4 Consolidating the role in practice

 

Introduction

  1. 4.1 Considerable law and policy reform has been directed towards improving the criminal trial process for victims. The cumulative effect is that the victim’s role has been enhanced from, at most, that of a witness at the trial to that of a participant at all stages of the process.
  2. 4.2 There have been significant improvements as a result of the reforms. Survey results have charted growing levels of satisfaction among victims with their experience of the criminal trial process in recent years.1 A number of victims told the Commission that they had been greatly assisted by the work of a particular social worker, informant or lawyer.
  3. 4.3 In many cases, however, the promise of the reforms conveyed in legislation and official policies is not being realised. Concerns raised by victims have overwhelmingly been directed at the conduct of lawyers and judicial officers. Too often, victims feel marginalised and offended by the attitude conveyed by prosecution or defence lawyers, and by their treatment in the courtroom generally. Their accounts of disrespectful conduct—whether it is inadvertent or deliberate—are consistent with comments made
    by support workers who have observed the impact on their clients.
  4. 4.4 There are also lapses in the continuity and consistency of services provided to victims across Victoria. Some are due to a failure to implement legislation or official policy. Others show that the legislation or policy itself should be revised.
  5. 4.5 Most often, the Commission was told that that there is a need for cultural change. Criminal justice agencies, the legal profession and judges need to see victims differently and treat them accordingly.
  6. 4.6 This chapter discusses initiatives to foster cultural change across the criminal justice system in order to instil greater respect for victims and wider recognition of their rights and entitlements.
  7. 4.7 These initiatives will strengthen the existing foundation of law and practice and build
    a base for the future development of the victim’s role in the criminal trial process.
  8. 4.8 Considerations and recommendations concerning specific rights and entitlements are discussed in Chapters 5–9. 

Cultural change

The gap between law and practice

  1. 4.9 The Commission has been told by many of the victims who have contributed to this review about the contrast between the promise of the reforms and victims’ actual experiences of the criminal trial process.
  2. 4.10 Parents of a murder victim attending the trial of the accused were spoken to by a police officer in a way that made them feel like they had ‘stepped out of kinder’.2 In another case, a victim of sexual offences as a child was asked by a defence barrister about her sexual history, about when she stopped loving her father (the accused), and about when she started menstruating.3 A prosecution lawyer yelled at the victim, who had asked after her health during a break in the trial, telling the victim not to talk to her because it could cause a mistrial.4 A victim was distressed to hear a sentencing judge tell an offender, who had pleaded guilty to one sexual offence but had originally been charged with three more serious offences, that ‘one indiscretion has brought you here’.5 These are just a few of the stories that the Commission heard from people whose feelings, needs and interests were disregarded or overlooked in the criminal trial process.
  3. 4.11 Victim support specialists frequently observe the trauma that victims experience upon being marginalised in this way. They recounted more examples of poor treatment, particularly as experienced by victims in the witness box.
  4. 4.12 Loddon Campaspe Centre Against Sexual Assault referred in its submission to a nine-year-old victim who, despite having access to support services and being able to give evidence at a special hearing, was ‘unlikely to have received such cold and offensive treatment as she experienced from the defence lawyer, at any other time in her life, apart from during the child sexual offences’.6 Another example, mentioned in consultations with victim support specialists, was of a barrister who remarked that he could see why the victim’s husband left her.7
  5. 4.13 The Commission was also told that judges do not always intervene to protect witnesses from unfair, unreasonable and offensive lines of questioning.8 They have permitted practices that further humiliate and traumatise victims, as well as wasting time.9
  6. 4.14 The comments made in submissions and during consultations echo those recorded in a recent report by the Australian Institute of Family Studies on Victim/Survivor-focused Justice Responses and Reforms to Criminal Court Practice:

participants consistently identified a disjuncture between reforms as they are written, and as they occur in practice, in addition to a lack of uniformity in the adoption of reforms across various institutions.10

  1. 4.15 The report by the Australian Institute of Family Studies drew on earlier findings by the Australian Law Reform Commission. In its 2010 report on family violence, the Australian Law Reform Commission said that:

 

Despite extensive changes to law and procedure, research continues to highlight a gap between written law and its practice—referred to as an ‘implementation gap’ … Some commentators question the over-reliance on, or confidence in, legislative change alone to bring about substantive changes for women and children as complainants in sexual offences.11

  1. 4.16 Victims feel marginalised today, a decade after the Victims’ Charter Act 2006 (Vic) first stated in statute that criminal justice agencies should treat them with courtesy, respect and dignity, be responsive to their needs, and keep them informed about the investigation, prosecution and the court process. That said, there are significant variations in victims’ experience of the criminal justice system and it is important to recognise and respond to them.
  2. 4.17 A survey of victims in 2014, for example, revealed that almost half of the respondents
    (47 per cent) had no contact with the prosecutor at all, but that the proportion was much less for those whose case was prosecuted by the Office of Public Prosecutions (20 per cent) or who were victims of sexual assault (31 per cent) and rape (25 per cent). It also showed that sexual assault and rape victims ‘overwhelmingly’ felt the prosecutor met their needs.12 Victims of these crimes have been targeted by sweeping reforms to reduce the risk of being traumatised by the criminal trial process13 and also have access to the Office of Public Prosecutions’ Witness Assistance Service, which supports victims and witnesses of serious crime through the court process.
  3. 4.18 Whether a victim’s expectations are met often depends on the attitude and skills of individuals in the criminal justice system, including the police informant, members of the prosecution team, the defence lawyer, the judicial officers hearing the case and the victim support workers.14 Proposals to address the inconsistent implementation of laws and policies should be directed towards the behaviour and attitudes of individuals and the values of the organisations that employ them, or with which they are connected. To be effective, law reforms must be accompanied by cultural change—the process of changing attitudes and practices.
  4. 4.19 This is not a novel conclusion. In 1985, Judith Shapland, Jon Willmore and Peter Duff recognised that achieving a victim-oriented system depends more on changing attitudes than structural changes in the criminal justice system.15 More recently, Professor Matthew Hall has argued that practical reforms will fail without changing ‘occupational cultures’
    in individual courts, the legal profession and the legal community in general.16
  5. 4.20 Although views differed about the extent of the problem, there was broad acknowledgment in submissions and during consultations that cultural change is at least part of the answer.
  6. 4.21 The Victorian Bar and Criminal Bar Association observed that reforms designed to reduce the trauma and distress experienced by child victims, victims with a cognitive impairment, and victims of sexual offences and family violence, have been accompanied by a level of cultural change that has ‘dramatically changed the way that criminal trials in Victoria are conducted’.17 This position is supported by the Child Witness Service, which stated that there has been cultural change in relation to cross-examination of child witnesses and intervention by the judiciary, but there is still some way to go.18
  7. 4.22 The Director of Public Prosecutions (DPP) observed that there has been ‘considerable cultural change in the way the legal profession interacts with victims’ and said that this process should continue through educational programs.19
  8. 4.23 Workers from community-based organisations were not as positive in their assessments of how much cultural change has already occurred. An experienced Court Network volunteer said there had been little change over the past 20 years, notwithstanding legislative efforts to improve the criminal trial process for victims, and for victims of sexual offences in particular.20 Similar views were expressed by support workers from Centres Against Sexual Assault and Victims Assistance Program providers.21
  9. 4.24 Staff of the Office of Public Prosecutions (OPP) doubted that any cultural change is evident from the manner in which defence lawyers—particularly those lacking in experience and skills—cross-examine witnesses.22 Support for this observation is found in the many comments made to the Commission about inappropriate questions being asked of victim witnesses in the courtroom.

Achieving cultural change

  1. 4.25 Cultural change is achieved by a combination of means. No single method will be effective. For the most part, this is an operational matter for each criminal justice
    agency and requires strong leadership and systems, processes and plans to ensure
    that expectations are clear and that the philosophy is embedded in every aspect
    of the workplace. Victoria Police, for example, is implementing a strategic framework
    for enhancing service delivery to victims, including:
  • new customer service standards
  • better referral pathways
  • victim-centred thinking and practice
  • new reporting and accountability measures.23
  1. 4.26 This report focuses on system-wide approaches to achieving cultural change in the expectation that they may spearhead appropriate strategies within individual organisations. The Commission proposes three system-wide strategies, which are explained in the remainder of this chapter:
  • Education and training—Delivering education and training programs that give lawyers and judicial officers a deeper understanding about victims’ needs, entitlements and perspectives; why cultural change is necessary; and what it should look like in practice.
  • Compliance with the Victims’ Charter principles—Building up incentives for criminal justice agencies to comply with victim-oriented law and policy though stronger accountability mechanisms that introduce closer monitoring, increased transparency, upgraded complaint-handling processes, and a scheme to review key prosecutorial decisions.
  • A coherent legislative and policy framework—Conveying the substance of the victim’s role as a participant and the obligations on criminal justice agencies to inform, consult and include victims in the criminal trial process. 

Education and training

  1. 4.27 The importance of achieving cultural change through education and training was stressed by a number of contributors to the review24 and was underscored by the following comment from the Centre for Innovative Justice:

if a concerted education and training program were the only outcome of the VLRC’s review, this alone could have a significant and tangible effect.25

  1. 4.28 Training and education about victims should be directed towards everyone within the criminal justice system, in particular judicial officers, defence and prosecution lawyers, police and victim support workers. Information about victim-oriented laws, and the impacts and contexts of victimisation should be widely publicised to police, lawyers
    and judicial officers.26

A shared vision of the victim’s role

  1. 4.29 For cultural change to be realised it is crucial that providers of education and training programs, and those who work in the criminal justice system, have a shared vision
    of the victim’s role in the criminal trial process.
  2. 4.30 The introduction of the Victims’ Charter Act was a significant milestone in bringing about cultural change. It enunciated principles with which criminal justice agencies must comply, brought together victims’ rights and entitlements in the form of agency obligations, raised the status of victims in the criminal justice system, and legitimised changes to their role in the criminal trial process.
  3. 4.31 In Chapter 3, the Commission has recommended that the evolution of the victim’s role be acknowledged in the objects of the Victims Charter Act and reinforced by recognising a right for victims in criminal proceedings in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Human Rights Charter). This statutory recognition of the victim’s role should guide education and training programs as well as sending a signal to the legal profession that victims have a legitimate place in the criminal trial process and should be treated accordingly. .

Topics and themes

  1. 4.32 The Commission received numerous suggestions about the content of education and training programs to foster cultural change. Broadly, they should cover the nature and purposes of victim-oriented law reforms and related practice and procedures, and the impacts of victimisation and the criminal trial process on victims.
  2. 4.33 It has been proposed that material on the nature and purposes of victim-oriented reforms should give particular attention to:
  • evidence-related provisions designed to protect victims, to ensure such measures are enforced consistently27
  • questioning victims, including how to test victims’ evidence in an appropriate manner, how to determine whether questioning is improper or inappropriate and how to intervene when this occurs28
  • how to be respectful towards victims.29
  1. 4.34 Education and training activities about victimisation and the criminal trial process could encompass:
  • having a trauma-informed approach to dealing with victims30
  • the causes and effects of victimisation, and in particular family violence and sexual assault, and how it relates to a victim’s presentation during the criminal trial process31
  • understanding the origins of, and addressing, problematic attitudes towards victims
    of sexual assault and family violence32
  • the needs, circumstances and barriers faced by victims from specific groups in the community, including Victorian Aboriginal communities, people with disabilities or mental illness, children and young people and people from culturally and linguistically diverse backgrounds.33
  1. 4.35 Victims should be able to easily access information about the obligations owed to them and their entitlements.34 This information should be promoted by a public awareness campaign.

