dinner and I heard a knock at the front door. I opened it and saw Jack. He said he needed to talk to me. I told him to go away and I shut the door in his face.

    PROSECUTOR

    What did he do when you shut the door?

    FEMALE WITNESS

    He got really angry.

    HOST

    The Prosecutor is not allowed to help you with your answers in any way. If they need more information or more details, they will ask more questions. If you don’t understand the question - ask for it to be put another way.

    PROSECUTOR

    Did Jack ever say he wanted to hurt Dan?

    FEMALE WITNESS

    Yes – he said "if you don’t let me inside I will smash the door down and smash Dan’s face in"

    HOST

    Giving evidence can be very confronting. If you have been a victim of personal violence or witnessed a violent crime, you will have to describe in detail what happened during the assault. This can be very difficult as it may bring back a lot of feelings that you had at the time of the crime. You may be asked to identify clothing, jewellery or other items, and these will be presented to the court as exhibits.

    FEMALE WITNESS

    Yes – Jack had one just like that. He used to put it in his pocket when we went out. I hated it. It scared me. But he said he needed it to protect me.

    PROSECUTOR

    Why did he need it to protect you?

    FEMALE WITNESS

    He was very jealous. He reckoned other guys were always trying to crack on to me. When we were together he used to go nuts if any guy even spoke to me.

    PROSECUTOR

    So do you think Jack was mentally unstable?

    DEFENCE

    Objection – leading the witness.

    HOST

    Sometimes the Defence Lawyer will say "objection" about the way the prosecutor is asking you questions. Don’t take the objection personally - it is up to the Judge or Magistrate to decide if you can be asked the question and how it is to be asked. Just wait and you will be told when to continue. Sometimes you may even be asked to wait outside while the Judge decides whether the question is relevant.

    The next stage of giving evidence is called the Cross Examination, and this is where the Defence Barrister or solicitor asks questions of the prosecution witnesses, including you. This is a vital part of any trial, as it enables the Defence Team to test the evidence you have given. It’s the Defence Barrister’s job to test your evidence. If you have a break during cross-examination the judge will remind you not to discuss your evidence with anyone. This means you cannot talk about the questions you are being asked or the answers you are giving with the support person, prosecutor, police, family or friends.

    DEFENCE

    You say you heard the sound of two men fighting outside your door. Did you see the two men fighting?

    FEMALE WITNESS

    No, I heard Jack yelling at Dan and then he pulled out the knife and stabbed him.

    DEFENCE

    Did you actually see the two men fighting?

    FEMALE WITNESS

    No I did not.

    HOST

    The Defence team could use legal phrases like "I put it to you …or… I suggest to you" which may not even sound like a question – but it is - and it requires a response from you. This is where you may feel a bit anxious or uncomfortable. Be prepared to be asked questions that you weren’t expecting.

    The Defence Barrister may also suggest you’re confused, untruthful, exaggerating, or even lying. You may feel upset or angry, but remember – it is not a personal attack. The Defence team are simply doing their job, which is to test the information you are giving about the incident. Stay calm and remember to take your time when answering any questions.

    DEFENCE

    I put it to you that it was Dan who attacked Jack. Jack was simply defending himself.

    FEMALE WITNESS

    No, Jack attacked Dan when he came home from work.

    DEFENCE

    But you said that the door was closed and you did not actually see the attack. Dan was a martial arts expert wasn’t he?

    FEMALE WITNESS

    He taught Muay Thai Kick Boxing and Karate classes – yes.

    DEFENCE

    In fact Dan won a NSW State Title in Kick Boxing so he knew how to defend himself didn’t he?

    FEMALE WITNESS

    Yes but he was a very gentle man, he would never hurt anyone.

    DEFENCE

    And he even incorporated knife and sword work in his martial arts, isn’t that correct?

    FEMALE WITNESS

    Yes.

    DEFENCE

    So he was trained to disarm an opponent, is that right?

    FEMALE WITNESS

    Yes.

    DEFENCE

    I put it to you that Jack was acting in self-defence because he believed that Dan was going to attack him using his Martial Arts skills because he was jealous that you may have been seeing your ex-partner behind his back.

     

    FEMALE WITNESS

    That’s not true. I have an AVO against Jack. Why would I want to see him? Dan would only want to protect me.

    DEFENCE

    So you are saying that Dan would resort to violence to protect you from Jack?

    FEMALE WITNESS

    He would want to protect me – yes.

    HOST

    You could be asked about your personal life or about things that you did or experienced a long time ago. Remember; always tell the truth even if you think it might not help the case. Listen carefully to the questions and only answer exactly what you are asked. And if you don’t understand the question – ask it to be rephrased. If you don’t know an answer to a question or can’t remember something you are being asked about – just say so. And if you feel unwell or too upset to continue, ask the Magistrate or Judge if you can have a break.

