The Steps of the Criminal Procedure in Australia

young woman arrested

The prosecution process can be confusing and intimidating for people who have been charged with a crime. It can also be a daunting experience for victims and witnesses of crime who need to testify and provide evidence. Navigating the criminal justice system requires the assistance of an experienced and knowledgeable legal professional who can provide guidance and support throughout what can be a long and complicated process.

There are eight steps in the prosecution process, from the initial investigation into a criminal offence to sentencing. 

Investigation

When a crime is committed, or the police believe that to be the case, an investigation takes place. This is usually undertaken by a police officer or a team of officers. These investigators will take statements from victims and witnesses, collect evidence, take photographs and recordings, and try to ascertain the facts of the case.

All of this information goes into a brief of evidence. This brief is compiled when the investigation team believe they have enough evidence for criminal charges. The brief of evidence is referred to the prosecution for assessment.

Charges Laid

The prosecution will consider the brief provided by the investigators to decide if they want to pursue criminal proceedings. In general, they will decide that a court case is worth pursuing if there are reasonable prospects of the accused being found guilty, based on the information provided by the brief of evidence, and if it is in the public interest to start a prosecution.

This is a crucial step of the prosecution process. It is important for victims to be aware that in some cases, the prosecution will decline to pursue the case if they believe there isn’t enough evidence.

If the prosecution decides to start a prosecution, charges will be laid against the person believed to have committed a crime. This person is known as the defendant. They will be notified that charges have been laid against them. The way that this is done depends on multiple factors, including the seriousness of the crime. They may be sent a court attendance notice, known as a summons. Or, they may be arrested and kept in custody, or granted bail.

Court Proceedings

The court where a criminal matter is heard and dealt with depends on the seriousness of the crime. There are three levels of court for criminal matters in Australia: the Local and Magistrates Courts, the District and County Court, and the Supreme Court. Summary offences that are less serious are often heard by a magistrate in the Local Court. More serious crimes, or indictable offences, are heard in the County, District or Supreme Court with a judge and jury.

The first step of court proceedings includes the opportunity for the defendant to make a plea. Defendants can plead guilty or not guilty. Pleading guilty results in sentencing and is the end of proceedings – witnesses are not called to give evidence. If a defendant pleads not guilty, a date will be set for a committal hearing.

Hearing

Hearings take place in the Magistrates or Local Court.

During the hearing, witnesses are given the opportunity to present evidence. Other evidence can also be put forward, such as physical evidence, photographs and recordings.

Only the magistrate hears this part of the process and makes decisions – there is no jury present. When they have heard all the evidence, they decide on the verdict. The prosecution needs to prove their case beyond reasonable doubt. If the verdict is guilty, the magistrate will impose a sentence either at the time or at a later date. If the verdict is not guilty, the case is dismissed.

Trial

Criminal trials take place in the Supreme, County or District Court, depending on the level of seriousness of the crime. Trials involve a jury which is responsible for deciding if the defendant is guilty. Trials can cover individual criminal offences, or a list of offences can be included on the indictment.

During the trial, witnesses may be called by the prosecution to give evidence. The defendant can decide whether to give evidence before the court or put other evidence forward to support their innocence. They do not have to prove their innocence – it is the responsibility of the prosecution to prove guilt.

At the end of the trial, the judge will summarise the evidence and the jury leaves to discuss and decide if the defendant is guilty or not guilty. If the verdict is guilty, the court chooses a separate date for sentencing. If not, the defendant is acquitted.

Sentencing

If a person pleads guilty or is found guilty during a trial, they will be sentenced to an appropriate penalty. Possible sentences include gaol time, fines, community service, and repaying victims of the crime (or reparation orders).

Victim Impact Statements are often considered when deciding on sentencing. This is a statement provided by a victim of the crime that details the harm done to them.

If you or a loved one has been charged with a criminal offence, our expert team is here to help.

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