Delivery

  1. 4.36 Training and education about victims should be directed towards everyone within the criminal justice system. However, the following discussion concerns the legal profession and the judiciary. There are two reasons for this:
  • the actions of lawyers and judges directly affect the conduct of criminal proceedings and, therefore, the victim’s role in the criminal trial process
  • almost all of the comments made to the Commission about the need for cultural change through education and training were directed at lawyers, judges and magistrates.
  1. 4.37 That said, the Commission recognises that programs should be interdisciplinary where possible. Lawyers, judges and magistrates should understand the psychological impacts of victimisation; victim support workers need to know about the criminal justice process. There might also be scope to involve victims in delivering training and education about the experience of victimisation and their needs and expectations of the criminal trial process.35
  2. 4.38 Not all training and education activities need be delivered formally. Information resources should be widely available, to police, lawyers and judicial officers, for independent learning and to provide guidance for these professionals in the course of their work.36
  3. 4.39 On-the-job training that broadens the perspectives of lawyers could occur by encouraging them to maintain varied legal practices. The South Australian Commissioner for Victims’ Rights, and lawyers consulted by the Commission, observed that acting for both accused people and victims encourages a more informed approach to dealing with victims.37
  4. 4.40 The Law Institute of Victoria suggested that peer observation and feedback could promote cultural change and ensure consistent practices, particularly among legal professionals. Peer observation and training could be:
  • between lawyers
  • between judicial officers
  • between judicial officers and lawyers.38
  1. 4.41 Although education and training can be delivered in a variety of ways, knowledge and skills regarding the role of victims in the criminal trial process should be core requirements for legal and other professionals working in the criminal justice system. This can be achieved only with the support of the legal profession and education and training providers.
  2. 4.42 Several individuals and organisations consulted by the Commission argued that education about the needs of victims and victim-oriented laws should start in university and be maintained throughout a legal career.39 They have pointed to the need to actively encourage legal professionals to undertake victim-centred training, and create an incentive for training providers to deliver it.
  3. 4.43 One approach would be to incorporate victim studies into university law courses and entry-level training. Another would be to incorporate information about victims, and laws about victims, into continuing legal education for professionals.40 These approaches are discussed below.

Academic courses and entry-level training

  1. 4.44 Professionals should learn about the perspectives and rights of victims of crime at university. A person who wishes to practise law in Victoria must complete a course of study that complies with the requirements of the Legal Profession Uniform Admission Rules 2015 and is delivered by one of the eight universities approved by the Victorian Legal Admissions Board to provide academic law courses.41 The course must include 11 compulsory subjects, among which are units on evidence and criminal law and procedure.42
  2. 4.45 After an approved academic course, the person must then complete practical legal training, either as supervised legal training or by completing a practical legal training course delivered by an approved provider.43 In doing so, they have a choice of practice areas in which to develop competencies, including criminal law practice.44
  3. 4.46 The Commission suggests that there is scope for the study of victim-oriented laws to be incorporated into evidence and criminal law subjects. Most of the eight approved universities offer at least one unit on victims, though not as part of the core law curriculum.45 Law students who do not, or cannot, select such units as electives may not be exposed to victims’ interests and perspectives until they encounter them in practice.
  4. 4.47 Bringing about cultural change requires leadership. The Victorian Legal Admissions Board has responsibility for accrediting law courses and providers of practical legal training in Victoria. As such, it is well placed to encourage the greater integration of the study of victims’ interests, rights and entitlements and the experience of victimisation into legal education and training.
  5. 4.48 The Board has established an Academic Course Appraisal Committee to accredit, monitor and review academic law courses, and a Practical Legal Training Committee to accredit, monitor and review practical legal training providers. In performing these delegated functions, the committees must take into account any appraisal criteria endorsed for use in other Australian jurisdictions and may have regard to any matter they consider material.46
  6. 4.49 In practice, Victoria would be unlikely to depart from existing appraisal criteria and other legal training requirements if doing so would create inconsistencies with other jurisdictions. A nationally consistent approach to the academic and practical legal training requirements for admission to the legal profession, the accreditation and appraisal of academic and practical legal training institutions and courses, and other matters related to admission to the legal profession, is fostered by the Law Admissions Consultative Committee (LACC).
  7. 4.50 The Victorian Legal Admissions Board is a member of the LACC, along with other representatives of law admitting bodies, the Committee of Australian Law Deans, the Australasian Professional Legal Education Council and the Law Council of Australia. 
    It reports to the Australian and New Zealand Council of Chief Justices.47 Through its membership of the LACC, the Victorian Legal Admissions Board could advocate for the study of victims’ interests, rights and entitlements, and their role in the criminal trial process, to be required of all candidates for admission to the profession.

Recommendation

  1. 3 The Victorian Legal Admissions Board, through its membership of the Law Admissions Consultative Committee, should advocate for the education and training requirements for admission to the legal profession to include the study of law and procedures relevant to victims, and the causes and effects of victimisation.

 

Post-admission development and training

Lawyers
  1. 4.51 Presently, few—if any—professional development courses for criminal lawyers in Victoria specifically address the experience and rights of victims in the criminal justice system.48 The discussion below considers ways of generating demand for training in victim-related matters through regulation and by increasing the value of this training to lawyers working in the criminal justice system.
 
Regulatory requirements
  1. 4.52 A lawyer who engages in legal practice must hold a current practising certificate. With the certificate comes an obligation to complete 10 continuing professional development (CPD) activities during each year of practice. The number and type of activities are determined by the Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 and the Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 (the CPD Rules). The CPD Rules confer on the Legal Services Board powers regarding certification and verification that the CPD requirements have been met, rectification when they have not been met, and exemptions.
  2. 4.53 The Board has delegated its powers under the CPD Rules to the Law Institute of Victoria (for solicitors) and the Victorian Bar (for barristers). The delegated powers must be exercised in accordance with the Board’s Continuing Professional Development Policy.
  3. 4.54 Both the CPD Rules and the Board’s Continuing Professional Development Policy are directed to professional development in general areas of knowledge and expertise across the profession and do not specify particular subjects that must be completed. As such, these instruments may be unsuitable as a means of encouraging victim-related training
    for lawyers working in the criminal justice system.
  4. 4.55 Nevertheless, the Legal Services Board can appropriately influence the content of professional development training for newly qualified barristers. The CPD Rules for barristers state that the Board may specify that barristers undertake particular CPD activities within the first three years of practice.49 The Board could exercise its power to require barristers practising in criminal law to complete such training within their first three years of practice. The Board could encourage the Victorian Bar to require that all newly admitted barristers have knowledge and skills in:
  • victims’ rights
  • the experience of victimisation
  • evidentiary provisions designed to protect victims from trauma
  • how to question victims and test their evidence in an appropriate, respectful manner.

Recommendation

  1. 4 The Legal Services Board should take a lead role in encouraging barristers practising in criminal law to receive victim-related professional development training including, if necessary, exercising its power under the Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 to specify that they must complete such training within their first three years of practice.

 

Action by professional associations
  1. 4.56 There is limited scope to use regulatory mechanisms to bring about cultural change through education and training. It requires action by the profession itself. The challenge is to give lawyers incentives to undertake professional development activities that develop their awareness and skills in dealing with victims.
  2. 4.57 Those who are employed by investigatory, prosecuting and victims’ services agencies, and are therefore required to comply with the Victims’ Charter in the course of their professional responsibilities, should receive the necessary professional development from their employers. Defence lawyers currently have no such legal obligations to victims and less incentive to acknowledge the victim’s role in the criminal trial process as being more than that of a witness for the prosecution.
  3. 4.58 The Commission considers that the Law Institute of Victoria and the Victorian Bar should encourage lawyers practising in criminal law to develop their competencies in victim-oriented laws and dealing with victims. This could be achieved by making these competencies a requirement of accreditation as a criminal law specialist.
  4. 4.59 The Law Institute of Victoria is a training provider and also operates an Accredited Specialisation scheme in criminal law. The scheme is open to solicitors and barristers
    who have at least three years experience in criminal law and five years practising experience in total. Candidates are assessed on their knowledge of:
  • the procedure and practice of the Supreme, County, Magistrates’, Children’s and Coroner’s Courts
  • substantive criminal law
  • elements of crime
  • crime defences.50
  1. 4.60 Candidates may be examined on aspects of the law that apply to victims, such as victim impact statements and the Victims of Crime Assistance Act 1996 (Vic).51 A requirement
    to demonstrate knowledge and skills in victim-related law and in dealing with victims could build on the competencies that are already specified.
  2. 4.61 The Victorian Bar has introduced an accreditation scheme for criminal barristers, known as the Indictable Crime Certificate. Launched in October 2014, and the first of its kind in Australia, the Indictable Crime Certificate requires barristers seeking certification to ‘undertake education, professional experience and assessment components, as well as
    an ongoing quality maintenance process’.52
  3. 4.62 An Indictable Crime Certificate Committee oversees the content and administration of the certificate and administers rules about granting, reviewing, suspending or revoking certificates. It also performs a complaints function that allows people to give feedback about the behaviour of barristers. The Victorian Bar and Criminal Bar Association said the Indictable Crime Certificate scheme was introduced in part as a quality assurance mechanism to alleviate concerns raised by victims and others about the professional standards of some barristers appearing in criminal trials.53
  4. 4.63 As suggested above regarding the Law Institute of Victoria’s criminal law accreditation scheme, the education and professional experience required of candidates for the Indictable Crime Certificate could specifically require the candidate to have skills and knowledge in victim-related law and in dealing with victims.
 
Incentives through access to public funding
  1. 4.64 Victoria Legal Aid and the OPP could also lead cultural change through education and training.
  2. 4.65 Being accredited as a criminal law specialist or obtaining an Indictable Crime Certificate can have direct consequences for criminal lawyers who wish to work on matters funded by Victoria Legal Aid or be briefed by the OPP.
  3. 4.66 In 2014–15, 62 per cent of grants of legal assistance in criminal law cases under the Legal Aid Act 1978 (Vic) were assigned to private lawyers.54 These lawyers must meet entry requirements set by Victoria Legal Aid and be employed by a firm that is a member of the Indictable Crime Panel, established under section 29A of the Legal Aid Act. Every firm on the panel must employ at least one approved lawyer who has demonstrated strength in the experience, skill and capacity required, and is an Accredited Specialist in criminal law.55
  4. 4.67 The OPP briefs external barristers for most trials. In 2014–15, external barristers were briefed by the OPP in 95 per cent of County Court trials and 52 per cent of Supreme Court trials.56 External barristers are required to abide by the OPP’s framework for key advocacy competencies which sets out expectations regarding behaviour and ethics, knowledge of the law, preparation, advocacy skills, and adherence to the DPP’s policies and directions.57 The competencies listed under ‘professional behaviours and ethics’ include specific requirements to respect victims and ensure that they are kept informed and understand the criminal process, in compliance with the Victims’ Charter Act.58
  5. 4.68 When the Indictable Crime Certificate was established, the Victorian Bar expected that the OPP and Victoria Legal Aid would take it into account when deciding whether to brief a barrister or include them on a panel of approved barristers who may appear in publicly funded trials.59
  6. 4.69 As they assess whether a lawyer is suitable to provide publicly funded legal services, Victoria Legal Aid and the OPP are in a position to encourage the Law Institute of Victoria and the Victorian Bar to include competency in victim-oriented law and dealings with victims in their accreditation schemes as suggested above. For example, in selecting lawyers to work on matters funded by Victoria Legal Aid or to conduct prosecutions for the OPP, they could give weight to those who have completed victim-related training.

