Terms of reference
- 1.1 On 27 October 2014, the then Attorney-General for Victoria, the Honourable
Robert Clark MP, asked the Victorian Law Reform Commission under section 5(1)(a)
of the Victorian Law Reform Commission Act 2000 (Vic) to review and report by
1 September 2016 on the role of victims of crime in the criminal trial process.
- 1.2 The terms of reference are set out on page viii.
Scope of the reference
- 1.3 The word ‘victim’ is used in Victorian laws dealing with prosecution, punishment and financial reparation and is defined in different ways in different contexts. In this report, it generally refers to a person who has directly suffered harm at the action of the offender, and includes a parent of a child victim or a family member of a homicide victim. It includes persons alleged by the prosecution to be victims prior to a determination of guilt.
- 1.4 The term ‘victim’ is used in the terms of reference to denote a person who has suffered injury or trauma unlawfully inflicted. The term does not assume that the accused charged with doing so is guilty of the crime charged or has been convicted. So much is recognised in section 336A of the Criminal Procedure Act 2009 (Vic) which states:
336 A Victim who is a witness entitled to be present in court
(1) In a criminal proceeding where a victim of the offence is a witness in the proceeding, the court may order the victim to leave the courtroom until required to give evidence only if the court considers it appropriate to do so.
(2) Nothing in this section prevents the court from ordering a victim who is a witness
to leave the courtroom at any time after giving evidence.
- 1.5 In a criminal trial, the accused is presumed innocent of the crime charged. Rightly so.
The prosecution bears the burden of proving the guilt of the accused on the crime charged. Rightly so.
- 1.6 In most criminal trials, there is no dispute that the victim is truly a victim—that is, that the victim was killed or suffered injury, trauma or loss, unlawfully inflicted. What is in dispute
is whether it was the accused who committed the crime, or did so with the necessary intent or mental element, or was acting in lawful self-defence. In some cases, the issue is whether a criminal offence occurred. In sexual offence cases involving a victim capable in law of giving consent, the issue may be whether the alleged victim is a victim or a voluntary consenting party.
- 1.7 The report uses the term ‘victim’ consistently with the terms of reference and the Criminal Procedure Act. It acknowledges that there are cases where there is an issue whether the person is a victim. However, in the majority of cases there is no issue that the person is a victim, whoever inflicted death, harm or trauma or with what intent.
- 1.8 Not all victims are affected the same way. The Commission recognises that the experience of the criminal trial process by each victim is unique. At the same time, it is aware that certain groups of victims, such as child and young victims, victims of family violence, victims of sexual offences and victims from disadvantaged and marginalised communities may share some concerns. This report refers to specific groups of victims where the context requires it.
- 1.9 The word ‘victim’ can convey different meanings. It can connote strength, fortitude, resilience and dignity, yet its use is commonly avoided on the basis that it can reduce a person to their experience of victimisation and connote weakness rather than the attributes of a survivor. The terms ‘complainant’ or ‘alleged victim’ are sometimes used
to refer to victims prior to a determination of guilt. While acknowledging these limitations and concerns, ‘victim’ is used exclusively in this report because it is consistent with the terms of reference and Victorian law.
The ‘criminal trial process’
- 1.10 The terms of reference encompass:
- the prosecution of indictable offences from the decision to prosecute, through the committal proceedings in the Magistrates’ Court, to the trial and sentencing proceedings in the Supreme or County Court
- related applications for compensation and restitution orders
- appeals to the Court of Appeal.
Proceedings within scope
- 1.11 The ‘criminal trial process’ does not refer to criminal matters that are dealt with entirely
by the Magistrates’ Court or the Children’s Court.
- 1.12 The Criminal Procedure Actdistinguishes between ‘trials’ and ‘hearings’. Trials occur in the Supreme and County Courts and hearings occur in the Magistrates’ Court. Almost every criminal prosecution starts in the Magistrates’ Court, but only the more serious criminal offences that attract higher maximum penalties proceed to trial before
a judge and jury in the Supreme and County Courts.
- 1.13 The County Court’s jurisdiction covers all indictable offences (offences tried by judge
and jury) except treason, murder and related offences. The Supreme Court deals with cases of treason, murder, attempted murder and other major criminal matters. The
Court of Appeal hears appeals on criminal matters from both the County Court and
the Supreme Court.
