7 Participation

 

Introduction

  1. 7.1 As participants, victims expect, and are entitled, to be involved throughout the criminal trial process. Laws and policies in Victoria allow them to participate in limited ways. They may provide their views to the prosecution about decisions to discontinue a prosecution or to agree to a plea to less serious charges. Sexual offence victims may appear and make submissions about applications to subpoena, access and use confidential medical or counselling records. Victims may appear as witnesses for the prosecution. At sentencing hearings, victims can read out a victim impact statement.
  2. 7.2 Participation is a broad concept and takes many forms. This chapter opens with a discussion of how victims can have an input into the adversarial trial process as participants while preserving the prosecution’s independence and impartiality and
    the rights of the accused. It then explores what this means in practice in the following contexts:
  • consulting with the prosecution
  • participating in court proceedings
  • giving evidence as a witness
  • restorative justice conferencing.
  1. 7.3 Victims may also participate as a party in an application for orders for compensation
    and restitution under the Sentencing Act 1991 (Vic). These orders are ancillary civil remedies and are dealt with separately in Chapter 9.

Victim participation and the adversarial criminal trial

  1. 7.4 Defining participation in the criminal trial process is difficult.1 For victims, it may include having input into proceedings, having control, being listened to and having opportunities to make their views known.2 Participation is often equated with giving victims a voice—the opportunity to tell their story and to feel that they have been heard.3 Participation can mean obliging criminal justice agencies to seek and consider victims’ preferences and the information they can provide.4 More robust forms of participation might allow victims

    a ‘veto’ over decisions to prosecute, or to appear in court and make submissions
    or cross-examine witnesses.5

  2. 7.5 Victims feel disempowered during the criminal trial process. They told the Commission that they feel excluded;6 like passive receivers of information,7 observers,8 and outsiders.9 By allowing them to express themselves and communicate with criminal justice agencies and the courts, opportunities to participate can give victims a sense of empowerment and official acknowledgment.10
  3. 7.6 Understood in this broad sense, participation appears ‘feasible and desirable’.11 However, it needs to be seen in context. Concerns about victim participation focus on the extent to which victims can and should be accommodated in an adversarial system of criminal justice.12
  4. 7.7 As noted in Chapter 2, the modern adversarial criminal trial hinges on an independent, impartial and fair prosecution. Prosecutorial independence requires the prosecution to act exclusively in the public interest.13 Prosecutors must prosecute cases impartially and with restraint, and act fairly towards the accused.14 In practice this means that prosecutors must use ‘temperate and dispassionate language in the performance of their functions’, disclose all relevant evidence to the accused, even that which harms the prosecution’s case, and call all witnesses who are necessary to give a complete account of the events
    on which the prosecution is based.15
  5. 7.8 In contrast, victims may be motivated only by private interests and are under no obligation to show the restraint and objectivity required of the prosecution.16 Allowing victims too much influence over prosecutorial decision making could undermine fairness to the accused and the pursuit of the public interest. There is also the risk that trials without reasonable prospects of success would be pursued, which would have financial and other costs for victims, accused persons and the community.17 In addition, the participation of the victim introduces another actor into a two-party contest and, if not limited, could unfairly disadvantage the accused.18
  6. 7.9 The Commission does not make recommendations that afford victims ultimate decision-making power over prosecutorial decisions or give them a role similar to that of the prosecution. Such proposals would fundamentally alter Victoria’s criminal justice system. In any event, victims overwhelmingly do not seek such a role: they seek opportunities
    to meaningfully communicate and contribute to decision-making processes, without carrying the burden of responsibility that comes with prosecutorial decision making.19
    This understanding of victim participation underpins the recommendations in this chapter.

