Legal System

Commonly, families first become aware of a homicide when local police arrive on their doorstep. The detective may ask the family to assist with the investigation by providing one or multiple statements, and by allowing them to execute search warrants to gather evidence. The location of the homicide is declared a crime scene; if this is the family’s home, they may be asked to find alternative housing until the police have released the crime scene over for clean-up (clean-up is carried out by crime scene clean-up specialists and facilitated by QHVSG, otherwise your detective can assist with organizing this). QHVSG often assists families to access emergency accommodation, typically at no cost to the family.

Bail is the process of the accused being released into the community; however, they are expected to attend court proceedings until the verdict is administered. There are usually orders or conditions placed on the accused whilst on bail and if these orders are breached, then the accused may be remanded back into custody for the duration of the court process. If the accused has been granted bail and a family or individual feels their lives are in danger or have other concerns, they should speak with the detective in their case or contact QHVSG.

Mentions can occur at any time during the legal process and essentially, they are an opportunity for both the prosecution and the defence to meet before a Judge or magistrate and to re-evaluate where the case is, and how far away both parties are from proceeding to the next stage.  It isn’t necessary for families to attend, as mentions generally only last for a few minutes, and the accused is generally not present.  Families can encourage the detective handling their case to let them know the outcome of the mention.

The Committal Hearing will be heard in a Magistrates Court in the region in which your loved one died. These hearings are usually ‘open’, meaning that anyone has the right to attend and sit in the courtroom gallery.  The hearing is heard in front of a magistrate, and it is up to them to weigh up the evidence and decide whether there is a ‘Prima Facie’ case; in other words, whether there is enough evidence to send the matter to trial at the Supreme Court.  Because of the nature of a committal hearing, families may find attending incredibly difficult. There is often a great deal of legal argument and jargon, as well as highly graphic evidence and testimony. QHVSG aims to provide families with a peer court supporter. 

An inquest is a formal court hearing that is conducted by the coroner. Coronial Inquests are public hearings held to examine the cause and circumstances surrounding the death of somebody in unusual or unnatural circumstances. Inquests are conducted by magistrates in their role as coroners.  The coroner’s role is to examine the circumstances surrounding a death; however, proceedings are conducted without utilizing the rules of evidence as would normally apply in general court proceedings.  A coroner will investigate all ‘reportable’ deaths. In certain types of deaths, including certain homicide-related deaths, the investigation will include an Inquest.  However, the coroner may decide that an inquest is not necessary after examining such things as witness’s statements and medical reports. It is usually the police officers and medical practitioners who will notify the coroner; however, it is open to any person to notify the coroner if they believe that the death is considered ‘reportable’.

If there is enough evidence found during the Committal Hearing, the accused will be committed to stand Trial before a jury. This will happen in the Supreme Court closest to the area of the offence.  A state-appointed prosecutor will try the case in front of the judge, and a jury of 12 people. The jury must reach a unanimous verdict, and because of this, jury deliberations can go for hours and in some cases, days. Families may request a meeting with the prosecutor prior to trial, which is where they can discuss their fears, questions, and hand over a copy of family members’ Victim Impact Statements.  Family members are welcome to be involved in this by sitting in the gallery at the back of the court.  On conclusion of the trial, the judge will sum up the case, the jury will go out to deliberate on the verdict, which will be either “guilty”, “not guilty”, or a combination of both if there is more than one charge. If the accused has been found guilty, the case will be listed for sentencing.

Tips For Witnesses:

• Tell the truth.
• Read your statement before you give advice.
• Do not discuss your version of the facts with other witnesses.
• If you do not understand a question, say so.
• Do not give evasive answers.
• Only answer the question asked of you.
• Do not guess. If you do not remember or do not know the answer, then say so.
• If your memory of something is vague, say so.
• Do not worry about tactics.
• Do not participate in courtroom theatrics.

Tips For Families:

• Keep in regular contact with the police personnel and the investigating officer in charge of your case. If you are preparing for the actual trial, let the Office of the Director of Public Prosecutions and the Victim Support Service know this information.
• If you wish to view the courtroom before you attend the legal hearing, this should be available to you. QHVSG can help arrange for you to tour the courts.
• Arrange tentative plans for court (e.g., public transport, travel, parking etc.).
• Arrange accommodation for court days if necessary and arrange court clothing for a few days.
• Prepare a court kit that includes:

- Box of tissues.

- Jumpers.

- Small back pillow.

- Mints or lollies.

- Small face cloth.

- Pen and paper (for questions or notes).

- Comfortable shoes and clothing.

- A well charged mobile-phone.

- Headache tablets and any necessary medication.

