6 Information and support

 

Introduction

  1. 6.1 The criminal trial process can be daunting for victims, so it is essential that they receive appropriate information and support. Whether victims experience the process as fair will depend in part on how well they are prepared and supported.1 It matters what information they receive, who gives it to them, and under what circumstances. Their experience is affected by their capacity to process and respond to this information.
  2. 6.2 The Director of Public Prosecutions (DPP) and Office of Public Prosecutions (OPP) in Victoria bear most responsibility for ensuring that victims are informed and referred to support during the criminal trial process. This chapter examines the relationship between victims and the prosecution before turning to examine whether victims need access to legal advice and assistance that is independent of the prosecution.
  3. 6.3 In accordance with the Commission’s terms of reference, this chapter focuses on information and support provided in connection with the criminal trial process. The Commission appreciates that victims need to be informed of their options for practical and emotional support whether or not criminal proceedings are commenced. They should be referred early by police to the Victims of Crime Helpline or directly to a support service. From the Helpline, referrals can be made to a Victims Assistance Program provider or to specialist services such as Centres Against Sexual Assault or family violence services. Thus, by the time the DPP takes responsibility for a prosecution and court proceedings commence, victims should have been linked to the support they need. There are, however, some gaps which were brought to the Commission’s attention and they are discussed briefly at the end of this chapter.

Information and support throughout the criminal trial process

Law and policy framework

  1. 6.4 The Victims’ Charter Act 2006 (Vic) requires investigatory, prosecuting and victims’ services agencies to provide victims with information about support services, possible entitlements and legal assistance, and to make referrals where appropriate.2 It also requires prosecuting agencies to provide certain information about the prosecution
    to victims.3

 

Prosecutorial obligations towards victims

  1. 6.5 Victoria’s public prosecutions service comprises the DPP, who is the head of the service; the Chief Crown Prosecutor; Crown Prosecutors; Associate Crown Prosecutors; the Solicitor for Public Prosecutions; and the OPP.4 Each component has a statutory obligation to give ‘appropriate consideration to the concerns’ of victims.5
  2. 6.6 Generally, the DPP has responsibility for instituting, preparing and conducting the prosecution of indictable offences in the Supreme and County Courts.6 The DPP must ensure that prosecutions are conducted in an ‘efficient, economic and effective manner’.7 Crown Prosecutors, Associate Crown Prosecutors and barristers from the Victorian Bar are briefed to appear in court for the prosecution and in doing so, they act on behalf of the DPP.8 They are typically instructed by an OPP solicitor, who has responsibility for managing the prosecution case. Together, they form the prosecution team.
  3. 6.7 The DPP is a ‘prosecuting agency’ for the purposes of the Victims’ Charter Act.9 The DPP’s obligations under this Act and other legislation are the basis of internal policies that guide day-to-day processes and decision making by the DPP and OPP. Principally, the Director’s Policy: Victims and Persons Adversely Affected by Crime (Victims Policy), outlines the vast majority of obligations that OPP staff and solicitors have towards victims.10
  4. 6.8 The DPP’s Victims Policy is comprehensive. It identifies the information and referrals to support that OPP solicitors and staff are required to provide to victims at different stages of the criminal trial process. These obligations guide the DPP’s and OPP’s relationship with victims. The OPP’s booklet for victims, Pathways to Justice, includes options for support and information relevant to the criminal process.11
  5. 6.9 When responsible for a prosecution, OPP solicitors have specific obligations towards the victims. These include:
  • to refer victims to support services as early as possible, including the OPP’s Witness Assistance Service when a prosecution involves a death, a child victim, a victim with
    a disability or cognitive impairment, a sexual offence, or family violence
  • to inform victims about the progress and outcome of cases
  • to inform victims about court processes and, where applicable, their role as a witness for the prosecution
  • to inform and consult victims about decisions to accept a plea of guilty to lesser charges or to modify charges (plea resolution decisions) and decisions to discontinue
    a prosecution (decisions to discontinue)
  • to inform victims about their right to provide a victim impact statement and possible entitlements to compensation, restitution and financial assistance.12
  1. 6.10 The prosecution team is the most authoritative source of information about the criminal trial process for victims. It is vital that prosecution lawyers understand and comply with their obligations.

Court support services

Witness assistance services
  1. 6.11 Two specialist services provide victims with direct support and information in connection with their involvement with the court process. The Witness Assistance Service sits within the OPP. The Child Witness Service sits within the Department of Justice and Regulation and provides a specialist service for child witnesses.
  2. 6.12 The OPP Witness Assistance Service prioritises support for those who have lost family members, victims and witnesses in sexual offence and family violence cases, and vulnerable victims.13 It is staffed by social workers who help OPP solicitors meet their information obligations. Support and assistance include:
  • meetings before and after major court dates
  • familiarisation tours of the court
  • answering questions about court processes
  • referral to other victim support services.14
  1. 6.13 The Child Witness Service provides support and education to child witnesses, including victims, and prepares them for their role.15 The service is staffed by specialist caseworkers who assess each child’s needs, including their developmental stage and communication capacity. The independence of the Child Witness Service from the OPP means it can advocate for the child’s needs and provide a service to judges and defence lawyers, as well as the prosecution.16 Where the child is a witness for the prosecution, the assessment is conveyed to the OPP. In court, the Child Witness Service worker may inform both the prosecution and the court about the child’s physical or emotional needs while giving evidence. However, its role is not to advise the judge, prosecutor or defence about how
    to communicate effectively with a particular child.17
Other sources of support and information at court
  1. 6.14 The relationship built between the police informant and a victim does not end when
    a prosecution is taken over by the DPP. Victoria Police told the Commission that it aims
    to support victims from point of first contact until the finalisation of their matter.18 For some victims, the police informant remains their first and most trusted point of contact. Victims generally spoke positively about the consistency and accessibility of the services they received from the police informant.19
  2. 6.15 Court Network Inc is an independent service that is available to victims, accused persons and their families on a non-partisan basis. Trained Court Network volunteers provide information, support and referral within court precincts across Melbourne and regional Victoria and also across Queensland.20 Court Network does not provide legal advice.
  3. 6.16 In addition to receiving court-focussed assistance from the above services, victims may also receive practical and emotional support from one of six community-based Victims Assistance Program providers funded by the Victims Support Agency, or from a Centre Against Sexual Assault, family violence service, or other service. The Victims Assistance Program and Centres Against Sexual Assault are key sources of assistance for victim impact statements, which are discussed in Chapter 7.21

Expectation and experience

  1. 6.17 The timely provision of support and accurate and accessible information can improve victims’ experience of the court process, their perceptions of fairness and ultimately their confidence in the legal system.22 It helps to manage expectations about their role in the criminal trial process and allows them to engage in an informed manner. Victims of crime who spoke to the Commission emphasised the importance of information and support
    to their journey through the criminal justice system. One victim described information
    as ‘key’ and ‘crucial’ in terms of helping her and her child understand, and prepare for, being witnesses.23 Colleen Murphy (Kelly) stated that ‘Knowledge and being informed
    is empowering.’24
  2. 6.18 Consultations and submissions tended to discuss victims’ expectations and experiences
    of information and support in the context of particular stages of the trial process.25
    This informs the structure of the discussion below.

