FAQ's: prosecution

From laying charges and subpoenas, to conferences with CDPP prosecutors and plea negotiations, these FAQs give you answers to some commonly asked questions about the prosecution process.

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About the prosecution process

What is a committal hearing?

At a committal hearing, a magistrate will listen to the evidence and decide if it’s enough for the defendant to be tried in either the Supreme, County or District court.

  • If the magistrate decides there is enough evidence, the defendant will be committed for trial. This means the matter will be heard in one of the higher courts at a later date. After the committal hearing, the prosecution will review the evidence and determine whether an indictment should be presented in the higher court.
  • If the magistrate decides there is not enough evidence they may dismiss the defendant.  

What is a summary offence?

Matters that are less serious in nature are referred to as summary offences. A summary, or simple offence is tried by a magistrate alone. Examples of Commonwealth summary offences include less serious cases of fraud and drug offences.

What is an indictable offence?

Serious criminal matters are also known as indictable offences and are sent from a lower court to either the Supreme, County or District Court. Indictable offences require a trial by judge and jury. Examples of Commonwealth indictable offences include major drug importation cases, terrorism offences and fraud cases where the sum of money involved is large.

How long will the process take?

How long a case takes depends on how complex it is, and whether it involves a trial and appeals. In general:

  • Summary matters are generally straightforward and can be finalised in a matter of months if a defendant pleads guilty. If the matter goes to a hearing, it can take 612 months to finalise, or longer depending on the issues involved. If the defendant appeals the outcome, that process can add another six months.
  • Indictable matters that are heard in a supreme, district or county court always involve more serious offences and will take longer to finalise. If a defendant pleads guilty it is sometimes possible to finalise the matter within 68 months, but if it goes to trial it may take up to two years or longer. If the defendant appeals the outcome, this can add six months or more.

See our eight steps of the prosecution process to get a better understanding of what going to court involves.

Remember: Ask the CDPP prosecutor or your WAS case officer how long your particular case is likely to take. 

How do plea negotiations work?

A plea negotiation is when the prosecution and defence agree on the criminal charges they want the judge to take into account. Such negotiations may see the accused person:

  • plead guilty to fewer charges
  • plead guilty to a less severe, or different, charges

What are subpoenas?

A subpoena is a court order that requires a witness to go to court to give evidence and/or provide documents requested by the court. The CDPP arranges subpoenas to be served on victims and witnesses who have to give evidence in court.

  • If you are served with a subpoena, make sure you read it carefully. It will tell you what you have to do.
  • If the subpoena says you must go to court and give evidence and you fail to appear, the court may issue a warrant ordering your arrest, and for you to be brought before the court.
  • Similarly, if the subpoena says you must take documents to court and you don't take them or send them, the court may issue a warrant ordering your arrest, and for you to be brought before the court. The court will require you to provide the required documents.
  • If you receive a subpoena and are not sure what you have to do, talk to a lawyer for legal advice.
Deciding to prosecute

How does the CDPP decide whether or not to prosecute a matter?

We will go ahead with a prosecution if we can answer ‘yes’ to two questions:

  • Are there reasonable prospects of the accused being found guilty?
  • Is it in the public interest to start a prosecution?

Our prosecutors assess briefs referred to the CDPP in accordance with the Prosecution Policy of the Commonwealth.

What is the Right to Review?

There is generally no right to review a decision. 

The only exception are cases where it’s been decided not to start or to stop a child sexual abuse matter, where a child has made the complaint. In this instance, the CDPP may be asked to review the decision.

  • Before a decision is made, the victim is consulted and the matter is discussed by senior prosecutors within the CDPP.
  • If a case doesn’t go ahead, the reasons are always explained to victims.
What is a Statement of Facts?

A Statement of Facts summarises what happened when the crime is said to have taken place. The facts are prepared by the prosecutor and provided to the accused’s lawyer.

You and your case

What are conferences with my prosecutor?

Prosecutors often meet witnesses just before they go to court. These meetings are called conferences and are usually held at the CDPP’s office or at court. At a conference:

  • The prosecutor will explain the trial process and discuss your role as a witness, for example what date and time you are likely to be needed.
  • The prosecutor may clarify things in your statement, so it is a good idea to read it beforehand.
  • If there is anything in your statement you would like to add or change, let the prosecutor know.
  • If you don’t have a copy of your statement, please contact either the police officer or WAS case officer to get one. 

Conferences allow you to ask the prosecutor questions and raise any concerns you might have.

  • You are able to bring a support person with you to a conference, but they may not be able to sit in with you for the entire time. Your support person can’t be a witness in the same matter.

How do I find out what’s going on with my case?

If you tell your prosecutor or WAS officer that you’d like to be kept up-to-date on your matter (not everyone wants to know), they will tell you of:

  • a decision to start a prosecution (and the charges laid)
  • a decision not to start a prosecution
  • the date and place any charges are to be heard
  • the outcome of any bail proceedings
  • plea negotiations
  • the outcome of proceedings, including appeals.

To get more information about your case, call or email the CDPP prosecutor. If you don’t know who this is, call the CDPP office in your state or territory and ask to speak to the prosecutor concerned. 

  • If you can tell us the name of the accused when you call this will help us identify the prosecutor involved in your case.
  • The police officer involved in your case might also be able to answer any questions you have. If the Witness Assistance Service (WAS) is involved, contact the allocated WAS officer.

 

What happens if I’m overseas?

If you have to travel from overseas, interstate, or somewhere it’s unreasonable to return home from, the CDPP will pay for your travel, accommodation and meals. These arrangements will be made before you have to attend court.

If you will be overseas or interstate, or unable to get to your court hearing for other reasons, you will need to tell your prosecutor as soon as possible. While the court may agree to change the dates, the judge or magistrate can require you to attend court regardless of your other plans.

Speak to your prosecutor and WAS officer to try to ensure you are available at the times you may be expected in court.

Can I be reimbursed for lost wages if I have to take time off work?

You are able to claim lost wages/salary if your employer won’t pay for you to attend court or conferences with your prosecutor.

Some employers provide special types of leave to attend court. You may also be entitled to paid leave on the days you have to give evidence.