Practice Area 5: Criminal justice

Criminal justice process

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Overview

The criminal justice process involves many steps, including a police investigation of an alleged crime and the prosecution of a criminal offence. Some cases go to court and a person accused of a crime could be convicted and sentenced, or acquitted.

Australian Government criminal justice process involves multiple stakeholders. At the heart of the process are people who have experienced modern slavery. Other important stakeholders include the AFP, Office of the Commonwealth Director of Public Prosecutions (CDPP), the courts, legal practitioners, and the greater community.

Consistent with international best practice on trauma-informed and lived experience-centred approaches, Australia aims to empower people who have experienced modern slavery with a choice regarding whether they wish to engage in the criminal justice process, and views disruption and prevention outcomes as equally important as prosecution outcomes. Sometimes, prosecution might not be the best, or even an available option as an outcome of an investigation.

This section aims to demystify the criminal justice process and provide individuals and organisations with insights and guidance on how they can work with and support people who have experienced modern slavery throughout this process.

Key stages

Figure 12: Key stages of the criminal justice process

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Investigation
Decision to charge
Charging or commencing proceedings
Committal Proceeding
Hearing
Trial
Sentencing
Appeals

The key objective for individuals and organisations working with people who have experienced modern slavery is the provision of tailored support and guidance as matters progress through the criminal justice process.

The Justice Support Stream of the STPP provides support until the investigation and prosecution of a modern slavery matter is finalised. To receive support via the Justice Support Stream, people on the STPP must be willing to participate in a criminal justice process and engage with the AFP for this purpose.

The criminal justice process should at all times remain centred around the person who has experienced modern slavery.

Informed consent must be provided at every step, and people should feel they have the choice to withdraw that consent at any time.

The CDPP has outlined the 8 steps of the prosecution process on their website.

Investigation

The AFP is responsible for investigating modern slavery crimes in Australia.

The AFP prioritises safety and wellbeing during the investigations process and respects the complainant’s privacy, preferences and decisions regarding the investigation. The AFP keep the complainant informed of the progress of the investigation, and of any significant updates or changes to the investigation.

In the criminal justice system, a person who is alleged to have suffered harm is technically known as a ‘complainant’ until charges are proven, when they become known as a ‘victim’.

Key actions when a report is made to the AFP

Specialist AFP investigators will meet with the complainant to explain the process and next steps.
The situation is assessed to determine eligibility for referral to the STPP (unless the person has already been referred through the ARP).
The complainant is provided intensive support for 90 days on the STPP, irrespective of whether they are willing or able to assist with the investigation or prosecution of a modern slavery-related offence. During their time on the STPP Intensive Support Stream, the complainant can meet further with the AFP as they consider whether they wish to participate in the criminal justice process.
If the complainant agrees to engage with the criminal justice process:
- The AFP commences gathering evidence of the reported crime.
- The complainant shares their experience with an investigator.
  - This could be a written statement, or an audio-visual recording may be made to minimise the complainant’s involvement later in the criminal justice process.
  - This may be completed in a day or over several days, depending on the length and complexity of information being provided to the AFP.
  - An interpreter will be arranged if required by the complainant or a relevant witness.
- Information from witnesses is obtained; physical, documentary or digital evidence is examined; suspects are interviewed; and forensic procedures may be conducted. Evidence may also be sought and obtained from other countries.

It is important for individuals involved in the investigation to keep anything that may help them tell their story, like text messages, screenshots, emails and photos.

Once prosecution has commenced, the AFP becomes known as the informant.

Investigations to identify criminal acts should always be left to authorities.

If an individual or organisation decides to undertake research, they should ensure that it is not interfering with any police investigations, other research operations, or government monitoring bodies.

During the investigation process, individuals and organisations supporting people who have experienced modern slavery should look to embed the values of engagement and trauma-informed principles in their approach to providing support.

The assessment process is ongoing throughout the prosecution process. The Prosecution Policy and the CDPP’s Victims of Crime policy allow for complainant views to be sought regarding key decisions, including on whether to commence or continue proceedings.

Decision to charge

Briefs of evidence are referred to the CDPP for assessment by prosecutors. The decision whether or not to prosecute is the most important step in the prosecution process and must be made in accordance with the Prosecution Policy of the Commonwealth (the Prosecution Policy).

To note: The AFP is able to charge an individual without having first referred a brief to the CDPP.

In accordance with the Prosecution Policy, the CDPP can only commence or continue a prosecution if the answer is ‘yes’ to the following 2 questions:

Are there reasonable prospects of the accused being found guilty?
Is the prosecution in the public interest?

