5 Respect

 

Introduction

  1. 5.1 Victims want to be treated with respect by professionals in the criminal justice system, including the police, prosecution and defence lawyers, judges, magistrates and victim support workers.1 Treating victims with respect has more potential than other factors
    to significantly influence whether victims are satisfied with the criminal justice system.2
  2. 5.2 Treating victims with respect for their dignity means different things in different contexts. Respectful treatment manifests in the day-to-day personal interactions victims have with the professionals they encounter in the criminal justice system. It also overlaps with ensuring victims’ expectations are met and that those working in the criminal justice system comply with their obligations towards victims. Victims feel respected when they are provided with information, given opportunities to participate, protected from trauma and intimidation and able to seek reparation. This chapter recommends reforms that ensure that the concepts underlying respectful treatment for victims are properly reflected in the Victims’ Charter Act 2006 (Vic).
  3. 5.3 This chapter also discusses respectful treatment of victims in the courtroom, as the focal point of many victims’ experiences of the criminal trial process. While victims seek respectful treatment at all stages of the process, their experiences in the courtroom contribute significantly to their overall experience.

The Victims’ Charter principle

Respecting victims in law and practice

  1. 5.4 Recognising that all victims should be treated with respect is an object of the Victims’ Charter Act.3 In addition, the Victims’ Charter principle states that:

All persons adversely affected by crime are to be treated with courtesy, respect and dignity by investigatory agencies, prosecuting agencies and victims’ services agencies.4

  1. 5.5 Treating victims with courtesy and respecting their dignity should be simple, and yet
    it is difficult to describe how this principle should operate in practice.
  2. 5.6 Courtesy is synonymous with politeness, kindness and also with respectful treatment.5 Dignity is a more complex concept. Dignity is inherent to an individual; victims possess it, they are not treated with it. The Victims’ Charter principle that victims be treated with respect and dignity is more logically expressed as an obligation to treat victims with respect for their dignity. This expression is used in the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,6 as well as victims’ instruments in other Australian and overseas jurisdictions.7
  3. 5.7 Dignity is recognised in numerous national constitutions and international instruments that protect human rights and victims’ rights.8 It often carries different meanings in different contexts.9 The former victim representatives on the inaugural Victims of Crime Consultative Committee described dignity as being ‘about recognising and respecting our intrinsic worth as human beings, and being treated in a manner that is consistent with this respect’.10
  4. 5.8 Treating victims with respect for their dignity is about victims’ interpersonal interactions with those in the criminal justice system. Malini Laxminarayan describes this as ‘interpersonal justice’.11 Ultimately, victims navigating the criminal justice system seek respectful and positive personal encounters with those in authority.12
  5. 5.9 Victims feel respected when they are listened to, believed and not judged or dismissed
    by those in authority.13 Respectful treatment is about being interested and polite, showing concern and offering reassurance. Honesty, empathy and friendliness are also signs of respect.14
  6. 5.10 However, treating victims with respect is about more than politeness, sensitivity and kindness. Victims referred to respect when describing their need for information and support and to be consulted and included in decision making, and when recounting their experiences of cross-examination and the way they were treated by judges and lawyers
    in the courtroom.
  7. 5.11 As outlined in Chapter 3, victims have a number of expectations and entitlements throughout the criminal trial process. Whether victims feel respected depends on whether professionals working in the criminal justice system meet these expectations and comply with their obligations towards victims. For example:
  • Providing victims with information and support conveys to them that they are being listened to and that their needs and interests are valid.15 In Chapter 6, the Commission makes recommendations to ensure that information and support are provided to victims regularly, equitably and effectively.
  • Respecting the dignity of victims is about treating them as autonomous individuals with control over their lives.16 Including victims in decision making conveys to victims that their views matter.17 In Chapter 7, the Commission makes recommendations about the ways that victims can participate in the criminal trial process.
  • Using measures such as remote facilities and limits on cross-examination to prevent trauma and intimidation also protects victims from disrespectful treatment, both real and perceived, throughout the criminal trial process. Recommendations about protective procedures are made in Chapter 8.
  • There is a close connection between showing respect to the victim and protecting their privacy. In particular, ensuring that victims have some control over the use and disclosure of their personal information helps them retain their dignity. Some aspects of the criminal trial process expose victims’ private lives to scrutiny, and the extent to which this occurs should be limited to what is justified. Protecting victims’ privacy through measures that limit access to victims’ personal information are discussed in detail in Chapter 8.
  • Crime interferes with victims’ lives and harms them financially, psychologically, physically and in other ways. Providing victims with a means to access financial reparation seeks to repair some harm and restore dignity.18 In RK v Mirik and Mirik, Justice Bell described respect for the dignity of victims as having ‘found expression
    in legislation allowing criminal courts to order offenders to pay civil compensation
    to victims of crime’.19 Reforms about financial reparation are canvassed in Chapter 9.
  1. 5.12 Clearly, respectful treatment is a necessary precondition to, and an essential component of, recognising victims’ status as participants in the criminal trial process.
  2. 5.13 The Commission considers that the Victims’ Charter principle fails to capture the ideas central to respecting victims’ dignity. In Chapter 3, the Commission recommends that the Charter of Human Rights and Responsibilities Act 2006 (Vic) recognise the victim’s right
    to be acknowledged as a participant, treated with respect and protected from unnecessary trauma in criminal proceedings. Section 6(2) of the Victims’ Charter Act should reinforce this right by requiring that victims be treated with respect as participants in the criminal trial process. This would be a more meaningful construction than the existing principle, and would provide additional guidance to investigatory, prosecuting
    and victims’ services agencies.