Progress and outcomes

  1. 6.19 The DPP’s Victims Policy demonstrates a commitment to ensuring that victims are kept informed. Victims are to be kept updated about the progress of a prosecution, including guilty pleas, and the outcomes of committal mentions, contested committals, initial directions hearings, trials, pleas, sentencing and appeals.26 In addition, OPP solicitors should ensure that victims know the date, time and location of a contested committal, trial, plea hearing, sentencing hearing and appeal hearing.27
  2. 6.20 Victims generally appear to be kept informed about the progress of prosecutions conducted in the Supreme and County Courts in Melbourne.28 The experience of victims in regional areas, and those living interstate, is more variable. The Commission was told, for example, by a parent whose child had been killed, that she was not informed of sentencing hearing dates and was therefore not able to attend.29 The challenges for regional prosecutions are discussed below.

Prosecutorial decisions about charges

  1. 6.21 Decisions to discontinue and plea resolution decisions can be made at any time except during a trial.30 The impact of these decisions is not only emotional. They can also affect whether a victim impact statement can be provided to the court and what that statement can contain, potential claims for compensation or financial assistance, and whether a victim will be required to give evidence at a committal hearing or trial.
  2. 6.22 The Victims’ Charter Act and the DPP’s policies require prosecution lawyers to ensure
    that victims are informed about decisions to:
  • file new charges
  • substantially modify charges
  • not proceed with some or all charges
  • accept a plea of guilty to lesser charges.31
  1. 6.23 A survey of victims in 2014 found that most were informed about plea resolution decisions and decisions to discontinue by the OPP.32 The Commission’s submissions and consultations suggest some inconsistency in practice.33 For example, one victim told the Commission that she was not directly contacted by the OPP about decisions to accept guilty pleas to lesser charges against a number of offenders in relation to the death of
    her child.34
  2. 6.24 Prosecution lawyers must be able to explain the considerations relevant to plea resolution decisions and decisions to discontinue effectively.35 As part of this, it is critical that victims understand that prosecution lawyers do not represent them and that the prosecution must act fairly, impartially and in the public interest. A few victims who spoke to the Commission did not appreciate this.36

Pre-trial matters

  1. 6.25 In the lead-up to the trial, the parties identify matters about the conduct of the trial that require resolution or a decision by the judge before the trial starts.37 Matters that directly concern the entitlements of victims, and affect the victim’s subsequent experience of giving evidence, include:
  • applications to subpoena, access or use confidential communications
  • the use of special hearings and alternative arrangements for giving evidence.38
Confidential communications
  1. 6.26 The defence will sometimes seek to access a victim’s personal records during criminal proceedings. In sexual offence cases, victims have a statutory right to seek leave to appear in court in response to an application to subpoena, access or use confidential medical or counselling records.39 The obligation to inform the victim that an application has been made lies with the police.40 An internal DPP policy states that prosecution lawyers should inform the victim that they are entitled to be represented by their own lawyer and seek leave to make submissions. They may also refer the victim to legal assistance.41
  2. 6.27 It is important that victims are informed about this legal entitlement by the prosecution and can access legal assistance. The Commission was told by victims, Victoria Police and victim support specialists that this is not occurring regularly.42
Alternative arrangements for giving evidence
  1. 6.28 Alternative arrangements can be made for victims of sexual offences and family violence who are required to give evidence. Where a victim of a sexual offence seeks to give evidence in the courtroom and without the use of a screen or a support person, their wishes must be considered by the court.43
  2. 6.29 While comprehensive information for victims is provided in the OPP’s Pathways to Justice booklet, prosecution lawyers are not subject to any obligation to inform victims about alternative arrangements or that the court will consider the victim’s views.44 The County Court has forms that must be filed by the prosecution in sexual offence cases involving child victims and victims with a cognitive impairment and in family violence cases.45 These forms require the prosecution to address arrangements for evidence and indicate whether the victim has been referred to support.
  3. 6.30 During consultations, several participants expressed concern about the adequacy and timing of the information provided to victims about alternative arrangements for giving evidence, particularly in regional Victoria. This issue is discussed in Chapter 8.

Committal and trial

  1. 6.31 Many victims give evidence at a committal or trial. The prospect of appearing in court, giving evidence and being cross-examined can be terrifying. Disability, youth, and cultural and language issues can create additional challenges when giving evidence because of the justice system’s traditions, the adversarial approach and the emphasis on oral evidence.
  2. 6.32 Information and support can help victims give their best evidence and reduce the potential for trauma by:
  • helping victims understand their role as a witness and prepare themselves emotionally
  • ensuring that victims are able to give their evidence without preventable disadvantage46
  • addressing their wellbeing before, during and after giving evidence.
  1. 6.33 Providing tailored information to victims who are witnesses can create challenges for prosecution lawyers for two main reasons. First, the prosecution has broad and ongoing disclosure obligations towards the defence throughout the trial process. All relevant,
    and possibly relevant, material must be disclosed to ensure a fair and impartial trial
    for the accused.47
  2. 6.34 Secondly, like all lawyers, prosecution lawyers are prohibited from rehearsing or coaching a witness’s evidence.48 However, coaching refers to the provision of advice about what answers a witness should give. A lawyer will not breach the prohibition against coaching by ‘expressing a general admonition to tell the truth’, ‘questioning or testing
    in conference the version of evidence to be given’ or drawing ‘attention to inconsistencies or other difficulties with the evidence’, so long as they do not encourage the witness to give evidence different to what the witness believes to be true.49 Prosecutors can assist witnesses to prepare for giving evidence ‘by providing the witness with information about the issues in the case and suggesting that the witness read their statement prior to giving evidence’.50
  3. 6.35 Prosecution lawyers are required to inform victims about the trial process and their role as a witness for the prosecution.51 The DPP’s Victims Policy states that OPP solicitors must offer a pre-committal or pre-trial conference with the Witness Assistance Service to any person appearing as a witness, including victims, where that person:
  • is a child under 16 years
  • is a sexual offence victim
  • has a disability or cognitive impairment.52
  1. 6.36 A separate policy obligation states that OPP solicitors should ensure that a conference with the Witness Assistance Service is offered to ‘all victims who are to give evidence
    for the prosecution’.53
  2. 6.37 In cases involving death, OPP solicitors should offer family victims a pre-committal or pre-trial conference with the Witness Assistance Service, regardless of whether those victims are witnesses.54 Victims who are not witnesses can be provided with more information about the facts of the case which can help them prepare for what they will hear during court proceedings.55 In family violence cases, OPP solicitors should consult the Witness Assistance Service to determine whether a conference is appropriate.56
  3. 6.38 The Commission was told that victims are not always given enough information or guidance, or time to ask questions about giving evidence.57 This appears to be a more acute problem for trials held in regional areas because prosecution lawyers have less time to meet with victims.
  4. 6.39 Victims also need an opportunity to meet with prosecution lawyers at the conclusion of a committal or trial or after giving evidence, to ask questions and gain a better understanding of what has taken place in court. There is no express requirement in law
    or policy for prosecution lawyers to do this. Some victims leave court feeling shaken
    and distressed after giving evidence.58

