3 The victim as a participant in the criminal trial process

 

Introduction

  1. 3.1 Chapter 2 described the legislative and procedural reforms that have been most influential in changing the role of victims in the criminal trial process over the past 30 years. These reforms been accompanied by significant changes to the information and support available to victims to help them contribute to the process while reducing the risk of being traumatised as a result.
  2. 3.2 Victims’ expectations and perceptions of the criminal trial process differ and their needs are complex and variable. Many express satisfaction with their interaction with investigatory, prosecuting and victims’ services agencies, and it appears that victims’ confidence in the justice system has increased.1 Levels of satisfaction are highest when agencies have actively provided information and support.2 In contrast, many more victims express profound dismay in the way they were treated by the criminal justice system, including the courts.
  3. 3.3 A common theme raised in submissions and consultations is the disparity between the victim’s role as conveyed in legislation and the victim’s experience in practice. Despite the introduction of legislation and programs to protect, include and support them during the criminal trial process, many victims report not being treated the way they expect to be.
  4. 3.4 A fundamental reason for the disparity is that the introduction of reforms to improve the experiences of victims, and their incorporation into the criminal trial process, have not been underpinned by a proper consideration of the victim’s role.
  5. 3.5 This chapter explores the need to articulate what the victim’s role has become and to embed it in the language and perceptions of criminal justice agencies and the courts. The role is characterised as that of a participant with an inherent interest in the criminal trial process that arises from their victimhood. This inherent interest is recognised in the victim’s rights and entitlements. The role can be acknowledged without diminishing the primacy given to ensuring that the trial is fair for the community and the accused as well as for the victim.

The need to reassess the victim’s role

  1. 3.6 The victim’s role in the criminal trial process is no longer confined to that of a witness for the prosecution. Reforms to the practice of cross-examination, the process for giving evidence, the relationship between the victim and the prosecution, and the victim’s involvement in sentencing proceedings represent a shift to a criminal justice system that
    is increasingly responsive to victims’ interests.
  2. 3.7 These initiatives have also recognised that people other than primary victims are adversely affected by the crime and have a significant interest in the criminal trial process. Family members—particularly the families of victims who have died as a result of the crime—are now also perceived as victims and are entitled to receive information and assistance in the recovery process.3
  3. 3.8 The victim’s role in the criminal trial process, and the wider criminal justice system, needs to be characterised in a new way. Changes to the role made by the cumulative effect of the reforms have not been driven by a vision of what it should be; nor is there an adequate description of what it has become. The ambiguity this has created causes inconsistencies in how victims are perceived, how they see themselves, their expectations and how they are treated. Tyrone Kirchengast has observed that it has also been a source of controversy:

The twenty-first century criminal trial is increasingly reconceived in form and substance, yet victims remain controversial and contested participants of justice, despite being increasingly connected to the criminal trial.4

  1. 3.9 Adopting a new conception of the victim’s role in the twenty-first century criminal trial should not be simply an intellectual exercise. It should change perceptions of the victim’s contribution to the criminal trial process and their place in the criminal justice system. Victims should be seen as insiders, rather than as outsiders unless invited in. In practical terms, it will:
  • drive cultural change
  • clarify expectations and entitlements
  • guide future reform.

Driving cultural change

  1. 3.10 The comment was frequently made in submissions and consultations that cultural change is needed. Victims are excluded, or do not consistently receive the information and support to which they are entitled. Views about the extent of the problem differ, but there is general agreement that solutions can be found in holding criminal justice agencies, including the legal profession and the courts, to account and by shaping attitudes and perceptions through training and education.
  2. 3.11 The cultural change required has been long in arriving. For 22 years, the Public Prosecutions Act 1994 (Vic) has required each element of the public prosecutions service to take the concerns of victims into account in performing its functions. For 10 years, investigatory, prosecuting and victims’ services agencies have had statutory obligations under the Victims’ Charter Act 2006 (Vic) to treat all persons adversely affected by crime with courtesy, respect and dignity. The Victims’ Charter Act also contains principles that impose specific responsibilities on the prosecuting agency to keep victims informed of the progress of the criminal trial, the court process and, if applicable, the role of a witness.5
  3. 3.12 Both statutes were intended to improve the way victims are treated by the criminal justice system. Victims were identified as important, and entitled to be paid greater regard, but the implications for their role in the criminal trial process were not addressed.
  4. 3.13 Had there been an articulated description of the victim’s role and how it would interact with other roles within the criminal justice system, the response may have been more consistent and the cultural change more advanced. It might have also assisted the implementation of other, more targeted, reforms that have affected the victim’s role.

Clarifying expectations and entitlements

  1. 3.14 Professor Edna Erez put the view in her submission that ‘while defining the victim’s role might be important to legal professionals, the critical issue for victims is to feel included (informed, consulted and heard)’.6
  2. 3.15 This is a valid point, yet victims are unlikely to feel informed, consulted and heard by criminal justice agencies if their expectations are not considered legitimate. This in turn depends upon how the victim is perceived by the agency and whether the victim holds the same view. Ian Edwards has observed that most of the controversies surrounding the involvement of victims in the criminal justice system stem from a lack of clarity about the role that victims do and should perform.7
  3. 3.16 Any characterisation of how the victim’s role has developed should reflect the victim’s rights to be kept informed and consulted, to be treated respectfully in court, and to participate in court proceedings at various stages. In practice it would create the parameters of the victim’s legitimate expectations. It would also provide a basis for
    the victim’s rights and the obligations that criminal justice agencies hold.