Consultation throughout the criminal trial process

  1. 7.10 Prosecution decisions affect how the criminal trial is conducted and the future interests of victims.20 Whether a victim feels appropriately involved in prosecutorial decisions may greatly affect how they feel about the fairness of the process and the ultimate outcome.21
  2. 7.11 Consultation affords victims some input. It requires an active exchange of information, in addition to the prosecutor’s obligation to provide information (discussed in Chapter 6). Consultation means seeking and hearing the views of victims and genuinely factoring those views into decision making. Consultation does not require the victim’s views to determine the outcome, but is more than simply the provision of information.22

Law and policy framework

  1. 7.12 In Victoria, Office of Public Prosecutions (OPP) solicitors must ensure that victims
    are consulted before decisions are made:
  • to substantially modify charges, or accept a plea of guilty to a lesser charge
    (plea resolution decisions), or
  • not to proceed with some or all charges (decision to discontinue).23
  1. 7.13 The victim’s views are to be taken into account, but do not determine the decision.24
  2. 7.14 These requirements arise from policies issued by the Director of Public Prosecutions (DPP), rather than from legislation. There is no express obligation on the prosecution to consult victims in the Victims’ Charter Act 2006 (Vic) or in any other legislative provisions relevant to the Commission’s reference.
Plea resolution decisions
  1. 7.15 Decisions about whether to accept a plea of guilty to lesser charges are governed by the Director’s Policy: Resolution. Before making a plea resolution decision, the prosecution must balance complex legal and evidentiary considerations, including:
  • the strength of the evidence, including whether the accused made admissions
  • the views of the victim
  • the need to minimise inconvenience and distress to witnesses, including victims
  • the accused’s personal circumstances and criminal history
  • the likely length of the trial
  • whether the accused will assist the prosecution by giving evidence in another case after pleading guilty.25
  1. 7.16 A plea to lesser charges will only be accepted where the lesser charges are appropriate, meaning that the charges adequately reflect the accused’s criminality and allow for an adequate sentence and ancillary orders to be imposed, based on conduct that can be proved beyond reasonable doubt.26 Victims should be consulted before a plea resolution decision is made.27
Decision to discontinue
  1. 7.17 The Director’s Policy: Prosecutorial Discretion guides decisions about whether to prosecute. A prosecution should proceed only if:
  • there are reasonable prospects of a conviction, and
  • the prosecution is required in the public interest.28
  1. 7.18 The question of whether there is a reasonable prospect of conviction depends on a forensic and objective assessment of the evidence, including the credibility and reliability of witnesses.29 The assessment of whether the prosecution is in the public interest requires a balancing of factors, including:
  • the seriousness of the offence
  • the prevalence of the offence and the need for deterrence
  • any mitigating or aggravating circumstances
  • the circumstances of the offender, such as age, intelligence and health.30
  1. 7.19 Factors particular to the victim are also relevant, notably:
  • the victim’s ‘youth, age, intelligence, physical health, mental health or special infirmity’
  • the victim’s attitude towards a prosecution.31
  1. 7.20 OPP solicitors have a range of obligations to inform victims about various matters throughout the criminal trial process, but no other obligations to consult.

Expectation and experience

  1. 7.21 The factors relevant to plea resolution decisions and decisions to prosecute are complex. Despite this, it is well accepted in Victoria,32 and other common law jurisdictions,33 that victims should be consulted about them.
  2. 7.22 Plea resolution decisions and decisions to discontinue can have an impact on whether, and how many times, the victim gives evidence and the jurisdiction in which the case will be finalised. This can affect victims’ substantive interests such as access to compensation, their right to provide a victim impact statement and its contents.34 Reflecting these impacts, victims consulted by the Commission said they wanted to be involved in decisions to prosecute or plea resolution decisions.35
  3. 7.23 The extent and adequacy of consultation about these decisions vary considerably.36 Some victims described being adequately consulted and informed.37 Others were not consulted at all.38 Some did not learn of the decision until after it was made.39 Some who were consulted felt that the consultation was inadequate.40 Police officers and support workers agreed.41 They told the Commission that the adequacy of the consultation depends on the communication skills of the OPP solicitor and prosecutor.42
  4. 7.24 Complaints about the adequacy of consultation related to:
  • insufficient time being given to victims, with consultation sometimes occurring
    on the morning of court43
  • offending being minimised to obtain a more expedient resolution44
  • being informed about a decision already made, rather than consulted about it45
  • being told about a decision in a crowded room or prior to establishing a relationship with the prosecutor.46
  1. 7.25 The problems identified are practical and unrelated to the nature of the consultation. Victims readily acknowledged that the prosecution should make the ultimate decision.47 Only one submission proposed that the views of victims be determinative.48
  2. 7.26 The Commission considers that the nature of the victim’s existing role as a consultee in plea resolution decisions and decisions to prosecute is appropriate. Giving ultimate weight to victims’ views could lead to prosecutions being pursued for private rather than public interests, and with little chance of success. It would also risk placing ‘an unjustifiable burden on vulnerable victims to give them the responsibility of deciding whether to proceed with or withdraw charges’.49 However, the way consultations are conducted needs to be improved. This is discussed at [7.56]–[7.60].

