This page has been printed from the Yarrow Place website http://www.yarrowplace.sa.gov.au

Mandatory Notification

In South Australia, some workers are required by law to inform Child Youth & Family Services (CYFS) if they suspect that a child has been or is being abused or neglected. The legal definition of a child for these purposes is a person under the age of 18. The worker only requires a suspicion of child abuse or neglect. The worker must have formed the suspicion during the course of their work. This law applies to volunteers and paid workers. The law is known as the Children's Protection Act (1993). Workers who are required by law to notify CYFS are called mandated notifiers.

This means that CYFS must be notified if a person under the age of 18 years is suspected of having been raped or sexually assaulted.

Mandated Notifiers include:

• medical practitioners
• pharmacists
• registered or enrolled nurses
• dentists
• psychologists
• members of the police force
• community corrections officers (a person whose duties include the supervision of young or adult offenders in the community)
• (an officer or employee of an administrative unit of the Public Service whose duties include the supervision of young or adult offenders in the community)
• social workers
• teachers in any educational institution (including a kindergarten)
• family day care providers
• any employee or volunteer in an agency (government and non government) engaged in or responsible for the delivery of health, education, child care or residential services wholly or partly for children.

The law does not require proof of harm. However, a notification must be given with a statement of their observations, information and opinions upon which the suspicion is based. The report can be given verbally to a social worker from CYFS (Child, Youth & Family Services).

Mandated notifiers are assured of confidentiality. They are immune from civil liability and allegations of any breach of professional ethics when reporting their suspicions in good faith.

Reporting a rape or sexual assault to CYFS usually results in CYFS informing the police of what happened. The police may conact you to discuss what you want to happen.

Reporting to police

Making the Decision to Report to Police

(this information is from our booklet 'What Choice Do I Have?', please ring for a copy to be sent to you.)

Firstly you may wish to talk to the police informally and anonymously over the telephone or in person. Or you may wish to talk to the police, make a crime report and then sign a statement saying that you wish for no further investigation.

Alternatively you may make a detailed statement to the police. The police may use your statement to try to apprehend, and where possible charge, the person who raped you. Your statement then becomes the basis of the police investigation and is a key part of any court proceedings.

People who have been raped or sexually assaulted often have strong reasons for choosing to tell, or not tell, the police. People who decide to make a police report will often do so after considering the following reasons:

• to ensure their personal safety and future protection from the rapist
• they believe that the rapist should be made responsible for his actions
• reporting the offence may allow people to regain some sense of power and control
• they do not want the rapist to harm other people

You can request to speak with a female police officer if this would be more comfortable for you.

Making the statement may be very difficult and upsetting for you as the police officer will ask for a detailed account of the assault. Due to the amount of detail needed, it may take quite a few hours to make your statement.

A support person such as a friend, relative or partner may accompany you to the Police but they will be asked to remain in the waiting area while you give your statement.

When you make a statement the police officer will explain to you why such detailed information is required for your statement. If you want to know what will happen with your statement the police officer will be able to advise you.

If you would like a copy of your statement ask the police officer taking your statement. Remember to read through your statement carefully and make any alterations as required.

Your statement will then be given to the Crime Investigation Branch (CIB) and a detective, who will investigate the matter. The detectives involved will contact you if they need any further information, or if the offender has been arrested.

If you wish to know how the investigation is progressing then you may contact the detective or Victim Contact Officer at your local Police Station.

If you have made a formal statement but then decide that you do not want police action, you need to inform the police as soon as possible. You will be asked to complete a form indicating your wish not to proceed with police investigation.

It is important to know that withdrawing the charges may affect any claim for Criminal Injuries Compensation.