 

Sentencing

  1. 6.40 A number of victims told the Commission that they found it difficult to understand why information about the offender dominates sentencing hearings, while the victim’s life and experience of the crime are barely mentioned.59 This can be addressed in part by preparing victims for the sentencing process. Based on comments during consultations and in submissions, the Commission identified that victims need to know:
  • the purposes of, and factors relevant to, sentencing and how these relate to the offender’s circumstances and defence submissions
  • the duties of the prosecutor at a sentencing hearing
  • the purposes and use of maximum sentences, cumulative sentencing and concurrent sentencing
  • the role of victim impact statements, what content is permitted and alternative arrangements for reading out a statement60
  • the option of applying for compensation or restitution as an additional order against the offender.61
  1. 6.41 Pre-sentence conferences with the prosecution team, including a Witness Assistance Service representative or another support service worker, can be useful in preparing victims for the language of a sentencing hearing.62
  2. 6.42 Post-sentence conferences can help victims understand sentencing outcomes. One victim told the Commission that having a conference with the prosecution team after the sentencing hearing helped her understand the outcome and allowed her to ask questions about the judge’s reception of her victim impact statement.63 Another said she would have liked time to sit with the prosecutor a few days after sentencing to discuss the outcome.64
  3. 6.43 In Chapter 7, the Commission recommends establishing a statutory scheme that would allow for matters to be adjourned for pre-sentence restorative justice conferencing. If this recommendation is adopted, victims would need to be informed about this option and about where they can obtain legal advice.

Compensation, restitution and financial assistance

  1. 6.44 Victims may be entitled to apply for restitution or compensation orders under the Sentencing Act 1991 (Vic) if an offender is found guilty.65 They may also be eligible
    for financial assistance from the Victims of Crime Assistance Tribunal (VOCAT).66
  2. 6.45 In accordance with Victims’ Charter principles, victims should be informed about ‘possible entitlements’ and referred to legal assistance.67 The DPP’s Victims Policy requires OPP solicitors to inform victims that they may have an entitlement to apply for compensation or restitution orders or to seek financial assistance from VOCAT.68 The OPP’s Financial Assistance, Compensation and Restitution for Victims of Crime booklet explains the options and assistance available.69
  3. 6.46 Some victims were not informed until some time into the criminal trial process, or not at all, about their right to seek an order for compensation or restitution as an additional order to sentencing.70 One victim told the Commission that by the time the police informant spoke to her, the offender had transferred assets that could have been used
    to pay compensation.71

Appeals

  1. 6.47 Victims who went through an appeal told the Commission that appeal proceedings were particularly alienating.72 Appeals often involve technical and complex considerations of law. Victims have no role, unless a conviction is being set aside by the Court of Appeal and a compensation or restitution order was made in connection with the conviction.
    In such cases, victims may be heard by the court.73
  2. 6.48 The Victims’ Charter Act entitles victims to be informed when an appeal is commenced, the grounds of the appeal and the outcome.74 The DPP’s Victims Policy further requires that victims are told:
  • about the appeal process
  • how to request a copy of the grounds of appeal
  • the appeal hearing date
  • that, if the appeal is against conviction, any restitution or compensation orders are suspended and will be ineffective if the conviction is set aside.75
  1. 6.49 A 2014 report by Victoria Legal Aid noted the need for victims to be notified of appeals early and to be updated about the appeal’s progress.76 Victoria Legal Aid is currently working with the OPP and the Court of Appeal to develop a process that ensures victims are notified of an appeal before it is reported in the media.

Relationship between victims and the prosecution

  1. 6.50 The time spent by the prosecution team with a victim, together with the attitude and communication skills of the individuals involved, will have a significant impact on whether victims feel adequately informed and supported. This in turn affects their confidence in the criminal justice system.
  2. 6.51 The OPP solicitor and the prosecutor briefed to appear in court are central actors in the criminal trial process and are in a position of authority relative to victims. Understandably, difficulties communicating with the prosecutor or OPP solicitor can cause frustration or distress, even where the police or a support service are providing assistance.77
  3. 6.52 Victims spoke about seeking honesty and empathy in their dealings with the OPP. They acknowledged that some conversations are hard, but stated that they still want to have them.78 Proactive efforts by the OPP to ensure that victims were informed and supported, and its openness to being contacted with questions or concerns, were viewed favourably by victims.79 Information needs to be reiterated throughout the course of a prosecution
    as it becomes relevant to each stage of the trial process.80

Information obligations and the Victims’ Charter Act

  1. 6.53 Most obligations to ensure victims are informed and supported fall on the DPP and OPP, particularly the solicitor in charge of a prosecution. These obligations inform the relationship between victims and the prosecution.
  2. 6.54 The DPP’s policies are fairly comprehensive. In contrast the Victims’ Charter principles
    are broadly worded. For example:
  • The DPP’s Victims Policy requires OPP solicitors to ensure that victims know the date, time and location of a contested committal, trial, plea hearing, sentencing hearing, and appeal hearing.81 The Victims’ Charter Act principle requires only that prosecuting agencies tell victims how they can find out these details.82
  • The Victims’ Charter Act states that the prosecution should advise victims of the outcome of criminal proceedings and appeals.83 The DPP’s Victims Policy goes further and states that OPP solicitors should update victims about the progress of the prosecution and the outcomes of a committal mention, contested committal, initial directions hearing, trial, plea, sentencing and appeal.84
  • A Victims’ Charter principle requires prosecuting agencies to refer victims to a victims’ services agency for help with a victim impact statement where a victim first expresses ‘a wish to make a victim impact statement’.85 The DPP’s Victims Policy also refers
    to this but additionally requires OPP solicitors to inform victims that they have a right to make a victim impact statement at sentencing.86
  1. 6.55 There is no suggestion that prosecution lawyers are failing to act compatibly with DPP policies simply because those policy obligations have not been directly transferred to the Victims’ Charter Act. However, the Victims’ Charter Act is the most visible reference point for the community in terms of what victims are entitled to in their dealings with investigatory, prosecuting and victims’ services agencies. It is also the instrument through which compliance with obligations to victims is monitored.
  2. 6.56 Victoria Police and the former victim representatives of the inaugural Victims of Crime Consultative Committee supported incorporating some aspects of DPP policies into the Victims’ Charter Act.87 The Law Institute of Victoria considered compatibility between
    the Victims’ Charter Act and DPP policy to be important.88
  3. 6.57 The Commission can see no reason why the above three DPP policy obligations should not be replicated in the Victims’ Charter Act. The DPP has considered them important enough to set down in policy, and they appear to be regularly complied with by OPP staff and solicitors.
  4. 6.58 OPP solicitors are required, by DPP policy, to inform victims that they can apply for compensation or restitution orders and for financial assistance, and can be referred
    to legal assistance.89 In Chapter 9, the Commission recommends that this obligation
    also be reflected in the Victims’ Charter.
  5. 6.59 Victims will need information about certain matters that are not contained in the Victims’ Charter or in the publicly available DPP policies. In Chapter 7, the Commission recommends that the prosecution have statutory responsibility for informing victims about confidential communications applications and their rights. The Commission also recommends that victims be informed of the availability of restorative justice options.
    In Chapter 8, the Commission recommends that OPP solicitors inform victims of alternative arrangements for giving evidence, and that the Victims’ Charter Act be amended to include these information obligations.