- Small bottle of water.

- All necessary phone numbers.

- Copy of your Victim Impact Statement.

- Copy of your Witness Statement.

Trial Guidelines:

There are basic rules that govern a criminal trial - Some you have heard of; some you may have not:

• Serious charges must be decided by the verdict of a jury.
• Defendants are presumed to be innocent unless and until their guilt is proven.
• Defendants are entitled to know what evidence will be used against them at their trial.
• The prosecution must prove the defendant’s guilt. The defendant does not have to prove their innocence.
• Guilt must be proven beyond reasonable doubt.
• The jury’s verdict must be unanimous.
• A verdict of not guilty is final and cannot be appealed against.
• An involuntary confession cannot be used in evidence.
• Improperly obtained evidence can be excluded to ensure a fair trial.
• The defendant’s prior criminal convictions will not normally be revealed to the jury, although the judge may consider this in sentencing.
• The defendant has the right to cross-examine prosecution witnesses.

A Victim Impact Statement (VIS) is your opportunity to inform the judiciary how this violent crime has affected you and your family. A Victim Impact Statement is only used if and when the offender is found guilty.  You and your family are encouraged to share your thoughts and feelings, as well as an insight into your life without your loved one. This is perhaps the only opportunity families get to have their anguish considered with the judge; as such, we encourage you to take some time to do this, even if that means only sharing one paragraph.  It is important to know that there is no right or wrong way of writing a Victim Impact Statement. The important thing is that you are satisfied with its content, and that it accurately portrays your experience.

Writing A Victim Impact Statement:

The QHVSG team can help you with drafting your statement; however, some prompts to help guide you include:

• How did I react when I was told my loved one had been murdered?
• How would I describe my loved one to the judge?
• What are the things I am missing most about my loved one?
• What are the things I will miss most into the future (such as the birth of grandchildren)?
• What are those special qualities about them that are irreplaceable?
• Was I physically injured, and do I have ongoing pain and/or medical needs?
• How has this affected me financially/emotionally/physically/spiritually?
• What changes have I noticed in my immediate family?
• How is my life now, compared to what it was before?

In some Queensland courts, survivors are permitted to give their victim impact statement verbally at the sentencing hearing itself, or have the prosecutor present the statement before the court. Usually, the prosecution will hand your Victim Impact Statement up to the judge who will consider your statement when sentencing and have either the judge or judge’s associate read your statement out loud.

Once an offender has been found (or pleads) guilty, a date will be set for sentencing. This is again heard at the Supreme Court, in front of a judge, however no jury is present. You and your family are welcome to attend (as it is usually an open court). Sentencing can last for one or more hours during which time the prosecution and defence illustrate the reasons for seeking a particular length of time spent in custody.  The judge, having heard these arguments and considered the evidence, will then outline the offenders’ sentence, including their non-parole period and their reasons why.

An appeal is when the offender or defence lawyer is not satisfied with the decision made from either jury or judge and wishes for a review of the evidence and have their sentence altered.  Generally, the appeal period is one calendar month from the day of conviction; however, the Court Of Appeal has discretion to allow applications outside of this timeframe. Once an appeal has been lodged, the matter will be given a hearing whereby a panel of judges will re-examine the evidence and consider the defendants complaint.  Based on this, one of several outcomes may occur including:

• Dismissing the appeal (in which the original conviction / sentence applies).
• Remitting the matter back for a re-trial.
• Quashing the verdict and giving an acquittal verdict (in which the defendant is not guilty).
• Directing that there be no re-trial without directing a verdict of acquittal.
• Substituting a verdict of guilty of a different offence where the jury must have found an accused guilty of that other offence.
• In exceptional circumstances, setting aside the conviction and entering a verdict of not guilty but insane.

Unfortunately, as a family member you will have little power over what occurs in, and the outcome of an Appeal Hearing. We recommend contacting QHVSG for support and information during this time.

Parole is a way of letting approved prisoners serve part of their sentence in the community once the parole board decides they are not an unacceptable risk to the safety of the community.  Prisoners on parole are usually supervised and must comply with certain conditions in order to remain in the community. These conditions are designed to protect the safety of community members and to monitor prisoners’ circumstances and behaviour.  Parole does not free prisoners from their sentence. Prisoners on parole continue to serve their sentence in the community where they can further their own rehabilitation and restore their relationships.  Victims of crime who are registered with the Victims Register will be notified when an offender lodges an application for parole and invited to make a written submission to the parole board within 21 days.