Expanding prosecutorial consultation obligations

  1. 7.27 Effective consultation is a positive experience for victims.50 In keeping with victims’ expectation that they have input into important decisions, the Commission considered whether the obligations on OPP solicitors and prosecutors to consult should be expanded to other decisions that affect victims’ interests. Contribitors expressed support for such
    an expansion.51
  2. 7.28 The Commission was told that consultation is already occurring in relation to some other decisions without there being an express policy or statutory obligation to do so. In some instances, victims’ views are sought in relation to:
  • applications to have a matter dealt with summarily in the Magistrates’ Court52
  • applications to subpoena, access or use confidential counselling or medical records (known as confidential communications)53
  • alternative arrangements for giving evidence54
  • appeals against sentence.55
  1. 7.29 The views of the victim are directly relevant to the court’s decisions about applications
    for confidential communications and the use of alternative arrangements for giving evidence. Confidential communications are addressed at [7.63]–[7.86]. Alternative arrangements for giving evidence are dealt with in Chapter 8.
  2. 7.30 The following section considers expanding existing consultation obligations to the following prosecutorial decisions:
  • applications to have indictable offences dealt with in the Magistrates’ Court
  • applications to cross-examine the victim at committal
  • appeals against sentence and acquittal.

Applications for summary jurisdiction

Law and policy
  1. 7.31 The vast majority of criminal matters in Victoria commence in the Magistrates’ Court, where they are either finalised or go through committal proceedings before being transferred to the County Court or Supreme Court. Not all indictable offences proceed through a committal hearing.56 For some indictable offences, the accused or the prosecution can apply to the magistrate for the matter to be heard in the Magistrates’ Court by way of a summary hearing (application for summary jurisdiction).57
  2. 7.32 A magistrate considering an application for summary jurisdiction must have regard
    to a range of factors, including:
  • the seriousness of the offence
  • whether the Magistrates’ Court can impose an adequate sentence
  • whether a co-accused has been charged with the same offence
  • any other relevant factors.58
  1. 7.33 The attitude of the victim is not a factor in the magistrate’s determination
    of an application for summary jurisdiction.
Relevance to the victim
  1. 7.34 Whether a matter is heard summarily or is transferred to the County or Supreme Court can have a significant impact on the interests and experience of victims.
  2. 7.35 Matters resolved summarily are dealt with by a magistrate without a jury. If an offender pleads guilty or is found guilty, a more restricted sentencing range applies
    in the Magistrates’ Court than in the higher courts.59 The criminal process is likely to be shorter and victims may give evidence fewer times. Access to support services can be more difficult for victims in the Magistrates’ Court. It may be more difficult to submit a victim impact statement because of the speed with which cases can be finalised in the Magistrates’ Court and the volume of cases that jurisdiction handles.60
  3. 7.36 The Law Institute of Victoria and a Magistrate consulted by the Commission opposed
    the idea that the prosecution should consult the victim about an application for summary jurisdiction because the victim’s views are not relevant to the factors that the magistrate must consider.61 While this is strictly correct, the victim’s views could still inform the position taken by the prosecution in relation to such an application.
  4. 7.37 The DPP noted that, in practice, the views of victims ‘are a factor that is considered by the OPP solicitor or advocate’.62 The Victorian Bar and Criminal Bar Association had no objections to there being an obligation to consult victims about applications for summary jurisdiction.63 Similarly, support workers and a number of judicial officers consulted by the Commission supported the victim’s views about a summary jurisdiction application being sought and provided to the Magistrate.64