Recommendation

  1. 15 Section 6(2) of the Victims’ Charter Act 2006 (Vic) should be amended to require investigatory, prosecuting and victims’ services agencies to treat victims with courtesy and to respect their dignity and their rights and entitlements as participants in the criminal trial process.

 

Respecting the needs of diverse victims

  1. 5.14 As outlined in Chapter 2, victims are affected by crime in different ways. Respectful treatment means responding to the diverse needs of victims. The Victims’ Charter principle recognises this, and obliges investigatory, prosecuting and victims’ services agencies to ‘take into account and be responsive to’ the diverse needs of victims,20
    in particular needs relating to:
  • race or Indigenous background
  • gender or sexual orientation
  • cultural or linguistic background
  • disability
  • religious views
  • age.21
  1. 5.15 In framing its recommendations, both those that apply generally and those that address specific issues, the Commission has been cognisant of the particular needs of victims with disabilities, Aboriginal victims, victims from culturally and linguistically diverse communities, and victims of gender-based offences involving sexual violence and family violence.22
Victims in rural and regional locations
  1. 5.16 The Centre for Rural Regional Law and Justice at Deakin University proposed in its submission that the Victims’ Charter Act expressly address the needs of victims in regional and rural locations. Such a reform would provide:

a basis for arguing for more service development for people in regional and rural areas and, more broadly, for more consideration of how any reforms to the criminal trial process impacts on victims with particular needs arising from their rurality or other attributes as currently listed in the Act.23

  1. 5.17 There is merit in this proposal. Compared to victims living in metropolitan Victoria, victims in rural and regional Victoria often receive less support and information, face greater barriers to effective participation, have more limited access to protective procedures during the criminal trial process, and experience difficulty in obtaining legal assistance to help with claims for compensation or financial assistance.24 The Victorian Royal Commission into Family Violence has also recognised the particular challenges faced by family violence victims living in rural and regional Victoria.25
  2. 5.18 An express reference to victims living in rural and regional Victoria in section 6(2) of the Victims’ Charter Act would draw attention to the fact that they have different needs and face unique barriers to support, protection and participation throughout the criminal trial process.
  3. 5.19 A key function of the Victims’ Charter Act is to act as an accountability tool. This
    is discussed in more detail in Chapter 4. Expressly recognising the particular needs of victims in rural and regional areas requires agencies to be accountable for identifying
    and addressing disparities in the provision of their services between metropolitan and rural and regional locations.