- 1.14 Victims encounter a criminal trial process that can be protracted and complex, and may take many courses. The Commission’s consultation paper discusses in detail the criminal trial process and the victim’s role at each stage. For a summary of the process, see Appendix A.
- 1.15 The Commission has also been asked to consider ‘the making of compensation, restitution or other orders for the benefit of victims against offenders as part of, or in conjunction with, the criminal trial process’. Part 4 of the Sentencing Act 1991 (Vic) provides victims with a right to apply for an order for compensation or restitution against the offender
as part of the sentencing process but separate to the offender’s punishment.
- 1.16 In addition, the Victims of Crime Assistance Act 1996 (Vic) establishes a government-funded scheme that provides financial assistance to victims of violent crime when adequate compensation cannot be obtained from the offender. This scheme is independent of the trial process and orders are not made against the offender. However, the criminal trial process and applications for financial assistance can affect each other. The Victims of Crime Assistance Act has been addressed in this review only to the extent that it affects the victim’s involvement in the criminal trial process.
Proceedings beyond scope
- 1.17 The terms of reference do not encompass:
- bail hearings
- appeals from the Magistrates’ Court to the County Court
- sentencing outcomes
- amounts awarded as compensation, restitution and financial assistance
- the law of appeals
- parole hearings.
- 1.18 These processes and outcomes are integral to our justice system and can be an important part of a victim’s experience but are outside the scope of the Commission’s review.
The incidence and impact of crime
- 1.19 During the year to 31 March 2016, 310,827 people in Victoria reported to the police that they had been the victim of one or more crimes. Of these, 58,917 reported a crime against the person, 251,335 reported a property or deception crime, and 575 reported other offences.
- 1.20 Most victims of crime against the person were female, while males were more prevalent among the victims of property and deception offences.
- 1.21 The most prevalent crime against the person was non-sexual assault, of which there were 38,642 reports and almost equal numbers of male and female victims. Of the 6948 reported sexual offences, 79 per cent of the victims (5512) were female. Females also outnumbered males among victims of abduction, stalking, harassment and intimidation offences, while males outnumbered females among victims of robbery.
- 1.22 Australian Bureau of Statistics data indicate that male victims of non-sexual assault are less likely to know their assailant than are female assault victims. Of the females physically assaulted in 2014–15, 74 per cent were assaulted by someone they knew, most commonly an intimate partner or family member. Similar statistics exist in relation to face-to-face threatened assault, homicide and sexual offences. This reflects the fact that women are disproportionately victims of family violence offences. The majority
of sexual and family violence offenders are male.
- 1.23 Individuals from disadvantaged or marginalised communities may have an increased likelihood of being offended against and be vulnerable to certain types of offending. They can also face greater barriers than others when seeking to access the criminal justice system. Research into the victimisation of particular groups has been limited in Australia. Studies show that the risks of becoming a victim of crime and of encountering barriers to justice are greater among the homeless, Aboriginal or Torres Strait Islander people, people from a culturally or linguistically diverse background, people who have a mental illness and people with disabilities. Children and young people also experience special difficulties in the criminal justice system because of their age and related vulnerability.
- 1.24 Risk of criminal victimisation is usually dependent upon a ‘confluence of several risk factors’. For example, in 2005 the Australian Institute of Criminology published a report analysing key results of the 2004 International Crime Victimisation Survey, which identified people with one or more of the following characteristics as being at higher risk of being a victim of personal crime:
- not married
- earning a higher income than average
- residing at a postcode for less than one year
- leading an active lifestyle outside home in the evenings.
The impact of crime on victims
- 1.25 The impact of crime on victims varies from person to person. Each victim reacts differently according to the nature of the offence and their life experience. However the ‘effects of crime are pervasive and deleterious to the victim’s emotional health’. The most common effects of crime on victims include:
- a loss of trust in society
- physical injury
- financial loss
- psychological injury
- behavioural change
- responses related to a perceived risk of future victimisation.
- 1.26 Research indicates that:
- An emotional reaction to being victimised occurs in the majority of victims.
- Longer-term impacts are experienced by victims of severe sexual assaults and,
to a lesser extent, physical assaults.
- Serious or violent offences are more likely to cause higher levels of emotional stress and long-lasting psychological, social and physical effects.
- Although the effects of property crimes (particularly non-violent property crimes)
are typically not as severe and long-lasting as those of violent personal crimes, victims of property crime do suffer emotional, psychological and physical health effects—sometimes severely so.