If you do report the crime to the police, with the intention of taking further legal action, the following rights apply:

DECLARATION OF VICTIMS RIGHTS

These rights have been agreed to by the United Nations and supported by the South Australian Government. You have the right to:

• be dealt with at all times in a sympathetic, constructive and reassuring manner and with due regard to the victim's personal situation, rights and dignity
• be advised about the progress of investigations being conducted by police (except where such disclosure might jeopardise the investigations)
• be advised of the charges laid against the accused and of any modifications to the charges in question
• have a comprehensive statement taken at the time of the initial investigation which shall include information regarding the harm done and losses incurred in consequence of the commission of the offence. The information in this statement shall be updated before the accused is sentenced
• be advised of the justifications for accepting a plea of guilty to a lesser charge or for accepting a guilty plea in return for recommended leniency in sentencing
• be advised of justification for entering a nolle prosequi (ie. to withdraw charges) when the decision is taken not to proceed with charges. (Decisions which might prove discomforting to victims should be explained with sensitivity and tact)
• have property held by the Crown for purposes of investigation or evidence returned as promptly as possible. Inconveniences to victims should be minimised wherever possible
• be informed about the trial process and of the rights and responsibilities of witnesses
• be protected from unnecessary contact with the accused and defence witnesses during the course of the trial
• not have his or her residential address disclosed unless deemed material to the defence or prosecution
• not be required to appear at preliminary hearings or committal proceedings unless deemed material to the defence or prosecution
• have his or her need or perceived need for physical protection put before a bail authority which is determining an application for bail by the accused person, by the prosecutor
• be advised of the outcome of all bail applications and be informed of any conditions of bail which are designed to protect the victim from the accused
• have the full effects of the crime upon him or her made known to the sentencing court either by the prosecutor or by information contained in the pre-sentence report; including any financial, social, psychological and physical harm done to or suffered by the victim. Any other information that may aid the court in sentencing including the restitution and compensation needs of the victim should also be put before the court by the prosecutor
• be advised of the outcome of criminal proceedings and be fully appraised of the sentence, when imposed, and its implications
• be advised of the outcome of parole proceedings
• be notified of an offender's release from custody.

Legal Process
(written by Department of Public Prosecutions)

Image of flow chart

CRIME

A rape or sexual assault is committed.

COMPLAINT TO POLICE

The rape is reported to the police. (link to information above)

INVESTIGATION BY POLICE

A detective is allocated to investigate the matter. The detective may speak to the victim, other witnesses and the accused. (link to information above)

COMMITTAL UNIT / DIRECTOR OF PUBLIC PROSECUTIONS

The Director of Public Prosecutions office (DPP) is the independent statutory prosecuting authority for the state. The DPP employs solicitors who prepare matters for trial and barristers called prosecutors who prosecute the matter in court.

All crimes are considered to be a crime against the State. The DPP acts for the State and therefore any legal costs are the responsibility of the government.

The Committal Unit in a number of cases, will provide the police with an opinion as to whether or not a person should be charged. If charges are not laid, it will be explained to you by the DPP Committal Unit prosecutor and the witness assistance officer.

A prosecutor, on receiving all of the evidence from police, may decide not to proceed on the basis that there is no reasonable prospect of conviction. This is not to suggest that a crime has not been committed, however, it would be difficult to prove in the criminal court beyond reasonable doubt. In some cases, you may decide that you do not want to proceed with the matter. If this is the case, you should contact the investigating officer or the DPP prosecutor as soon as possible.

The DPP prosecutor may also decide to proceed with the matter, but with "lesser charges". You will be consulted if possible. You may not agree with the decision, however, the prosecutor, police officer and/or witness assistance officer are there to answer any of your questions. In some cases, a police prosecutor in the Magistrates Court might handle the matter.

CHARGING THE ACCUSED

• The alleged offender is charged by the police when there is reasonable cause to believe that the person has committed a crime.
• The alleged offender is then summoned to appear at the Magistrates Court for a hearing.
• A summons (a written document) tells the alleged offender when to appear in court and the offence (s) charged.

ARREST OR SUMMONS AND BAIL APPLICATION

If the alleged offender is arrested, he /she is entitled to apply for bail.

If bail is granted, the offender may be released. You will be notified by either police or the DPP Committal Unit of bail applications and outcomes. The court usually grants bail unless there are strong reasons why the application should not be granted. If the application for bail is not granted, then the alleged offender is held or remanded in custody until the court hearing.

An alleged offender may re-apply for bail if their circumstances change.