Recommendation

  1. 5 Victoria Legal Aid and the Office of Public Prosecutions should encourage the Law Institute of Victoria and the Victorian Bar to require candidates for accreditation as specialists in criminal law or indictable crime to be competent in victim-related laws and the role of the victim as a participant in the criminal trial process.

 

 
Proposed training initiative
  1. 4.70 Because the purpose of the proposed education and training is to bring about cultural change, lawyers and judicial officers should have access to information that provides clear messages about the victim’s role as a participant in the criminal trial process and in the wider criminal justice system.
  2. 4.71 As Victoria Legal Aid and the OPP have an interest in the cultural change taking place and expertise in victim-oriented laws, they could collaborate in producing a training program based on the Sexual Offences Interactive Legal Education Program.
  3. 4.72 The Sexual Offences Interactive Legal Education Program was a pilot program of professional development and training designed to improve the way sex offence cases are handled by training lawyers to address complex legal and procedural issues. The program was led by the OPP with funding provided by the Legal Services Board from the Victorian Public Purpose Fund.60 It was developed with intensive stakeholder engagement, received strong support from participants and produced positive outcomes.61

Recommendation

  1. 6 Victoria Legal Aid and the Office of Public Prosecutions should lead, in consultation with stakeholders, the development and delivery of a training program to foster cultural change in how victims are perceived and treated during the criminal trial process, based on the Sexual Offences Interactive Legal Education Project.

 

Judicial officers
  1. 4.73 The Judicial College of Victoria was established in 2002 by the Judicial College of Victoria Act 2001 (Vic) to assist the professional development of judicial officers and provide continuing education and training.62 The College Board is chaired by the Chief Justice and comprises heads of the four main courts and two Governor-in-Council appointees.63 Its education programs and resources are developed in collaboration with judicial officers.
  2. 4.74 The College has adopted a Framework of Judicial Abilities and Qualities for Victorian Judicial Officers that identifies the knowledge, skills, behaviour and attitudes expected
    of Victorian judges. The attributes it sets out are comprehensive and consistent with victims’ expectations of being treated fairly and with respect.
  3. 4.75 No courses specifically on victims are currently being offered. Sessions on communicating with victims have been included in judicial orientation programs for newly appointed judicial officers and as part of specialist training in the treatment of young people in the courtroom and victims and their relatives in historical sexual offence cases. A session on the treatment of crime is planned as part of a Supreme Court conference in 2016.64 In addition, information about victims is included in the Victorian Sentencing Manual65 and Sexual Assault Manual66 published by the College.

Compliance with Victims’ Charter principles

Existing mechanisms

  1. 4.76 The Victims’ Charter Act was designed to facilitate cultural change by setting out victims’ rights and entitlements and by requiring criminal justice agencies to implement them.
    The language of the Act makes it clear that criminal justice agencies have obligations
    to victims and that compliance is mandatory.
  2. 4.77 The Act is less clear about how compliance with the principles can be achieved where cultural change has not occurred. However, it does provide for mechanisms that can be used to hold criminal justice agencies to account if they do not comply. These include:
  • annual reports to Parliament, and through it the community, on how effectively the principles are being implemented
  • processes for victims to make a complaint if a criminal justice agency has not implemented a Victims’ Charter principle.

Monitoring and review

  1. 4.78 The Act gives the Secretary of the Department of Justice and Regulation a role in promoting the principles; monitoring, evaluating and reviewing the operation of the Act; and ensuring that complaints processes are in place.67 In addition, the Attorney-General must ensure that the Department of Justice and Regulation reports annually on:
  • the steps taken to promote the Victims’ Charter principles
  • the operation of the Act.68
  1. 4.79 The Department is required to provide the information in its annual reports, prepared under Part 7 of the Financial Management Act 1994 (Vic)69 for tabling in Parliament. This enables public scrutiny of how well the objectives of the legislation are being met. The prospect that public attention could be drawn to any poor performance in implementing the principles provides an incentive for the criminal justice agencies to comply.

Complaints processes

  1. 4.80 Agencies can be held accountable to individual victims by means of complaints processes. The Act requires that appropriate complaints processes are established and that victims are informed of them.70

 

Disciplinary proceedings

  1. 4.81 The Act also allows for disciplinary proceedings to be taken against an official for contravening the Act.71 These proceedings are initiated by the relevant criminal justice agency rather than by an individual victim. An agency could initiate proceedings of this type if, for example, it considered that the conduct of one of its employees was inconsistent with the requirements of the Act and amounted to unsatisfactory performance or misconduct. A disciplinary proceeding does not hold the official directly accountable to a victim who reports the problem to the agency, and nor does it give the victim an avenue for redress.

Enforceability under other legislation

  1. 4.82 Apart from the measures created by the Act to reinforce or compel compliance, five of the 12 principles can be asserted or enforced independently of the operation of the Act. These principles are in the nature of rights conferred on the victim by other legislation.
  • The right to make a victim impact statement is established by the Sentencing Act 1991 (Vic).72 It is exercised by submitting the statement to the court.
  • Protection of the victim’s personal information against unauthorised disclosure is required by the Privacy and Data Protection Act 2014 (Vic). A victim who believes an agency has interfered with their privacy has a right to complain to the Commissioner for Privacy and Data Protection.73 Non-interference with privacy is also a right in Victoria’s Human Rights Charter.74
  • The victim’s right to apply to a court for compensation from an offender is provided by the Sentencing Act 1991 (Vic).75 It is exercised by making an application to the court.
  • The right to apply to the Victims of Crime Assistance Tribunal for financial assistance is established by the Victims of Crime Assistance Act 1996 (Vic). It is exercised by making an application to the Tribunal.
  • Access by a victim of a criminal act of violence to information about the offender’s sentence, likely date of release and any supervision or detention orders is provided by the Corrections Act 1986 (Vic), which also establishes the right to make submissions to the Adult Parole Board.76 The victim obtains access by applying to the Secretary of the Department of Justice and Regulation.77
  1. 4.83 In all other circumstances where an agency fails to comply with the requirements of the Victims’ Charter Act, section 22(1) precludes the victim from using the Act to claim a right to seek review or redress through the court.

Section 22(1)

  1. 4.84 Section 22(1) ensures that the Victims’ Charter Act does not extend or modify the principles that had already been given effect by other legislation, and that it does not create a right to take legal action if any of the principles are not followed. Failing to comply with the principles does not provide grounds for a decision or action to be reviewed nor make the decision or action invalid. The text of the section is as follows:

Legal rights not affected

(1) The Parliament does not intend by this Act—

(a) to create in any person any legal right or give rise to any civil cause of action; or

(b) to affect in any way the interpretation of any law in force in Victoria; or

(c) to affect the validity, or provide grounds for review, of any judicial or administrative act or omission.78

Limitations of the Victims’ Charter Act

  1. 4.85 As the preceding discussion shows, the Victims’ Charter Act does not create robust compliance mechanisms. While some of the Charter principles contain rights that are established by other legislation and can be asserted or enforced under that legislation, those that impose obligations on criminal justice agencies to provide information to victims, treat them with respect, courtesy and dignity, and be responsive to their needs, are established by the Victims’ Charter Act and are not enforceable.
  2. 4.86 Concerns were raised in many submissions and during consultations about the lack of sanctions and enforcement provisions. The Victims’ Charter Act was described as tokenistic and frequently ignored.79 The observation was made that unenforceable rights can raise expectations and agitate victims by promising too much and delivering too little.80
  3. 4.87 One contributor noted that a charter, especially a non-binding charter, is ‘seldom an effective regulatory instrument’:

It can give false comfort to those it purports to protect. It can also provide a shield for policy makers and the Director of Public Prosecutions Victoria to rebut valid criticism.81

  1. 4.88 Victoria Police suggested that the legislation should clearly set out what is expected of criminal justice agencies and remove discretion, and said that there must be consequences for failing to comply to ensure that victims’ rights are taken seriously.82 Jo-Anne Wemmers also stressed that, without such consequences, victims’ rights will not be respected.83
  2. 4.89 These comments are consistent with those made in academic literature, where it has been argued that effective oversight or enforcement mechanisms can drive change, and the threat of sanction encourages a culture of compliance.84 An absence of procedures for enforcement, and remedies for non-compliance, has been described as rendering victims’ rights ‘illusory’85 and unlikely to lead to change.86

Proposals for reform

  1. 4.90 The consultation paper asked whether victims should have a legal right to enforce some or all of the principles contained in the Victims’ Charter Act and, if so, in which circumstances.87
  2. 4.91 Although there was general consensus—but not unanimity—that victims should have rights that are enforceable, there were divergent views about what enforcement would mean in practice. For some contributors, it meant having a compliance watchdog that could also manage complaints.88 Another view was that victims should be able to enforce compliance or seek remedies through legal action.89 A call was also made for prosecutorial decisions to be subject to review.90 A theme common to all of these comments is that victims and the community need to be able to hold criminal justice agencies to account.
  3. 4.92 No single solution will be applicable to all circumstances or able to address all concerns raised. The Commission has considered in detail a number of proposals that were raised in the consultation paper and explored in submissions and meetings. They are discussed below and include:
  • establishing a right for victims to take legal action against a criminal justice agency
    for not complying with a Victims’ Charter principle
  • strengthening and enhancing the processes for victims to make a complaint against
    a criminal justice agency for not complying with a Victims’ Charter principle
  • providing for review of certain key decisions made by or on behalf of the DPP.
  • improving system-wide monitoring and review of the operation of the Victims’ Charter Act.

A legal right to enforce?