- Sexual assault can lead to feelings of guilt, self-blame and unworthiness, which contribute to low reporting of sexual offences to police.
- Victims of physical or threatened violence and/or attempted break-in tend to have poorer social wellbeing outcomes than people who have not experienced those crimes; for example, they may feel less safe at home.
- 1.27 Research shows that the effects of crime may compound, and be compounded by, the vulnerability of individuals who are already experiencing disadvantage or marginalisation. For example:
- The impact on individuals who arrived in Australia as refugees may be more complex by reason of their earlier traumatic experiences.
- For women, family violence is a leading cause of homelessness, which in turn increases the risk of becoming a victim of crime.
- The impact of, and response to, crime by many Aboriginal people will be affected
by a distrust of the state and the ongoing impacts of colonialisation, dispossession and the forced removal of children.
- Perceptions of people with disabilities as unreliable, not credible or incompetent makes it harder to report crime and contributes to their heightened risk of victimisation.
- 1.28 Statistical data and research reports are vital to planning the response by the criminal justice system to crime because they reveal patterns and trends of behaviour, yet equally they show that people are victimised for different reasons and everyone’s experience of victimisation is unique. Throughout this review, the Commission has sought to explore issues across the criminal justice system while recognising that reforms must allow agencies to accommodate the different needs and expectations of individual victims.
The Commission’s process
Victims of Crime Division
- 1.29 The Chair of the Commission, the Hon. Philip Cummins AM, exercised his powers under section 13(1)(b) of the Victorian Law Reform Commission Act to constitute a Division, which he chaired, to oversee the conduct of the reference.
- 1.30 Liana Buchanan, Helen Fatouros, Bruce Gardner PSM and the Hon. Frank Vincent AO QC joined the Chair on the Division during the research and consultation stages. Membership was later extended to the remaining Commissioners (listed on the inside front cover)
to guide the preparation of this report.
Reference framework: theory and practice
- 1.31 The terms of reference raise the fundamental question of what the role of the victim in the criminal trial process should be. This is both a theoretical and practical question that calls for an understanding of how and why the criminal justice system has evolved, how effectively it serves the needs of the community, and the source and nature of pressure for change.
- 1.32 Many academics and researchers approach the question by examining the fundamental purposes of the criminal justice system and the relationship between the victim, the accused and the state. The lessons of history, developments in human rights law, empirical research and a broad cross-section of academic thought (ranging across law, sociology, philosophy, political theory and psychology) enrich our understanding of the criminal justice system and how it can best serve the community.
- 1.33 Of course, the criminal justice system is not just a theoretical construct. Every year in Victoria, thousands of criminal cases come before the courts, and all have a direct impact on the lives of victims, accused, witnesses and families. Listening to and understanding their experiences—and those of the people who work in the criminal justice system—is crucial to identifying issues and proposals for reform.
- 1.34 The response of the criminal justice system to victims has long been the subject of public debate in Victoria, which has led to a succession of reforms to law, procedure and support structures. These reforms have generated valuable information about victims’ views and needs. We are now able to reflect on the impact of the reforms, and where weaknesses lie. The Commission’s review has been conducted in the context of ongoing advocacy, research, evaluations and other analyses that overlap and supplement the terms of reference and help to illuminate the issues.
- 1.35 To reinforce an approach informed by theory and practice and an awareness of how they are interrelated, the Commission published four information papers in May 2015 before formal consultations began:
- 1. History, Concepts and Theory
- 2. Who Are Victims of Crime and What Are Their Criminal Justice Needs and Experiences?
- 3. The International Criminal Court: A Case Study of Victim Participation in an Adversarial Trial Process
- 4. Victims’ Rights and Human Rights: The International and Domestic Landscape.
- 1.36 The papers are descriptive and do not contain any reform proposals. They are available
on the Commission’s website.
- 1.37 The Commission published a consultation paper in August 2015, following extensive research and preliminary consultations with victims and people who work in the criminal justice system.
- 1.38 The consultation paper described current law and practice relating to the criminal trial process in Victoria, alternative approaches in other Australian jurisdictions and internationally, and options for reform. It posed a series of questions to guide consultations, and invited written submissions by 30 September 2015.
- 1.39 A total of 43 written submissions were received, which are listed at Appendix B.
Those which may be made public are published on the Commission’s website.
- 1.40 The Commission has consulted with individuals who have personal experience of the criminal trial process, providers of victim support services, lawyers, judicial officers and academics. All contributors have been generous with their time and ideas.