The Parole Board:

Parole Boards are independent statutory bodies appointed by the Governor in Council. There are three parole boards in Queensland; the Queensland Parole Board, Southern Queensland Regional Parole Board and Central and Northern Queensland Regional Parole Board.  The Queensland Parole Board makes decisions on parole for serious offenders serving sentences of eight years or more. The Regional Parole Boards make decisions regarding parole for offenders serving sentences in excess of three years but less than eight years.  The parole board’s role is to determine whether eligible offenders are ready for supervised released into the community. Parole orders may include conditions relating to want or matters, including employment, accommodation, programs to be undertaken and curfews; however, these conditions must be to ensure the offender’s good conduct or to stop the offender committing an offence.

Parole Board Membership:

Membership of parole boards is prescribed by the Corrective Services Act 2006 and must include a president and deputy president, each of whom is either a retired judge or a lawyer who has practiced for at least five years.  Of the other five appointed members, at least one must be an Aboriginal or Torres Strait Islander person, one must be a doctor or psychologist and at least two must be women. One member is a nominated representative of Queensland Corrective Services.  The required number of members on a regional board is decided by the Minister but must include the president of the Queensland Board, a deputy president and other members with similar qualifications as those on the Queensland Board.

Submissions:

People on the Victims Register may lodge a submission to a parole board when the person who offended against them lodges an application for parole.  You will be sent a form, which gives you the opportunity to explain to the parole board why this offender should not be granted early release back into the community.  The information you provide will be for their consideration only. The parole submission allows you to state stipulations (conditions) you would like to see placed on the offender, if the parole board decides on early release.  These include requesting the offender not reside in your neighbourhood or that the offender not be allowed to contact you or your family.

Considerations Before Release:

In considering an application for release to a parole order the board holds community safety paramount. The Board takes a number of factors into account, including:

• The nature of the offence.
• The offender’s past offences and any patterns of offending.
• The possibility of the offender committing further offences.
• Whether the offender has previously been granted an order and if so, whether the offender breached any conditions of that order.
• Whether the offender has successfully completed programs of rehabilitation.
• The institutional conduct of the offender whilst incarcerated.
• The viability of the offender’s relapse prevention and release plans.
• The risk of physical or psychological harm to a member of the community and the degree of risk.
• Any behavioural report relating to the offender.
• The sentencing judge’s recommendation.

The Mental Health Court (MHC) decides amongst other things, the state of mind of the person/s charged with criminal offences. If there is reasonable cause to believe that an alleged offender is or was mentally ill or has an intellectual disability of a degree that the person’s mental condition should be considered by the Mental Health Court, then a criminal case may be referred to that court.

A case would be referred to the MHC to have the following questions answered:

• Was the alleged offender of unsound mind at the time of the offence?
• Is the alleged offender unfit for trial?
• Is the unfitness for trial permanent?
• If the charge is murder, was the alleged offender suffering from diminished responsibility at the time of the offence?

Because the MHC is not bound by the rules of evidence, it is able to accept material that may otherwise be inadmissible in general court proceedings. To this effect, victims of homicide can make what is called a non-party statement for the MHC.

Unfit For Trial:

This means that the person is unable to understand the nature of the trial proceedings; to understand the meaning of entering a plea of guilty or not guilty; or is incapable of instructing their legal representatives. It may also mean that a person is considered unable to endure their trial without serious deterioration of their mental state. A person may be temporarily or permanently unfit for trial.  If a person is found of unsound mind or permanently unfit for trial, the proceedings are discontinued. The court may also make a forensic order for that person. If the person is found only temporarily unfit for trial, then the proceedings will simply be suspended and regular reviews of the person’s fitness for trial are conducted by the Mental Health Review Tribunal.

Diminished Responsibility:

If the charge is murder, the MHC may find that even though a person was not of unsound mind, they didn’t have substantially impaired capacity to:

• Understand what they were doing.
• Control their action.
• Know that they should not do the act or make the omission.

The Criminal Code says where there is a finding of diminished responsibility, a murder charge is replaced with a charge of manslaughter. This is because a person whose capacities are substantially impaired bares less criminal responsibility for their actions.

What Happens If The Mental Health Court Decides The Person Was Of Unsound Mind Or Is Permanently Unfit For Trial:

In these circumstances the court may make a forensic order. This gives authority for the person to be detained in an authorised mental health service for involuntary treatment or care. There is a separate fact sheet on forensic orders and how they are reviewed.

In deciding whether to make a forensic order the court must consider:

• The seriousness of the offence.
• The person’s treatment needed.
• The protection of the community.

If the court decides not to make a forensic order it can make a non-contact order.