The person who prosecution allege has committed an offence is known as the defendant or accused.

Charging or commencing proceedings

If a prosecution commences, charges will be laid against the person who the prosecutors allege has committed an offence. See the Prosecution Policy of the Commonwealth for more information.

The defendant will be notified when charges are laid against them. This can be done in 2 ways, they may be:

sent a summons, or a court attendance notice, to appear in court on a certain date
arrested and either granted bail or kept in custody until the prosecution finishes.

Complainants will be kept updated about relevant information by the investigator, the CDPP prosecutor or the Witness Assistance Officer. The CDPP has a Victims of Crime policy that identifies the types of information that can be provided upon request.

What is the Witness Assistance Service?

The Witness Assistance Service provides information and support to complainants/victims of crime and witnesses. The service works to ensure that these individuals have access to:

general updates concerning the prosecution’s case
information/explanations concerning the legal process and court procedures
information concerning policy entitlements and avenues for review or complaint
information concerning the role of a witness
a consistent point of contact within the CDPP for the duration of the prosecution process
support during meetings with prosecutors
court familiarisation tours
support at court and during the trial
referrals to counselling and other services in the community
information about Victim Impact Statements and reparation orders.

The Witness Assistance Officers provide information and support to complainants and witnesses of Commonwealth crimes prosecuted by the CDPP, including victims of trafficking in persons, slavery, servitude, forced labour, deceptive recruitment for labour or services, forced marriage and debt bondage. This assistance includes providing information about the court process where appropriate, keeping complainants and witnesses informed of key developments in the case, and liaising with relevant organisations, where appropriate. The Witness Assistance Officers are based in Sydney and Melbourne; however, they are part of a national service, and help witnesses and complainants in whichever state or territory they are located.

During the course of the criminal proceedings, the defendant will be asked to state how they intend to plead to the charges, determining how the case proceeds.

A defendant can plead guilty to committing the crime, not guilty, or they may ask for an adjournment to seek legal advice.

If the defendant pleads guilty, the magistrate will sentence them, or commit them for sentencing in a higher court. Witnesses are not usually called to give evidence on a guilty plea and the magistrate uses an agreed statement of facts prepared by the prosecution.
If the defendant pleads not guilty, the matter must go to either a hearing in the Magistrates’ or Local Court, or to trial in a higher court. The matter is set down for a case management hearing and a date will be set for a committal or hearing.

Committal Proceeding

* Note: The rules about whether a committal hearing is required differs across states and territories.

During a committal hearing, in some states and territories, a magistrate will consider the evidence the prosecution intends to use, and decide if there is enough to take the matter to a trial. In other states and territories, the prosecution will decide whether there is enough evidence to take the matter to a trial. Depending on where the trial takes place, it will be held in either the Supreme, County or District Court.

If the magistrate decides the prosecution does not have enough evidence, they will dismiss the matter and the defendant will be free to leave.

Subpoenas

Individuals and organisations might be served with a subpoena. A subpoena is an enforceable court order to produce documents to the court and/or a notice to attend court and give evidence.

Organisations that work with the complainant can be served with a subpoena to:

produce documents to the court by a certain date (for example, an NGO may receive a subpoena to produce documents that relate to a complainant’s interaction with the NGO, such as notes taken during meetings or counselling sessions)
give evidence in court on a certain date (for example, an employee or volunteer at an NGO may receive a subpoena to appear in court and give evidence about their interaction with the complainant)
produce documents to the court and appear in court.

In criminal proceedings, both the prosecution and the defendant can serve a subpoena.

Do not give third parties access to documents or evidence until you have informed the person who has experienced modern slavery and legal advice has been received. In some states and territories, parties may be able to object to providing certain types of evidence on a basis such as a claim of privilege. For example, most states and territories provide protections over counselling communications related to sexual matters. Organisations should have a policy outlining what you should do and who you should contact for legal advice, should your organisation be served with a subpoena.

Checklist: What to do if individuals or organisations are issued with a subpoena

Get legal advice before responding to the subpoena.

Identify all documents that may be covered by the subpoena and give them to the legal adviser.

Identify who owns the documents being subpoenaed and who can object to their production.

If legal advice provided notes that your documents are privileged, assert the claim of privilege to the court.

Be aware that the party who issues the subpoena should cover the reasonable costs of complying with the subpoena.

Always advise the person who has experienced modern slavery about the subpoena and the proposed steps to be taken by the organisation.

Keep the person informed regarding the steps taken and any changes relating to the subpoena.

Hearing

These matters may be dealt with summarily in a Local or Magistrates’ Court, or they could be dealt with on indictment in a higher court.