Recommendation

  1. 20 The Victims’ Charter Act 2006 (Vic) should be amended to require prosecuting agencies to:

(a) ensure that victims know the date, time and location of a contested committal, trial, plea hearing, sentencing hearing, and appeal hearing

(b) advise victims about the progress of the prosecution and the outcome of committal proceedings, a trial, plea hearing, sentencing hearing and appeal hearing

(c) inform victims that they have a right to make a victim impact statement at sentencing.

 

Conferences and compliance with obligations

  1. 6.60 Having obligations in the Victims’ Charter Act does not automatically lead to compliance.90 Time, resources, attitude and communication skills are vital. Prosecution lawyers need to establish good relationships early and maintain them.91 Evidence suggests that obligations to inform, support and consult with victims, especially victims of sexual offences, are increasingly being taken more seriously by prosecution lawyers than they used to be.92
  2. 6.61 The DPP informed the Commission that there is ‘a high degree of satisfaction experienced by victims in their interactions with the OPP’.93 Indeed, a number of victims told the Commission that they were adequately informed and updated, or felt able to approach the OPP solicitor or prosecutor when needed.94 However, the experience is not the same for everyone.95
  3. 6.62 Overall, the evidence collected by the Commission indicated that prosecutors and OPP solicitors could do better, more consistently, especially for victims in regional Victoria, Aboriginal victims, victims with disabilities, victims facing barriers related to culture
    or language and victims not able to access the Witness Assistance Service.
  4. 6.63 The DPP and OPP do not act legally on behalf of victims. However, as participants in the criminal trial process, victims must be understood as relevant to the DPP and OPP’s operations. The Commission considers that conferencing with victims before and after
    key court dates should be an integral part of the prosecution process.
  5. 6.64 The Commission was told that conferencing enhances the risk of victims revealing information that the prosecution is obliged to disclose to the defence, which could damage the prosecution.96 While this is a legitimate concern, it can be managed, for example, by ensuring that victims understand the purpose and limits of the meeting before it starts, and reminding them about the prosecution’s disclosure obligations. It is also helpful for the prosecution to learn information that may assist or hinder the prosecution early, rather than having something arise for the first time in cross-examination. If information does come to light that is relevant, it is consistent with a central tenet of the criminal justice system that an accused know the case against them
    to properly defend charges.97 Prosecution lawyers already manage such risks in the context of their obligations to offer pre-committal and pre-trial conferences to certain victims (see [6.35]).98
  6. 6.65 Participation in conferences with the prosecution before and after important court dates, such as the committal, trial or sentencing hearing, is positive and useful for victims.99 Conferences at least a few days prior to court can help victims prepare themselves for
    the language and process of the court and possible outcomes. Conferences on the day
    or a few days after court provide a space for victims to ask questions and better understand what happened, have their contribution and experience acknowledged, and ensure that they have access to appropriate support. Regular conferences with prosecution lawyers convey to victims what they know to be true—that they have an interest and are integral to the prosecution process.
  7. 6.66 The Commission considers that victims should be offered the opportunity to attend a conference with the prosecution before and after key court dates. Conferences should involve the OPP solicitor, an appropriate support person (based on a victim’s particular needs), the police informant and, if possible, the prosecutor. The OPP has limited resources and the Commission acknowledges that court timeframes and individual schedules will affect the length and timing of a conference and who can attend, particularly on regional circuits. The Commission’s recommendation prioritises victims
    who face greater barriers to participation and victims who are more invested in the criminal justice system’s response to offending. This recommendation should be read
    as a companion to recommendation 24 in Chapter 7.

Recommendation

  1. 21 The Victims’ Charter Act 2006 (Vic) should be amended to require prosecuting agencies to offer conferences before and after important court dates, including committal hearings, trials and retrials, sentencing hearings in the Supreme Court and County Court and appeals to the Court of Appeal, to the following:

(a) family members of deceased victims

(b) victims of sexual offences

(c) all victims of offences involving conduct that falls within the definition
of family violence in the Family Violence Protection Act 2008 (Vic)

(d) child victims

(e) victims with disabilities

(f) Aboriginal and Torres Strait Islander victims

(g) victims whose first language is not English

(h) on request to other victims of crime.

 

Regional circuit court challenges

  1. 6.67 Victims of crime in rural and regional Victoria face particular challenges related to geographical and social isolation and a lack of access to services. Some victims have to depend on the police informant for information that the OPP should normally provide because of difficulties communicating with the OPP solicitor.100 The Commission heard that greater reliance is also placed on local Victims Assistance Program providers, and sometimes Centres Against Sexual Assault, to provide support to victims when the OPP’s Witness Assistance Service does not have the capacity to travel.101
  2. 6.68 This is in large part because of the nature of circuit courts in regional areas. The Supreme and County Courts sit in certain regional cities and towns at different times throughout each year. The Commission was told that the County Court regional circuit lists are now managed more effectively and take into account the interests of victims, and that matters progress much faster from committal through to trial and sentencing than they used to.102 However, a trial listed for a particular circuit will not always start before the circuit ends. This means adjourning the trial to the next circuit, which may be months away.
  3. 6.69 The OPP has offices in Melbourne and Geelong. The OPP established a regional office
    in Geelong in 2009 to improve the delivery of prosecution services to western Victoria.103 An internal review resulted in services being strengthened in Geelong, including the appointment of a Geelong-based Crown Prosecutor in 2014.104 For all other regions,
    the OPP travels to the location of the circuit court. This can mean preparing for a number of sentencing hearings and trials, all of which may occur over three or four weeks.

Meeting obligations to regional victims

  1. 6.70 Regional victims often meet the OPP solicitor or the prosecutor in person for the first time during a rushed meeting on the morning of a significant court date.105 For those stressed about giving evidence in particular, a short meeting in the court precinct before court starts is insufficient. Two judges of the County Court and a regional magistrate expressed concern about conferencing not occurring consistently and regional victims not being sufficiently supported or informed.106
  2. 6.71 Victims living in regional areas also have less consistent access to the OPP Witness Assistance Service than those in metropolitan Melbourne. The Commission was told that workers from Victims Assistance Programs, and sometimes Centres Against Sexual Assault, provide court support where Witness Assistance Service staff are not available, and sometimes with limited notice.107 This highlights the importance of regional victims being linked to a Victims Assistance Program, Centre Against Sexual Assault or other support service, so that court support can be smoothly coordinated if necessary.108
  3. 6.72 OPP Witness Assistance Service workers play a critical role in liaising with prosecutors and OPP solicitors, ensuring victims are provided with the information they need and coordinating support. Several consultation participants told the Commission that victim support services, including the Witness Assistance Service, are under-resourced.109 Resource constraints appear to be having a disproportionate impact on victims from regional Victoria.

