Police and the courts

Deciding to report
Understanding your rights and the legal process of reporting a rape can help you decide whether or not to report. When deciding whether or not to report is right for you, it is useful to be aware that:

It can take between one to two years after reporting to the police for your case to come to trial. You may need to repeat your story at least three times to the police and in court.
If the accused rapist pleads not guilty it is likely you will have to face him in court and describe what happened in detail. The accused rapists defence lawyer will probably try to discredit you and your story in the courtroom. Your character may be attacked and you may be accused of lying. It might be argued that you consented or encouraged the rape in some way and that you are to blame. The rapist might not be convicted.
It is your decision whether or not to report your rape to the police; it has to be right for you. You deserve support for whatever decision you make.

Getting Support
Women's experiences of reporting to the police and going to court differ. If the rapist pleads guilty, the experience may be relatively easy. However, most women find the process emotionally difficult. If you do decide to report it is a good idea to be mentally prepared for the experience and it may be a good idea to have someone you trust, a friend, sympathetic relative or a support worker accompany you through the reporting and subsequent court proceedings.

If you want to have someone in the courtroom for support, the prosecutor will need to ask permission from the judge or magistrate for them to be allowed into the courtroom. Usually your support person sits at the back of the court where you can see her or him. Your support person in court will not be able to give evidence as a witness.

Workers from the Brisbane Rape and Incest Survivors Support Service and other sexual assault services can explain what happens in court and how you might be affected and give you a chance to talk through everything, although they may not be able to attend court with you.

Court support is offered by:
Office of the Director of Public Prosecution
Victim Support Service
3239 6476 or 1800 673 428
Victims of Crime 1300 733 777

Reporting to the Police
Brisbane has a specialised police unit called the Sexual Crimes Investigation Unit that investigates charges of rape and sexual assault, or you can contact your local police station. If you report a rape in Brisbane, the police will take you to the Sexual Assault Service at the Royal Women's Hospital, where you will be able to talk to a sexual assault worker about the reporting process and decide if reporting is right for you.

Making a Statement
It is necessary for you to provide a detailed statement to the police. A statement is a typed and signed record that outlines the details of the events leading up to, during, and after the rape. The police ask you to describe exactly what happened in your own words and ask you questions, so that no details are left out. The information in this statement is used by the police to investigate your allegations and, if someone is arrested, to take the case to court.

Making a statement can be distressing as you are asked to recall the rape in great detail. Details that may seem irrelevant - such as the weather - might prove to be useful to the police investigation and provide evidence to corroborate your allegations. The police say they attempt to ensure that the officer, who takes your statement is an officer of the gender you are most comfortable with.

You also have the right to have someone with you, or phone someone for support while you make your statement. You can leave the police station at any time.

The statement is typed and given to you to read, correct if necessary and sign. Never sign a statement without reading it first. If you do not understand something, ask that it be explained. If you do not agree with something in the statement, ask that it be changed. It is possible for your statement to be audio taped in special circumstances.(eg for women with a visual or intellectual/learning disability).

It is a good idea to get a copy of your statement, as you will be asked questions about it later on in Court.

If you are afraid for your safety, particularly if threats have been made against you, you should tell the police so they can take this into account when deciding whether to object to bail or when applying for bail conditions to be set.

The Forensic Examination
If you choose to report a recent rape or sexual assault, you may be asked to undergo a physical examination performed by a doctor who is trained to gather forensic evidence and to give evidence in courts. Forensic evidence, such as the presence of semen or blood, is important. Although, by itself, it does not prove rape, it does corroborate your allegations.

Forensic evidence is best collected as soon as possible after the rape however evidence may still be collected several days afterwards. If you are thinking of reporting to the police they advise you not to change your clothes, shower, or eat or drink anything, as this could interfere with important forensic evidence. If you feel too uncomfortable in the same clothes put each item separately into paper bags and keep them so that they may be examined if necessary.

In Brisbane this examination is done by a female doctor at the Sexual Assault Service at the Royal Women's Hospital. In other areas of the state, you may be taken to a sexual assault service attached to a hospital, (if one exists in your area) or else a Government Medical Officer will perform the examination. You have the right to request that the doctor be female (although the request may not be met if no female doctors are available) and that a friend or a support worker be present.

The examination usually takes about an hour and will probably include the following:

The doctor notes your general body appearance, including any scratches, lacerations and bruises. Photographs of non-genital injuries may be taken as evidence.
The doctor will note your general condition and, for example, whether you appear to be "hysterical", "shocked" or "intoxicated"
The doctor notes any evidence of trauma to the external genitalia.