The main difference between a hearing and a trial is that a trial takes place before a judge and a jury, and the jury decides whether the defendant is guilty or not guilty.

During the hearing

Witnesses give their evidence in court and other forms of evidence may be produced, for example, photographs and recordings. In a summary hearing, the prosecution may rely on a written statement rather than call oral evidence.
The prosecution must prove its case to the criminal standard of ‘beyond reasonable doubt’.
In a summary hearing, the magistrate hears all the evidence and decides the verdict.

If the verdict is guilty, the magistrate will either impose a sentence or set a later date on which sentencing will occur. If the verdict is not guilty, the matter is dismissed.

Trial

An indictment lists all the offences the defendant will be facing at trial.

If the defendant is committed for trial, it will take place in either the Supreme, County or District Court, depending on how serious the crime is. When a matter is sent to these courts, an indictment must be prepared by the prosecution and presented to the court.

During the trial, the prosecution will call witnesses and present evidence to support its case against the defendant. The defendant can decide whether to give evidence before the court or put other evidence forward to support their innocence. A jury will need to decide whether the defendant is guilty of any, or all, of the offences they have been charged with.

More information about vulnerable people

The most vulnerable witnesses and victims of crime are referred to the Witness Assistance Service. These include matters involving child victims of crimes and victims of modern slavery.
Provisions under Commonwealth legislation provide special protection to certain vulnerable people involved in criminal proceedings. A court order may be required to access protections, which include:
- limits on the cross-examination of vulnerable complainants or witnesses
- limits on contact between vulnerable complainants/witnesses and the defendant or members of the public
- the ability to give evidence via alternative arrangements (such as video or audio recording)
- the right to have a support person with them while giving evidence.
Legal advice should be sought to understand whether protection is available, the type of protection available, and the process to apply for protection.

Checklist: Considerations for support people

Advise the complainant or witness of the supports available through the Witness Assistance Service.

Always be on time when you attend court.

Advise the prosecutor that you and the complainant/witness have arrived and how long you intend to be present.

Wait with the complainant or witness until they have given their evidence.

Do not tell the complainant or witness about what was asked of other witnesses in the courtroom.

Do not discuss the case with other witnesses or interpreters.

Do not tell the complainant or witness what evidence other witnesses will give or have given.

Do not have contact with jury members under any circumstances.

Further information about giving evidence in court and the prosecution process can be found on the CDPP website under the Your role tab.

When all the evidence has been given, the judge will summarise both sides of the argument for the jury. The jury then leaves the courtroom to decide if the defendant is guilty or not guilty.

If the jury decides a defendant is guilty of some, or all, of the offences they are charged with, the court will set aside a date for sentencing.

If the jury decides there is not enough evidence to prove beyond reasonable doubt that the defendant committed the crime, they must find them not guilty. The defendant is acquitted and free to leave the court.

If the jury is unable to reach a unanimous verdict, the prosecution will decide whether the defendant should be tried again.

If the jury cannot reach a verdict, the matter may be set aside and a re-trial may be ordered.

Information about how to support someone attending court

Pre-trial conference

Prior to the complainant or witness giving evidence in court, a CDPP case officer will often seek to meet with the complainant or witness to discuss their evidence and make sure they understand what will happen when attending court.
If you intend to attend court with the complainant or witness, it may also be appropriate for you to attend the pre-trial conference. At the pre-trial conference, you should:
- Introduce yourself to the prosecutor and advise the prosecutor that you intend to attend court with the complainant or witness.
- Ask the prosecutor any questions you may have about the court process and your responsibilities.
It is important to note that it is not unusual for a complainant to expand upon or change their evidence at the pre-trial conference. If this occurs, the CDPP has an obligation to disclose this to those acting for the alleged offender. If there is a dispute about what was said at the conference, and you were present, you may be called as a witness in the trial

Attending court

A complainant or witness will usually be required to wait outside the courtroom until they give their evidence. You should wait with the complainant or witness during this time. You can talk to the witness but cannot discuss the case or the complainant or witness’s evidence. Keep conversations with other witnesses and interpreters to a minimum. Do not discuss the case.
The complainant or witness should not be made aware of evidence that another witness has given or is going to give under any circumstances. Your organisation’s staff members, the complainant or the witnesses should not have any contact with a member of the jury under any circumstances.