Recommendation

  1. 16 Section 6(2) of the Victims’ Charter Act 2006 (Vic) should be amended to include ‘living in a regional or rural location’ as a need that investigatory, prosecuting and victims’ services agencies must take into account and be responsive to.

 

Respect in the courtroom

  1. 5.20 Attending court is the focal point of most victims’ experience of the criminal trial process. In submissions and consultations, victims’ views about whether they were treated with respect were coloured by how they were treated by the judicial officer, the prosecution and the defence lawyer during court proceedings. For victims who were also witnesses, their treatment during cross-examination was also seen as a measure of the respect in which they were held.

Acknowledgment and respect

  1. 5.21 While some victims expressed satisfaction with the criminal justice process, many more expressed profound dismay at their treatment, including by the courts. This includes not being acknowledged, not being respected or protected, and not being provided with relevant information. The lack of protection was said to be especially marked in cross-examination of victim–witnesses, as discussed below at [5.36]–[5.37].
  2. 5.22 For many victims, respectful or disrespectful treatment by judges or magistrates carries weight and is remembered long after the finalisation of criminal proceedings. Victims told the Commission of occasions when they were not properly acknowledged by judges or magistrates,26 and how they made remarks that victims considered minimised the offending.27 Such comments may be received as upsetting and disrespectful.
  3. 5.23 The attitudes and demeanour of lawyers and judicial officers as they interact with one another in the courtroom also matter. Lawyers were described as ‘flippant’,28 and as treating court proceedings of considerable significance in a routine and mechanical fashion.29
  4. 5.24 Many victims viewed appeal proceedings as particularly unconcerned with their interests. They described appeal proceedings as ‘cold’30 and ‘detached’,31 with one victim observing that the lawyers and judge treated the matter like ‘just another day at the office’.32 Other victims said they felt entirely excluded from and unacknowledged in the appeal process.33
  5. 5.25 Respecting a victim’s dignity requires judicial officers and lawyers to conduct themselves in a way that recognises that court is not a workplace for victims, and that coming to court may be a momentous and highly distressing experience. This means demonstrating some empathy for victims’ emotions. Victims consulted by the Commission described being discouraged from or reprimanded for showing emotion in the courtroom.34
    They considered this to be disrespectful of the harm they have suffered.35
  6. 5.26 For the family of victims who have been killed, disrespect was also manifested in hearing their loved one described as ‘the deceased’ by the judge, prosecutor and defence lawyer.36 Repeated references to a loved one as ‘the deceased’ is distressing and rendered them invisible.37 Family victims emphasised to the Commission the importance of their loved one being acknowledged in the courtroom.38