Guiding future reform

  1. 3.17 The role of the victim in the criminal justice system will continue to evolve, as will the criminal justice system itself.
  2. 3.18 The report of the Victorian Royal Commission into Family Violence, for example, has proposed reforms that will have extensive ramifications for family violence victims. There
    is a growing body of knowledge about the impact of reforms to the criminal justice system, and the role of the victim, which may lead to more fundamental changes to the criminal trial process in the future.
  3. 3.19 Having a modern concept of the victim’s role will assist in identifying and assessing future reform. It would describe the model against which amendments and alternatives could
    be assessed.

Recognising the victim’s interest

The victim’s inherent interest

  1. 3.20 All victims of crime have an interest in the criminal justice system’s response to the
    crime committed against them. Crime is inherently invasive in nature and even minor criminal acts can have psychological, physical, financial and other consequences for victims.8 As Sandra Betts observed in her submission, victims are ‘intimately involved
    from the moment of the offence, right through all processes, and beyond them into
    their future life’.9
  2. 3.21 A victim’s interest in how the criminal justice system responds arises from the crime and its impact on the victim’s life. This inherent interest is not confined to, or defined by, the criminal trial process. It is evident from the decision to report the crime, and can continue after the offender has completed their sentence or any post-sentence monitoring.
  3. 3.22 Victims often provide the impetus for a public prosecution by reporting crime, assisting police with investigations and appearing as a witness for the prosecution. In doing so, they make a significant contribution to ensuring that offenders are held accountable for the harm crime causes to the community and the harm done to the victim themselves.
  4. 3.23 Victims enter the criminal justice system seeking justice, healing, offender accountability, public acknowledgment, and to protect themselves and others from future victimisation.10 They may seek emotional or financial restoration, or may just want the offender to be punished.11 A strong theme emerging from consultations is that victims do not want the harm caused to them to be visited upon others. Revenge or retribution was largely absent from victims’ responses to the Commission.
  5. 3.24 The subsequent criminal trial process can be harrowing and disempowering. Victims can be affected in myriad ways. Those who are witnesses can be distressed by the prospect and experience of giving evidence. Lives may be disrupted for years by delays and appeals.12 Private details about a victim’s life may be made public and scrutinised. Decisions by the prosecution about how to manage the case may appear to minimise the offending. The process of preparing a victim impact statement can be emotionally confronting.
  6. 3.25 Importantly, the intensity and impact of the trial process are not measures of the victim’s inherent interest. A victim who appears as a witness or is traumatised by the experience does not have a greater interest in the process than a victim who does not attend the trial or is less affected by their involvement in it. Nevertheless, the circumstances of the individual victim, including their involvement in the criminal trial, will have a direct bearing on their expectations. These will often be common among victims, such as the expectation that they will be kept informed and listened to, and protected from re-traumatisation. However, each victim is different, and the response by the criminal justice system needs to allow for flexibility and individual choice.
  7. 3.26 The role of the victim in the criminal trial process has evolved through the greater recognition of the victim’s inherent interest and the introduction of support services and legal rights that accommodate differences in individual needs. As victimology expert Jonathan Doak observed in 2008, there is a ‘genuine and deeply rooted realisation that victims have a legitimate interest in the way that criminal justice is administered, in terms of substance, processes and outcomes’.13 He added that policymakers were ‘beginning to acknowledge the fact that victims merit a more prominent role in criminal justice as opposed to their historically subservient status as informants and witnesses’.14

Recognising the victim’s interest within a fair trial

The contest between the state and the accused

  1. 3.27 As noted in Chapter 2, the adversarial criminal trial process is a contest between the state, represented by the prosecution, and the accused, usually represented by defence counsel. This trial must be fair. The right of an accused not to be convicted except after a fair trial has long been a fundamental aspect of criminal justice in Australia.15
  2. 3.28 The traditional concept of a fair trial conceives fairness in terms of ensuring a suitable legal environment for the accused to meet the power of the state.16 It has been described in
    a High Court decision in the following way:

A criminal trial is an accusatorial process in which the power of the State is deployed against an individual accused of crime. Many of the rules that have been developed for the conduct of criminal trials therefore reflect two obvious propositions: that the power and resources of the State as prosecutor are much greater than those of the individual accused and that the consequences of conviction are very serious. Blackstone’s precept ‘that it is better that ten guilty persons escape, than that one innocent suffer’ may find its roots in these considerations.17

  1. 3.29 This concept of a fair trial evolved in England from the middle of the 12th century. Before then, trials were essentially private matters and the role of the state was very limited. The following centuries saw the emergence of the criminal law, distinguished by a focus on public interests and the maintenance of a stable society. A centralised system for the administration of justice gradually evolved, alongside the creation of a state-run police force and the rise of the legal profession. The ultimate result was the highly adversarial criminal trial—prosecuted by the state and with a limited role for the victim—that is familiar today.18
  2. 3.30 The state now controls the investigation, prosecution and punishment of crime. It does so in the interests of the community, which include vindication for the victim, but the overriding element of state control inevitably pits the power of the state against the accused. The focus on protecting the accused’s interests within this power imbalance, to ensure that there is ‘equality of arms’, has eclipsed the recognition of the victim’s inherent interest in the response by the criminal justice system to the crime. The challenge addressed in recent reforms and in this report is how to reinforce the victim’s interest within this context.
  3. 3.31 What is required for a trial to be fair will depend on the circumstances of the case. Whether a trial is unfair is ‘judged by reference to accepted standards of justice’.19 Furthermore, precisely what is considered necessary in practice for a criminal trial
    to be fair ‘may vary with changing social standards and circumstances’.20
  4. 3.32 Some elements have been recognised as essential to ensuring that accused persons receive a fair trial. These include rights to be presumed innocent until proven guilty, tried without unreasonable delay, and provided with a lawyer where charges are serious and the accused lacks financial means, to examine witnesses and test evidence, to have a conviction or sentence reviewed by a higher court and not to be compelled to testify against oneself.21 These are significant and legitimate rights, reinforced by the Charter
    of Human Rights and Responsibilities Act 2006
    (Vic), which should not be diminished
    nor deflected. However, a mere forensic advantage is not of itself a legitimate right and an unfair forensic advantage is not a legitimate right.
  5. 3.33 The community expects those charged with criminal offences to be brought to trial and tried fairly.22 It has an interest in the criminal justice system functioning effectively to ensure ‘peace and order in society’.23 Prosecutors must act fairly, impartially and in the public interestand must conduct trials in a manner that allows the accused to make a full and proper defence.24 The interests of the victim are taken into account in making some prosecutorial decisions, but the prosecution is not required to act in the victim’s interests.25
  6. 3.34 If fairness is conceived as being more than ensuring, as far as possible, equality of arms between the state and the accused, it is easier to discern and accommodate a greater
    role for victims.