Bail conditions can be arranged to ensure your safety should bail be granted to the alleged offender. If you have fears for your safety, you should discuss these with the police officer as soon as possible. Bail conditions can cover issues such as:

• the alleged offender not to contact you or other witnesses, either directly or indirectly
• the alleged offender is to reside at a certain residence
• the alleged offender is not to come within a certain distance of the victim’s home.

These are examples of bail conditions that can be set to ensure your safety.

MAGISTRATES COURT

The hearing in the Magistrates Court gives an opportunity for the defence lawyer (the alleged offender's lawyer) and the Committal Unit prosecutor to set a time for filing of the declarations (statements by witnesses).

This is a brief appearance and you will not be required to attend. The process is that the Committal Unit prosecutor hands over to the court and defence all of the available declarations. The alleged defendant then answers the charges, that is, they are read out in court and the response is either "guilty" or "not guilty".

ORAL COMMITTAL

The defence lawyer may make an application for an oral committal. This is a preliminary examination where the defence has the opportunity to cross examine prosecution witnesses. It is the Magistrate's decision whether this application may be granted. Usually you would not be required to give evidence in the Magistrates Court. The Magistrate makes the decision as to whether the case goes to a higher court or not.

COMMITTAL

If the Magistrate finds a "case to answer", the matter is filed in the District or Supreme Court and an arraignment date is set. You may be asked during the first stage of committal to speak to the Committal Unit prosecutor and Witness Assistance Officer. This is an opportunity to discuss the progress of the case, ask any questions you may have and refer you to appropriate support or counselling services if required. If you have any concerns about giving evidence at trial, this is an opportunity for you to discuss them. Special arrangements can be requested by the prosecutor at trial under the provisions for vulnerable witnesses. The Judge, however, makes the final decision as to whether or not these arrangements are granted. Special arrangements can include:

• having a court companion in court with you while you give evidence
• placing a one way screen between you and the accused
• closing the court while you give your evidence
• use of closed circuit television

ARRAIGNMENT

The arraignment is the first appearance the matter has in a higher court. The alleged offender is now called the "accused". The accused must indicate his or her plea to the charges in the District or Supreme Court, and a time is set for the pre-trial conference or status conference. Given that this is only a brief appearance, it is not necessary for you to attend. The accused may nominate at this stage to be tried by Judge alone or by Judge and jury.

DIRECTIONS HEARING

The directions hearing is not open to the public. It is a private meeting between the lawyers and the Judge in the presence of the accused. A date is set for the trial and final discussions are held in relation to all the information being presented to defence and the court are by prosecution. The time taken between the arraignment and the directions hearing may vary depending on the matter.

However, usually it is up to four weeks. If you have any questions about the directions process, you should contact the Witness Assistance Officer, DPP solicitor allocated to the matter or the investigating police officer. You will be advised of the trial date by the investigating officer or by the DPP.

A GUILTY PLEA

If the accused pleads guilty at any stage prior to the trial, then she/he will be sentenced. If this happens, you will not be required to give evidence at a trial.

TRIAL

A few days before the trial commences you will be asked to attend the DPP office and speak to the prosecutor who will be prosecuting the matter in court. This meeting is called a "proofing". The purpose of this meeting is:

• to enable the prosecutor to discuss with you aspects of your evidence
• to clarify any questions you may have about giving evidence in court
• to clarify any special arrangements you wish to request under the provisions for vulnerable witnesses in the evidence act.

The prosecutor’s job is to prove the case "beyond any reasonable doubt". The prosecutor cannot discuss other witnesses' evidence with you. It is not their role to support you emotionally during the trial. This support could come from your court companion or counsellor, if you have one. It is important to remember that the prosecutor is not your lawyer, but the State's lawyer. The prosecutor will often not be available to speak to you. However, the investigating police officer will also be at court and will be available to answer any of your questions.

Giving Evidence

On the day of trial, you may wish to wait with your court companion in a witness waiting room until you are called to give evidence. When you first enter the courtroom, you will be asked questions by the prosecutor to assist you in telling your story. This is called "examination in chief". Following this, the defence lawyer will ask you questions about your evidence. This is called "cross examination". It is the defence lawyer's job to test your evidence and put forward the accused's explanation of the events. The prosecutor may object to questions by the defence lawyer if the prosecutor considers them to be inappropriate according to law. You will not need to answer these questions if the Judge supports the prosecutor's objections.