  1. 4.93 Section 22(1)(a) of the Victims’ Charter Act, which states that the Act does not create in any person any legal right or give rise to any civil cause of action, could be amended or removed. A victim who considers that a criminal justice agency has failed to implement a Victims’ Charter principle could take legal action to require it to do so, or to seek compensation or some other remedy.
  2. 4.94 It is argued in academic literature that actors in the criminal justice system would be more likely to give legitimacy to victims’ rights and interests if those rights were enforced within the system rather than by a complaints procedure outside it.91 Jonathan Doak observed in his submission that external complaints procedures are unsatisfactory for victims because, if a complaint is upheld, it will often be too late for remedial action to be taken in the criminal trial process.92 While noting that it could interfere with the efficiency of the criminal process and could be costly, he maintains that a right to take legal action is the most legitimate and effective means of realising victims’ rights.93
  3. 4.95 Granting a right to pursue a legal cause of action for a breach of a Victims’ Charter principle could give victims greater leverage when first lodging a complaint and provide a path for remedying breaches that are not satisfactorily resolved by way of complaint.94 The threat of potential legal action may deter criminal justice agencies from unjustifiably violating a victim’s right in the first place. This in turn could create a greater culture of compliance.95
  4. 4.96 The proposal was supported in general terms as a response to current conditions that are seen as unfair. Mary Iliadis put the view that, at present, section 22(1)(a) essentially safeguards the prosecution from being held accountable:

 

This means that victims’ rights can be, to some extent, disregarded—for example, if the prosecution fails to inform the victim about their right to a [Victim Impact Statement], the victim is precluded from pursuing a civil action despite this diminishing the victim’s right to participate in proceedings. Consequently, it poses a major barrier for victims’ justice needs being met.96

  1. 4.97 The Commission was told that an enforcement process would be better if it were part
    of the court process, because it would ensure that lawyers are more accountable and are directly involved in resolving the problem.97
  2. 4.98 Victoria Police suggested that including enforceable rights in the Charter may seem appropriate in principle, but careful consideration must be given to the potential issues concerning delays in criminal proceedings and conflict between the victim’s private interest and the public interest.98 Noting similar concerns, the Office of the Public Advocate argued that the primacy of a fair trial justifies any necessary delays and also accommodates the victim’s interests as well as those of the accused and the community.99
  3. 4.99 The Victorian Bar and the Criminal Bar Association do not support any amendment to the Victims’ Charter Act that would create enforceable legal rights.100 The submission from the DPP maintained that creating a right to pursue a legal course of action would not necessarily increase compliance with the Act and could be detrimental to the relationship between victims and the prosecution. It added that:

The OPP’s experience is that there is a high degree of satisfaction experienced by victims in their interactions with the OPP and there is a satisfactory complaint process in place.101

  1. 4.100 The Commission is not persuaded that the Victims’ Charter principles should be enforceable legal rights. Victims have expressed greater interest in robust and accessible complaint-handling processes, and in achieving some acknowledgment and an apology, than in taking legal action to compel criminal justice agencies to implement the principles. Legal action is expensive, emotionally taxing and not an efficient or effective way of achieving outcomes of this type.
  2. 4.101 If victims were granted a right to pursue a legal cause of action, the Charter principles would first need to be revised. Many of the principles are not well suited to being enforced because they are worded like service standards, not discrete rights, and are narrow in scope. For example, with reference to the scenario given by Mary Illiadis above, none of the principles requires the prosecuting agency to inform the victim about their right to make a victim impact statement. The prosecuting agency is required only to refer a victim who expresses a wish to make a victim impact statement to an appropriate victims’ service for assistance.102
  3. 4.102 In conclusion, the Commission does not consider there is a need for a legal right to enforce a breach of a Victims’ Charter principle that would enable victims to take legal action or have consequences for the conduct of a criminal trial. A proposal such as this may need to be revisited as the role of the victim continues to evolve and victim-oriented law develops—including by amending the Victims’ Charter Act as recommended in this report.
  4. 4.103 At this time, as discussed in Chapter 3, the Commission considers it more appropriate to recognise a right for victims in the Human Rights Charter. The Human Rights Charter would specify that victims have the right to be acknowledged as participants, treated with respect and afforded protection during the court process. This would be a right that courts must enforce during criminal proceedings.103 In addition, the proposals discussed below offer more accessible and appropriate avenues for encouraging compliance with the Victims’ Charter principles.

Complaints processes

  1. 4.104 Common law adversarial criminal justice systems in Australia and overseas have tended to provide victims with complaints resolution processes, rather than a right to pursue legal action, to ventilate their grievances. Robust complaints processes, especially where they are reviewed independently, can provide victims with fairness, transparency and accountability.
  2. 4.105 The Victims’ Charter Act does not include a specific right to make a complaint, although it does require appropriate processes to be established for complaints and victims to be informed of these processes.104 The Act does not prescribe a specific complaints process or designate a body to complain to.
  3. 4.106 Comments made to the Commission about the existing complaints processes reveal that they are not well understood or highly regarded. There was widespread support for the processes to be robust, coordinated, backed by legislation, and overseen by an independent body with investigative powers. These features are encompassed by the proposals that the Commission has considered, and which are discussed below:
  • a centralised complaint-handling process
  • a firmer legislative foundation
  • remedies.

A centralised process

Victims’ Charter Enquiries and Complaints Line
  1. 4.107 It was proposed that complaint handling should be centralised to make the process easier for victims. This would provide a ‘one-stop shop’ and the complainant could be assisted in dealing with the relevant agency.105
  2. 4.108 Elements of a centralised system already exist. The Victims Support Agency within the Department of Justice and Regulation offers victims of violent crime a complaint handling service through its Victims’ Charter Enquiries and Complaints Line. It mediates between the victim and the agency or person complained about to resolve complaints concerning standards of service or a failure to follow the Charter principles.106
  3. 4.109 The service receives fewer than 30 complaints a year.107 Most are about the police and concern communication issues. These are managed in accordance with a protocol between Victoria Police and the Department of Justice and Regulation.108 Complaints about court proceedings tend to be about cases heard in the Magistrates’ Court, where the majority of criminal cases are heard.109
  4. 4.110 The volume and type of complaints that the Victims’ Charter Enquiries and Complaints Line receives do not indicate how uniformly and effectively the Charter principles are being followed. Not all victim complaints are directed to this service.
  5. 4.111 The DPP and OPP invite direct contact from people who have a complaint about
    the outcome of a particular matter or the conduct of:
  • OPP staff
  • the DPP
  • members of the Victorian Bar briefed on behalf of the Solicitor for Public Prosecutions.110
  1. 4.112 TheDPP’s Complaints Policy states that a complaint will be dealt with ‘consistently, expeditiously and fairly’. A complaint will be investigated thoroughly if it cannot be resolved immediately. A victim is to be kept informed and notified of an outcome, and can expect their privacy to be protected.111 No further process for handling the complaint is articulated in the policy.
  2. 4.113 As noted above, victims’ complaints about the police are handled by the Victims’ Charter Enquiries and Complaints Line under a protocol. Victoria Police also generally encourages members of the community who have a complaint of a minor nature to contact the station commander at their local police station. Those who have a more serious complaint can write to the Police Conduct Unit.
  3. 4.114 In addition, the Victims’ Charter Enquiries and Complaints Line does not appear to be well known. Many people who work with victims told the Commission that they had not heard of it,112 and victims may also be unaware that it exists.113 Some believed that the service was not a formal process. They were unsure about whether it is able to resolve complaints, and whether there are any consequences of not complying with a Charter principle.114
  4. 4.115 To promote the Victims’ Charter Enquiries and Complaints Line, the Victims Support Agency relies principally on referrals of individual victims from the police, health professionals, community-based organisations and others with whom the victim makes contact. The OPP and Victoria Police promote the service on their websites and in publications. There is no budget within the Victims Support Agency for promotional campaigns and it expects that the visibility of the Agency and its services will improve over time as a result of its persistent presence.115
Should complaints be processed by an independent body?
  1. 4.116 It was proposed that an independent body should perform the function of receiving and handling complaints. The Commission was told that such a body would have the legal powers to investigate, compel the provision of information, recommend that an agency or official issue a written apology, and report to Parliament. There would be a standard process, set out in legislation, for managing complaints and a single point of access for
    all victims’ complaints concerning criminal justice agencies.
  2. 4.117 A number of advantages were identified. A standard statutory process could increase victims’ confidence that their complaints will be taken seriously, resolved and not become lost in the system. Victims need to know that their complaints have been recorded and that a resolution process has been put in place.116 A single complaint body that receives and refers complaints could generate more accurate data about the nature and number of complaints made by victims and how they were resolved.
  3. 4.118 A new entity need not be created for this purpose. Indeed, there is insufficient evidence, and little support, to warrant the creation of a new body to process and resolve complaints from victims. The view was put during consultations and in written submissions that the Victims of Crime Commissioner should be given a role in handling complaints.117
  4. 4.119 As a body that was established to identify and work on systemic issues, it would be inappropriate for the Victims of Crime Commissioner to take on the complaint resolution role currently performed by the Victims’ Charter Enquiries and Complaints Line. However, a scheme could be established whereby all complaints were directed to the Victims of Crime Commissioner, who would refer them to the relevant agency for resolution. The Victims of Crime Commissioner Act 2015 (Vic) already provides for the Commissioner to refer complaints as appropriate to the Ombudsman, Chief Commissioner of Police or the DPP.118 Evidence of corrupt conduct must be referred to the Independent Broad-based Anti-corruption Commission.119
  5. 4.120 However, giving the Victims of Crime Commissioner a gateway role such as this would have significant drawbacks. In particular, directing all complaints to the Commissioner for referral-direction to the relevant agency for resolution would add a layer of administration without affecting the outcome.
  6. 4.121 The process may be standardised and monitored but could also be much longer. A centralised process could entrench the positions of the victim and the agency in circumstances where an early, direct and less formal interaction could have solved the problem. Similarly, a legislated process for handling complaints would be inflexible, and would not help to provide an individualised response.
  7. 4.122 The Commission notes that the proposal would not broaden the capacity for victims to make a complaint. Victim support workers pointed out to the Commission that many victims have complaints about judges and defence counsel, who are not required to comply with the Victims’ Charter Act and are subject to profession-based complaints processes under other legislation.120
  8. 4.123 Finally, the Victims of Crime Commissioner does not need to take on a role in processing complaints in order for better system-wide data about them to be compiled. Having the power to inquire into any systemic victim of crime matter and require access to records, the Commissioner could gather data about the number and nature of complaints, how long they took to resolve and their outcome. The Commissioner could use this data to monitor agencies’ performance in implementing the Victims’ Charter principles and responding to victims’ complaints. This would assist in measuring the progress of cultural change.
  9. 4.124 On balance, the Commission considers that a centralised complaint-handling process, administered by the Victims of Crime Commissioner or another independent body, is unnecessary and undesirable. Overall, it would not be advantageous to victims and there are better means of encouraging agencies to improve how they interact with victims and respond to complaints.
  10. 4.125 The Commission recommends below that the Victims of Crime Commissioner’s responsibilities be expanded in other ways that will improve complaint handling: by providing a review function for victims who are not satisfied with the outcome of an agency’s complaint-handling process, and by reporting to Parliament, through the Attorney-General, on the implementation of the Victims’ Charter Act. The report to Parliament should include information about the number of complaints made and processed about compliance with the Charter principles, and their outcomes.