Applications to cross-examine the victim at committal

Law and policy
  1. 7.38 The DPP’s position on whether an application to cross-examine witnesses, including the victim, at a committal hearing is justified is determined with regard to factors set out in the Criminal Procedure Act 2009 (Vic), including whether:
  • the informant consents to or opposes the application
  • adequate disclosure has occurred
  • the issues in the case are adequately defined
  • there is sufficient evidence to support a conviction
  • a fair trial can take place without the cross-examination
  • there is a need to clarify matters relevant to a potential plea of guilty.65
Relevance to the victim
  1. 7.39 Victims have an interest in applications to cross-examine them at a committal hearing.
    It is well established that giving evidence can have a considerable impact on a victim, so past reforms have been aimed at reducing the number of times certain vulnerable victims are required to give evidence.66 Some victims found being cross-examined at the committal hearing particularly distressing. Other victims consulted by the Commission found giving evidence at the committal to be positive—it was an opportunity to ‘practise’ for the trial and to be heard by a court.
  2. 7.40 Some support was expressed for victims being consulted about applications to cross-examine the victim at committal.67 Contributors also expressed support for Magistrates taking into account the victim’s attitude towards being cross-examined when considering such applications.68
  3. 7.41 The submission from the DPP opposed the idea, while noting that ‘a particular victim’s vulnerability or age is a matter that is considered by the OPP solicitor or advocate in making submissions to the Magistrate and objections are made in appropriate cases’.69
  4. 7.42 The Law Institute of Victoria and the Victorian Bar and Criminal Bar Association also objected.70 The Victorian Bar and Criminal Bar Association, and the DPP, argued that only a legally trained person can usefully assess the considerations relevant to application to cross-examine witnesses at a committal, and that the victim’s input is not relevant.71
  5. 7.43 However, the Commission is not proposing that victims be consulted about the substance of the applications. Rather, given victims’ interest in whether they are cross-examined
    at a committal hearing, it will often be appropriate that the prosecution seek their views about doing so and take them into account when considering its position.

Appeals

Law and policy
  1. 7.44 The DPP has a right to commence an appeal against a sentencing decision where the DPP considers:
  • that there is an error in the sentence imposed and a different sentence should be imposed; and
  • that an appeal is in the public interest.72
  1. 7.45 The Court of Appeal must allow the appeal if satisfied that there is an error and that
    a different sentence should be imposed.73 The Court may impose a more or less severe sentence.74 Appeals against the adequacy of compensation or restitution orders made in a victim’s favour under the Sentencing Act 1991 (Vic) are commenced as appeals against sentence by the DPP.75 Thus, whether an appeal is pursued may also have implications
    for the legal interests of victims.
  2. 7.46 The DPP can also appeal against an acquittal in a very narrow set of circumstances.76 While these provisions have never been tested, the DPP may apply to the Court of Appeal for an order setting aside an acquittal and authorising a new trial on the basis that:
  • the previous acquittal was tainted
  • there is fresh and compelling evidence
  • the person should be tried for an administration of justice offence, such as perjury, perverting the course or justice or bribing a judge, related to the trial resulting in the acquittal.77
Relevance to the victim
  1. 7.47 The DPP reviews all sentencing decisions to assess the merits of an appeal.78 As a matter of policy and practice, the views of the victim or the victim’s family about the sentence form part of that assessment.79 In addition, the Victims’ Charter Act and the DPP’s policies require victims to be informed when an appeal is launched and the appeal’s progress, grounds and outcome, whether it was commenced by the DPP or the defendant.80
  2. 7.48 Some OPP lawyers observed that there is scope for improved consultation with victims about appeals.81 However, the DPP suggested that its independence may be compromised if victims are afforded a right to be consulted or to request an appeal.82 It is difficult to see how the DPP’s independence is undermined by formalising what is already a routine practice in relation to sentencing appeals.
  3. 7.49 Clear support for the proposition that victims should be consulted about decisions
    to appeal was expressed by the Victorian Bar and Criminal Bar Association, the Victims
    of Crime Commissioner, Victoria Police, academics and some victims.83
  4. 7.50 In South Australia, victims can request that the prosecution consider appealing
    a decision about which the victim is unsatisfied.84 The request must be made within
    10 days of the decision and receive ‘due consideration’ by the prosecution. This entitlement is a ‘governing principle’; if the principle is not followed, this does not give the victim a right to commence legal proceedings against the South Australian Director of Public Prosecutions, or to seek damages or otherwise affect the conduct of criminal proceedings.85 However, the South Australian Commissioner for Victims’ Rights is empowered to assist victims to exercise their rights and can compel the Office of the Director of Public Prosecutions to consult with the Commissioner in relation to the interest of a victim.86