The need for reform

  1. 5.27 Judicial officers are a symbol of the authority of the court and criminal justice system.39 Respectful treatment by judicial officers is evidence to victims that they have a status in the criminal trial process and that they are valued as members of the community.40 The centrality of the courtroom experience to victims is reflected in research published by the Victims Support Agency in 2014, which highlights the importance for victims of having their interests acknowledged by those in authority in the courtroom.41
  2. 5.28 More could be done to ensure that victims’ interactions with judicial officers and lawyers in the courtroom are respectful. In part, this is a matter of educating and training judges, magistrates, prosecutors and defence lawyers to understand victims’ experiences and to behave in a way that takes their needs into account. Recommendations are made in Chapter 4 about professional education.
  3. 5.29 Given the importance to victims of courtroom conduct, specific guidance tailored to the court environment is warranted. Such guidance could be included in bench books, to guide judges and magistrates in their interactions with victims in the courtroom.42 Bench books are regularly referred to by judges and magistrates in the course of administering criminal proceedings, and provide a useful source of practical education.43
  4. 5.30 In Victoria, practical guidance for judicial officers conducting criminal trials or sentencing hearings can be found in a number of resources, including the Uniform Evidence Manual,44 the Victorian Criminal Charge Book,45 the Victorian Sentencing Manual,46 and the Criminal Proceedings Manual.47 The Criminal Charge Book is ‘used extensively by Victorian judges’, and is an ‘invaluable resource’ providing ‘detailed guidance’.48
  5. 5.31 Bench books may also provide practical guidance about responding to the needs of people who come before the court. The Judicial College of Victoria is currently working with the Victorian Equal Opportunity and Human Rights Commission to develop a Disability Access Bench Book that aims to ‘assist judicial officers to meet the diverse needs of people with disabilities in court’.49
  6. 5.32 Practical guidance about responding to the needs and interests of victims could be included in these resources, or a separate and tailored resource could be developed.
    That is a matter for the Judicial College of Victoria to determine, in consultation with Victorian judges and magistrates.
  7. 5.33 A number of contributors addressed the question of how victims could be properly acknowledged in the courtroom.50 Based on those submissions, and on comments made by victims and victim support workers, the Commission considers the following matters could be included in guidance material:
  • How to refer appropriately to victims who have been killed as a result of a crime,
    and specifically, avoiding the practice of referring to them as ‘the deceased’.
  • Acknowledging the victim’s presence in the courtroom.51
  • Explicitly ensuring victims are aware of what is happening in the proceedings.52
  • Using sensitive and compassionate language.53
  • Allowing victims to express emotions in the courtroom (where doing so does
    not prejudice the jury against the accused).54
  • In the context of sentencing proceedings, confirming that victims understand
    the full circumstances of the offending and taking the time to clarify the principles
    of sentencing.55
  • In the context of appeals, an explanation by the court to victims that appellate proceedings focus on matters of law rather than a review of the evidence.
  1. 5.34 The list above aims to ensure victims are treated humanely and with respect for their dignity. While care must be taken not to undermine the presumption of innocence or prejudice the jury against the accused, victims can be treated respectfully and with greater sensitivity without infringing on the accused’s right to a fair trial.
  2. 5.35 The Commission does not consider the practice of referring to victims who have been killed as ‘the deceased’ to be necessary. Referring to an individual by their name humanises them. Humanising a victim who cannot be physically present in the courtroom should not be considered as prejudicing the jury against the accused or undermining the presumption of innocence.

Recommendation

  1. 17 The Judicial College of Victoria, in consultation with the heads of jurisdictions, should include in its practical guides for judicial officers information and guidance about responding to the needs and interests of victims in the courtroom, including preferred practices in acknowledging victims in the courtroom and referring to deceased victims by name rather than as ‘the deceased’.

 

 

Victims as witnesses

Manner and content of questioning

  1. 5.36 Giving evidence, and in particular being cross-examined, can be one of the most challenging aspects of the criminal trial process for victims. Many victims consulted by the Commission felt disrespected by the way they were treated during cross-examination and the type of questions they were asked. Cross-examination was described as:
  • humiliating56
  • distressing57
  • brutal, abrupt and traumatising58
  • intense, offensive, ruthless and terrible59
  • aggressive and insensitive60
  • repetitive61
  • confusing62
  • damaging and gruelling63
  • horrid and intimidating64
  • bullying65
  • persistent, distracting, patronising, hectoring and badgering66
  • stressful67
  • awful, attacking and designed to unravel [the victim]68
  • harassing69
  • bad, frustrating, inappropriate, and embarrassing70
  • like being on trial.71
  1. 5.37 Not all victims found cross-examination difficult, with some describing it as not too difficult,72 easy,73 and not overly disrespectful.74
  2. 5.38 While the language used by victims varies, it is clear that the experiences of cross-examination described above are related to treating victims with respect for their dignity. The following section discusses reforms designed to ensure that cross-examination is conducted respectfully and appropriately.

 

Legislative and policy framework

  1. 5.39 Cross-examination has been described as the ‘cornerstone of the adversarial system’.75 Cross-examination aims to test the accuracy of the witness’s version of events and his or her credibility.76 All jurisdictions with adversarial criminal justice systems have laws that prohibit witnesses, including victims, being asked improper questions during cross-examination. In sexual offence cases, there are additional restrictions on asking victims about their sexual history.