Remember when giving evidence in court to:

• tell the truth
• take your time and speak clearly
• answer only the questions you have been asked
• let them know if you do not understand the question
• let them know if you are unsure of the answer
• not anticipate questions or jump in with answers
• state the facts, giving only your opinion when asked
• always call the Judge "Your Honour"

Remember the prosecutor is unable to talk with you while you are being cross examined. Also the jury do not receive a copy of your statement. The purpose of your evidence is to tell them what happened.

The accused is not required by law to give oral evidence in court. If they choose to, the prosecutor will cross examine them. After you have given your evidence, you are free to leave the court or you may wish to remain in the courtroom. Please speak with the prosecutor prior to trial about these options.

VERDICT

In trial by jury, an accused will be found guilty if 10 or more jurors find the accused guilty of the crime. In trial by Judge alone, it is the Judge's decision as to the verdict. If the accused is found "guilty", then he/she will be sentenced as he/she has been convicted of a crime. This usually occurs a few weeks after the trial ends. The accused is then remanded in custody until sentencing, however, in some cases, may be granted bail until sentencing. If the accused is found "not guilty", then the accused is "acquitted" and is free to go. An acquittal does not mean the court did not believe your evidence, but just that they were not satisfied "beyond reasonable doubt". Sexual assault matters are sometimes difficult to prove beyond reasonable doubt. This is no reflection on you as a witness, or the court not believing you. If the verdict is not guilty, you are not able to appeal this decision, nor can the DPP. The prisoner has the right to appeal against a conviction.

SENTENCE

The prosecutor will give the Judge details of every prior offence of the accused and also a copy of your victim impact statement. The defence lawyer will then make submissions for the accused and depending upon the circumstances of the crime, the prosecutor may or may not add further information for the Judge. The Judge makes a decision on the sentencing for the offender who has been convicted of a crime. The offender is able to appeal the sentence decided by the Judge, however, you do not have a right to appeal the sentence given. The DPP has the right to appeal against a sentence if they believe the penalty is "manifestly inadequate". This will only occur on rare occasions. It is your choice whether you decide to attend sentencing.

Victim Impact Statements

1. What is a Victim Impact Statement?

A Victim Impact Statement is an opportunity to tell the Court about how the crime has affected (or is affecting) you. Information on the effects of a crime can be taken into account when considering the sentencing of the convicted person. It is your choice to give a Victim Impact Statement. You can change your mind about this at any time prior to sentencing.

If your Victim Impact Statement is read out in court then it can be reported in the media. If it is not read out it goes on the court file. It is not public. A member of the public (including the media) can only obtain a copy of your statement with the court's permission. Even if permission is given, the court may prohibit the publication of the contents.

Your Victim Impact Statement may cover the following issues:

• emotional impact
• financial loss or suffering
• psychological trauma or stress
• physiological (health) impact eg. weight loss
• impact on extended family/friends (if appropriate)
• any changes to your housing/accommodation or work situation as a result of the crime
• any other comments that you believe the court should be aware of in relation to the impact of the crime

2. Verbal Victim Impact Statements

You may wish to ‘read out’ in court your Verbal Victim Impact Statement, or have a court nominated person read the statement.

You should discuss this option with either your counsellor, DPP solicitor or Witness Assistance Officer or the police.

3. For Further Information on Victim Impact Statements

There are a number of options available to you when preparing your Victim Impact Statement. Please discuss these with your Investigating Officer.

Some further options include discussing it with:

• Victim Contact Officers - local police station
• Your Counsellor
• Witness Assistance Officer - DPP
• Solicitor or Prosecutor at DPP

To view a copy of the booklet "Victim Impact Statement: Information and Form" located on the Victims of Crime website please click here.

http://www.voc.sa.gov.au/Publications/Victim_Impact_Statements/VIS%20Whole%20booklet.pdf

For information about Victims of Crime Compensation click here.