In the case of vaginal penetration the doctor swabs the outer vaginal area around the vulva and inserts a speculum into the vagina in order to take a swab from the area around the cervix. Swabs are taken so that any semen or blood can be detected and analysed. Anal and oral swabs will be necessary if you were raped anally or orally.

Samples of your blood are taken for possible DNA testing and to test for sexually transmitted diseases. Scrapings from under your fingernails may also be taken in cases where there may be traces of the rapist's skin or hair. If you are sore anywhere you should tell the doctor to ensure that this is noted. For example, the rapist might have grabbed your arms tightly and bruises or swelling might only just be beginning to appear.

The forensic examination is to gain evidence to be used in court. It is not performed to attend to your physical and mental health. It is a good idea to see a doctor of your choice as soon as possible to attend to your well being and health issues including:
-The prevention of pregnancy.
-The prevention of sexually transmitted diseases.
-The care of generalised body trauma.

If you have reported at a hospital, your physical health can be attended to there. Alternatively sexual assault support workers can refer you to a sympathetic doctor.
If you are not sure whether you want to follow through with the reporting process it is possible for the forensic evidence to be stored for up to three months so that it can be used as evidence if you decide you want to go ahead with proceedings at a later date.

The Police Investigation
After you have made a statement, the police begin their investigation to gather evidence to support your complaint. They might ask you to accompany them to the place where you were raped so that they can be sure of the circumstances and gather further evidence that might be there.

They will try to find witnesses to the rape or interview anyone with whom you were in contact soon after the rape.

If you don't know who the rapist was you may have to identify him from photos or a physical line-up. If the police believe they have sufficient evidence to support your statement, and they have identified and found the man accused of the rape, the detectives charge him and he makes his first court appearance (you don't need to attend court at this time). A date will be set at this time for a Committal Hearing, usually about a month later, or perhaps a mention (a short court appearance).

Bail
Usually the suspect will be granted bail because the law assumes a person is innocent until proven guilty. However, after the suspect has been charged, you may speak to the police or prosecutor about bail conditions that take your safety into account. For example bail conditions might specify that the accused may not come to your workplace or within 100 metres of your home. If the accused is granted bail, the police should inform you of the bail conditions.

The Committal Hearing
Before a case goes to the Supreme or District Court there is a hearing in a Magistrates Court to determine whether there is enough evidence to send the defendant (the accused) to trial before a judge and jury.

At the committal hearing, your case will be presented by a police prosecutor or a prosecutor from the Office of the Director of Public Prosecutions (DPP). Before the committal you will be interviewed by the prosecutor or by a clerk called a Victim Liaison Officer (VLO) in order to prepare for the hearing.

If the defendant pleads not guilty you will become the main witness for the prosecution (referred to as 'the complainant' in court) and you will have to give evidence in court. In most sexual offence cases the court is closed to the public, including the media, while you give evidence.

You will be asked to wait outside the courtroom until it is your turn to give evidence. When your name is called the bailiff will guide you to the witness box, where you must swear to give truthful evidence. You are expected to give a detailed account of the events leading up to, during, and after the rape. This account is supported by the statement you made when you first reported your rape to the police and by other evidence gathered by the police. The defendant is represented in court by a defence lawyer who will cross-examine you about the rape and about your character. Your account of what happened will be challenged and it may be suggested that you have not remembered things clearly, that you are confused, unreliable, or simply lying.

The defence lawyer is not generally allowed to question you about any previous sexual experience you have had with anyone, including the accused.

However, in special circumstances, particularly if you've had a previous relationship with the accused, the magistrate can allow such questions if the court accepts that it necessary for the defence case. Evidence relating to your previous sexual experience may also come up in the evidence of other witnesses such as a doctor or counsellor.

Rape survivors often find the committal hearing to be more traumatic than the actual trial.
It is more common in committal hearings for defence lawyers to be more aggressive in their cross-examination of rape survivors because there is no jury for them to get off side by "going too far".

It is also more common for them to overstep the laws relating to inadmissible evidence, such as making references to a woman's sexual history and reputation. Recent law reforms, however, have given the judge or magistrate the power to disallow unnecessarily intimidating, confusing or repetitive language.

Special Witness Provisions
The court has the power to declare some people who have to give evidence as a 'special witness'. For example, women who may be likely, in the courts opinion, to be disadvantaged as a witness, or would be likely to suffer severe emotional trauma. When this happens, processes are adopted to ease the pressure of giving evidence. For example, you can request that a screen, be placed between you and the attacker, you can give evidence through a video link-up, or exclude persons from the courtroom.