Conclusion

  1. 6.73 The obligations to inform, refer, consult and conference with victims in regional Victoria pose challenges for the OPP in terms of timing, logistics and resources. These challenges are significant, but not insurmountable.
  2. 6.74 Greater resources may be required and circuit court listing practices may need to be adjusted to give OPP solicitors enough time to fulfil their obligations to victims. It may also be possible to reallocate existing resources within the OPP in a way that provides regional victims with greater access to the OPP’s prosecution and witness support services earlier in the prosecution process. For example, it may be feasible to have an ongoing OPP presence in regions with the busiest court lists. Data for matters finalised in 2015 in the County Court of Victoria reveals that in the Gippsland region (La Trobe Valley, Sale and Bairnsdale) there were 51 pleas and 20 trials, in the Loddon Mallee region (Bendigo and Mildura), there were 61 pleas and eight trials, and in Hume (Shepparton, Wangaratta and Wodonga) there were 47 pleas and 13 trials. In contrast, there were 46 pleas and seven trials over the same period in the Barwon South West region, which is a part of the area covered by the OPP’s Geelong office.110
  3. 6.75 The Commission’s function is not to review the efficiency, effectiveness or allocation of resources within the OPP. However, the Commission considers that the OPP should have
    a greater presence in regional Victoria so that it can meet the obligations it owes to victims, including offering consultations and conferences, and not just on the day of court. To that end, a review of the OPP’s delivery of both prosecution and witness assistance services in regional Victoria is warranted. Ideally this review would be undertaken by an independent entity or person.

Recommendation

  1. 22 The Director of Public Prosecutions should cause a review to be undertaken of the delivery of prosecution and witness assistance services across regional Victoria with the objective of:

(a) improving the Office of Public Prosecutions’ presence and delivery of services in regional Victoria

(b) ensuring that Office of Public Prosecutions solicitors are able to consistently meet obligations owed to victims under the Victims’ Charter Act 2006 (Vic) and the Director of Public Prosecutions’ policies.

 

Legal advice and assistance for victims

  1. 6.76 In addition to information about law, policy and procedure relevant to their case, victims will sometimes need legal advice and assistance. The ability of victims to access legal advice and assistance during the criminal trial process was a topic on which a wide variety of views were expressed during the Commission’s consultations and in submissions.
  2. 6.77 There is nothing in principle stopping a victim from seeking out legal advice about their role or rights in the criminal trial process. This section therefore considers the extent of the need for legal advice and assistance and whether there should be a specific legal service for victims.
  3. 6.78 The need for a legal service is a distinct, albeit related, matter to the question of whether victims should have a right to appear in court or have legal representation while giving evidence, both of which are canvassed in Chapter 7. In that chapter, the Commission concludes that victims should not be a party or have a general right to participate in court during the criminal trial process. However, there are particular aspects of the criminal trial process in which victims can or should be able to participate. Access to legal assistance in these circumstances is addressed below in the discussion regarding ‘substantive legal entitlements’. Substantive legal entitlements are those about which victims can decide whether to take a particular course of action, such as to provide a victim impact statement, independently of the prosecution.
  4. 6.79 It was suggested that victims need a service that can provide information and legal advice about criminal processes, such as giving evidence,111 or entitlements of a procedural nature, such as being consulted by the prosecution about decisions to discontinue or accept a guilty plea to lesser charges.112 The Commission addresses these matters separately as ‘procedural matters’.

Legal information, advice and assistance

  1. 6.80 Throughout this section, the terms legal information, legal advice and legal assistance are used. Legal information is used by the Commission to mean information about law and procedure, which does not involve providing legal advice and can be provided by a non-lawyer. There is already a range of sources and services from which victims can obtain legal information, as noted earlier in this chapter. Of course, those providing information about law and legal procedure need a good understanding of the boundaries between legal information and advice.113
  2. 6.81 In contrast, legal advice and assistance require a lawyer. Legal advice involves the application of law to the person’s circumstances. Lawyers can provide legal advice without agreeing to represent the person in court, negotiations or otherwise. The Commission’s use of the term legal assistance refers to a lawyer agreeing to provide advice and representing the person, for example, in negotiations or in court, typically
    with a letter of engagement, costs agreement and/or other agreement.

The perceived need for independent legal assistance for procedural matters

  1. 6.82 The question of whether there is a need for victims to access lawyers that are independent of the prosecution for assistance with procedural matters was often discussed in general terms. For example, the DPP’s submission stated that a legal advocate ‘would provide timely and accurate information about criminal procedures, which would help ensure that victims have realistic expectations about the criminal justice process’.114
  2. 6.83 The Victims of Crime Commissioner, Victorian Legal Services Commissioner, Law Institute of Victoria and Northern Centre Against Sexual Assault supported a court-based service, primarily to provide guidance, referrals and legal information about court processes to victims.115
  3. 6.84 Stakeholder perceptions about whether or not victims need access to an independent lawyer for procedural matters were generally influenced by consideration of the following needs:
  • ensuring victims are informed and remedying shortcomings in communication between victims and prosecution lawyers or police116
  • including victims and empowering them to participate in the criminal process117
  • ensuring victims are linked to support services118
  • avoiding placing more obligations on prosecution lawyers119
  • ensuring that the interests of victims are appropriately considered by the prosecution.120
  1. 6.85 These contributions reveal a perceived need for victims to be better included, informed and supported. However there was division as to whether another lawyer was required or whether prosecution lawyers and existing support services can meet these needs given adequate resourcing.

Limitations on what an independent lawyer can do

  1. 6.86 An independent lawyer would not be subject to the disclosure obligations imposed on the prosecution. This means that victims could speak more freely because the details of their discussions need not be disclosed to the defence.
  2. 6.87 There are, however, significant limits to the advice a lawyer independent of the prosecution can provide. In particular, as a non-party, the lawyer would not have possession of all relevant evidence, which would constrain their ability to provide comprehensive advice.121 Contributors to this reference most commonly cited giving evidence and plea negotiations as processes for which victims need access to an independent lawyer. These are discussed in more detail below.
Giving evidence
  1. 6.88 Uncertainty about the nature and content of cross-examination is a significant concern for victims. It is also an inherent aspect of cross-examination and there are limits on the extent to which this uncertainty can be addressed—all lawyers, prosecution or otherwise, are prohibited from coaching witnesses about their evidence.122
  2. 6.89 While there will always be some uncertainty for those who have to give evidence, this does not mean a victim cannot be prepared for the experience. However, an independent lawyer is not necessarily in a better position to do this than a prosecution lawyer. An independent lawyer would be less informed than the prosecution about the issues in the case.123 Prosecution lawyers on the other hand can prepare victims for giving evidence with knowledge of the issues in the case and potentially with a support worker present.
Plea resolution and discontinuance decisions
  1. 6.90 Decisions to discontinue a prosecution or to accept a plea to lesser charges can have significant ramifications for victims. Although the making of these decisions may affect
    a victim’s interests, the victim’s entitlement is procedural in nature—to be consulted by the prosecution.124 The DPP holds the decision-making power.
  2. 6.91 Victims can seek advice and assert their views through an independent lawyer. However, as the DPP observed:

it is self-evident that those representatives are not and cannot be apprised of all the circumstances of a case and therefore any opinion they may give to the victim or the
DPP on the appropriateness of decisions made is of limited value.125

  1. 6.92 In addition, the DPP must act impartially. Prosecutions are only pursued if there is
    a reasonable prospect of conviction and it is in the public interest.126 While obtaining independent legal advice may enable victims to participate in consultation in a more informed manner in terms of their personal interests,127 their views are but one of
    many of factors that must be considered, alongside an assessment of the evidence.
    The Commission considers that, in most cases, a victim’s legal advice before consultation is unlikely to have a significant bearing on the decision ultimately made.
  2. 6.93 The Commission acknowledges that there will be some cases in which legal advice or assistance might be required, although this need not always be through a lawyer. For example, if a victim has a cognitive impairment and the DPP is considering discontinuing a prosecution because of concerns about the victim’s ability to cope, a disability advocate with a relationship with the victim may be better placed to represent their interests.128 If legal advice is needed, the Commission’s recommendation below (to establish a legal service for substantive entitlements) contemplates legal assistance being provided in exceptional circumstances.