A triangulation of interests

  1. 3.35 The relationship between the interests of the victim, the accused and the community has evolved with the introduction of victim-oriented reforms. This has been recognised by academic commentators and the courts, who have characterised the victim’s interest as part of a modern conception of fairness and a fair trial, alongside the interests of the accused and the community.
  2. 3.36 Among the commentators, Jeremy Gans and others have maintained that the traditional ‘legal world view of justice’ was disturbed by legislative changes from the 1990s that ‘spread fairness rights to victims’.26 These reforms were driven by concern to prevent rape victims from being traumatised by abusive and degrading cross-examination:

This movement requires some reconceptualising and rethinking of trial fairness. Important considerations apply to preserving all trial participants’ rights. These are that everyone in the criminal justice process (not just the defendant) should be protected from degrading treatment and from arbitrary interference with their privacy—including reputational issues as well.27

  1. 3.37 To some extent, the re-conceptualisation that Gans et al seek has already occurred within the judiciary. In 1989, Justice Brennan of the High Court of Australia observed that, as victims of crime are not parties to the prosecution, their ‘interests have generally gone unacknowledged until recent times’.28 He indicated that justice is better served when the victim’s inherent interest is taken into account in court proceedings:

In the onward march to the unattainable end of perfect justice, the court must not forget those who, though not represented, have a legitimate interest in the court’s exercise of its jurisdiction.29

  1. 3.38 The House of Lords in the United Kingdom has also stated that a fair trial requires the court to consider the interests of the victim alongside those of the accused and the public. This perspective has been characterised by Lord Steyn as a ‘triangulation of interests’:

The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case, this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his
or her family, and the public.30

  1. 3.39 As stated by Lord Steyn, paying due regard to the interest of victims throughout the criminal trial process is both a matter of fairness and consistent with the purposes of the criminal justice system. He developed this analysis when considering what a fair trial entails in R v A (No. 2), referring to ‘the familiar triangulation of interests of the accused, the victim and society’.31 This line of analysis departs from the idea that a simple equality of arms between the accused and the community is sufficient to ensure fairness in criminal proceedings.

The primacy of a fair trial

  1. 3.40 Some commentators have raised concerns about the impact that giving greater recognition to victims’ interests may have on the rights of the accused. They argue that, rather than making the criminal trial process fairer, the reforms may come at the expense of fairness, by diminishing the accused person’s rights or eclipsing the public interest.
    The equality of arms, and the objective and public nature of the criminal justice system, are threatened.32
  2. 3.41 The submission from the Victorian Bar and Criminal Bar Association emphasised that reforms which affect the victim’s capacity to participate in the trial process need to be balanced against the impact on the fairness of the trial:

Any reforms designed to provide improved protection and support to victims of crime, or to enhance their involvement in the prosecution process, must be carefully balanced against the need to ensure that prosecutorial decisions are made by independent legal experts and the fundamental rights of accused persons to a fair trial are preserved.33

  1. 3.42 Conversely, some arguments in support of victim-oriented reforms point to a dichotomy between the victim’s interests and those of the accused and identify an imbalance of power that needs to be redressed. The extensive rights and entitlements of the accused are compared with those of the victim and are characterised as proof that the process is unfair. Victim-oriented reforms are justified on the basis that they will redress the imbalance.34
  2. 3.43 Other commentators derive victims’ interests from the relationship between the victim and the state. Robyn Holder, academic and former Victims Services Coordinator in the Australian Capital Territory, has argued that victims’ interests are not always the same as those of the state and there is a power imbalance when they conflict. It follows that victims’ rights should be understood as mitigating this imbalance. Victims should have rights to dignity, respect, privacy and security of person, by virtue of being ‘situated as civilians before the state’.35
  3. 3.44 Kent Roach advances a similar analysis, arguing that the state’s conduct may encroach
    on a victim’s human rights throughout the trial process.36 For example, the issuing of
    a subpoena encroaches on a victim’s right to privacy.37 According to Roach, where such conflicts arise, the victim’s intervention in the criminal trial process is justified.38
  4. 3.45 Arguments that a ‘balance’ must be found between the interests of the victim, the accused and the community can suggest a zero-sum conception of fairness, where the rights of one actor may be upheld only at the expense of the rights of another. Ian Edwards has criticised this line of reasoning:

We cannot justify granting participation rights to victims simply because they are rights enjoyed by defendants; the justification for granting certain rights to defendants may be inapplicable to victims. For example, legal representation for the defendant is crucial to ensure that he receives a fair trial, and is not subject to the unrestrained power and resources of the state. However, legal representation for a victim cannot be justified on these grounds, as the victim is not in a position of inequality vis-à-vis the state. The victim may seek compensation, or the refutation of assertions by the defence, but according legal representation to facilitate these would have to be justified on some other basis, such as ensuring that decision-makers always have regard to his interests.39