How Shall I Handle Cross-Examination?
Rape survivors usually find cross-examination difficult. Here are some useful points to remember which may help you get through:

Consider your answers carefully and do not feel compelled to answer quickly. You are allowed to take your time.
If you are asked a question that you do not want to answer, you are allowed to ask the judge if you have to answer the question.
If you do not understand a question, say so and ask for the question to be explained.
If you find yourself getting upset, you may wish to pause, take a drink of water, take a few deep breaths, look at a friendly face, or ask the judge if you can wait a few minutes until you feel better.

At the committal hearing, if the magistrate decides that the defendant has a 'case to answer' and there is sufficient evidence to go to trial, then a date is set for a District Court hearing before a judge and jury. The time period between the commital hearing and the trial can be up to 18 months. The defendant may be out on bail during this period.

The Trial
The trial is held in the District Court before a judge (addressed as 'Your Honour') and jury of 12 people. The case against the accused is presented to the court by the Crown prosecutor P a barrister working for the Office of the Director of Public Prosecutions (DPP). Most trials last from two to five days, and a few take much longer. As the rape survivor and main witness for the prosecution during this trial you must go over the details of your rape again, led (in questioning) by the prosecutor. The previous sexual history and convictions of the defendant are not admissible evidence.

Corroboration
There are two types of corroborative (supporting) evidence: forensic evidence and other witnesses. Forensic evidence is physical evidence obtained by police either from the scene of the rape or on your person (obtained during the course of the medical examination you had when you first reported the rape). Other witnesses are people who may have seen or heard the actual rape or people who saw you before or after the rape.

Until recently, it has been a legal requirement that judges warn the jury that it is dangerous to convict on the uncorroborated evidence of the complainant. While this is no longer a requirement under the law, some judges still maintain this practice and certainly corroborating evidence is still very important in gaining a conviction.

Fresh Complaint
Another form of supporting evidence in sexual offence cases is that of 'fresh complaint'. This is the evidence provided by someone who was first told about the rape by the complainant after the event occurred. This evidence is used to demonstrate consistency in the complainant's statement. Defence lawyers may use a lack of fresh complaint to discredit a woman's story, however, many judges accept that women may not tell anyone about the rape for a long time.

Victim Impact Statement
If the defendant is convicted, you have the right to tell the court how the crime has affected you by writing a victim impact statement, which explains the harm you have suffered as a result of the rape and/or sexual assault. Usually the prosecutor gives this statement to the judge when the offender is being sentenced. The victim impact statement may also provide useful support for any criminal compensation claims you might make after the trial.

Second Thoughts
Even if you have reported your rape to the police and an investigation has begun, you can notify the police if you change your mind and wish to withdraw. It is advisable to do this at the earliest opportunity, but you should not hesitate to do this at any time.
In this situation, police guidelines state that they should take a statement from you withdrawing the complaint and stating that you do not wish to proceed with further police action.

After the committal hearing, the DPP has the final decision about whether or not to proceed with the case. If you feel you are being forced to participate in legal proceedings when you wish to withdraw your complaint, contact a sexual assault support service or a Women's Legal Service.

Compensation
Criminal Injuries Compensation is a way for victims to receive financial compensation for injuries received during, or as a result of, violence committed directly against them.
The Criminal Offence Victims Act (Qld) (COVA) was introduced in 1995 to provide compensation for victims of crime. Under this legislation, you may claim for compensation if you have suffered a physical injury or nervous shock caused by the rape/sexual assault. COVA says that you must apply within three years after the offenderUs trial/sentence. Applications involve making further statements and legal processes.
If the offence occurred before 18th December 1995, your compensation claim will come under the Queensland Criminal Code rather than the COVA.

For more information about applying for compensation you should seek legal advice or contact staff at the DPP, the Criminal Injuries Compensation section of the Department of Justice and/or the Victims of Crime Compensation Unit at Queensland Legal Aid.

Informal Reporting:
If you do not want to make an official complaint you can still provide information to the police that may help them investigate other rapes.

The Sexual Crimes Investigation Unit have informed us that in this situation the police will ask you to make a statement as if you are reporting and then they will allow you to withdraw the complaint.

Making a Complaint about the Judicial Process
Write a letter to:
Department of Justice and Attorney General
G.P.O. Box 149
Brisbane Q 4001

The Criminal Justice Commission processes complaints relating to dissatisfaction with a police investigation or when a crime has been committed by a member of the police force. You can call the Crime and Misconduct Commission on (07) 3360 6060.

Legal Advice
For legal advice you can can contact Women's Legal Service or other community legal centres.

Medical issues