Inside the court

When the court officer advises, the complainant or witness must enter the court to give evidence. You can enter and sit in the court’s public seating area. Turn off your phone and take off any sunglasses or hats. You may look at the complainant or witness while he or she is giving evidence. However, keep your facial expressions and body language neutral. To nod, shake your head or mouth words may be seen as an attempt to coach or influence the complainant or witness.
If you are an allocated support person for a vulnerable complainant or witness, you can accompany them while they give evidence. Do not prompt the complainant or witness or disrupt the questioning of the witness. Any words you speak while accompanying the complainant or witness must be able to be heard by the judge and all members of the jury.
From the time the cross examination starts to the time the cross-examination ends, do not discuss the case with the prosecution team, even if the prosecution takes days.

After the witness gives evidence

After the complainant or witness has given their evidence, they will be excused by the judge or magistrate. At that point, the complainant or witness should not stay in the courtroom or be able to hear the evidence of other witnesses. This is because:
- If the matter is a committal proceeding, it is only the first step in the trial process and the witness is likely to have to give evidence at the trial.
- The witness may be recalled to give evidence at the same hearing, and if there is a successful appeal, there may be a re-hearing or re-trial.
- Following this rule will avoid any suggestion of collusion between witnesses or the tailoring of evidence by the witness.
The prosecutor will advise when the complainant or witness is no longer required to attend the court hearing. When you leave court, you and the complainant or witness should not talk with any other witnesses about the case, whether that other witness has given evidence or not.

Sentencing

If someone pleads guilty to committing a crime, or if they are found guilty by either a magistrate or jury, the judge or magistrate will need to decide on the appropriate penalty, and sentence them accordingly.

When deciding the sentence, a judge will consider a Victim Impact Statement if one has been submitted and any requests regarding reparation orders.

The CDPP website has more information about how people with lived experience can seek reparation orders and write Victim Impact Statements, as well as referrals to services that can support in writing them.

Appeals

A defendant may lodge an appeal against a finding of guilty and/or the severity of the sentence imposed. The prosecution can appeal only against the sentence imposed, not the verdict.

The 2 case studies below provide greater insight into the criminal justice process and demonstrate indicators that led to a successful prosecution of modern slavery.

Case study – Criminal justice process in practice #1

McAleer Case – The victim has not been identified in this summary.

On 25 June 2021, Mrs Sheila McAleer was sentenced to an aggregate sentence of 3 years and 3 months’ imprisonment with a non-parole period of 14 months, and was ordered to pay $45,000 in reparation pursuant to s 21B of the Crimes Act 1914 (Cth) (Crimes Act). Mrs McAleer was sentenced in relation to one count of causing a person to enter into or remain in forced labour, contrary to s 270.6A of the Criminal Code (9 years’ maximum penalty) and to one count of harbouring an unlawful non-citizen contrary to s 233E of the Migration Act 1958 (Cth) (Migration Act) (10 years’ maximum penalty). A further matter of aiding, abetting, counselling or procuring the commission of an offence against s 128B of the Health Insurance Act 1973 (Cth), an offence of knowingly making a false or misleading statement in a statement of claim, was taken into account on a schedule pursuant to s 16BA of the Crimes Act.

On 30 July 2021, Mr Joshua McAleer was sentenced to an aggregate sentence of 2.5 years’ imprisonment to be served by Intensive Correction Order (ICO) on the condition that he was subject to home detention for one year and completed 500 hours of community service. He was ordered to pay $25,000 in reparation pursuant to s 21B of the Crimes Act. He was sentenced in relation to one count of conducting a business involving forced labour contrary to s 270.6A of the Criminal Code and to one count of harbouring an unlawful non-citizen contrary to s 233E of the Migration Act. A further matter of making a false or misleading statement in a claim contrary to s 128B of the Health Insurance Act 1973 (Cth) was taken into account on a s 16BA Schedule.

The offenders were married. They arranged for the victim to come from overseas and then forced her to work for them in their home, caring for their children and at their business (grocery store/restaurant) for minimal pay. The victim was told that she could not return to her home country for five years, and not until she had repaid her travel expenses. The offending occurred over a period of 3 years. The matters taken into account at sentencing related to the offenders telling the victim to pretend she was Sheila McAleer so they could claim Medicare when the victim suffered appendicitis. Mr Joshua McAleer completed the relevant paperwork.

The sentencing Judge stated that the co-offenders’ motivation was the enhancement of their lifestyle and that both Mr and Mrs McAleer had not demonstrated any real insight into their offending.

* This prosecution was publicised in the media, however the judgement has not been published in view of the statutory non-publication over the identity of the victim (s 15YR of the Crimes Act).

This case study has been provided by a government agency working to respond to modern slavery.

Case study – Criminal justice process in practice #2

Another example is the matter of Kannan. The CDPP has developed an external article which details the 2021 and 2023 sentencing remarks.