Conclusion

  1. 6.94 On balance, the Commission considers that it is not appropriate or necessary to fund another service to provide legal information, advice or assistance to victims about procedural matters for the following reasons:
  • Much of the perceived need relates to victims feeling included, informed and supported. The police, DPP, OPP and victims’ services agencies already have obligations to address these issues. These obligations should be complied with
    rather than placing the burden on victims to obtain legal assistance.129
  • If obligations were consistently met, and victims linked with the support they need, they would rarely need access to an additional lawyer.130
  • Establishing another service could remove the incentive for prosecution lawyers
    to communicate regularly and effectively with victims.131
  • A range of agencies already provide general and tailored procedural information effectively.132 These services include the OPP Witness Assistance Service, Child Witness Service, Victims Assistance Program providers, Centres Against Sexual Assault and Victoria Police. It may be more effective to direct additional funding to these services.
  • Many victims do not want another agency or lawyer to deal with.133 They want to be informed and supported, and they want the prosecution to communicate properly with them.
  • It would be difficult to resource a service so that all victims who expect to access legal advice and assistance can do so.134 Resourcing equitable access is difficult to justify when victims are not a party to proceedings.135
  • A new legal service might inflate expectations about what independent lawyers
    can achieve for victims in circumstances where they have no substantive right.136

 

Legal assistance for substantive legal entitlements

  1. 6.95 At several points during the criminal trial process, victims have the power to make a decision about whether to exercise a legal entitlement independently of the prosecution.137 The Commission has referred to these as substantive legal entitlements and they include the following:
  • A victim may be permitted to respond in court to an application to subpoena, access or use confidential medical or counselling records.138
  • A victim who is a spouse, de facto partner, parent or child of the accused person
    can apply to the court not to give evidence if they believe doing so will cause harm.139
  • A victim can object to giving evidence if it may prove that they have committed
    an offence or are liable to a civil penalty.140
  • A victim is entitled to provide a victim impact statement to the court at sentencing and to read it out.141
  • A victim is entitled to make a claim for compensation or restitution as an additional order to a sentencing order.142
  1. 6.96 In Chapter 7, the Commission recommends that victims be entitled to request a restorative justice conference as part of the sentencing or compensation and restitution order process. If this recommendation is implemented, it would also give rise to a substantive legal entitlement.
  2. 6.97 Subject to certain eligibility criteria, victims may be entitled to financial assistance from VOCAT. The criminal trial and the financial assistance are not directly connected. However, victims may need advice about compensation orders during the trial. This is further considered in Chapter 9.
  3. 6.98 The above list of entitlements is not exhaustive. Victims may assert or be granted other participation rights in the future, for which legal assistance will be required.143
    In addition, the Commission considers that exceptional circumstances might justify legal intervention to assert a human right, or to protect particularly vulnerable victims, where the prosecution cannot or will not do so.144 This is discussed further in Chapter 7.

The need for a legal service

  1. 6.99 Victims must not only be aware of what they are entitled to do; they must also be able to assert their rights. Victims should have access to independent legal advice and, where appropriate, ongoing legal assistance to assert substantive rights connected with their involvement in the criminal trial process—a process over which they otherwise have little control.145 As the Supreme Court submitted, legal advice is desirable where victims have
    a legal interest because it assists the court with decision making and ensures that
    ‘the rights of the victim can be served’.146
  2. 6.100 Of course, not all substantive entitlements will require ongoing legal assistance. For example, victims might seek legal advice about their victim impact statement, especially
    if considering a compensation claim. However, Victims Assistance Program workers receive training in assisting victims to draft these statements and may be the preferred source of support for this process.
  3. 6.101 There is no obvious service for victims to turn to for legal advice. It can be sought from a community legal centre, Victoria Legal Aid or a private lawyer.147 Victoria Legal Aid may provide ongoing legal assistance, primarily for compensation order and VOCAT applications, if the victim is eligible according to means and merits tests. Access to legal assistance from a community legal centre will also be subject to means and merits tests although this varies from centre to centre, and also depends on the centre’s capacity to help. Private lawyers will generally expect to be paid, either on an ongoing basis or at
    the completion of a case.
  4. 6.102 Child witnesses, including victims, can object to giving evidence against a parent pursuant to section 18 of the Evidence Act 2008 (Vic). Where this is an issue, the Victorian Bar will arrange for a child to receive legal advice and representation upon referral from the prosecution.148 No similar arrangements are in place for other circumstances in which victims may assert a substantive right in court.
  5. 6.103 It is not appropriate to rely on or require the DPP to provide legal advice and assistance for victims about their substantive entitlements.149 Conflicts might arise between victims’ interests and the public interest, which the DPP must prioritise.150 There needs to be a visible service from which victims are able to seek independent legal advice and, where appropriate, ongoing legal assistance.

Locating a legal service for victims

  1. 6.104 A number of proposals were made to the Commission about where a legal service
    for victims could be based:
  • the court precinct
  • Victims Assistance Program providers or Centres Against Sexual Assault
  • the Victims of Crime Commissioner
  • community legal centres
  • Victoria Legal Aid.
  1. 6.105 A court-based service could provide legal information and advice as needed, and access to legal assistance where legal representation is required.151 This could be an appropriate means of providing information and referrals while a victim is at court, but would generally not be able to provide ongoing assistance for substantive entitlements. It would require the creation of a new legal service, rather than integration into an existing service. In addition, it is not desirable for victims to have to attend courts to access legal assistance.