A firmer legislative foundation

  1. 4.126 Unless there are consequences for failing to implement the principles, the cultural change that the Victims’ Charter Act was intended to bring about will not occur. In practice, whether a victim is treated in accordance with the Charter principles will depend on chance.
  2. 4.127 The requirement that criminal justice agencies implement the Victims’ Charter principles needs to be underpinned by robust processes for handling complaints. In the Commission’s view, these processes should meet the standards expected of public sector agencies.
  3. 4.128 According to guidelines issued by the Victorian Ombudsman, complaint-handling systems should be open to scrutiny by clients, the responsible minister and relevant review bodies. They should offer fair and reasonable remedies, provide for internal review and evaluation, and contribute to business improvement. Information on trends or aggregated data should be publicly available and released regularly.121
  4. 4.129 The processes that have emerged for complaints under the Victims’ Charter Act do not align with the Ombudsman’s guidelines122 and do not seem to be widely known or well used. The Commission considers that the Act should be amended to augment the existing obligations on agencies and provide rights for victims to make a complaint and have the outcome reviewed. These proposals are discussed in the next section.
A right to make a complaint
  1. 4.130 If a person believes that an agency has not upheld the Charter principles, the agency is only expressly required to inform them about the processes available for making a complaint. Although the Secretary of the Department of Justice and Regulation must ensure that appropriate processes are established, no obligation is placed on the other agencies to participate in those processes or establish their own.
  2. 4.131 In New South Wales, the Victims Right and Support Act 2013 (NSW) provides that a victim may make a complaint about a breach of the Charter of Victims’ Rights.123 The Commission considers that Victoria’s Victims’ Charter Act should be strengthened in similar terms, to empower the victim to complain and require the agency to investigate and respond. This would be largely a symbolic gesture, as complaints processes are in place, but it would underscore the significance of the victim’s role in the criminal trial process. Similar reasoning appears to have applied when the Charter principles were enacted, even though some reflected existing statutory rights or agency practices.

 

Recommendation

  1. 7 The Victims’ Charter Act 2006 (Vic) should:

(a) provide victims of crime with a right to make a complaint to the relevant
investigatory, prosecuting or victims’ services agency about a breach of a Victims’ Charter principle and

(b) impose an obligation on investigatory, prosecuting and victims’ services agencies to provide accessible and transparent complaint-handling systems and offer fair and reasonable remedies.

 

Remedies

  1. 4.132 The consultation paper invited comments on the remedies that should be available for a breach of a victim’s rights.124 The responses revealed consensus that the remedies should include an apology or acknowledgment from the agency concerned and that monetary sanctions are not needed.125 It was suggested that, in extreme cases, compensation could be considered.126
  2. 4.133 The outcomes of complaints processes will, and should, vary according to the nature and circumstances of the complaint. For this reason it is prudent not to limit the options available by law. However, the complainant should receive a response, and if the agency has failed to comply with a Victims’ Charter principle, an acknowledgment and apology are the least the complainant should receive.
  3. 4.134 As noted above, the Commission considers that the Victims of Crime Commissioner should monitor complaint outcomes. This may produce evidence that the process and available remedies should be prescribed in legislation. On the basis of information about the complaints being made, the Commission has concluded that reform of this nature
    is not presently necessary.

Review of complaints about compliance with Victims’ Charter principles

  1. 4.135 A victim who is not satisfied with the outcome of a complaints process, or where there has been no response at all, has few options. In limited circumstances the Ombudsman can review whether the administrative actions of a criminal justice agency are legal, reasonable and fair in the circumstances, and compatible with the Human Rights Charter127 and may also initiate their own investigations.128
  2. 4.136 If the complaint concerns the actions of the Victims Support Agency, the Ombudsman is likely to have jurisdiction. However, Victoria Police, the DPP, all Crown Prosecutors and Associate Crown Prosecutors, and any other person acting as legal adviser to the Crown or counsel for the Crown, are exempt from the operation of the Ombudsman Act 1973 (Vic)—as are the courts and judicial officers.129 The Solicitor for Public Prosecutions
    and the OPP are not exempt, but the extent to which their actions may be reviewed is
    limited because the Ombudsman’s powers cannot be exercised in a manner that would

    prejudice any criminal proceedings or investigations130 or interfere with the exercise of the jurisdiction of a court.131

  3. 4.137 As noted above, section 22(1)(c) of the Victims’ Charter Act states that the Act does not provide grounds for review of any judicial or administrative act or omission.
  4. 4.138 Consequently, in most cases, not only do victims have no legal right to enforce a Victims’ Charter principle, they have no recourse to a review process if they make a complaint and the agency concerned does not resolve it satisfactorily. The Commission considers it anomalous for the victim’s right to review to depend on which criminal justice agency breaches the Charter principle.
  5. 4.139 Although the available data about the complaints made each year regarding the Victims’ Charter Act is incomplete, it appears that they are few in number. It is reasonable to expect that fewer still are not resolved to the complainant’s satisfaction.
  6. 4.140 It is difficult to gauge the unmet need for a review process for complaints about compliance with the Victims’ Charter Act. An analysis of data held by the Ombudsman’s Office indicates that the Ombudsman has received 86 complaints about the treatment of victims of crime since the Victims’ Charter Act came into effect. Of these, 61 were against the Victims of Crime Assistance Tribunal (including general administrative complaints, such as about delay, as well as complaints about decisions made). It is not known how many of the remaining 25 complaints were about an agency’s compliance with the Victims’ Charter principles, but only two complaints were specifically against the Victims Support Agency.132
  7. 4.141 The number of complaints that the Ombudsman has received about the treatment of victims of crime has remained consistent from year to year and no trends are discernible from the available data. The Ombudsman’s Office has advised that:

It is likely that there would be additional complaints. However, without a manual audit of the more than 200,000 complaints that the Ombudsman has received since the Charter Act came into effect, it is not possible to determine the exact number. This is owed to several reasons including changes to policies, procedures and how complaints are recorded internally; as well as the level of detail provided by complainants when they contact the office.133

  1. 4.142 At this stage, the data does not suggest that an elaborate review process is necessary. However, a review process that applies to all the criminal justice agencies that implement the Victims’ Charter principles would strengthen the force of the principles and underscore the need for the agencies to have robust processes for responding to victims’ complaints.
  2. 4.143 Currently, the Victims’ Charter principles set out service obligations regarding how the victim is treated and the information and type of assistance they should receive. They are administrative in nature. A complaint that they have not been implemented, or a review of the outcome of any such complaint, is unlikely to prejudice criminal proceedings or investigations, or interfere with the exercise of the jurisdiction of a court.
  3. 4.144 Should the Victims’ Charter principles be expanded to include obligations that are not administrative, those obligations could be excluded from the complaints review process as necessary and appropriate.
  4. 4.145 The Commission considers that the Victims of Crime Commissioner should be empowered to review the outcomes of complaints from victims regarding a criminal justice agency’s implementation of the Victims’ Charter principles where a victim is dissatisfied with the agency’s response to their initial complaint. This responsibility is consistent with the Commissioner’s role in monitoring system-wide issues.
  5. 4.146 Complaints that can be resolved by the agency are unlikely to reveal systemic problems. Those that are more difficult to resolve are likely to provide useful information about the operation of the Victims’ Charter Act. They may reveal ambiguities in interpreting the Victims’ Charter principles, inconsistencies in implementation, weaknesses in complaint management systems, problems in coordinating functions shared across agencies, or other system-wide issues.
  6. 4.147 The role of the Victims of Crime Commissioner would be confined to reviewing the outcome of victims’ complaints regarding an agency’s compliance with the Victims’ Charter principles. The Commissioner would not be empowered to review prosecutorial decisions or intervene in a way that prejudices criminal proceedings or investigations,
    or interferes with the exercise of the jurisdiction of a court.

Recommendation

  1. 8 The Victims of Crime Commissioner should be empowered to review the outcome of complaints regarding compliance by investigatory, prosecuting and victims’ services agencies with the Victims’ Charter Act 2006 (Vic) principles, on application by the complainant, if the complainant is not satisfied with the agency’s response to the complaint.

 

Review of prosecutorial decisions

  1. 4.148 As discussed above, decisions by the DPP are not subject to review by the Ombudsman.
    In addition, they are not reviewable by a court and nor is there a structured internal review procedure within the public prosecutions service. Exemption from the review processes that apply to other public agencies is regarded as vital to the DPP’s independence.134
  2. 4.149 However, the Commission considers that decisions by the DPP to discontinue a prosecution or accept a guilty plea to lesser charges should be open to internal review
    at the victim’s request. These decisions are of particular significance to victims.
  3. 4.150 A decision to discontinue a prosecution can cause distress and compromise future legal interests because of its finality: there may be no further response by the criminal justice system to the crime. A decision to accept a guilty plea to lesser charges can appear to trivialise the impact of the crime by enabling the offender to minimise their offending. It also limits the victim’s ability to have a voice at sentencing as the victim impact statement will be confined to the offence or offences to which the offender has pleaded guilty.135 A review process can help the victim understand the rationale for these decisions and provide a means of having them reconsidered.136
  4. 4.151 Importantly, a review process would make the operation of Victoria’s public prosecutions service more transparent and accountable.137 Independence does not guarantee infallibility, and there is a public interest in establishing systems that will test the reasoning employed in decisions not to prosecute the accused as charged.
  5. 4.152 The DPP maintains that current procedures provide a sufficient degree of transparency and victim participation while at the same time protecting the Director’s independence.138 As a matter of policy, the solicitor with conduct of the prosecution ensures that the victim is consulted before a decision is made to substantially modify charges, accept a plea of guilty to lesser charges or not proceed with some or all charges.139 Victims who are dissatisfied with the decision may request the reasons. In the Director’s experience, ‘very few victims are dissatisfied with the DPP’s decisions after the reasons have been explained to them’.140
  6. 4.153 Even so, a number of proposals to improve the transparency and accountability of the DPP were put to the Commission. They included:
  • a right for victims to be given reasons for these decisions
  • internal review
  • external review.

Reasons for decisions

  1. 4.154 For the victim, knowing the reasons for a decision is the first step in deciding whether
    to seek to have it reviewed. For the agency, providing reasons is a means of improving
    the transparency of its operations.
  2. 4.155 The DPP is willing, in appropriate circumstances, to provide reasons for discretionary decisions that the Director has made, or which have been made on the Director’s behalf.141 Whether the circumstances are appropriate is determined on a case-by-case basis in accordance with the Director’s Policy on the giving of reasons for discretionary decisions. A victim’s request for information about the reasons for making a decision to discontinue, or to proceed with a guilty plea to lesser charges, would be managed under this policy.
  3. 4.156 When introduced, the policy was groundbreaking. The DPP in Victoria was one of the first prosecuting agencies in the world to instigate a policy of giving reasons for discretionary decisions.142 The policy applies to a wide variety of discretionary prosecutorial decisions made since 1 January 2009 and requests may be made by any person in various ways:

A request for reasons may come to the Director in the form of a verbal request from a victim, a Freedom of Information application, a written request from an academic researcher, a subpoena issued by a solicitor involved in civil litigation, a government agency responsible for the regulation of a particular profession or activity, a verbal request from the media, and so on.