Improper questions

  1. 5.40 In Victoria, the rules against improper questioning are in the Evidence Act 2008 (Vic). Section 41 of the Act gives judicial officers the discretion to ‘disallow an improper question or improper questioning put to a witness in cross-examination, or inform
    the witness that it need not be answered’.77
  2. 5.41 An improper question or improper questioning is defined as:

a question or sequence of questions put to a witness that—

(a) is misleading or confusing; or

(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating
or repetitive; or

(c) is put to a witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or

(d) has no basis other than a stereotype (for example a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).78

  1. 5.42 Judges and magistrates have no choice but to disallow an improper question if the witness is a vulnerable witness.79 This is in contrast to the discretion afforded in relation
    to witnesses not deemed vulnerable. A vulnerable witness, which includes a victim,
    is defined as a witness:
  • under the age of 18; or
  • with a cognitive impairment or intellectual disability; or
  • whom the court considers to be vulnerable having regard to:

– a condition or characteristic of the witness such as age, level of education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and mental or physical disability; and

– the context in which the question is put, including the nature of the offence to which the proceeding relates and whether there is a relationship between the witness and the accused.80

  1. 5.43 The manner of questioning in court is also guided by professional standards that regulate the conduct of barristers and solicitors. These standards state that barristers must not ask improper questions in cases involving allegations of sexual assault, indecent assault or some other form of indecency.81 This obligation differs from that imposed by the Evidence Act, which requires judicial officers to disallow improper questions in cases involving vulnerable witnesses, and is not limited to certain types of offences.82

Questions about sexual history

  1. 5.44 In sexual offence cases there are limits on the subject matter of the questions. In Victoria, and across all Australian jurisdictions, questions about ‘the general reputation of the victim with respect to chastity’ are prohibited.83 In addition, questions or evidence about the victim’s sexual activities can only be asked with permission from the judge.84
  2. 5.45 These restrictions recognise that evidence of a victim’s sexual history has historically relied upon discriminatory gender stereotypes to undermine the credibility of the victim or suggest the accused was reasonable in believing the victim consented.85 For victims, questioning about their sexual history is distressing, embarrassing, humiliating and invasive.
  3. 5.46 The Victorian provisions provide that judicial officers can only allow questions or evidence about a victim’s sexual activities (other than those to which the charge relates) if they are substantially relevant to a fact in issue and are in the interests of justice.86 When considering whether to allow the question or the the evidence, the judge or magistrate must have regard to:
  • whether the value of the evidence outweighs the potential distress, humiliation and embarrassment allowing the questioning or admitting the evidence will cause the victim (taking into account the victim’s age and the number and nature of the questions)
  • the risk that it might arouse in the jury a discriminatory belief or bias, prejudice, sympathy or hostility
  • the need to respect the victim’s personal dignity and privacy
  • the right of the accused to fully answer and defend the charge.87
  1. 5.47 In Victoria, the Charter of Advocacy for Prosecuting or Defending Sexual Offence Cases was developed by the Department of Justice Sexual Assault Advisory Committee and is intended to provide guidance to prosecutors and defence lawyers about ‘good conduct’ in court proceedings for sexual offence cases.88
  2. 5.48 In relation to the manner and content of questioning, the Charter of Advocacy stipulates that prosecutors should ‘Actively object to unwarranted and irrelevant cross-examination by a defence barrister and seek the court’s intervention where cross-examination is considered to be inappropriate or oppressive’ and ‘Proactively challenge myths and stereotypes about sexual offending and victims of sexual offences that arise in court’.89