 

  1. 6.106 Expanding the services provided under the Victims Assistance Program to include legal assistance was favoured by a number of contributors to the Commission’s review.152 This would allow victims to obtain practical support, therapeutic support and legal assistance from the one service throughout the criminal trial process. However, the option was not supported by the Victims Support Agency which funds and coordinates the Victims Assistance Program across Victoria.153 Six different community-based organisations are currently contracted to deliver the program, none of which is set up to deliver a legal service. Similarly, while Centres Against Sexual Assault are funded as independent services, and act as non-legal advocates, they are not set up to provide legal assistance. In addition, their services are restricted to individuals who have experienced sexual assault.
  2. 6.107 Victoria Police suggested that the Victorian Victims of Crime Commissioner could ‘provide or fund independent legal advice for victims’.154 The Victims of Crime Commissioner’s role is to advocate, investigate, report and advise in relation to systemic issues for victims of crime.155 If the Commissioner were to provide legal assistance, or determine eligibility for legal assistance, it might create a perception of conflict with the independence of the office, including any future complaints oversight role.156
  3. 6.108 The most viable options harness the expertise and structures of services that already provide legal advice and assistance. The Commission considers that fair access to legal advice and assistance requires a government-funded service. Ongoing legal assistance should be restricted to matters with merit and where an individual cannot afford private legal representation. This is consistent with the service models of Victorian community legal centres and Victoria Legal Aid.
Community legal centres
  1. 6.109 Community legal centres provide free legal advice to disadvantaged and marginalised Victorians in a range of areas, including family violence intervention orders and applications to VOCAT.157 Some community legal centres also support victims in reporting crimes to police and provide information or advice about aspects of the criminal trial process. One centre told the Commission that it had assisted individuals with victim impact statements.158
  2. 6.110 In 2007, the Federation of Community Legal Centres (Vic) proposed that specialist community legal services be funded to provide advice, assistance and referrals to victims of crime in relation to:
  • the Victims’ Charter Act
  • Sentencing Act compensation and restitution orders
  • VOCAT applications
  • other victim-related matters.159

 

  1. 6.111 Community legal centres operate as independent services across Victoria, each with different priorities and varying capacities to represent victims. If they were given responsibility for providing legal assistance to victims it would spread victim legal services across different centres and make it more difficult to identify gaps in services or systemic issues for victims during the criminal trial process. Monitoring the matters for which victims seek assistance will be important in identifying and developing victims’ entitlements in the future. However, a unique strength of community legal centres is the strong connections formed with the communities in which they operate. They could enter into partnerships with their local Victims Assistance Program provider, Centre Against Sexual Assault or multidisciplinary centre, or other services, to ensure coordinated support tailored to their region.160
  2. 6.112 Alternatively, a single community legal service similar to Knowmore’s model could be established. Knowmore is a specialist community legal centre established in 2013 to assist individuals engaging with the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse. While the focus of the service is on the Royal Commission, Knowmore has advised victims about criminal trial processes.161 Legal assistance is provided within a trauma-informed, multidisciplinary and culturally safe framework that utilises lawyers, counsellors, social workers and Aboriginal and Torres Strait Islander engagement advisors.162 Adopting this model in providing a legal service
    for victims would provide a multidisciplinary and trauma-informed service for victims
    of crime but, unless offices were located across Victoria, access would be more difficult for victims in regional areas.
Victoria Legal Aid
  1. 6.113 Victoria Legal Aid provides legal advice and assistance to individuals. Eligibility for ongoing legal assistance is determined in accordance with the Legal Aid Act 1978 (Vic). Those eligible for ongoing legal assistance are allocated an in-house lawyer or a private lawyer. Clients may have to make a contribution to their legal costs, depending on their income. Victoria Legal Aid already assists victims with VOCAT applications, Sentencing Act compensation claims and family violence intervention orders.
  2. 6.114 Locating a legal service for victims within Victoria Legal Aid would have the benefit
    of being a single dedicated service within an organisation that has extensive experience within the criminal justice system and has offices around Victoria. It would create a focal point for legal assistance, make it easier to identify systemic issues, and provide consistency in service delivery. The service could draw from the strengths of
    Knowmore’s service model, including ensuring trauma-informed and culturally safe
    service delivery.
  3. 6.115 Legal Aid NSW has established a service for victims of crime within its civil division, which provides legal assistance about the sexual assault communications privilege in New South Wales. It is known as the Sexual Assault Communications Privilege Service. The Commission heard that this service is essential to victims accessing legal representation
    to assert their legal entitlement during criminal proceedings.163 The Office of the Director of Public Prosecutions NSW described the ability to refer victims to a specialised legal service as positive.164
  4. 6.116 The Legal Aid NSW model was viewed positively by the Victims of Crime Commissioner, former victim representatives of the inaugural Victims of Crime Consultative Committee, Court Network and OPP lawyers.165 The model could be adapted to the Victorian context, and used to provide assistance in relation to a broader range of substantive entitlements connected to the criminal trial process.

Conclusion

  1. 6.117 The Commission prefers Victoria Legal Aid as the site for a legal service for victims: Victoria Legal Aid is a statutory agency with offices around Victoria, it is deeply familiar with criminal trial processes, and it offers legal services in a range of other areas that victims may need assistance with. Information barriers would need to be put in place to manage conflicts of interest with Victoria Legal Aid’s criminal practice. In addition, consideration could be given to funding either the Victorian Aboriginal Legal Service or the Family Violence Prevention and Legal Service to deliver these services to Aboriginal victims.
  2. 6.118 It was suggested to the Commission that legal advice or assistance was needed for the families of homicide victims,166 sexual offence victims,167 child victims,168 family violence victims169 or to victims of the most serious cases.170 The Commission considers that the legal service for victims at Victoria Legal Aid should initially be available to victims of indictable crimes involving violence because of the more acute needs that victims of such crimes often have during the criminal trial process compared to victims of non-violent crimes.171 Consideration should be given to whether the service should be open to victims of crimes involving violence in cases that are prosecuted summarily in the Magistrates’ Court.
  3. 6.119 The legal service should be evaluated within three years to ensure that it is adequately addressing the legal needs of victims of violent indictable crimes and to determine whether other victims should be able to access the service.

Recommendation

  1. 23 Victoria Legal Aid should be funded to establish a service for victims of
    violent indictable crimes, modelled on the Sexual Assault Communications Privilege Service at Legal Aid NSW. It should provide legal advice and assistance, in accordance with the Legal Aid Act 1978 (Vic), in relation to:

(a) substantive legal entitlements connected with the criminal trial process

(b) asserting a human right, or protecting vulnerable individuals,
in exceptional circumstances.

The legal service should be independently evaluated not more than three years after commencement.

 

Referral, coordination and accessibility

Early referral to support

  1. 6.120 Early referral of victims to services is a critical part of the community’s response to crime. Individuals may disclose offending behaviour to family, community members, support workers, health professionals and others. Not all victims seek a legal response. Those
    who do will approach Victoria Police.172
  2. 6.121 The Victoria Police e-referral system allows police, with a victim’s consent, to send an electronic referral to the Victims of Crime Helpline (Helpline).173 For family violence matters, women are referred to a family violence service, and children are referred either to the Department of Health and Human Service’s child protection service or a child and family information, referral and support team.174 The electronic referral system was designed to address a lack of funding to promote the Helpline.175
  3. 6.122 The Helpline is run by the Victims Support Agency, Department of Justice and Regulation, and is the gateway through which most victims receive information and are linked to support.176 Generally, referrals to the Helpline are made by police, although victims and their families can call the Helpline direct. Once a police referral is received by the Helpline, a support officer contacts the victim to identify their needs and make referrals. Approximately 70 per cent of referrals made by the Helpline are to a Victims Assistance Program provider and 30 per cent to a specialist service such as a Centre Against Sexual Assault or family violence service.177 The Victims Support Agency funds and coordinates the Victims Assistance Program and, as stated in [2.35], also monitors compliance with the Victims’ Charter Act and provides secretariat assistance to the Victims of Crime Consultative Committee, among other activities that are outside the scope of the Commission’s review.
  4. 6.123 When a crime occurs in Victoria but a victim lives interstate, counselling can be accessed through the victims assistance program in the state or territory in which the victim lives. This is funded by Victoria’s Victims Support Agency.178
  5. 6.124 Victims Assistance Program providers, Centres Against Sexual Assault and specialist family violence services provide vital ongoing support, regardless of whether a criminal prosecution is commenced or whether an offender is found guilty. The support may
    be practical or therapeutic.
  6. 6.125 As noted above, the OPP Witness Assistance Service and the Child Witness Service provide specialist court-related support for victims and witnesses. Generally, their involvement with a victim begins with the start of court proceedings.
  7. 6.126 The two sets of complementary services appear to be well coordinated, with some variation in regional areas, where victims are less aware of, or less able to access, the services of the Witness Assistance Service.179 The challenges for regional prosecutions
    are addressed above at [6.67]–[6.75].