Conclusion

Expanding and formalising obligations to consult
  1. 7.51 Each prosecutorial decision discussed above has a substantial impact on the conduct
    or outcome of the case and therefore also has an impact on the victim. It follows that
    the victim should have the opportunity to be consulted.
  2. 7.52 Some objections to expanding the existing obligations to consult were based on the view that it is difficult to explain complex legal and evidentiary matters to victims. The Commission does not agree. Lawyers are routinely required to explain complex issues
    of law and evidence to clients.
  3. 7.53 While the prosecution does not represent victims, there is nothing to prevent prosecution lawyers from communicating with victims in ways that are comparable to lawyers advising and seeking instructions from their clients. Prosecution lawyers are already expected to ensure that victims are informed about a number of complex matters throughout the criminal trial process.
  4. 7.54 The Commission is also not persuaded that consulting victims about these decisions would compromise the independence of the DPP. Consultation requires the victim’s
    views to be incorporated into the decision-making process, but the prosecution retains the ultimate decision-making power. Victims must understand the limits of consultation:
    that the prosecution acts in the public interest, must prosecute impartially and must disclose all material relevant to the charges faced by the accused. Victims who are consulted should understand that their views may ultimately have a limited impact
    on the conduct of a case.87
  5. 7.55 The existing obligation on prosecution lawyers to consult with victims about plea resolution decisions and decisions to discontinue demonstrates that victims can, and should, have some input into prosecutorial decisions. Informal practices regarding consultation should be expanded and elevated to formal obligations, to promote consistency, transparency and accountability.
Consistent and meaningful consultation
  1. 7.56 Consistent and meaningful consultation requires prosecution lawyers to have the communication skills, time, resources, and willingness to consult with victims and take their views into account.88
  2. 7.57 Prosecution lawyers should inform victims in a suitable manner about the options and issues relevant to a particular decision, and victims should be given the time and support necessary to consider their views. Some prosecution lawyers are equipped to perform this role. Others will require training to ensure a consistent standard of consultation, particularly for those victims who experience barriers to participating in the criminal trial process. Victims who often face barriers when seeking to access and participate in the justice system include those who:
  • are young
  • are Aboriginal
  • are from culturally and linguistically diverse communities
  • have a physical disability, cognitive impairment, communication disability or mental illness.89
  1. 7.58 Good consultation is most likely to occur in the context of ongoing and regular communication, in person, between the victim, prosecutor, OPP solicitor and support worker.90 The Commission recognises that ensuring effective consultation is resource-intensive. Prosecutors and OPP solicitors often have large case loads and are subject to court-imposed timeframes. In addition, prosecutors may not be allocated until shortly before a court date. These constraints are more acute in regional areas.91
  2. 7.59 As with the Commission’s recommendation in relation to conferences in Chapter 6, OPP case management practices may need to be revised so that obligations to conference and consult with victims can be met. Courts should be made aware of these obligations when considering timeframes and requests to consult or conference with a victim.92 This is particularly important for regional prosecutions where there is pressure to keep busy circuit lists moving.93 In-person consultation is a logistical challenge and can be limited to brief conversations shortly before court.94 In such contexts, it is difficult for victims to participate meaningfully.
  3. 7.60 Contributors suggested that the prosecution’s consultation obligations should be strengthened in order to promote consistent and meaningful consultation.95 The Commission agrees. This should be achieved by including clear obligations to consult with victims in the Victims’ Charter Act. The Victims’ Charter Act is the primary reference point against which those in the criminal justice system are held to account for their obligations. It is also a reference point for victims to identify their entitlements and obligations. Equivalent legislation in South Australia and New South Wales contains obligations
    to consult regarding plea resolution decisions and decisions to discontinue in the context of serious crimes.96