    DEFENCE

    Dan, your deceased husband, had a history of violence against other people, didn’t he?

    FEMALE WITNESS

    I don’t know what you are talking about.

    DEFENCE

    I put it to you that your husband got into a violent fight with a man at a pub four years ago.

    FEMALE WITNESS

    I was not with Dan four years ago.

    DEFENCE

    Is it fair to say Dan was a violent man?

    FEMALE WITNESS

    No, Dan wouldn’t hurt anyone. Why is this relevant?

    JUDGE

    Please answer the question, Ms West.

    DEFENCE

    Ms West, were you aware that Dan had a violent fight with another man in the past?

    FEMALE WITNESS (CRIES)

    Yes…no… Sorry, may I have a minutes break?

    JUDGE

    We will take a fifteen minute break.

    HOST

    Your evidence may run over more than one day – if that happens, it is very important that you don’t talk to anybody at all about the evidence you have given – this includes family and friends. Even the Prosecutor can’t discuss your evidence with you once you have started cross-examination.

    Once the Defence Barrister has finished, the Prosecutor may want to ask you some more questions about what you just said in cross-examination. This is called re-examination.

    When you have finished giving evidence, the Judge or Magistrate will say "You are excused". You can now go home or you may want to sit in the public gallery at the back of the courtroom and listen to other witnesses. When all the evidence from both the Prosecution and the Defence Teams has been given, the lawyers will make their closing addresses.

    In most cases journalists will be allowed to sit and listen in court. They are allowed to write down what is said and report it on the news. In New South Wales, court cases are generally open to the public AND the media such as newspapers, TV, and Radio, although they don’t allow cameras in the courtroom. In some case – such as those involving children or serious sexual assault - the public and media may be excluded from the court while you give evidence.

    Talking to the media while the trial is underway, could affect your case, so seek advice from the Prosecutor or the Witness Assistance Service or the Police before speaking to them.

    In sexual assault cases, your evidence will be recorded and used again in a later trial if needed. This is so you don’t have to come to court and give evidence again.

    Chapter 9: The verdict

    HOST

    In a Local Court, the Magistrate will decide if the accused is guilty and decide the sentence. However, if your case is heard in the District or Supreme Courts before a Jury, they will retire to the Jury Room to consider the evidence and make their verdict. In complex cases, this could take days or maybe weeks.

    The trial could end in a number of verdicts.

    The Accused can be found not guilty and be acquitted.

    There could be "a hung jury", which means that all the members of the Jury were not able to agree on a verdict.

    Or the Accused can be found guilty of the offence.

    Once the Jury has decided beyond reasonable doubt that the Accused is guilty of the crime they have been charged with, the Judge will decide the sentence at a separate sentencing hearing. You aren’t required to attend this hearing if you don’t want to.

    If the person accused of the crime has been found guilty and is to be sentenced, this does not necessarily mean that they are actually going to gaol.

    They may be given a Good Behaviour Bond, a Suspended Sentence or have to do Community Service.

    If they are found not guilty, this does not mean that you will be in trouble or that you have done anything wrong.

    Chapter 10: Sentencing

    HOST

    You may see this as the end of your involvement in the criminal justice system. But in certain matters or offences, you may be able to present a Victim Impact Statement when the offender is sentenced. This is your chance to tell the court about how the crime has affected you.

    The Victim Impact Statement can be reported to the media as it becomes part of the public record of the case.

    If the offender is sent to jail and you have fears for your safety you can ask to be placed on a Victims’ Register.

    Even though the Judge has handed down a decision, it may not be the end of your journey. Sometimes the offender may appeal to a higher court. If this happens, a retrial may be ordered where you and all other witnesses will need to give evidence again. And in some cases, the sentence given to the offender may be changed, or the offender may be acquitted, which means all the charges against them are quashed and they are free to go.

    The end of a trial can be quite an emotional time depending upon the outcome. People sometimes decide to see a counsellor. They may feel that their expectations of court have not been met, regardless of whether the accused has been found guilty or not. And they may feel that their lives have been on hold until the case was finalized.

    If the accused is found not guilty, it means that the case was not proved beyond reasonable doubt. It does not mean that people will think that you have lied or that the incident did not happen. You will not be "charged" or have to pay the legal expenses of the accused.

    There are a number of services offering help and support for victims. The Victims’ Services Website provides contact details. Being a victim of crime can be a difficult experience, and your role as a witness is a very important one. But people are there to make sure you are supported every step of the way through your journey to justice.