 

Multidisciplinary centres and co-locations

  1. 6.127 Significant steps have been taken to improve the coordination and integration of support to victims, especially victims of sexual offences, through the establishment of multidisciplinary centres and co-location of services. Multidisciplinary centres for victims
    of sexual offences have been established in six locations around Victoria.180 They operate as ‘one-stop shops’, bringing together services involved in the response to sexual offending. Multidisciplinary centres have been evaluated positively and are viewed as particularly valuable.181
  2. 6.128 Victims Assistance Program providers are co-located with Victoria Police in 19 locations.182 Further steps will be taken in response to recommendations by the Victorian Royal Commission into Family Violence.

Accessible and responsive services

  1. 6.129 Where victims are supported by the OPP Witness Assistance Service, Child Witness Service, a Victims Assistance Program or a Centre Against Sexual Assault, their experience of that service was described almost universally in positive terms.183 Certainly, a number of contributors to the Commission’s reference raised the need for more resources. However, other shortcomings were also identified, with individuals from certain marginalised or disadvantaged groups disproportionately affected.
  2. 6.130 The Commission’s role is not to investigate the allocation of resources to the victim support service system as a whole, nor the use of resources by those services. A number of parts of the system work well and efforts are being directed towards better integration and coordination, including through the recommendations of the Royal Commission into Family Violence. The Commission has highlighted matters concerning access to, or the responsiveness of, victim support services below. These are matters that the Victims of Crime Commissioner should monitor through the collection of data and should be included in a comprehensive review of the Victims’ Charter Act in five years, as recommended in Chapter 4.

Pathways to support

  1. 6.131 A particular concern is the reliance on police referrals to raise awareness of, and access
    to, the Victims of Crime Helpline, the Victorian Government’s gateway to information
    and assistance for victims. The Victoria Police e-referral system has increased early referrals to support by police.184 However, relying on victims to first make contact with the police renders these services less accessible to those less likely or less able to report offending
    to police because they distrust or have difficulties communicating with police, in particular Aboriginal people, people from culturally or linguistically diverse communities and people with disabilities.185 For example, the Commission was told that Koori victims of crime are likely to first seek help from an Aboriginal Community Controlled Health Organisation.186

    There is scope for improving awareness and referral pathways for marginalised victims
    of crime in Victoria.

  2. 6.132 In addition, where a police officer fails to refer a victim to the Helpline, and the victim
    is not referred to the OPP Witness Assistance Service or Child Witness Service, that victim may never be aware of the services available to them. Two victims who spoke to the Commission arrived at court—one for a committal and one for a sentencing hearing—without any knowledge of the support services funded by the Victorian Government to assist them.187 One of those individuals told the Commission that throughout the criminal trial process, only the police informant kept in contact with her.
  3. 6.133 A particular issue for victims with disabilities was noted by the Office of the Public Advocate (OPA). The OPA runs a volunteer Independent Third Person Program. Independent third persons provide communication assistance, information and support during police interviews.188 The Victoria Police Manual requires police to use an independent third person in interviews with people with cognitive or mental health disabilities, including victims.189 The OPA told the Commission that the program cannot currently advocate on behalf of individuals or refer them to support services.190
  4. 6.134 The Commission has recommended the establishment of an intermediary scheme in Victoria in Chapter 7 and an intermediary’s functions may include assistance during police interviews. Regardless of whether independent third persons or intermediaries support victims during police interviews, either the police or the person providing communication assistance should be in a position to refer victims with disabilities to the support and advocacy they need for the criminal trial process.

Court support

  1. 6.135 Another concern that emerged from the Commission’s consultations related to the capacity of the OPP to provide information and support responsive to the needs of Aboriginal people. The Commission was told that lawyers from the Aboriginal legal services have been approached on an ad hoc basis in court precincts by OPP solicitors
    to provide information to Aboriginal witnesses.191 Aboriginal victims of crime should be able to receive culturally competent and consistent support from the OPP and victim support services.192
  2. 6.136 A similar issue arises for victims from culturally and linguistically diverse communities,
    with the DPP’s submission noting that the OPP Witness Assistance Service is unable to provide particular assistance to them without further funding.193 The DPP should ensure that funding is allocated in a way that ensures that the Witness Assistance Service is equally accessible to all victims of crimes that fall within its priority areas regardless of cultural or linguistic differences.
  3. 6.137 In contrast, the Victorian Equal Opportunity and Human Rights Commission’s report, Beyond Doubt, describes the OPP Witness Assistance Service as ‘a valuable model that assists people with disabilities to understand the court process’.194 The service conducts needs assessments and ‘assists the court identify relevant supports to facilitate their participation in the justice system’.195 The Commission’s recommendation in Chapter 7 to establish an intermediary scheme in Victoria may result in the Witness Assistance Service having increased capacity to provide culturally competent services to Aboriginal victims and victims from culturally and linguistically diverse communities.
  4. 6.138 The Commission notes that the Victims’ Charter Act requires police, the DPP and victim services to ‘take into account, and be responsive to’ the particular needs of victims relating to Indigenous background, and cultural and linguistic diversity.196

Non-violent and property crimes

  1. 6.139 The services provided by Victims Assistance Program providers targets victims of violent crimes against the person, including violent attacks, assault, robbery, family violence, sexual assault and the families of those killed by violence or culpable driving.197 The Witness Assistance Service also prioritises its services to ‘victims of sexual offences, offences involving family violence and other violence offences’.198
  2. 6.140 These key victim support services are largely unavailable to victims of non-violent crimes. In exceptional circumstances, such as where the impact of a crime has been particularly serious, Victims Assistance Program providers will provide assistance.199
  3. 6.141 Data from the Crime Statistics Agency indicates that property and deception offences make up the majority of offending in Victoria.200 The criminal trial process can have a significant impact on victims of these offences.201 The DPP told the Commission that there is a need for support services for fraud victims.202
  4. 6.142 The Commission did not otherwise receive any feedback in submissions or consultations, nor did it hear from victims of non-violent crimes. It is therefore not in a position to make any specific recommendations. As indicated above, this is a matter that the Victims of Crime Commissioner could explore further.

Footnotes

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