Non-Contact Order:

This means a person must not have contact with a stated person. The MHC can only make a non-contact order when it decides not to make a forensic order and where the person was charged with an offence of violence.  Breaches of non-contact orders should be reported to the police for investigation and where appropriate, prosecution. If a person intentionally breaches a non-contact order, a Magistrate’s Court can impose a penalty or vary the order.

Any child above the age of criminal responsibility who is charged with murder can be tried in an adult court.  Within Queensland the minimum age for criminal responsibility is considered at age ten years, whereas the maximum age to be tried as a juvenile is aged sixteen – Although special considerations can be taken into account.  Special conditions apply to trying juveniles within an adult’s court, including potentially, the family of the victim being refrained from entering the hearing. It is important you notify QHVSG if the offender in your case is a juvenile, so we can work with you to ensure your involvement in the hearings.

Attending the trial when a loved one has been the victim of homicide can be a traumatic experience. Not all families want or are able to sit through a trial, and even if they do it can often be difficult to understand the proceedings at the time of the trial.  Sometimes families find later, they yearn to read the testimony given by witnesses at the trial and to simply digest what has happened, or to gather information to go towards an appeal or civil suit. Auscript can make available to suitable persons, the transcripts of your trial, these are available free of charge to one member of the family.  Please note that we are unable to help facilitate access to transcripts from the Committal Hearing. These are available at the Magistrate’s Court where the case was heard.

Queensland is now very fortunate to have a “Victims Register” within the Department of Corrections for survivors to access limited, yet vital, information about the offender’s status while in prison or on parole. This will also allow you to lodge submissions to the parole board should the offender lodge an application for parole.  To register, fill out the Victims Register Application Form – More information can be found on their website.  Please remember that you must treat all information received from the Victims Register confidentially. Information received must not be disclosed to the public.

What Information May Be Provided:

Information that may be provided includes:

• The offender’s charges.
• The offender’s sentence.
• Release and eligibility dates.
• The correctional centre in which the offender is currently accommodated.
• The Probation and Parole District Office which currently supervises them.
• When the offender experiences a change in their location.
• If the offender lodges an application for parole.
• The outcomes of that application.
• If the offender escapes.
• If the offender dies.

Who Is Eligible To Be Placed On The Victims Register:

To be eligible for registration, a person must be:

• The actual victim of an offence of violence or a sexual offence for which an offender has been sentenced to a term of imprisonment (unless it is wholly suspended) or who is a supervised dangerous prisoner (sexual offender).
• An immediate family member of a victim who has died as a direct result of an offence of violence.
• A parent or guardian of a victim of an offence of violence or sexual offence who has a legal incapacity or who is under 18 years of age.

Who Is Considered To Be An ‘Immediate Family Member’:

The Corrective Services Act 2006 defines ‘immediate family member’ as a person’s spouse, de facto, child, step-child, parent, step-parent, brother, sister, stepbrother, stepsister, grandparent or legal guardian.  In the case of Aboriginal and Torres Strait Islanders, extended family relationships may also be recognised.

Can A Victim Nominate Another Person To Register On Their Behalf:

Yes. If a victim of crime would prefer that someone else, such as a friend or family member (called a nominee), receive the information about the offender on their behalf, they should indicate this when applying for inclusion on the Register.  A victim can also nominate a government or non-government agency to receive information on their behalf if that entity agrees.

Can Anyone Else Register:

A person who does not meet the above registration criteria may still be considered for placement on the Victims Register if the person can demonstrate:

• A documented history of violence against them by an offender e.g. a current Domestic Violence Order.
• That their life or physical safety may be endangered due to a connection to the offence for which an offender has been imprisoned e.g. they may have given evidence against the offender in a court proceeding.

Applications submitted under this category will only be accepted for registration in certain circumstances.  Information provided to applicants registered under this category may be limited to the actual release date of an offender.

What Happens To An Application To Register Once It Is Submitted To The Victims Register:

The Victims Register will assess a person’s eligibility for registration, the more information you can provide the quicker your application will be processed. Court Victim Liaison Officers at your local courthouse can assist you to fill out your registration form or Victims Register staff can assist you over the phone.  Once an application has been approved and processed, the registered person or their nominee will receive a letter from Victims Register confirming their registration. This letter will provide all the information mentioned above.  Even if there are no changes in an offender’s circumstances, the Victims Register will write to you once a year to ensure that you have the most up to date information.

Will My Details Be Confidential:

Yes. The details of applicants are held securely at the head office of Queensland Corrective Services. Offenders are not informed when a person is placed on the Victims Register.  Your registration will remain current until an offender has completed their sentence unless:

• The victim requests to be removed.
• The offender dies in custody.
• The offender is transferred interstate or overseas.
• The victim discloses, for public dissemination, any offender information related to them by Victims Register.