The need for reform

Improper questions

  1. 5.49 The extent and nature of improper questioning are more difficult to evaluate in practice. Cross-examination involves challenging the accuracy or truthfulness of a victim’s evidence and drawing out inconsistencies and inaccuracies in their version of events. Therefore, cross-examination that is not improper may still make a victim feel offended, humiliated, or distressed.90
  2. 5.50 This difficulty is illustrated by the conflicting information received by the Commission about the extent to which improper questioning occurs in practice. Victims, victim support workers, legal professionals and some members of the judiciary told the Commission that judicial intervention is not always adequate and improper questioning still occurs.91
  3. 5.51 In contrast, the Law Institute of Victoria and the Victorian Bar and Criminal Bar Association stated that improper questioning is rare and that judicial officers are adequately enforcing existing protections.92 Many members of the legal profession described how the nature of cross-examination has changed: aggressive cross-examination is no longer the norm and only a small number of defence lawyers ask inappropriate questions.93
  4. 5.52 A strong theme in submissions and consultations was that there is clearly a gap between what victims and the legal profession consider appropriate questioning. Bridging the divide requires a number of measures.
Information and education
  1. 5.53 To an extent, the problem is one of perception and a lack of information. The Law Institute of Victoria, the Victorian Bar and Criminal Bar Association, victim support workers and victims readily agreed that victims’ experiences of cross-examination can
    be improved by providing them with more information about what to expect, as well
    as the purpose of cross-examination and the key role it plays in adversarial criminal justice systems. The provision of information to victims by the prosecution is discussed in
    Chapter 6.
  2. 5.54 Prosecutors, judges and magistrates should be consistent about what constitutes improper questioning and when to intervene to stop it. Defence lawyers should possess the knowledge and expertise to fairly and appropriately cross-examine victims. Ensuring consistent understanding and application of the existing prohibition on improper questioning is closely linked with cultural change in the legal profession (discussed
    in Chapter 4).
 
Expanding the prohibition
  1. 5.55 There is also a role for legislative reform. The Evidence Act imposes a duty on judges to intervene when vulnerable victims are subjected to improper questions. The Commission considered whether this duty should be expanded to some or all victim–witnesses, as
    a measure to reduce or eliminate improper questions.
  2. 5.56 Members of the judiciary consulted by the Commission, lawyers at the Office of Public Prosecutions (OPP), as well as victims and victim support workers, expressed support for this proposal.94 The Law Institute of Victoria and the Victorian Bar and Criminal Bar Association were not in favour.95
  3. 5.57 The Commission’s consultations, previous research and academic commentary indicate that some judicial officers can be reluctant to intervene in questioning. Their reluctance is based on concern about appearing partial, prejudicing the accused’s fair trial and attracting criticism from the Court of Appeal.96 Some judges suggested to the Commission that expanding the duty to intervene in improper questioning would address this reluctance.97
  4. 5.58 The scope of the prohibition on improper questions was considered by the Australian Law Reform Commission (ALRC), the New South Wales Law Reform Commission (NSWLRC) and the Victorian Law Reform Commission in their joint report on the Uniform Evidence Act in 2006.98 In that report, the ALRC and the NSWLRC recommended that the duty imposed on judicial officers to intervene in improper questioning should apply to all witnesses, not just vulnerable witnesses.99 The current Evidence Acts of New South Wales, the Australian Capital Territory and Tasmania reflect the ALRC’s recommendation.100 South Australia’s equivalent provision imposes a duty to intervene in relation to all witnesses.101
  5. 5.59 In contrast, the Commission at that time stated that ‘a separate provision to deal with questioning of vulnerable witnesses is likely to be a more effective means of protecting people who fall in this category’.102 It was concerned that the broader approach might lead to judicial officers interfering inappropriately and therefore compromising the fact-finding process.103
  6. 5.60 The Commission no longer supports this earlier position. During this reference, submissions and consultations have indicated that judicial intervention into improper questioning remains inconsistent. The Commission is therefore persuaded that improper questions should be disallowed in all circumstances. Further and significantly, no reason was advanced to justify any question which is improper being asked during court proceedings.
  7. 5.61 Expanding the prohibition on improper questions avoids the possibility of a vulnerable victim being deprived of the protection they require because their vulnerability has not been identified. The Victorian Equal Opportunity and Human Rights Commission observed that people with communication difficulties may not always be identified as vulnerable, despite facing significant barriers to giving evidence.104 This reasoning could be extended to other vulnerabilities that are not easily identified. Requiring judges to intervene when any witness is asked an improper question avoids the need to assess
    a witness’s vulnerability.
  8. 5.62 Disallowing improper questions does not deflect or diminish the important right of the accused to properly cross-examine or challenge the evidence against them.105 The community has an interest in trials being conducted fairly and verdicts being reached without victims being cross-examined improperly. Concerns held by the Commission
    in 2006 that a blanket duty to disallow improper questions might lead to inappropriate judicial intervention have not materialised elsewhere.
  9. 5.63 The Commission considers that the Victorian Evidence Act should be brought into line with the Evidence Acts of New South Wales, Tasmania, Australian Capital Territory and South Australia.106 The Commission’s terms of reference restrict it to making recommendations in relation to the role of the victim. The Commission recommends below that section 41 of the Evidence Act should be amended to ensure judicial intervention when victims are improperly questioned. Further consideration should
    be given to whether the prohibition is expanded to all witnesses generally.

