The police will generally allow a victim to be interviewed by a police officer of his or her gender if asked. During the proceedings, the victim has the right to be accompanied by a friend, family member or counsellor. If the victim does not wish the case to go to court, the rape can be informally reported for police information. Once a formal report is made, it is up to the police whether the matter is pursued or dropped.
If someone is charged with rape and decides to defend the charge, a date will be set for the committal proceedings, usually a matter of some months after the offence. The committal involves the giving of all of the prosecution evidence in a Magistrates Court before a magistrate who decides whether there is sufficient evidence for the case to go to trial before a judge and jury.
The alleged victim is almost always not required to appear in person at any committal on a sexual offence charge. The usual procedure is that he or she will only be required to give their evidence once, at trial. The defence is provided with a copy of the alleged victim's statement before the committal. An accused person will only be able to question a witness (cross examine) for the prosecution if it can be shown that special reasons exist. Thus it is normal for an alleged victim to have their account of events tested only once, at trial.
If the magistrate decides that there is enough evidence the defendant will be committed for trial at the next available sitting of the District or Supreme Court.
The trial usually takes place approximately six months after the committal but this may vary considerably. Given the concerns over delays in the legal process and the adverse affect of this on child victims provisions now state that trials of child sex offences are to be given priority over less urgent criminal matters.
Vulnerable witness provisions
Facilities are now available which allows a witness to give evidence from behind a screen or from a separate room from where the witness's image is projected into the court room by use of video camera [s13A Evidence Act 1929 (SA)].
Where an accused is unrepresented they are prevented from cross examining the victim themselves, instead they can apply to have legal assistance for that part of their case [see further s13B Evidence Act 1929 (SA)].
Improper questioning by defence counsel (lawyer) is prohibited [s 25 Evidence Act 1929 (SA)]. This includes questions put in a humiliating, insulting or otherwise inappropriate manner, it includes unnecessarily repetitive or oppressive questioning, and it also includes questions apparently based on stereotypes such as sexual or racial or cultural stereotypes or stereotypes based on age or disability [s 25].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.