  1. 3.46 The Commission agrees. The legitimate rights of the accused should be protected and fulfilled. So too the rights of the community. The legitimate rights of victims, properly understood, do not undermine those of the accused or of the community. The true interrelationship of the three is complementary.
  2. 3.47 There is a public interest in ensuring that trials are fair. This interest can be served not only by safeguarding the rights of the accused and the objectivity of the prosecution but also by acknowledging the victim’s interest. As Justice Howie of the New South Wales Supreme Court stated:

The ‘accepted standards of justice’ take into account other interests and considerations that arise in respect of a prosecution of serious criminal offence, including the interests of the public generally, and witnesses and victims in particular.40

  1. 3.48 The combination of procedures and rights that regulate the contest between the prosecution and defence should be preserved as essential to a fair adversarial criminal trial. They can be, and have been, supplemented by reforms that allow for the victim’s interest to be taken into account, to the extent that fairness permits. Doing so is consistent with recognising, as Justice Deane did in Dietrich v R, that community standards and perceptions of fairness change over time and inform the practical content of a fair trial.41 The Commission concurs with comments made by Lord Bingham of Cornhill, on behalf of other members of the House of Lords, in R v H:

Fairness is a constantly evolving concept. Hawkins J (Reminiscences (1904) Vol 1, chap IV, p.34) recalled a defendant convicted of theft at the Old Bailey in the 1840s after a trial which lasted 2 minutes 53 seconds, including a terse jury direction: ‘Gentlemen,
I suppose you have no doubt? I have none’. Until 1898 a defendant could not generally testify on his own behalf. Such practices could not bear scrutiny today. But it is important to recognise that standards and perceptions of fairness may change, not only from one century to another but also, sometimes, from one decade to another.42

The victim as a participant

Describing the role in law and practice

  1. 3.49 Existing laws and policies demonstrate that victims can be accommodated in the criminal trial process and that they have certain rights and entitlements. Kirchengast has observed that victims are already included in, and protected during, the adversarial criminal trial process:

few turn their minds to the fact that the victim actually participates—in a range of ways—throughout the criminal trial process and that a substantial rights framework
is already in existence.43

  1. 3.50 However, the language and conceptual basis of the victim’s role has not evolved in line with the changes to the role itself. This has contributed to the fragmented development of victim-oriented laws and policies, and a related lack of compliance.44 Without a properly articulated role, victims are not always respected as having a legitimate interest
    in criminal proceedings.45
  2. 3.51 Writing in 1985, Joanna Shapland, Jon Willmore and Peter Duff highlighted the ‘need for a respected and acknowledged role’ for victims.46 Their research found that victims sought ‘recognition as an important and necessary participant in the criminal justice system.’47 Too often, this recognition is still not experienced by victims.
  3. 3.52 The word ‘victim’ does not describe the victim’s role in the criminal trial process. It identifies a person who has been harmed by a criminal act, and who therefore has an inherent interest in the response by the criminal justice system, but does not convey their integral part in the response. The description of the role as ‘witness’ is insufficient. It does not apply to all victims; it does not distinguish between victim witnesses and other witnesses, whose interests are quite different; it does not encompass the victim’s participation in other aspects of the trial; and it indicates that the victim’s interest arises from and is defined by the role of witness. In her submission, Professor Erez recommended that reforms communicate to victims and actors within the criminal justice system that victims are no longer outsiders and are more than simply witnesses.48 Similarly, the Victorian Legal Services Commissioner identified a need for a term that properly conveys to the legal profession the interest and role of victims.49
  4. 3.53 The Commission does not propose that victims should be made a party to criminal proceedings. To do so would significantly alter the adversarial system and would have very significant cost and resource implications. Also, nearly all victims the Commission consulted did not seek such a role.
  5. 3.54 Rather, the Commission proposes, in consonance with modern jurisprudence, that the role of the victim as a participant in criminal proceedings be legislatively and operationally recognised. The victim is neither a bystander nor a party, but is a participant whose role is essential to the effective functioning of the criminal justice system.50 This approach is consistent with modern jurisprudence on the triangulation of interests in the criminal trial: those of the state, the victim and the accused.
  6. 3.55 The recognition of victims as participants reflects the reality of victims’ inherent interest in the criminal trial process and the various capacities in which they may be involved in that process. It gives proper regard to the hardship experienced by victims as a result of crime, their special interest in the criminal trial process, and their contribution to the detection and prosecution of crime in society.51
  7. 3.56 This characterisation does not deflect from, or diminish, the legitimate rights of accused persons.

Nature of the role

  1. 3.57 The Commission approached the conceptually complex task of considering what the victim’s role in the criminal trial should be by putting forward three options in its consultation paper:
  • a protected witness, protected by policies and procedures that aim to reduce the risk of unnecessary trauma and ensure that the victim is treated with fairness, respect and dignity
  • a participating witness, whose interests, views and concerns are taken into account, and who has opportunities to be heard, during the criminal trial process
  • a prosecuting witness, with some or all of the functions, rights and obligations associated with the role of the prosecutor.52
  1. 3.58 This typology provided a way of characterising the types of reform that have been introduced and the direction of possible future reforms. It assisted in explaining the issues and distinguishing between different criminal justice systems, but does not encompass victims who do not appear as witnesses at trial.
  2. 3.59 In submissions and consultations, almost unanimous support was expressed for the victim having a ‘participating’ role, although views differed about what this would mean in practice. It was recognised that perceiving the victim as only having a ‘protected’ involvement was inadequate. There was no support for perceiving the victim’s role as that of a ‘prosecuting’ party.
  3. 3.60 The Commission conceives of a victim as a person who was directly harmed by the perpetrator’s criminal act, including a parent of a child victim or a family member of a homicide victim. As such, the person has an inherent interest in the criminal justice system’s response to the crime, from the investigation phase until the offender has completed their sentence or any period of post-sentence monitoring or supervision.
  4. 3.61 The person’s interest in the criminal trial process is recognised by rules and procedures that protect them from unnecessary trauma and enable their participation. They include opportunities to participate in proceedings to protect or assert certain rights and interests, inform the court of the impact of the criminal act, and seek reparation. To enable victims to perform the role of participant, the prosecution has obligations to:
  • take their concerns into account
  • keep them informed of the progress of court proceedings
  • consult them in making a decision about discontinuing charges and in plea negotiations
  • provide information and support to them as witnesses.
  1. 3.62 The role of the victim as a participant encompasses the categories of protected and participating witnesses as set out in the consultation paper, but extends to all victims regardless of whether they appear in court as witnesses for the prosecution.
  2. 3.63 This report does not give a more prescriptive and detailed description of the role itself—as distinct from specific aspects of it—because it will differ according to the individual’s circumstances. Moreover, the role should be able to accommodate further legislative and procedural reforms in the future.