Recommendation

  1. 24 The Victims’ Charter Act 2006 (Vic) should be amended to require prosecuting agencies to consult with victims before the prosecution makes a decision to:

(a) not proceed with some or all charges

(b) accept a plea of guilty to a lesser charge

(c) apply for, agree to or oppose an application for summary jurisdiction

(d) agree to or oppose an application to cross-examine the victim at committal

(e) pursue an appeal against a sentence or acquittal.

The Act should provide that the victim’s views are not determinative and that consultation must occur except where the victim cannot be located after reasonable attempts or does not wish to be consulted.

 

Participation and substantive rights in court

  1. 7.61 In Victoria, victims are entitled to participate in court proceedings by:
  • making representations during pre-trial applications about the harm they are likely
    to suffer if their confidential counselling and medical records are used as evidence
    in the trial
  • submitting and reading out a victim impact statement during sentencing proceedings.
  1. 7.62 These entitlements are referred to as ‘substantive rights’ to participate. In the following sections, the Commission considers whether these rights require reform and should be extended to other aspects of the criminal trial process.

Confidential communications

Expectation and experience

  1. 7.63 For victims, being involved in decision making about the use of private medical and counselling records is important and empowering.97 For sexual offence victims in particular, it can be a significant source of control. Many contributors supported victims being able to participate in response to applications to subpoena, access and use their confidential medical and counselling records.98 These records are referred to in the relevant legislation as ‘confidential communications’.99
  2. 7.64 In practice, not many victims participate in these applications independently of the prosecution.100 It is more common for medical practitioners and counselling organisations to appear independently in court.101

Legislative and policy framework

  1. 7.65 Part 2, division 2A of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) governs applications to use confidential communications relating to a victim of a sexual offence.102 Applications must be made in writing over three stages—to subpoena, access and then use a record of a confidential communication as evidence.103 The applicant, who is usually the accused, must give at least 14 days notice to the prosecution, the police informant and the medical practitioner or counsellor.104 The police informant is responsible for giving the victim a copy of the notice within a ‘reasonable time’.105
  2. 7.66 As the recipient of the subpoena to produce the record of the confidential communication, the medical practitioner or counsellor can appear with leave in court
    and make submissions.106 The victim can appear with permission from the court.107 Although the victim may be permitted to appear, the victim is not a party to the proceedings as a whole.