Recommendation

  1. 18 Section 41 of the Evidence Act 2008 (Vic) should be amended to require
    a judicial officer to disallow improper questioning in relation to all victims,
    in accordance with the Uniform Evidence Act provisions adopted by
    New South Wales, Tasmania and the Australian Capital Territory insofar
    as they relate to victims.

 

Questions about sexual history

  1. 5.64 The Supreme Court and County Court do not keep data about how many applications to cross-examine a victim about their sexual activities are made or granted. Material gathered by the Commission suggests that these applications are rarely made, and cross-examination in relation to sexual activities occurs infrequently.107
  2. 5.65 This assessment is supported by findings made in the 2011 Final Evaluation Report of the Sexual Assault Reform Strategy, which noted that applications were made and ‘granted on occasion’, and that the provisions were ‘generally regarded as working as intended’.108 The Commission therefore considers there is no need to make a recommendation for reform.

Victims’ presence in court

  1. 5.66 Acknowledging and respecting victims in the courtroom requires victims to have a place in the courtroom. For the most part, victims are permitted to be present during the criminal proceedings that relate to the crime committed against them. However, this
    is limited by section 336A of the Criminal Procedure Act.
  2. 5.67 Section 336A(1) gives the court the power to order victims who are witnesses ‘to leave the courtroom until required to give evidence’.109 The court may make this order ‘only if the court considers it appropriate to do so’.110 Section 336A(1) ensures that the judge or magistrate can prevent victims who are witnesses from having their evidence influenced by what is said by other witnesses, the judge, prosecutor or the accused’s lawyer
  3. 5.68 Subsection (2) of section 336A also provides:

Nothing in this section prevents the court from ordering a victim who is a witness
to leave the courtroom at any time after giving evidence.

  1. 5.69 The Commission considers this part of the provision is unnecessary. Once their evidence is given, victims should be entitled to be present in the courtroom. The Commission acknowledges that there may be circumstances in which a victim’s behaviour warrants their removal from the courtroom, such as when their conduct risks prejudicing the jury against the accused or disrupts the orderly conduct of proceedings. The court’s inherent power to control the conduct of proceedings and ensure a fair trial is adequate to
    address this.

Recommendation

  1. 19 Subsection (2) of section 336A of the Criminal Procedure Act 2009 (Vic) should be repealed.

 

Respect in the court process

Victims’ experiences of delay

  1. 5.70 Unnecessary delay can have significant adverse effects on victims. Victims spend considerable time and emotional energy preparing for important court dates, such as committals, trials and sentencing. Some victims have mental illnesses which require management in the lead-up to hearings.111 When these hearings are delayed, especially
    at the last minute, it can be traumatising, distressing and frustrating.112
  2. 5.71 Delays impede victims’ ability to recover and get on with their lives.113 They also have practical consequences. Victims may need to take time off work or study, and put in place arrangements for the care of children and businesses.114 The impact of delays may be more acute in regional Victoria, where adjournments may be for longer.115 Delays create uncertainty for victims; knowing that a case will be finalised within a certain timeframe can be as important as how long it takes to resolve.
  3. 5.72 Delays occur for a large number of reasons. They may be related to system-wide problems, such as insufficient court staff, judges or courtrooms, an increase in the number of proceedings, or inadequate technology.116
  4. 5.73 Delays may also be related to a specific case. The defence or prosecution may need more time to prepare.117 Delays can be the result of the need for legal argument in the lead-up to a trial. Last-minute discussions between the defence and prosecution about decisions to accept a plea of guilty to lesser charges or other issues can also cause delays.118 Problems might arise with the availability of witnesses or the listing of other matters.119
  5. 5.74 Not all delays are avoidable or unnecessary. For example, delay caused by an adjournment to allow a victim time to prepare their victim impact statement may be considered necessary, and will benefit the victim.
  6. 5.75 The Commission is concerned with avoidable and unnecessary delay. Efforts to reduce avoidable and unnecessary delays are part of showing respect for victims. It indicates to victims that their time and input is valued and acknowledges their status in the criminal trial process. Accused persons and the community also benefit from reductions in delays and the more efficient administration of justice.