It is intended that, as far as practicable, this Policy should apply consistently, regardless
of the precise format of the request for decisions.143

  1. 4.157 An estimated 30 letters are prepared each year in response to requests for reasons.144 The policy also allows for other forms of response where appropriate, for example, a response could be given in person in a meeting with a victim or a victim’s family.145
  2. 4.158 The policy basis is that a careful balancing of competing interests will allow reasons to be given in many cases, and that doing so is ‘consistent with the desirable goal of the criminal justice system being as open and transparent as possible’.146 However, the policy has not provided the degree of transparency and accountability that should be given
    to requests from victims for reasons for decisions to discontinue a prosecution or agree
    to a guilty plea to lesser charges. Not all prosecutorial decisions are of equal significance to the applicants who request reasons, and not all applicants have the same vested interest in the response.
  3. 4.159 The submission from the former victim representatives on the inaugural Victims of Crime Consultative Committee put the view that the current system is not sufficient because
    it is at the discretion of the DPP and on request:

We believe that a requirement to give reasons is essential to a transparent and accountable prosecutorial service. For victims, a more transparent system will (1) allow
us to better understand the facts and basis for the decision not to prosecute, (2) reassure us that the decision was not made arbitrarily, (3) allow us to identify the extent to which our concerns were taken into consideration and (4) reassures us that we have been dealt with fairly.

The requirement to give reasons will make the DPP, OPP and Crown Prosecutors more accountable as they have a greater incentive to rigorously and carefully identify and assess the relevant issues and properly justify their decisions.147

  1. 4.160 Similar comments were made in another submission and during consultations, where
    it was proposed that the DPP should be required to give reasons for these decisions
    to the victim.148
  2. 4.161 The opposing view was also argued. The Victorian Bar and Criminal Bar Association acknowledged that providing victims with reasons would help them understand how
    the decisions were reached, and added that the DPP had provided an excellent service
    in the past, but said that it is difficult and time-consuming. They stated that it is important to avoid a situation where the prosecution runs cases because it is easier than having to explain why it does not want to proceed.149 Views both supporting and opposing
    a mandatory requirement to give victims reasons were expressed in a meeting with the Criminal Law Section of the Law Institute of Victoria.150
  3. 4.162 On balance, the Commission considers that victims should have a right to be given reasons for decisions to discontinue a prosecution or to proceed with a guilty plea
    to lesser charges. Symbolically, it would recognise the victim’s inherent interest in the criminal trial process, underscore the victim’s role as a participant and contribute to cultural change by reinforcing the need to treat victims with respect. In practice, victims will be better able to make decisions about the consequences for them of decisions by
    the Director.
  4. 4.163 The Commission notes that providing written reasons for decisions can be time-consuming and require careful consideration. Regard has to be given not only to the sensitivities of the case and the need to avoid making the negative impact of the decision even worse, but also to external factors such as the possible effect on a related case. However, as the victim will have been consulted before, and informed after, the decision is made,151 the Commission does not expect that routinely informing the victim of the reasons would be onerous.
  5. 4.164 The procedure for giving reasons to victims is a matter for the DPP. The Commission considers that they should be given in writing, though it may be easier and more appropriate in the circumstances to inform the victim in person first and follow up with a letter. The requirement could be established by amending section 9 of the Victims’ Charter Act, which requires the prosecuting agency to give the victim information about any decision to modify or not proceed with some or all charges or to accept a plea of guilty to a lesser charge.152

Recommendation

  1. 9 Section 9 of the Victims’ Charter Act 2006 (Vic) should be amended to require the Director of Public Prosecutions to give victims written reasons for the decisions listed at paragraph (c) of that section, unless the victim has expressed a wish not to be so informed.

 

Internal review

  1. 4.165 A victim who is not satisfied with a decision to discontinue a matter or to proceed with a guilty plea to lesser charges currently has no right to have the decision reviewed by the DPP. In practice, it may be reviewed, but there is no structured process of internal review.
  2. 4.166 The DPP has indicated that it is unnecessary to establish an internal review process for these decisions because they are made centrally with input from various areas of the public prosecutions service and after consultation with the victim:

All our decision making is written and when I get to see a decision that I have to make, there’s supporting memoranda that filter up from case officers, who are appointed early in the case, through to supervisors and then to a Crown Prosecutor who might make a recommendation about various aspects of the case, either a discontinuance or the settlement of a case, negotiated plea settlements and so on. That would be in in writing by a Crown Prosecutor, or a Senior Crown Prosecutor if it is a bigger decision, and that will come to me to make a final decision. … All victims are consulted … I won’t make a decision of discontinuance in a case, for instance, without the victim having been consulted about that decision; that’s very clear.153

  1. 4.167 Although there is no formal internal review process, the DPP has recalled occasions when ‘people have made their displeasure very clear and I’ve re-looked at cases’.154 He added that this does not happen very often.155
  2. 4.168 The Commission has not formed a view about the adequacy of the internal procedures for decision making within Victoria’s public prosecutions service. However, it does consider that a structured, transparent process should be established for the internal review of decisions, including to review, as a minimum, decisions to discontinue a matter or to proceed with a guilty plea to lesser charges. In reaching this conclusion, the Commission has had particular regard to the fact that these decisions cannot be reviewed by any other government entity or the courts.
  3. 4.169 Many comments were made in submissions and during consultations about the need for a system of internal review. Jonathan Doak associated a right to seek review with recognition of the special role of victims in the criminal justice system.156 The Law Institute of Victoria said that there should be transparency around why some trials settle and others do not.157 Robyn Holder maintained that, because there is no review, there is no accountability,158 and an internal complaints and feedback process is also important in promoting change from within. 159 The Victims of Crime Commissioner said that there should be a system of review for reasons to discontinue.
  4. 4.170 A well-documented and accessible complaints-handling process which clearly identifies how to seek review of a decision to discontinue a prosecution or proceed with a guilty plea to lesser charges would provide transparency. It would also clarify the position of
    the prosecution when in conflict with the victim.160
  5. 4.171 The focus of most comments that the Commission received on this issue was not on whether victims should be able to seek internal review of prosecutorial decisions, but on what the mechanism for review should be. In particular, there was marked support for introducing a system of internal review that is based on the Victims’ Right to Review Scheme for England and Wales.161
Victims’ Right to Review Scheme (England and Wales)
  1. 4.172 The Victims Right to Review Scheme is the internal review process established by the Crown Prosecution Service (CPS) in 2014. It was created after CPS internal review processes were criticised in R v Christopher Killick.162 It also gives effect to principles
    in a binding European Union Directive which requires member states to have a mechanism in place that allows victims to seek review of a decision not to prosecute.163
  2. 4.173 The scheme is intended to strike a balance between providing certainty to the public
    and not allowing wrong decisions to stand. The review process is considered to be
    a means of maintaining public confidence in the criminal justice system.164
  3. 4.174 Only certain prosecutorial decisions, known as ‘qualifying decisions’, are subject to review. They are restricted to decisions not to lay charges and decisions that effectively end
    a prosecution.165
  4. 4.175 The scheme is accessible and transparent. Victims are made aware of their right to review and how to exercise it by the following means:
  • Victims are notified of the prosecution decision not to bring proceedings,
    or to discontinue them.
  • The notification includes information about whether the decision was made
    on evidential or public interest grounds.
  • The notification also confirms that the victim is eligible to seek a review and provides sufficient information to enable the victim to decide whether or not they wish
    a review to take place and, if they do, what steps to take.
  • A request for review is ordinarily made within five days of receipt of the notification, but victims can have up to three months to do so.
  • Additional information about how to exercise the Victims’ Right to Review is on the CPS website.166
  1. 4.176 The review process is conducted in two stages. The first is local resolution, where an attempt is made to resolve the issue at a local level by assigning a new prosecutor to review the decision and ensure that the victim is given a proper explanation if one has not already been provided. The local resolution stage should be completed within 10 days of receipt of the request for review. If this is not possible, the victim is told of the reason for the delay and when the response will be provided.167
  2. 4.177 A victim whose concerns are not resolved at the local level may initiate the second stage, which is an independent review by an Appeal and Review Unit within the CPS or by a Chief Crown Prosecutor, as appropriate. This review considers the case afresh, using only the information that was available to the original decision maker.168
  3. 4.178 If it is considered, on review, that a different decision should be taken, and it is possible and appropriate to do so, action will be taken to commence or recommence criminal proceedings and the victim will be notified. If this is not possible, then the victim is given an explanation and, where appropriate, an apology.
  4. 4.179 In the United Kingdom, unlike Australia, victims can apply to the High Court for judicial review of a decision to prosecute or not to prosecute. Those who are dissatisfied with the CPS decision after an internal review can still avail themselves of this option.
Is this a model for Victoria?
  1. 4.180 The Victims’ Right to Review Scheme represents a modern approach to the way in which a public prosecutions service can interact with victims. Tyrone Kirchengast has suggested that the scheme, the decision in R v Christopher Killick, and the European Union Directive on the rights, support and protection of victims of crime, show how victims’ rights may appropriately be considered against the state’s obligation to continue to prosecute offences in the public interest:

While the views of victims are considered, those views do not determine the outcome and must be weighed against the public interest at all times. As such, although the victim is given substantive rights of participation that may be enforced against the state, those rights never become determinative of an outcome nor usurp the state’s right to prosecute. The removal of the process of review from the courts also ensures that the rights of the victim are not conflated with the rights of the accused in the trial context. The accused retains the right to challenge the Crown case without the victim acting
as a third party to proceedings, should the matter be brought to court.169

  1. 4.181 In her submission, Mary Iliadis identified a number of features of the scheme that benefit both the victim and the criminal justice system:
  • It provides a greater sense of transparency and accountability in decision-making processes.
  • It enables the public prosecutions service to measure where failures are made and
    to rectify incorrect decisions.
  • It provides victims with a mechanism to challenge prosecutorial decisions.
  • It could increase victims’ understanding and confidence in the validity, transparency and accountability of the criminal trial process.
  • Even where decisions are not overturned, the scheme can provide victims with
    an explanation and better understanding as to why the case cannot proceed.170
  1. 4.182 In principle, the Commission would support the introduction of a Victorian scheme that drew from the Victims’ Right to Review Scheme. However, the scheme could not simply be adopted in Victoria. The Commission is aware that the Royal Commission into Institutional Responses to Child Sexual Abuse has been looking closely at this scheme, among other options, in exploring complaints and oversight mechanisms employed by directors of public prosecutions across Australia.171
  2. 4.183 The DPP has told the Commission and the Royal Commission into Institutional Responses to Child Sexual Abuse about some practical limitations and legal issues that would need to be taken into consideration.
  3. 4.184 Perhaps the most significant practical limitation is the relative size and structure of the public prosecutions services in Victoria and England and Wales. In 2014–15, Victoria’s public prosecutions service comprised about 350 personnel across offices in two locations, and handled approximately 6000 prosecutions.172 Its counterpart in England and Wales has about 6100 staff, in 13 locations, and handles around 664,500 prosecutions a year.173
  4. 4.185 The Victims’ Right to Review Scheme is designed for a large organisation, where decisions to prosecute or to to discontinue a prosecution are devolved to local offices. The two-stage approach to internal review, which focuses first on local resolution and then an independent review within the organisation at a higher level, is not appropriate for the Victorian public prosecutions service.
  5. 4.186 As noted above, decisions of this type made by and on behalf of the DPP are centralised and made at the highest level. It is neither feasible nor desirable to introduce an internal review scheme that reviews the decisions of the statutory office holders who made them. The DPP conveyed this concern in his evidence to the Royal Commission on Institutional Responses to Child Sexual Abuse:

I hold a position that sits in the Victorian Constitution, it is a statutory position. Effectively I do what I get paid to do, and that is make difficult decisions at my level
at the top end of a highly structured set of processes that take place.174

  1. 4.187 The DPP acknowledged in discussions with the Commission that the decision-making processes within the Victorian public prosecutions service could be revised. For example, a Senior Crown Prosecutor could make a decision, which could be reviewable by the Chief Crown Prosecutor, and then the DPP if there is further complaint. This echoes the structure at the CPS, where more substantive decisions are made by crown prosecutors who are a level below the Director.175 The Victims of Crime Commissioner also suggested this as an option.176
  2. 4.188 The DPP also noted that some decisions, such as the decision to directly indict, must
    be made by committee. He suggested that this process could be used for a wider range of difficult decisions.177
  3. 4.189 Any internal review scheme introduced for the Victorian public prosecutions service would also significantly depart from the Victims’ Right to Review Scheme with regard to the scope of decisions reviewed. The majority of reviews in the Victims’ Right to Review Scheme have been of decisions not to file charges in the first instance. In Victoria the DPP is not responsible for those decisions; they are made by Victoria Police.178
  4. 4.190 These and other distinctions between the two public prosecutions services do not diminish the need to introduce a structured internal review process for victims in
    Victoria. The Commission considers that the time has come for the Victorian public prosecutions service to be more transparent and accountable. This is not a reflection
    on the performance of the service itself but an affirmation of victims’ inherent interest
    in the criminal trial process and their legitimate place in that process.

Recommendation

  1. 10 The Victims’ Charter Act 2006 (Vic) should be amended to:

(a) establish a right for victims to seek internal review of a decision by the Director of Public Prosecutions to discontinue a prosecution or to proceed with a guilty plea to lesser charges

(b) require the Director of Public Prosecutions, when informing the victim of these decisions, and the reasons for these decisions, to notify the victim of their right to seek internal review and the procedure for doing so.

 

External review

Judicial review
  1. 4.191 Judicial review refers to review by a court of an action taken by the executive government or the legislature. In reviewing a decision, the court considers whether it is validly made but does not review the merits of the decision itself. If an application for judicial review of a decision is successful, the court can direct the decision maker to make the decision afresh by following the required processes.
  2. 4.192 The Victims’ Charter Act does not provide grounds for review of any judicial or administrative act or omission,179 and victims have no clear right at common law to seek judicial review of discretionary decisions by the DPP.
  3. 4.193 In Maxwell v The Queen,180 Justices Gaudron and Gummow of the High Court of Australia confirmed that certain decisions by the DPP are unable to be challenged through the courts, including decisions to proceed or not proceed with a prosecution. They stated:

The integrity of the judicial process—particularly, its independence and impartiality and the public perception thereof—would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.181

  1. 4.194 This passage was cited with approval in the joint judgment of Justices Gummow, Hayne, Crennan, Kiefel and Bell in Likiardopoulos v The Queen,182 which confirms that:

sanctions available to enforce well established standards of prosecutorial fairness are to be found mainly in the powers of a trial judge and are not directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or an action for damages.183

  1. 4.195 In Maxwell v The Queen, Justices Gaudron and Gummow noted that the line of authority on which they were relying was based on the view that the discretion of the DPP was part of the prerogative of the Crown, and ‘may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute.’184 This point was picked up in Likiardopoulos v The Queen by Chief Justice French, who raised the possibility that the exercise of statutory power by
    a Director of Public Prosecutions may be open to judicial review.185
  2. 4.196 In England and Wales, victims can apply to the courts for judicial review of a decision by the CPS to prosecute or not to prosecute. Victims have been successful where they have been able to show that the law has not been properly applied, that evidence has not been properly considered, that CPS policy has not been applied, or that a previous court or coronial decision has not been carefully considered.186
  3. 4.197 There is little support for making judicial review an option in Victoria for victims who are dissatisfied by a decision to discontinue a prosecution or proceed with a guilty plea to lesser charges; none has come from victims. It was suggested that, if adequate and independent internal review processes were followed by the public prosecutions service and victims were provided with information and reasons, judicial review would not be needed in most cases.187 However, it was also said that the right to seek judicial review of decisions after an internal review could be useful for a victim who remains unsatisfied.188
  4. 4.198 In contrast to comments in support, opposition to judicial review was unequivocal.
    The DPP argued that it is unnecessary to introduce a system of judicial review and that
    to do so would have unwelcome consequences because:
  • It would compromise the Director’s independence.
  • The courts are not best placed to weigh the factors that need to be considered
    in making a decision to prosecute or to discontinue a prosecution.
  • A system of judicial review would add an additional layer of costs from satellite proceedings and cause delays in the justice system.
  • There is no demonstrated need for such a reform and it would be unfair to victims with fewer financial resources than others to pay for lawyers to conduct a judicial review. If applications for review were funded by Victoria Legal Aid, it would be an additional impost on the taxpayer.
  • It could create expectations in victims that cannot be realised. Where a judicial review application is successful, the matter is referred back to the original decision maker
    to reconsider. The court does not substitute the original decision with a decision
    of its own.189

 

  1. 4.199 The Victorian Bar and Criminal Bar Association are strongly of the view that the decisions of the DPP to file or withdraw charges should not be judicially reviewable.190
  2. 4.200 In view of the limited and muted support for the idea, and the cogent reasons put forward in opposition, the Commission does not recommend that judicial review be made an option for victims seeking review of prosecutorial decisions.
Independent review
  1. 4.201 Several submissions and consultations presented the view that the public prosecutions service should be subject to review by an independent entity other than a court. Views differed about the form and function of this entity.
  2. 4.202 One submission suggested external review of prosecutorial decisions by an independent senior barrister nominated by the victim from a panel.191 Another proposed a hierarchy of second opinions. A decision with which the victim is not satisfied could be reviewed by the DPP and then by an independent barrister who has had extensive experience prosecuting similar cases.192
  3. 4.203 The idea of involving an independent expert in reviewing decisions is not without precedent. The Legal Aid Act 1978 (Vic), for example, provides for the review of decisions by an independent reviewer.193
  4. 4.204 Other submissions expressed, as a general principle, that an external and independent body should oversee the operation of the public prosecutions service to ensure that it fulfils its obligations. The example commonly given is the Crown Prosecution Inspectorate for England and Wales.194 The Crown Prosecution Inspectorate reviews CPS processes,
    not individual cases. It can also conduct own-motion reviews.195
  5. 4.205 It was also proposed that a body modelled on the Crown Prosecution Inspectorate could review decisions to prosecute, discontinue and accept pleas of guilty to lesser charges, and monitor compliance with the Victims’ Charter. It would not have power to overturn the prosecutor’s decision but would simply refer the matter back for reconsideration.196
  6. 4.206 Some of the oversight functions proposed for an external body now fall within the responsibilities of the Victims of Crime Commissioner. In addition, responsibilities to review processes are held by the Victorian Auditor-General. The Auditor-General conducts financial and performance audits of government departments, public bodies and other entities under government control. In February 2011, for example, the Auditor-General reported to Parliament on a performance audit of the effectiveness of victims of crime programs.197
  7. 4.207 The Commission considers that the need for a scheme for independent review of decisions to discontinue a prosecution or proceed with a plea of guilty to lesser charges should be revisited in five years. By this time, the proposed internal review process for victims should have been established within the public prosecutions service and operational for a number of years. If the internal review scheme has not been established, or an evaluation has revealed that it is not operating effectively, a statutory review process that provides for independent review should be created.

 

Complaints about lawyers’ conduct

  1. 4.208 The legal profession in Victoria is regulated by the Victorian Legal Services Board. Complaints about lawyers are handled by the Victorian Legal Services Commissioner,
    who also has the power to initiate an investigation in the absence of a complaint. Both the Board and the Commissioner are independent statutory authorities that operate under the Legal Profession Uniform Application Act 2014 (Vic).198
  2. 4.209 The complaints about lawyers that the Legal Services Commissioner receives are generally made by their clients, but anyone may make a complaint.199 Accordingly, a victim may make a complaint about the conduct of a lawyer in connection with a criminal trial even if the victim has not engaged that lawyer. If the lawyer is found to have exhibited unsatisfactory professional conduct or professional misconduct, the Legal Services Commissioner—or, in more serious cases, the Victorian Civil and Administrative Tribunal—may impose sanctions.200
  3. 4.210 Although victims can make complaints to the Legal Services Commissioner about legal practitioners, there is little scope for them to be investigated until the conclusion of the criminal trial process. If a complaint is made about the conduct of a lawyer during the course of a trial, the complainant is told to raise the matter with the trial judge. Complainants are expected to try to resolve the complaint with the lawyer before making a complaint to the Legal Services Commissioner.
  4. 4.211 Over the past five years the Commissioner has received five complaints from victims about the conduct of lawyers in prosecuting or defending cases in criminal trials—on average, one a year. In contrast, about 5000 inquiries, and 2000 complaints in total, are processed each year.201
  5. 4.212 Two of the complaints from victims were about conduct during court proceedings; most concerned behaviour in the court precincts. The behaviour tended to convey insensitivity toward the victim, for example, inappropriate jokes between barristers at the bar table and unwanted contact with a victim’s parents on behalf of the offender. None of the complaints were about a failure to adhere to the principles in the Victims’ Charter Act.
    No complaints have been referred from the Victims Support Agency.202
  6. 4.213 Although the Victims of Crime Commissioner does not have a complaint-handling role, it is likely that matters raised with the Commissioner will include complaints about the conduct of lawyers. Accordingly, the Victims of Crime Commissioner should have the power to refer such matters to the Legal Services Commissioner.

Recommendation

  1. 11 Section 27(1) of the Victims of Crime Commissioner Act 2015 (Vic) should be amended to empower the Victims of Crime Commissioner to refer a matter
    to the Victorian Legal Services Commissioner.