Ensuring effective participation

Notice of the application
Responsibility for notification
  1. 7.67 Victims need to be notified about an application being made and their right to seek leave to appear and make submissions. Victoria Police, the Centre for Rural Regional Law and Justice, the DPP and Victoria Legal Aid and some support workers agreed that measures should be taken to ensure that victims are effectively notified about applications to use their confidential communications.108
  2. 7.68 Victoria Police suggests in its submission that ‘there is no obligation to serve the notice on the victim or for the victim to be informed that the application is being made’.109 However, the Evidence (Miscellaneous Provisions) Act obliges the police informant to notify the victim about the application.110 No victim consulted by the Commission was aware of their entitlement.111
  3. 7.69 It appears that an immediate solution would be for Victoria Police to provide training to ensure police informants are aware of their obligation to notify victims about confidential communications applications. This would in any event be prudent, to ensure that victims are informed when applications are made in the course of criminal proceedings prosecuted in the Magistrates’ Court by police prosecutors.
  4. 7.70 A better solution for all cases that are heard in the Supreme or County Courts would be to transfer the responsibility for notification to the prosecution. The DPP takes over the prosecution of indictable offences from the police at the first hearing in the Magistrates’ Court after the charge is filed. Confidential communications may be sought by the accused in preparation for, and use in, all stages of a criminal trial, including the committal hearing.
  5. 7.71 The Commission considers that OPP solicitors and prosecutors are better positioned than the informant to notify the victim in these cases. They are a party to the proceedings to which the confidential communications application relates and better placed to explain
    to victims the nature of the application, their right to appear (with leave) and to refer them for independent legal advice. Transferring the notice obligation from the informant to the prosecution would bring Victoria into line with New South Wales, where prosecutors are responsible for informing the victim.112
  6. 7.72 The DPP’s policy on confidential communications, which is set out in Director’s Policy: Evidence (Confidential Communications) Act 1998 (Vic), states that, if the victim wishes to make submissions to the court, the OPP solicitor or prosecutor should inform the victim that they may do so with the leave of the court and be represented by their own lawyer.113 The OPP solicitor or prosecutor should also refer the victim to legal representation.114 Notifying the victim about the application should not be a significant additional burden.
  7. 7.73 In New South Wales, the obligation to notify the victim is overseen by the court. The judge must be satisfied that the victim has been notified and has had an opportunity
    to obtain legal advice.115 This expressly recognises the importance of victims being aware of their entitlements and seeks to ensure their participation.116 The Commission considers that an equivalent role for the court should be introduced in Victoria because the current statutory obligation alone has not served to ensure that the victim has been notified.
  8. 7.74 A corollary of the requirement to give notice is the ability of the court to waive notice where required. The Victorian legislation provides no guidance about this.117 In New South Wales, notice can be waived in exceptional circumstances or if the victim consents in writing.118 Legal Aid NSW and the Women’s Legal Service NSW told the Commission that waivers occur relatively frequently, indicating that the term ‘exceptional circumstances’
    is interpreted broadly.119
  9. 7.75 There is little point in having notice requirements if they can be frequently waived. Evidence from New South Wales suggests that it is better to be prescriptive. The court should be able to waive this requirement only if the victim cannot be located or if the victim has provided consent to the waiver in writing.
 