The role in practice

Victims’ expectations of what their role should be

  1. 3.64 The Commission’s conceptualisation of the role of the victim as a participant accords
    with comments that victims and victim support specialists made in response to the consultation paper.
  2. 3.65 The Northern Centre Against Sexual Assault told the Commission that victims feel marginalised to hear their role described as merely a ‘witness’ to the crime, when clearly they have been the subject of it.53 They want to be able to participate to different degrees at different stages of the trial, while being protected from further harm if called as a witness.54 Some victims want to be involved in every stage of the trial, while others do not want to be involved at all.55 Most supported the roles of ‘protected’ and ‘participating’ witness as described in the consultation paper.56 The role described as a ‘prosecuting’ witness was not favoured because it would require expertise that victims do not have.57

Victims’ rights and entitlements

  1. 3.66 The principles set out in sections 6 to 17 of the Victims’ Charter Act replicate a number
    of rights established by other legislation and impose obligations on criminal justice agencies to provide information and support. They are based on the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, the foundational international instrument on victims’ entitlements.58
  2. 3.67 Combined with other statutory rights and entitlements, the Charter principles reflect and foster victims’ legitimate expectations about their experience of the criminal trial process. They also give substance to the victim’s role as a participant.
  3. 3.68 Victims’ rights and entitlements can be summarised as follows:
  • to be treated with respect
  • to be provided with information and support
  • to be able to participate in processes and decision making, without carrying the burden of prosecutorial decision making
  • to be protected from unnecessary trauma, intimidation and distress, and unjustified interference with privacy during the criminal trial process
  • to be able to seek reparation.
  1. 3.69 These overarching rights and entitlements are consistent with research findings about victims’ expectations.59 They also correspond with what many individuals and organisations have told the Commission. They are reflected in victim-oriented provisions in Victorian legislation such as the Evidence Act 2008 (Vic), the Sentencing Act 1991 (Vic), the Criminal Procedure Act 2009 (Vic) and the Victims’ Charter Act, and are supported
    by policies established by the Director of Public Prosecutions.
  2. 3.70 Nevertheless, the list above is not exhaustive. The expectations listed are those that are most relevant to the victim’s role in criminal trial processes and interactions with others involved. They are not directed at the victim’s expectations about influencing outcomes, such as the offender’s punishment and rehabilitation. This is in keeping with the scope
    of this review.
  3. 3.71 Processes are experienced before outcomes. Whether a victim perceives an outcome as fair is likely to be shaped by their assessment of how fair the procedures leading to it were.60 The following section describes in brief terms the procedural rights and entitlements identified above.

Respect

  1. 3.72 Victims expect to be treated with respect in the criminal trial process. This means that they are acknowledged, particularly by the two decision-making institutions that they deal with: the prosecution and the court. The prosecution, courts, defence lawyers and providers of victim support services must be fair and respectful in their interpersonal dealings with victims at all stages of the criminal trial process.61 Respectful and dignified treatment is particularly critical in relation to the manner in which victims are cross-examined and the way in which judicial officers acknowledge victims in the court.
    These issues are discussed in Chapter 5.

Information and support

  1. 3.73 Victims expect to be informed about the progress of their case, court processes and their role at different stages of the criminal trial process. Information was described by victims as ‘key’ and ‘crucial’,62 and ‘empowering’.63 Support in the form of counselling
    and practical assistance is also paramount.
  2. 3.74 Prosecution lawyers are the most authoritative source of information for victims about the criminal trial process. Police and victim support services also provide information. In Victoria, support with the criminal trial process is provided primarily by the Office of Public Prosecutions’ Witness Assistance Service, the Child Witness Service, Victims Assistance Program providers, and Centres Against Sexual Assault. Chapter 6 considers how the provision of information and support to victims can be improved throughout the criminal trial process.

Participation

  1. 3.75 Victims told the Commission that they felt disempowered or excluded from the criminal trial process,64 and described their relationship with the prosecution as that of a ‘passive receiver of information’,65 an ‘observer’,66 and an ‘outsider’.67 Many victims seek greater input into decisions by the prosecution and the court that affect them, but do not necessarily want the burden and responsibility of decision-making power.68
  2. 3.76 The nature of participation can vary. It may take the form of input into prosecution decisions or making representations to court. Some victims, in particular children and individuals with a cognitive impairment, may require additional assistance to participate equally in the criminal trial process.69 Restorative justice, as a voluntary process that is supplementary to a traditional criminal trial, also opens up a forum for victim participation.
  3. 3.77 The appropriateness of existing participatory measures and the need for reforms are considered in Chapter 7.