- 1.41 The consultations took the form of meetings with victims, family members of victims, academics, and representatives of the key stakeholder organisations in the criminal justice system. The meetings were held in Ballarat, Bendigo, Geelong, Melbourne, Mildura, Morwell, Shepparton, Warrnambool and Wodonga. The Commission also consulted with academics and legal and victim support experts in other jurisdictions. Most of the consultations were individual interviews, though a number of group—or roundtable—discussions were also held.
- 1.42 Two series of consultations were held. The first consisted of preliminary meetings to assist the Commission in gathering information for the consultation paper. The second series, after the consultation paper was published, involved hearing and discussing responses
to the questions the paper raised.
- 1.43 The second series of consultations comprised 57 individual interviews and 18 roundtable discussions. They are listed at Appendix C.
- 1.44 At the same time as the Commission was conducting its review, other important inquiries were taking place which the Commission has taken into account in this report.
Victorian Royal Commission into Family Violence
- 1.45 The Victorian Royal Commission into Family Violence presented a comprehensive report to the Victorian Government on 29 March 2016, which was tabled in Parliament the next day. The Royal Commission’s task was to identify the most effective ways to:
- prevent family violence
- improve early intervention so as to identify and protect those at risk
- support victims—particularly women and children—and address the impacts
of violence on them
- make perpetrators accountable
- develop and refine systemic responses to family violence—including in the legal system and by police, corrections, child protection, legal and family violence
- better coordinate community and government responses to family violence
- evaluate and measure the success of strategies, frameworks, policies, programs
and services introduced to put a stop to family violence.
- 1.46 The Government accepted all 227 recommendations, some of which address issues that were also raised with the Commission during the course of this reference. Where possible, the Commission has made recommendations that align with or supplement those that the Government has already accepted.
Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse
- 1.47 The Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse, established in January 2013, has been examining the criminal justice system response to child sexual abuse in institutions. In particular, it has inquired into the police investigation of allegations, decision-making processes regarding prosecution, evidence given by victims, the management of multiple allegations against the same accused person, and sentencing.
- 1.48 The Royal Commission has published reports on aspects of its terms of reference,
but its final report and recommendations are not due until 15 December 2017.
Structure of this report
- 1.49 Chapter 2 provides a summary of how the role of the victim has evolved. The adversarial criminal trial process does not recognise a distinct role for victims. Traditionally, the only way in which a victim is directly involved in the process is as a witness for the prosecution. However, law and policy reforms in Victoria and other common law jurisdictions have progressively created opportunities for victims to engage with the criminal trial process
in a variety of capacities.
- 1.50 Chapter 3 discusses what the victim’s role has become and proposes that it be characterised as that of a participant. A victim who does not appear as a witness at the trial is no less entitled to be recognised and respected within the criminal justice system than one who does. In homicide cases, the members of the family of the deceased are victims but might not be called as witnesses. If an accused person pleads guilty, there is no trial.
- 1.51 In all cases, victims have been harmed or directly affected by the crime; they provide the impetus for prosecution when they report to police; and they are at risk of further harm as a result of the trial process and outcome. These realities underpin victims’ inherent interest in the criminal trial process. This interest is the source of the rights and entitlements that are conveyed in legislation, court procedures and obligations imposed on criminal justice agencies.
- 1.52 The Commission calls for the victim’s interest to be considered, alongside those of the accused and the community, in the criminal trial process. The overriding requirement to uphold the principles of a fair trial should be maintained. This requirement is not limited to safeguarding the interests of the accused. It is well established that it includes the interests of the community. This report concludes that it should also include the interests of the victim.
- 1.53 In practice, it means recognising victims’ rights and entitlements, as established in law and policy, and meeting their legitimate expectations of the role. Drawing from legislation and practice, as well as from comments made by victims, the Commission identifies five groups of rights and entitlements: respect; information and support; protection; participation; and reparation.
- 1.54 Chapter 4 turns to the need to embed the concept of the victim as a participant into the operation of the criminal trial process and the wider criminal justice system. Recommendations are made to foster cultural change through education and training and stronger accountability mechanisms to improve compliance with the Victims’ Charter Act 2006 (Vic).
- 1.55 Chapters 5–9 examine the five groups of victim entitlements and expectations in turn. The chapters assess how well they are being met, and set out recommendations to strengthen the role of victims in the criminal trial process.
- 1.56 Chapter 10 concludes the report.