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​The NSW Criminal Justice System

Criminal law says that no one is allowed to harm or hurt someone else in any way. A crime is when someone breaks the criminal law.

When a crime is committed against you, the victim, it is also seen as a crime against our community. In our legal system, the police, prosecutors and the courts all have different roles when a crime is committed.

Some principles underlying the criminal justice system

A crime is a crime against the State. The State, not the victim, prosecutes the accused person. The victim is a witness for the prosecution.

The accused is always considered innocent until proven guilty.

The NSW criminal justice system requires the accused person to be proven guilty "beyond a reasonable doubt." Otherwise, the accused person is found not guilty.

It is up to the prosecutor to prove the accused person guilty. It is not up to the defence to prove the accused person not guilty. Only the best available evidence will be allowed, for example, what a witness has seen, heard, said or done. There are very strict rules about what evidence is admissible or allowed to be used in court.

It is the role of the jury to consider the facts of the case and decide if the accused person has been proven guilty beyond a reasonable doubt.

The accused has the right to choose to remain silent or to give their version to the court in evidence. The accused has the right to face their accuser in court. The accused may have a solicitor to argue their case or they might argue their own case. The accused person may access Legal aid to assist in payment of their legal costs as long as they pass a means test.

Minor and major offences and the criminal justice system - compared

Minor offences

  • Minor criminal offences are also called summary offences and were previously known as 'petty' offences. Examples include threatening behaviour, breach of an Apprehended Violence Order.
  • The prosecutor is such matters is a specially trained police officer known as a police prosecutor.
  • Minor offences are usually decided in the Local Court (formerly called the Court of Petty sessions)

Major offences

  • Major criminal offences will usually be indictable (carry punishment of two years or more imprisonment). Examples include Armed robbery, Sexual Assault.
  • The prosecutor in such matters is a lawyer from the Office of the Director of Public Prosecutions (ODPP).
  • These matters are usually decided in a higher court (for example, District Court or Supreme Court) where convictions can be made that carry a more severe sentence than can be imposed by a magistrate in a Local Court Summary hearing.

The courts of the NSW criminal justice system

Local Court

  • Is usually the court first attended for most criminal matters. It deals with what were considered "petty" crimes (which is why it used to be called the Court of Petty Sessions"). Such minor criminal offences are also referred to as Summary Offences.
  • Cases are tried solely by a magistrate, and there is no jury.
  • The ODPP decides whether the Local Court can deal with the matter, or whether it should be forwarded to a higher court.
  • In serious criminal matters (for example murder) the accused will attend the Local Court for a committal hearing where the magistrate will determine whether a case, at first sight (prima-facie), exists.
  • Apprehended Violence Orders ( AVOs) are issued by the Local Court.
  • Local Courts website

Children's Court

  • Is the Court that deals with offences committed by persons under 18 years of age. It also hears cases where the accused is under 21 years of age and was under 18 years of age when charged by the police. The children's court generally hears and decides the less serious offences. The most serious offences committed by children are forwarded from the Children's Court to the higher courts, such as the District Court.
  • Cases are tried solely by a magistrate, and there is no jury.
  • The Children's Court is a closed court - the public are not able to attend proceedings. (This is to protect the charged person's identity).
  • The Children's Court Magistrate can sentence offenders to serve time in detention centres, order rehabilitation through counselling, or impose community service.
  • In many parts of NSW the Local Court can sit as a children's court to hear children's cases.
  • Children's Court website

Coroner's Court

  • Deals specifically with the cause and manner of a person's death, where the police are suspicious of the manner of death.
  • The court conducts an inquiry to establish whether there is enough evidence for a case to be made against a possible suspect.
  • Coroner's Court website

District Court

  • Is the court where most criminal cases are heard and tried. It can deal with serious criminal matters for example, armed robbery, manslaughter, sexual assault. (but not murder which is dealt with by the Supreme Court)
  • Is presided over by a judge and a jury determines the guilt or innocence of the accused.
  • The court hears certain appeals from the Local Court - for example, where the accused believes the sentence is too severe. Where there is new evidence, the accused may also ask to be retried by the District Court (appeal de novo).
  • District Court website

Supreme Court

  • Hears the most serious criminal cases such as murder & treason.
  • A single Justice and a jury of 12 hear all criminal trials.
  • The court hears appeals from both the Local and District Courts (those from the Local Court are only where the prosecutor believes a magistrate has made a mistake in interpreting the law)
  • Supreme Court website

Court of Criminal Appeal

  • Hears appeals from persons found guilty of a crime in the District or Supreme Courts. Also hears appeals from the prosecution if it considers a sentence given by a court was too lenient.
  • Is presided over by three Supreme Court Justices.

High Court (Federal)

  • Hears appeals from the various state Courts of Criminal Appeal. The High Court is the court of final appeal for the whole of Australia with the ability to interpret the common law for the whole of Australia. Appeals to the High Court are by special leave only. This is rarely granted.
  • The High Court is presided over by a Chief Justice and six Senior Justices.
  • High Court website
    Links to all Courts and Tribunals

Types of laws

Common Law and Statute Law

Laws in NSW usually have one of two origins.

Common Law is based on decisions and their reasons as made by judges. By tradition, judges continue to decide each case based on similar earlier decisions which are referred to as 'precedent' cases.

Statute Law is based on Acts of Parliament, either State or Federal

Criminal Law and Civil Law

Laws in NSW are in one of two classes, which have different standards of proof:

Criminal law relates to crimes or offences that are against the expectations of society as reflected in law. for example assault, theft etc. The state has the role of prosecuting or enforcing criminal law. Where Criminal Law applies, the standard of proof applied is that a case must be proved ' Beyond Reasonable Doubt'

Civil law is all law that is not criminal law, for example it includes 'contract law' and 'family law'. In civil law matters, the standard of proof applied is that a case must be decided on the ' Balance of Probabilities'

Other links

Plain Language Law search - Law and Justice Foundation - NSW plain language legal information, including books, factsheets, videos, community legal education programs and material in other languages

What's the Law - 10 simple stories dealing with the most common legal issues experienced by recently arrived migrants and refugees.