Reducing delays

  1. 5.76 Reducing avoidable delays requires a range of initiatives. These initiatives may be system-wide, such as resourcing and effective technology for case management.120 Prosecution and defence lawyers also need to prepare their cases well in advance of significant court dates and courts must be willing to undertake robust case management. Ultimately, there must be a determination by all criminal justice professionals to avoid delays.121
  2. 5.77 Efforts to reduce delays are hampered by a lack of data about the exact causes of delay and the timeliness of trials and other criminal processes. This is partly because
    of ageing information technology systems, from which only high-level information can be extracted.122 The Supreme Court and County Court have recently improved the technology underpinning their case-management processes, which should contribute
    to efforts to reduce delays and capture data about what causes them.123
  3. 5.78 In addition, the Supreme Court and County Court have implemented measures aimed at reducing delays. These measures have primarily involved earlier directions hearings following committal for trial from the Magistrates’ Court, closer case management of proceedings and improvements to listings procedures.124 For the most part, these measures have been directed towards ensuring parties prepare early and listing cases
    so as to optimise the use of court resources.

 

Outcomes

  1. 5.79 These initiatives have led to some reduction in delays. In the County Court, the time that elapses between the committal hearing and the trial is consistently reducing.125 This has been particularly pronounced in regional areas.126 In the last five financial years, between 83 and 87 per cent of cases were disposed of within 12 months of the committal hearing.127 There has also been a substantial reduction in the number of trials that do not start as scheduled, but which must be adjourned to another date.128
  2. 5.80 Gains have also been achieved in the Supreme Court, although less information is publicly available. Within the criminal trial division of the Supreme Court, the number of cases pending for more than 12 months, and the number pending for more than 24 months, have decreased since 2010–11, although they increased somewhat in the 2013–14 financial year.129 The Supreme Court attributed this increase to a range of factors, including fewer judges, longer trials and a number of large trials being adjourned or collapsing altogether.130 Case management in the Supreme Court is complicated by the nature of the cases it deals with: there are fewer cases but they tend to be more complex. In addition, a greater proportion of cases are trials, because fewer people plead guilty in the Supreme Court.131
  3. 5.81 In both the Supreme Court and the County Court, the average length of trials has increased in recent years.132 Longer and more complex trials present greater scheduling challenges, which can delay a trial starting. Once the trial starts, victims may face longer periods of uncertainty about the day and time at which they are expected to give evidence. Undoubtedly, the increasing complexity of criminal trials is adding to trial lengths, creating challenges in managing delay. Victim-oriented reforms, including some of those recommended in this report, can further contribute to this complexity.

The future

  1. 5.82 The Supreme Court and the County Court acknowledge the positive impact that reducing delays has on victims.133 The County Court has made reducing delay from charge to finalisation a major project for 2015–16.134 The recent efforts of the courts to reduce delays are commendable and should continue.
  2. 5.83 In light of existing measures to reduce delays, the Commission does not consider it necessary to make further recommendations. However, the importance of reducing delays for victims should continue to be an express justification for ongoing efforts by courts. As a systemic issue that affects victims, the Commission considers delays to be within the remit of the functions of the Victims of Crime Commissioner, who should monitor the effectiveness of the courts’ efforts to reduce delays.135

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