Frequently asked questions
This is a short list of our most frequently asked questions. For further information please contact us, through our contact details or through the contact us form provided, here.
Less serious offences, known as ‘summary offences’, usually are prosecuted by police in the Magistrates Court. The ODPP can prosecute a summary matter where the complexity or sensitivity warrants it.
The Office of the Director of Public Prosecutions (ODPP) is an independent prosecuting agency. It acts in the best interests of the State as a whole. The ODPP determines the charges to be heard and conducts the prosecution. The ODPP recognises the special place of victims in the criminal justice system and takes into account their views when making decisions on prosecutions.
A prosecutor is a lawyer who appears as counsel at the trial.
It is possible to be both a solicitor and a prosecutor. Both are employees who represent the State.
Any single matter may involve several different lawyers from the Office of the Director of Public Prosecutions (ODPP). Lawyers perform different roles (solicitor and prosecutor) as a matter progresses though the legal system. Victims of crime can be kept informed of any changes to the lawyer allocated to their matter.
The ODPP makes every effort to ensure that a victim has the same Witness Assistance Officer as their contact person throughout the whole process.
Witness Assistance Officers are qualified social workers employed by the Office of the Director of Public Prosecutions. Referrals to the service are made by our lawyers or other agencies such as SA Police, the Victim Support Service or Yarrow Place Rape and Sexual Assault Service. Victims and families are entitled to request the help of a Witness Assistance Officer without a referral.
The defendant first appears in the Magistrates Court, where the matter is adjourned while a hearing date is set. Police send the ‘brief’ to the Office of the Director of Public Prosecutions (ODPP). It includes the statements of the witnesses, the charges, photographs and other relevant material. The case is given to an ODPP solicitor who specialises in the Magistrates Court to conduct what is known as the ‘committal hearing’. Unless specifically requested, victims and witnesses are not required to attend the Magistrates Court.
The Magistrate will decide if there is enough evidence for the defendant to be tried in the District Court or the Supreme Court. If the Magistrate decides that there is enough evidence to proceed, the defendant is ‘committed for trial’. If a defendant is committed for trial, he/she is known as the ‘accused’ until the trial ends.
The case is allocated to an ODPP solicitor who specialises in trial preparation. The accused appears in the District or Supreme Court before a Judge. The accused is required to enter a plea of ‘guilty’ or ‘not guilty’. If the accused pleads guilty, a date is set for sentencing submissions. If the accused pleads not guilty, the case is adjourned while a trial date is set.
If there is a trial, police contact victims and witnesses to find out if there are any times when they will not be available to come to court. A trial date is then set. It often is several months in advance. In some cases, the witnesses, including the victim, may be given court notices that tell them when the trial is to be held. These notices are called ‘subpoenas’.
Before the trial, the ODPP prosecutor or solicitor may meet victims and witnesses to speak to them about the case. This meeting is called a ‘proofing’.
The trial is held before a Judge and, usually, a jury. Witnesses, including the victim, give their evidence. The jury decides if the accused is guilty or not guilty. If the accused has elected to have a ‘trial by Judge alone’, the Judge decides whether the accused is guilty or not guilty. The prosecution must prove beyond reasonable doubt the case against the accused before they can be found guilty. If the accused is found not guilty, they are acquitted of the charges and are free to go. If found guilty, the accused becomes the ‘prisoner’.
Following a finding of guilt, there generally is a postponement (adjournment) for sentencing submissions. At the sentencing hearing, the ODPP prosecutor and defence counsel give the Judge relevant information about the crime, the prisoner and the impact on the victims. Victim Impact Statements are presented to the Judge. The Judge then decides the sentence.
The prisoner may appeal to the Court of Criminal Appeal against a conviction and/or against the sentence. The ODPP can only appeal against the sentence. The ODPP will appeal if it thinks that the sentence was too lenient or the Judge made grave errors. The ODPP only has a very limited right to appeal against an acquittal (see the FAQ about appeals for more detail).
For more information, see the Crown Appeals section of the ODPP Statement of Prosecution Policy and Guidelines on this site under Publications. A flow chart of the progress of a major indictable file through the criminal justice system is available under Victims/Witnesses/Community.
In less serious matters, the case may be finalised in the Magistrates Court where the Magistrate decides if the defendant is guilty and, if so, decides the sentence.
The Magistrate at a ‘committal hearing’ may decide that there is not enough evidence and may ‘discharge’ the defendant. Where this happens, the Office of the Director of Public Prosecutions (ODPP) reviews the decision. The ODPP may then decide to lay a charge in the District or Supreme Court. This is called an ‘ex-officio information’.
The ODPP can stop the prosecution from continuing if, for example, there is not enough evidence.