Protection

  1. 3.78 Giving evidence and being cross-examined about a traumatic event can be distresssing for victims. Even where court processes are conducted properly, the experience of giving evidence can be traumatic. That is a consequence of having a public trial and of the legitimate testing of evidence. Some victims acknowledged this reality to the Commission.70 However, others said that the court process went far beyond that legitimate character, and was unjustifiably demeaning, disrespectful, intimidating and
    re-traumatising.71 Some victims also told the Commission that the judicial officer presiding over the case did nothing, or too little, to protect their legitimate interests.72
  2. 3.79 In addition, victims often encounter the accused and the accused’s family and supporters, in courtrooms and court precincts, which can expose them to intimidating behaviour.
  3. 3.80 Measures are in place to protect victims from some of the adverse impacts of the criminal trial process. Whether they are operating effectively is discussed in Chapter 8.

Financial reparation

  1. 3.81 Victims of crime often experience psychological injury, emotional harm, physical injury and financial loss. Victims may have to pay for psychological and/or medical treatment and incur costs related to lost or damaged goods, security or relocation. They may need to take time off work and therefore lose earnings or leave entitlements.
  2. 3.82 Victims may seek financial and other forms of reparation. Victoria’s criminal justice system has mechanisms for victims to seek restitution and compensation orders against offenders in addition to sentencing. Chapter 9 explores the process for making and enforcing these orders, and makes recommendations for reform.

Articulating the role in statute

  1. 3.83 Providing statutory recognition of the victim’s interest in the criminal justice system’s response to the crime, and the rights and entitlements that arise from that interest, would support the necessary shift in how the victim is perceived and treated by criminal justice agencies and the courts. It would bring together conceptually the disparate legislative and procedural measures that have been introduced over the past 30 years and provide a common basis for understanding the victim’s role as a participant in the criminal trial process.
  2. 3.84 The Commission considers that such recognition should be given in the Victims’ Charter Act and the Human Rights Charter.

Victims’ Charter Act

  1. 3.85 As discussed in Chapter 2, the Victims’ Charter Act governs the response of investigatory, prosecuting and victims’ services agencies to victims of crime in Victoria.73 It is the central repository of victims’ entitlements and the obligations owed to them during the criminal trial process. For this reason, the Act should clearly acknowledge the victim’s role as a participant.
  2. 3.86 This could be achieved by recognising the inherent interest of victims and their role in the objects of the Act. The role would then be given practical meaning through the principles set out in the Act.74
  3. 3.87 Currently, the objects of the Act are set out in section 4. They, and the principles, are based on the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UN Declaration), adopted in 1985 by the General Assembly of the United Nations.75 As the UN Declaration does not extend to recognising the victim’s role as
    a participant in the criminal trial process, a new object would be a separate provision
    that relies solely on the intent of the Parliament of Victoria.

Recommendation

  1. 1 The objects of the Victims’ Charter Act 2006 (Vic) should be amended to include recognition that a victim of crime has an inherent interest in the response by the criminal justice system to that crime, which gives rise to the rights and entitlements that are conveyed in the Act and shape the victim’s role as a participant in the criminal trial process.

 

Charter of Human Rights and Responsibilities Act

  1. 3.88 The Commission considers that the transformation of the criminal trial process into one
    in which the victim has a role as a participant should be reflected in Victoria’s Human Rights Charter.76 The Human Rights Charter, unlike the Victims’ Charter Act, creates obligations for courts as well as for criminal justice agencies. It is important that victims’ rights and interests are recognised throughout the criminal justice system.

Application of the Human Rights Charter

  1. 3.89 The Human Rights Charter contains a set of 20 human rights that apply to all people
    in Victoria.77 All of the rights are contained in Part 2 of the Charter. Although none of the rights refers specifically to victims of crime, they apply to victims as individual persons regardless of their status as victims of crime.
  2. 3.90 The rights are not absolute and must be balanced against each other and against other public and private interests.78 This is recognised by section 7(2), a general limitations provision which applies to all rights in the Charter. A human right may be subject only to ‘such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’. Consideration must be given to ‘all relevant factors’, including the nature of the right being limited, the purpose, nature and extent of the limitation, and whether less restrictive means that would achieve the purpose of the limitation are available.79
  3. 3.91 The Human Rights Charter also guides the drafting of legislation and its interpretation. Section 28 of the Human Rights Charter provides that all legislation introduced into the Victorian Parliament must be accompanied by a statement of compatibility that considers whether the proposed legislation complies with the Human Rights Charter.80 Those making laws must therefore consider whether they are compatible with human rights
    and explain the nature and extent of any incompatibility.
  4. 3.92 In addition, section 32(1) requires all laws in Victoria to be interpreted in accordance with the human rights listed in the Charter ‘so far as it is possible to do so consistently with their purpose’.81 What this means in practice has been the subject of extensive debate. In the leading High Court case, Momcilovic v The Queen, six separate judgments were delivered about the interpretative process under the Human Rights Charter.82 The effect of these judgments was described in a recent review of the Human Rights Charter as ‘not easy
    to understand or apply’.83 In particular, whether section 7(2) forms part of the interpretive process remains unclear.
  5. 3.93 The criterion stated by the Victorian Court of Appeal is that, if the meaning of a law is ‘clear and unequivocal’, the court cannot depart from that clear meaning, even if the law in question limits a Charter right.84 Where a statutory provision has more than one possible meaning, section 32(1) requires the court to select that which is most compatible with the Human Rights Charter, so long as that meaning can be discerned using ordinary principles of statutory interpretation.85
Application to criminal justice agencies
  1. 3.94 Public authorities must act compatibly with the rights listed in the Human Rights Charter and give proper consideration to relevant human rights when making decisions.86 The meaning of ‘public authority’ is defined in section 4 of the Human Rights Charter and encompasses:
  • Victoria Police
  • the Director of Public Prosecutions, Crown Prosecutors and the Office of Public Prosecutions
  • organisations exercising functions of a public nature on behalf of government,
    such as the Victims Assistance Program providers.87
Application to the courts
  1. 3.95 In addition to their responsibility to interpret statutes in accordance with the rights listed in the Human Rights Charter, section 6(2)(b) requires courts to directly enforce Charter rights that relate to court proceedings, such as the right to a fair hearing (section 24) and rights in criminal proceedings (section 25).88
  2. 3.96 Courts are also considered public authorities when ‘acting in an administrative capacity’ and must comply with the obligations imposed on public authorities when acting in that capacity.89 Examples of courts acting in an administrative capacity are noted to include: committal proceedings, issuing warrants, listing cases and adopting practices
    and procedures.90