 

System-wide monitoring and review

Reporting requirements

  1. 4.214 The Victims’ Charter Act requires the Secretary of the Department of Justice and Regulation to ‘monitor, review and evaluate the operation of this Act and its benefits for victims’.203 The Department must report annually on the steps taken to promote the Victims’ Charter principles and the operation of the Act.204 The information should be included in the Department’s annual report, which is tabled in Parliament.205 This would enable public scrutiny of how well the objectives of the legislation are being met.
  2. 4.215 In practice, this does not occur. Although the Department ‘coordinates responses across the justice system to the Victims’ Charter Act’,206 its annual reports provide information only about its own activities in delivering support services.207 The information does not include an account of the operation of the Act generally or the activities of investigatory and prosecuting agencies. Consequently, the monitoring and review requirements established by the Act do not generate information on how the principles are being implemented.
  3. 4.216 This is not the fault of the Department. When it was assigned responsibility to report on the operation of the Act, it was not empowered to obtain information for this purpose from investigatory and prosecuting agencies; nor were these agencies required to provide it. This is appropriate, given the separate and independent status of Victoria Police and the DPP, but it is an impediment to achieving the systemic cultural change that the Victims’ Charter Act was intended to foster.
  4. 4.217 A better approach would be to assign the responsibility to another independent body. According to the former victim representatives on the inaugural Victims of Crime Consultative Committee, the Victims of Crime Commissioner should be required to report to the Attorney-General on compliance with the principles in the Victims’ Charter Act, and for the report to be tabled in Parliament.208
  5. 4.218 The Commission agrees. It would be consistent with the Victims of Crime Commissioner’s existing functions and powers. The Commissioner has the power to inquire into ‘any systemic victim of crime matter’, either at the request of any person or on the Commissioner’s own motion,209 and may provide a report on the inquiry to the Attorney-General for tabling in the Victorian Parliament.210
  6. 4.219 In support of this function, the Commissioner has powers to require access to records held by the Department of Justice and Regulation, Victoria Police and the DPP.211 The records must be provided unless doing so would be reasonably likely to prejudice an investigation or trial, disclose a confidential source of information or endanger a person.212
  7. 4.220 The Commissioner may also report to the Attorney-General on any matter relating to the performance of the Commissioner’s functions,213 and is required to report annually on the operation of the Victims of Crime Commissioner Act.214
  8. 4.221 Given the systemic focus of the office of the Victims of Crime Commissioner, the Commission considers this office is well placed to take over the monitoring and reporting function previously assigned to the Department of Justice and Regulation. Such a function would be in line with the Commissioner’s capacity to bring systemic problems and possible solutions to the Government’s attention.

Recommendation

  1. 12 The Victims of Crime Commissioner should be required to report annually
    to Parliament on the implementation of the Victims’ Charter Act 2006 (Vic) by all investigatory, prosecuting and victims’ services agencies, including information about the number of complaints made and processed about compliance with the Victims’ Charter principles.

 

Data collection

  1. 4.222 The systematic collection of data, as well as regular monitoring and evaluation, are critical to ensuring that victims are properly recognised in our criminal justice system.215 Reliable data can be used to assess whether law reforms are being properly implemented, to conduct research and to inform the development of education and training programs
    and the allocation of funding.216 The Victims of Crime Commissioner suggested that there could be benefit in introducing performance monitoring of key players in the criminal justice system, to measure compliance with agreed and relevant performance targets.217
  2. 4.223 A number of comprehensive studies and reports have highlighted the lack of data specific to victims (including victims of certain offences or victims from certain groups).218 Similarly, the Victims of Crime Commissioner has criticised the lack of data about the experiences of victims who come into contact with the criminal justice system.219
  3. 4.224 The Victims Support Agency periodically conducts surveys of victims’ experiences in the criminal justice system. A 2014 survey sought victims’ perceptions of information they received and their satisfaction levels in relation to police, prosecutors and court staff.
    It also asked about victims’ feelings of safety, victim impact statements, and the Victims of Crime Assistance Tribunal.220 The 2014 survey resembled a similar survey conducted in 2008 that ‘assisted in the evaluation of the implementation of the Victims’ Charter’.221 Data gathered by the Victims Support Agency has also been used to evaluate the effectiveness of victim impact statements in Victoria,222 and identify the information
    and support needs of victims in the Magistrates’ Court.223
  4. 4.225 These and other surveys of victims are enriching knowledge and expertise in Victoria about their needs and expectations. In addition, the courts and criminal justice agencies generate and use data about their own activities for internal purposes.
  5. 4.226 Nevertheless, the Commission found it difficult to ascertain whether past reforms that were introduced to change aspects of the criminal trial for the benefit of victims have achieved their purpose. Even though the Commission was greatly assisted by the courts,
    it was unable to obtain data in relation to a number of victim-related laws and procedures, including:
  • the number of applications made to cross-examine the victim at a committal hearing and the number of applications granted
  • the number of applications made to access and use confidential communications, the number of victims seeking leave to appear in response, and the number of applications granted
  • how consistently alternative arrangements are being put in place for vulnerable victims
  • how many special hearings are occurring.
  1. 4.227 A system-wide approach to implementing victim-centred reforms to law and procedure should be supported by a system-wide approach to collecting data in order to monitor and evaluate the outcomes. This does not necessarily mean that a database must be established specifically for this purpose. It is possible that much of the necessary data
    is already being collected.
  2. 4.228 The Commission’s sexual offences report, published in 2004, recommended that the Department of Justice convene a working group, with representatives from the courts, Victoria Police, the OPP and other relevant stakeholders, to set up an integrated process for gathering reliable statistics about sexual offences ‘from the time of report until the matter is concluded.’224 Similarly, the Victorian Parliament Law Reform Committee’s Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers recommended that a centralised database be established by the Department of Justice, with input from Victoria Police,
    the OPP, courts and the Department of Human Services, to gather statistics on people with disabilities who come into contact with the justice system.225 A report provided
    by Women with Disabilities Victoria echoes this recommendation.226
  3. 4.229 In 2016, the Victorian Royal Commission into Family Violence also made a number of recommendations for the collection of data about family violence prevention and response.227 This important work may provide opportunities to improve the collection
    of data about victims of crime generally.
  4. 4.230 The recommendations of these previous inquiries are important. The Commission considers that key criminal justice system stakeholders, including the OPP, Victoria Police, Victims Support Agency and the Victims of Crime Commissioner should work together
    to establish a system for gathering data on victims who come into contact with the criminal justice system. This system should track offences from reporting to the conclusion of the case, and should be able to disaggregate data, including in relation to gender, disability, ethnicity, Aboriginal or Torres Strait Islander background and age.
  5. 4.231 The Commission expects that the Victims of Crime Commissioner will be making arrangements with criminal justice agencies to obtain data that will assist inquiries into systemic victims of crime matters. If the recommendation above that the Commissioner report annually on the operation of the Victims’ Charter Act is accepted, the Commissioner will need to establish new arrangements, or use existing ones, to obtain the necessary data, including:
  • whether and to what extent victims are cross-examined at committal hearings
  • the implementation of the confidential communications scheme
  • the use of special hearings and alternative arrangements for giving evidence
    and whether they are achieving their purpose
  • applications in relation to cross-examination about a victim’s sexual history, and other pre-trial applications that affect how a victim gives evidence
  • the implementation of provisions relating to victim impact statements
  • the operation and effectiveness of Part 4 of the Sentencing Act 1991 (Vic).
  1. 4.232 In addition, recommendations that the Commission makes later in this report would
    give rise to additional data collection requirements.

Recommendation

  1. 13 The Victims of Crime Commissioner should establish arrangements with the Supreme Court, County Court, Magistrates’ Court, Office of Public Prosecutions, Victoria Police and Department of Justice and Regulation
    to collect data about implementation of the Victims’ Charter Act 2006 (Vic)
    to enable the preparation of annual reports to Parliament.

 

A coherent legislative and policy framework

  1. 4.233 The Victims’ Charter Act was introduced as a ‘coherent framework’ for ‘all the existing rights and entitlements for victims of crime’.228 It was intended to bring about cultural change through compliance with the Charter principles.
  2. 4.234 When debating the legislation in Parliament, the then-Attorney-General said that giving effect to victims’ rights often requires a major cultural shift by justice agencies, and that this would be brought about by a phased-in and closely monitored approach to implementation:

Implementing the victims’ charter in this way will mean that criminal justice, investigating, prosecuting and victim services agencies will be developing consistent
and systemic approaches to responding to victims. This will facilitate the ongoing cultural change within the criminal justice system which is necessary to ensure they
are adequately and consistently responding to victims of crime.229

  1. 4.235 Although many of the entitlements and obligations owed to victims are still reflected
    in Victims’ Charter principles, other laws and policies that provide entitlements or create obligations towards victims have since been introduced. Victim-oriented laws and policies have become fragmented and scattered across a number of pieces of legislation in Victoria.230
  2. 4.236 The Commission considers that the Victims’ Charter Act should be revised to restore
    its relevance as a coherent framework of victims’ rights and entitlements. Just as it
    was originally intended to do, the revised Act would spearhead cultural change.
  3. 4.237 In practical terms, the updated framework would:
  • support awareness-raising initiatives by providing a single reference point for victims to see the range of rights and entitlements they have and the obligations owed
    to them
  • provide a resource for education and training programs
  • increase transparency and improve accountability by incorporating into legislation practices that are currently spread among various statutes and policies.
  1. 4.238 The Commission’s consultation paper invited comments on whether the Victims’
    Charter Act should be amended to include other rights or broaden existing rights.231
    The responses showed a clear consensus that the Act should be amended, not only
    to supplement and amend existing rights but to clarify them as well.
  2. 4.239 Two Australian academics in the field of victimology, Tyrone Kirchengast and Robyn Holder, told the Commission that greater clarity could be brought to the role of victims of crime by identifying and consolidating existing entitlements and obligations owed to victims.232 Kirchengast suggests the production of a single guidance document, ‘that sets out the rights, powers and obligations owed to victims’.233 Margaret Camilleri maintained that the Victims’ Charter Act should be clearer about the content of the principles, the obligations of different agencies and the consequences of a failure to adhere to the principles.234 Jonathan Doak noted that the Victims’ Charter principles lack definition.235
  3. 4.240 The Victims Support Agency suggested that the Victims’ Charter Act could benefit from a thorough and separate review.236 The Commission agrees that a full review is desirable in the future but believes that it should not delay the implementation of specific measures set out in this report.
  4. 4.241 The Commission’s review of the victim’s role in the criminal trial process has generated useful reform ideas over the past 18 months that have informed recommendations for specific amendments to the Victims’ Charter Act. These should not be disregarded or delayed while awaiting the outcome of a review of the Act itself. In addition, the data currently collected about compliance with the Act is insufficient for a complete review
    to be conducted.
  5. 4.242 In this report the Commission makes specific recommendations to amend the Victims’ Charter Act and give the Victims of Crime Commissioner the responsibility to collect implementation data. The Commission considers that the Act should be reviewed fully
    in five years, by which time the effect of reforms introduced as a result of the present review could be evaluated.
  6. 4.243 The review would be comprehensive and would include the following areas of inquiry within its scope:
  • the effectiveness of reforms in ensuring that investigatory, prosecuting and victims’ services agencies respect the entitlements of, and obligations owed to, victims
  • whether victims should have a right to enforce through legal action some or all of
    the principles in the Victims’ Charter Act
  • whether victims have equal access to services regardless of race or Indigenous background, sex or gender identity, cultural or linguistic background, sexual orientation, disability, religion, age, or whether they live in a regional, rural or metropolitan location
  • the responsiveness of agencies to complaints about non-compliance with the Victims’ Charter principles and requests for review of decisions
  • whether there are gaps in the collection of data by investigatory, prosecuting and victims’ services agencies that impede the ability of the Commissioner to monitor
    the implementation of the Victims’ Charter Act.

Recommendation

  1. 14 The Victims of Crime Commissioner should lead a comprehensive review of the Victims’ Charter Act 2006 (Vic) not later than five years after the commencement of reforms recommended in this report.

 

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