The defendant may plead guilty to the charges at any time. If that happens, there is no trial. The sentencing process is the same and Victim Impact Statements are given to the Judge.
Where the police have charged the alleged offender outside of the metropolitan area, the ODPP only becomes involved after it has been committed from the Magistrates Court to the District or Supreme Court.
You can ask to be kept informed of the progress and outcome of the case by contacting either the ODPP solicitor handling the case or the ODPP Witness Assistance Service.
The ODPP can give you information about your role as a witness. If the court is considering bail for the accused, the ODPP will tell the court if you need protection from the accused. The ODPP also will tell the court if any of the accused’s bail conditions have the potential to affect you or your family.
As a victim, it is your right to tell the court about the impact of the offence on you. A victim may read or give the court a written statement about the impact. The prosecutor will give the impact statement to the court after conviction and before sentencing in the District and Supreme Court.
The first thing to do is to talk to the solicitor or prosecutor from the Office of Director of Public Prosecutions who is handling the case or to the ODPP Witness Assistance Service officer. If, after doing that, you are not satisfied, then you should write to the Director of Public Prosecutions at the address under ‘Location Details’ on this site.
Great care is taken to ensure the right decision in the interests of the victim, the suspected offender and the community. There must be an objective assessment of the case to ensure that the proper charges have been identified and that there is sufficient evidence to support a prosecution.
The basis for such decisions appears in the Office of the Director of Public Prosecutions Statement of Prosecution Policy and Guidelines, under ‘Publications’ on this site. The Office of the Director of Public Prosecutions is obliged to consider the public interest when making these decisions. The ODPP takes into account the views of victims of crime and their families wherever possible.
In most cases the Office of the Director of Public Prosecutions (ODPP) prosecutor will arrange to meet victims and witnesses before they are called to give evidence. This sometimes is difficult in regional locations.
If you have any questions or concerns about the process, you should contact the investigating police officer, the ODPP solicitor/prosecutor or ODPP Witness Assistance Officer.
Witnesses are called if the Magistrate thinks it is necessary. The Magistrate usually considers submissions by the prosecution and defence counsel before making such a decision.
All criminal cases will be dealt with in a court, though not all proceed to a trial. In many cases, the accused pleads guilty and the matter is finalised without the need for the victim or witness to give evidence. If the accused pleads not guilty, a trial will be held and victims and witnesses will generally be required to give evidence in court.
In instances where there is no reasonable prospect of a conviction, cases are discontinued by the Office of the Director of Public Prosecutions without going to court.
The Office of the Director of Public Prosecutions Witness Assistance Service can advise about Victim Impact Statements. A Victim Impact Statement booklet is under ‘Victims/Witnesses/Community’ on this site.
Victims of crime and witnesses are able to be informed of the final outcome of the prosecution. Either the investigating police officer or Office of the Director of Public Prosecutions can keep you informed.
The Office of the Director of Public Prosecutions (ODPP) only has a very limited right to appeal against an acquittal. This relates to an acquittal from a trial by judge alone for offences committed after 6 July 2000. The Court of Criminal Appeal may dismiss the appeal or allow the appeal and order a retrial.
The accused also is able to appeal to the Court of Criminal Appeal against his/her sentence. The Court can reduce or maintain the original sentence. It cannot increase the sentence when an accused appeals.
In certain circumstances, the ODPP also is able to lodge an appeal against the sentence of an accused where it believes that the sentence was too lenient or ‘manifestly inadequate’. The court only has the power to increase or maintain the original sentence when the ODPP appeals.
A Sheriff’s Officer at the court will discuss this with you when you attend. If you are unemployed, you will receive a small payment to cover bus fares and incidentals.
Courts generally do not have child care facilities within their precincts. If, however, you have a child who will require care when you are giving evidence, the cost may be reimbursed. Ask the Sheriff’s Officer at court or the Office of the Director of Public Prosecutions Witness Assistance Officer.
This includes a closed-circuit television for witnesses to give evidence from a separate room instead of the court room; a one-way screen to block the witnesses’ view of the accused; a court companion to give emotional support and a closed court from which the public is excluded while the vulnerable witness gives evidence.
Ask the investigating police officer, Office of the Director of Public Prosecutions (ODPP) Witness Assistance Officer or ODPP lawyer about these arrangements and who may request them.
Victim Impact Statements are used to assist the Judge in sentencing a prisoner. Further information about Victim Impact Statements can be provided by the investigating police officer or the Office of the Director of Public Prosecutions Witness Assistance Officer. Information also is available in the Victim Impact Statement booklet under ‘Victims/Witnesses/Community’ on this site.
You may seek advice about Criminal Injuries Compensation from the Manager of the Victims of Crime/Debt Recovery Unit on (08) 8207 1687 or Victim Support Service on (08) 8231 5626.