 

Charter rights and criminal proceedings

  1. 3.97 Section 24 of the Human Rights Charter provides for a right to a fair hearing for those charged with a criminal offence and parties to civil proceedings. Section 25 sets out the rights relevant to criminal proceedings, including a set of minimum guarantees. The rights and minimum guarantees relate exclusively to people charged with criminal offences.
  2. 3.98 The parts of the Human Rights Charter considered here relate to ‘criminal proceedings’, which includes proceedings in the Magistrates’ Court. In accordance with the terms of reference, the Commission’s consideration in this section is confined to criminal proceedings in connection with a criminal trial in the Supreme or County Court.
Human rights and victims’ rights
  1. 3.99 There is no reference in section 24 or 25 to victims. The absence of victims from human rights statutes is not unique to Victoria. No equivalent human rights instrument, in either international or domestic jurisdictions, refers to the rights or interests of victims. This reflects the traditional view that people accused of crimes, whose liberty is at stake, need protection from the exercise of state power in the prosecution of crimes against them.91 In contrast, victims were not viewed as requiring specific protection during criminal proceedings because they are not at risk of losing their freedom.92
  2. 3.100 The Human Rights Charter, now a decade old, derives from the International Covenant on Civil and Political Rights 1966 (ICCPR).93 Section 24 of the Charter is modelled on article 14(1) and section 25 is modelled on article 14(2)-(5). The ICCPR, like the Human Rights Charter, addresses the role of the state and the rights of accused. It thus is binary. Similarly, the fair trial provision in the 1953 European Convention on Human Rights (European Convention), which mirrors article 14 of the ICCPR and sections 24 and 25
    of the Human Rights Charter, is also binary.94
  3. 3.101 This binary conception of the fair trial does not reflect modern analysis of the role of the victim participant in the criminal trial, including the triangulation of interests described in [3.35]–[3.39]. It fails to recognise the victim’s interest. While the Commission does not propose that a victim be a party to criminal proceedings, it does consider that the victim’s legitimate legal interest as a participant in proceedings should be legislatively stated and secured.
  4. 3.102 Victorian courts have not considered the interest of victims when interpreting sections
    24 or 25 of the Human Rights Charter. However, the European Court of Human Rights, the House of Lords in England and the Supreme Court of Canada have considered the interest of victims and the meaning of a fair trial.95
Victims’ rights case law
  1. 3.103 In Doorson v The Netherlands96 the European Court of Human Rights considered whether it was consistent with the accused’s right to a fair trial for a witness, who held real fears of reprisal upon testifying against the accused, to give evidence anonymously. The court noted that, although the right to a fair trial does not explicitly require the interests of witnesses in general, or victims in particular, to be taken into account:

… their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of Article 8 … States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.97

  1. 3.104 Keir Starmer, the former Director of Public Prosecutions for England and Wales, has suggested that the Doorson decision effectively reads ‘freestanding’ rights for victims as witnesses into the fair trial provisions of article 6, which are ‘capable of practical application in the courtroom’.98 An alternative view is that the decision requires the interests of victims and witnesses to be built into fair trial principles, rather than creating
    a freestanding right.99
  2. 3.105 Similarly, in SN v Sweden, the European Court of Human Rights stated:

In the assessment of the question whether or not in such proceedings an accused received a fair trial, account must be taken of the right to respect for the private life of the perceived victim ... in criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence.100

  1. 3.106 Both Doorson and SN involved balancing the right of an accused to examine witnesses, including victims, against the interest of a witness in being provided with special protections when giving evidence. The European Court of Human Rights ruled that, although the right to a fair trial provides an accused with the right to examine witnesses, it does not guarantee an unlimited right to challenge witnesses in person in court.101 Similarly, courts in the United Kingdom have found that an accused’s right to a fair trial is not imperilled by measures designed to protect vulnerable witnesses when giving evidence or promote equal participation by child witnesses or witnesses with disabilities.102
  2. 3.107 The Supreme Court of Canada has also recognised that there needs to be a ‘just and proportionate balance’ between an accused’s rights and the competing rights of a victim, such as:
  • freedom of expression103
  • rights of victims to privacy and equality in the context of access to a victim’s medical records104
  • rules of evidence designed to protect vulnerable victims, such as children.105
  1. 3.108 The cases described above consider victims as witnesses and whether their interests can be protected while also ensuring a fair trial takes place.
  2. 3.109 There is also a growing body of case law that draws on human rights to justify the obligations of the state to victims, beyond the specific context of the criminal trial. The European Court of Human Rights and courts in the United Kingdom106 have drawn on the European Convention to uphold obligations on states to have in place and apply effective criminal laws and to prevent offending and victimisation.107
  3. 3.110 This case law illustrates how traditional human rights laws create enforceable rights for victims and could provide a source of guidance for Victorian courts when considering the victim’s interest under the Human Rights Charter.
  4. 3.111 In addition, laws focused specifically on the rights of victims have been enacted in some countries, and at a regional level the European Parliament issued a Directive on the rights of victims in 2012, which is binding on all member countries.108 Some countries require courts to take the rights of victims into account in criminal proceedings. For example,
    in Canada, the recently enacted Victims’ Bill of Rights requires that, to the extent possible, legislation ‘must be construed and applied in a manner that is compatible’ with the Victims’ Bill of Rights.109 In the United States, the federal Crime Victims’ Rights Act110 provides that a victim or their representative may assert in court the rights contained
    in the Act and, if a right is denied, may apply to a higher court for a review.111 The victims are not parties, and in practice they must rely on prosecutors and judges to uphold their obligations to inform and afford victims their rights.112

Should the Human Rights Charter contain a right for victims?

