Table of contents
- 10.1 This report does not recommend changing the adversarial trial process itself. Within that trial process, the report recommends that the role of the victim should be conceptualised, understood and implemented in accordance with modern jurisprudence. The jurisprudence is that, in the modern trial, there is a triangulation of interests: those of the public, the accused and the victim. Within that triangulation, the interest of the victim
in the criminal trial is not that of a party; but it is that of a participant.
- 10.2 The victim’s role has been changing progressively in Victoria and other common law jurisdictions for three decades, albeit not in the same way or at the same pace. It is no longer confined to that of a prosecution witness. Victoria’s public prosecutions service has been required by law to give appropriate consideration to the concerns of victims of crime since 1994.1 Also that year, the courts were first required by law to have regard to the impact of the crime on the victim when sentencing an offender.2 The following year,
the Witness Assistance Service was established within the Office of Public Prosecutions,
to support victims and witnesses of serious crime throughout the court process.
- 10.3 Since then, numerous entitlements and obligations created in law and policy have affected how criminal trials are conducted, particularly for victims of sexual offences and family violence. Victims can also participate at other stages of the criminal justice system’s response to crime, notably when the offender is nearing the end of a custodial sentence and being considered for parole or ongoing post-sentence monitoring and supervision.
- 10.4 The Victims’ Charter Act 2006 (Vic) was a watershed in the evolution of the victim’s place in the criminal justice system. It restated, from the victim’s perspective, rights that had been established by other legislation and set out obligations owed to victims by criminal justice agencies. The Act was intended to achieve a consistent system-wide approach to the way in which victims are treated by those agencies.
- 10.5 By all accounts, there have been significant improvements in the information and support services that are now available to victims. There is also evidence of cultural change, in that criminal justice agencies are more aware of and responsive to victims’ needs and expectations. Most recently, the legislatively established Victims of Crime Commissioner and Victims of Crime Consultative Committee have provided ongoing means by which
the views of victims can contribute to law and policy across the criminal justice system.
- 10.6 Notwithstanding these reforms, and the promising results, victims continue to feel marginalised and disrespected. They have recounted to the Commission numerous incidents when they were not informed of the progress of court proceedings, did not know what was expected of them when giving oral evidence as a prosecution witness, could not get answers from the prosecution to their questions about the trial, and were not consulted about a plea resolution decision or decision to discontinue charges.
- 10.7 In the trial itself, victims continue to be traumatised by not being acknowledged and by being exposed to unnecessarily harsh and intrusive cross-examination. At times, they feel unsafe on court premises in the presence of the accused’s friends and family.
- 10.8 Criminal justice agencies and judicial officers told the Commission that a key reason why the promise of law and policy reform is not always realised in practice is because there
is a need for cultural change. They maintained that victims are not always treated with respect during the criminal trial process because some lawyers and judicial officers do
not appear to have embraced the victim-centred reforms of recent years.
- 10.9 This report argues for a more strategic approach to be taken in order to drive cultural change, implement the reforms that have been made and provide a context for further reform. It calls for the role of the victim in the criminal trial process, as it has evolved,
to be recognised as that of a participant.
- 10.10 While the victim’s role has evolved through the cumulative effect of law and policy reforms, and the victim is increasingly recognised as having an inherent interest in the process, the role has not been conceptualised differently. As long as the victim’s role is still perceived as only that of a witness, the reforms can be seen, at best, as peripheral modifications to the criminal trial process. At worst, there are fears that the reforms weaken the laws and procedures that uphold the principles of a fair trial.
- 10.11 In describing the victim as a participant, the Commission seeks to encapsulate the reality that victims have an inherent interest in the response by the criminal justice system to the crime committed against them. This inherent interest arises from the fact that the person has been a victim of crime. It is given effect through rights and entitlements held by victims, and the imposition of obligations on criminal justice agencies. It also gives rise to legitimate expectations by victims about how they should be treated and how their personal interests are recognised during the criminal trial process.
- 10.12 Being recognised as a participant does not mean that the victim is a party to the criminal proceedings or takes on any of the functions that are traditionally associated with the
role of a public prosecutor. Nor does it diminish the right of the accused to a fair trial.
The Commission intends it to mean that the criminal trial process will accommodate
the triangulation of interests of the accused, the victim and the community. The requirement of a fair trial will be enhanced, not diminished, by properly accommodating that triangulation.
- 10.13 The role of the victim as a participant should be embedded in the language and perceptions of criminal justice agencies. This will foster cultural change by describing what the victim’s role has become and what it means for the adversarial criminal trial process. The Commission recommends expressly recognising the role in legislation, and introducing education and training initiatives to explain what it means in practice.
- 10.14 To reinforce cultural change, and further encourage compliance with victim-centred reforms, the Commission has made a number of recommendations to increase the accountability of criminal justice agencies to Parliament and to individual victims.
- 10.15 The report also explores the extent to which victims’ legitimate expectations about
how they should be treated are being met. Recommendations to overcome disadvantages are made, including to address disparities between rural and regional areas and metropolitan areas in the availability of services for victims, and to reduce the trauma of giving evidence at the trial. The Commission also recommends that an intermediary service be established for child victims and victims with a disability that is likely to diminish the quality of their evidence.
- 10.16 Other recommendations are of potential benefit to all victims. They reinforce the obligations on the Director of Public Prosecutions to consult victims when making significant decisions that affect the conduct of the trial; they provide for victims to have access to legal advice and assistance in order to protect their legal interests where necessary during the criminal trial process; and they facilitate the process by which victims may obtain restitution and compensation orders at the end of the criminal trial.
- 10.17 Recommendations are made about establishing a restorative justice conferencing scheme. Such a scheme would not be part of the criminal trial but could operate alongside sentencing and provide a means for victims to participate directly in a satisfying and procedurally fair process that may advance their private interests. The Commission is aware that there has been—and continues to be—a great deal of research into restorative justice schemes in Australia and overseas, and considers that it is now time to introduce
a scheme in Victoria.
- 10.18 The Commission’s recommendations build on and modify a range of laws and policies while calling for greater coherence and system-wide strategies to consolidate the victim’s role as a participant. They are based on current evidence, yet victims’ views and expectations will continue to change as the reforms are introduced. In addition, they have been made at a time when the broad-ranging recommendations of the Victorian Royal Commission into Family Violence, which will have ramifications throughout the criminal justice system, are being implemented. Therefore, it would be prudent to review the effect of the reforms recommended in this report, and the Victims’ Charter Act, in five years. The Commission recommends that the Victims of Crime Commissioner lead such
- 10.19 Throughout the review, the Commission has noted, both directly and through victims’ comments, the professionalism and commitment of the staff of criminal justice agencies and community-based organisations that provide support to victims of crime, and of the courts themselves. The Commission’s recommendations are made in the expectation that the reforms will build on their achievements.
1 Public Prosecutions Act 1994 (Vic).
2 Sentencing (Victim Impact Statement) Act 1994 (Vic).