  1. 3.112 The Commission considers that a modern criminal trial process that is fair is one that recognises and accommodates the interest of victims. This chapter has described the substance of this interest in terms of the rights and entitlements that attach to the interest, including being acknowledged and treated with respect, provided with information and support, afforded a measure of participation, being protected from unnecessary trauma, intimidation and distress and unjustified interference with privacy, and being able to seek reparation.
  2. 3.113 The Commission considers that the interest of victims, and the rights and entitlements that arise as a result of that interest, should be explicitly recognised in Victoria’s Human Rights Charter. Giving express recognition to this is the next step in the evolution of the criminal trial process.
  3. 3.114 Victoria’s Human Rights Charter does not provide an exhaustive description of the features of a fair trial. As noted earlier in this chapter, the common law right of an accused person not to be convicted other than after a fair trial is an overarching principle of fundamental importance in criminal proceedings.113 The right to a fair hearing in the Human Rights Charter reflects, and reinforces, this common law right.114 The minimum guarantees of accused persons contained in section 25 of the Charter represent elements of the right to a fair trial115 but do not expressly limit it.
  4. 3.115 The Commission considers that incorporating the interest of victims into section 25 of the Human Rights Charter would add to the integrity of a fair trial. The Commission envisages that this would be achieved through a separate provision, modelled on section 25, recognising a right for victims in criminal proceedings, supplemented by a series of minimum guarantees.
  5. 3.116 Expressly recognising a right of victims in the Human Rights Charter would make it clear that their interest must be protected and secured in the criminal trial process. This would place obligations on the courts, which are not required to comply with the Victims’ Charter Act. It would also bring the rights of victims into consideration in statutory drafting and interpretation processes and the decision making of public authorities. The Commission acknowledges that care needs to be taken in framing the right to contain
    it to the context of criminal proceedings and distinguish it from the other Charter rights.
Enforcement of Human Rights Charter rights by victims
  1. 3.117 The Human Rights Charter does not create a freestanding right for an individual to pursue legal action for breach of a Charter right.116 At present, a person can bring proceedings for a breach of a Charter right only if they have an existing right to bring a claim on other grounds (commonly referred to as ‘piggy-backing’).117 This aspect of the Human Rights Charter is difficult to apply in practice, and has been widely criticised.118
  2. 3.118 If a right for victims were included in Part 2 of the Human Rights Charter, it would allow victims to add an alleged breach of this right to an existing cause of action. As discussed in Chapter 4, the Victims’ Charter Act does not create a legal right or cause of action and does not provide grounds for judicial review.119
  3. 3.119 A review of the Human Rights Charter by Michael Brett Young, From Commitment to Compliance: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006 (the Brett Young Review), called for the creation of a separate cause of action for breach of a Human Rights Charter right. It recommended amending the Human Rights Charter to:

enable a person who claims a public authority has acted incompatibly with their human rights, in breach of section 38 of the Charter, to either apply to the Victorian Civil and Administrative Tribunal for a remedy, or rely on the Charter in any legal proceedings…

If the Tribunal finds that a public authority has acted incompatibly with a Charter right, it should have the power to grant any relief or remedy that is considers just and appropriate, excluding the power to award damages.120

  1. 3.120 The Brett Young Review also recommended that an individual who claims that a decision of a public authority is incompatible with human rights, or has been made without proper consideration of human rights, be explicitly permitted to seek judicial review of that decision. In its response to the review, released on 22 July 2016, the Government stated that this and related recommendations remain under further consideration.121
  2. 3.121 If these recommendations become law, and a right for victims is inserted into Part 2
    of the Human Rights Charter, victims would be able to assert their right in criminal proceedings that have already started. Alternatively, they could commence proceedings for an alleged breach of their right by a public authority in the Victorian Civil and Administrative Tribunal. Victims who perceive a failure by a public authority to take their right into account in decision making would be able to seek judicial review of the decision in the Supreme Court.
  3. 3.122 Careful consideration would need to be given to how this might affect ongoing criminal proceedings. Any amendment must be workable and consistent with the right to a fair trial. The Commission envisages that a right secured to victims by an amendment to the Human Rights Charter should be a matter for the trial judge to apply. It must not undermine the finality of decisions made by courts in criminal proceedings, or otherwise lead to a collateral or separate process or fractured proceedings. It should be capable of being pursued within the trial. It is not in the interests of victims, the accused or the community to require victims to commence proceedings in the Victorian Civil and Administrative Tribunal and delay criminal proceedings.
  4. 3.123 If the above recommendations of the Brett Young review do not become law, section 6(2) of the Human Rights Charter would still require judicial officers to enforce the victim’s Charter right in the course of any criminal proceedings, alongside those of the accused.122
  5. 3.124 In addition, the Commission considers that including a right for victims in the Human Rights Charter clearly signals the importance of the victim’s role as a participant in the criminal trial process.
  6. 3.125 The Brett Young Review was a general review of the Charter, not specifically directed to criminal proceedings, and the Commission makes no comment on it or its recommendations, as it is beyond the Commission’s terms of reference.

Recommendation

  1. 2 Part 2 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) should be amended to include a right for a victim of a criminal offence that contains the following minimum guarantees:

(a) to be acknowledged as a participant (but not a party) with an interest
in the proceedings

(b) to be treated with respect at all times

(c) to be protected from unnecessary trauma, intimidation and distress when giving evidence.

 

Footnotes

Main menu

Back to top