Standing, legal representation and the form of participation
  1. 7.76 Simply notifying victims does not enable participation. In the Commission’s view, notification needs to be accompanied by:
  • removing the requirement that victims seek the court’s leave to appear regarding confidential communications applications
  • the availability of legal representation
  • flexibility in the form of participation.
The requirement to seek leave
  1. 7.77 Requiring victims to seek the leave of the court if they wish to make submissions on an application concerning their confidential communications reflects the fact that they are not a party to the criminal proceedings against the accused. However, apart from creating a procedural step for the victim to overcome, it is at odds with recognising the victim’s interest in the criminal proceedings and specifically their interest in protecting their privacy from unjustified interference.
  2. 7.78 A similar requirement applied in New South Wales120 but was removed because
    it hampered the effectiveness of the confidential communications provisions.121
    The legislation now provides for the victim to appear.122
  3. 7.79 Allowing victims automatic standing to appear is consistent with the purpose of the confidential communications provisions. The Supreme Court of Victoria submitted that refusing leave would be inconsistent with the principle of procedural fairness because
    it denies an individual with a right the ability to make submissions to assert that right.123
    The Supreme Court’s observations suggest that automatic standing should be extended to victims who wish to make submissions about confidential communications applications.124 The Commission agrees.
Legal representation
  1. 7.80 Strong support was expressed in submissions and during consultations for victims being able to access legal advice and representation regarding confidential communications applications.125 Access must be available equally to victims in metropolitan and regional areas.126
  2. 7.81 Victims need legal representation, independent of the prosecution, to ensure that they
    do not lose the right to protect their confidential communications in a situation where their interest conflicts with the prosecution’s.127 Sometimes prosecutors may be reluctant to oppose an application, even where the victim objects. Sexual assault counsellors told the Commission that conflicts between the interests of the prosecution and the victim can arise frequently.128 According to the Child Witness Service, the problem can be particularly acute when a child victim and their parent do not agree.129
  3. 7.82 New South Wales established a publicly funded legal service in response to low numbers of victims appearing in relation to confidential communications applications.130 Lawyers from Legal Aid NSW stated that ‘in the absence of legal representation, the New South Wales laws limiting the disclosure or use of counselling records were in effect an empty promise’.131
  4. 7.83 The Commission has recommended in Chapter 6 that Victoria Legal Aid should be funded to establish a service for victims of violent indictable crime. This service would be able to provide victims with the legal advice and assistance they require in making submissions
    on confidential communications applications.
Flexibility in the form of participation
  1. 7.84 The Commission was told that victims may decide not to participate in applications for confidential communications because it causes them additional stress.132 Some victims
    will be content to let the prosecution convey their views, which is what usually happens.133 Where this is what the victim wants, this practice should continue. However, victims should still be informed of their legal rights and offered a referral to independent legal advice before they decide.
  2. 7.85 The Law Institute of Victoria suggested that more victims might participate if they could provide their objections in affidavit form.134 In New South Wales, victims can provide a sworn confidential statement to the court detailing the harm they will experience if their records are used.135 These statements are disclosed to the judge only and cannot be the subject of cross-examination. The Commission supports such an option, which allows victims to describe ‘the harm they might suffer without divulging the substance of the protected confidence in question’.136
  3. 7.86 It is possible that increased victim participation in confidential communication applications may lengthen the timelines for and increase the cost of pre-trial proceedings, though this will depend on the form of participation chosen. Concerns about timing and costs are discussed in more detail in Chapter 8.

 

 

Recommendation

  1. 25 Division 2A of Part 2 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) should be amended by:

(a) requiring the prosecution to notify the victim of their right to appear and the availability of legal assistance in relation to an application to subpoena, access and use their confidential communications (see recommendation 23)

(b) requiring the court to be satisfied that the victim is aware of the application and has had an opportunity to obtain legal advice

(c) prohibiting the court from waiving the notice requirements except where the victim cannot be located after reasonable attempts or the victim has provided informed consent to the waiver

(d) providing victims with standing to appear

(e) permitting victims to provide a confidential sworn or affirmed statement to the court specifying the harm the victim is likely to suffer if the application is granted.

 

Victim impact statements

Expectation and experience

  1. 7.87 The vast majority of cases before the Supreme Court and County Court proceed to a sentence. In the 2015 calendar year, 80 per cent of matters that were finalised in the Supreme Court proceeded to a sentence.137 Similarly, in the 2014–15 financial year 79 per cent of cases finalised in the County Court proceeded to a sentence.138 In most cases, the accused pleads guilty. Between 2009–10 and 2013–14, 72.4 per cent of cases in the Supreme court, and 84.6 per cent of cases in the County Court, resolved by way of a plea of guilty.139
  2. 7.88 A victim impact statement at sentencing may be a victim’s only opportunity to participate in the criminal trial process. The entitlement to provide a victim impact statement is independent of the prosecution’s role at sentencing. It is a principle of the Victims’ Charter and an entitlement under the Sentencing Act 1991 (Vic).140
  3. 7.89 Victims consulted by the Commission viewed victim impact statements as an important opportunity to give expression to their suffering and to be heard by the court, the prosecution and the offender.141 Victims described the process of preparing and delivering a victim impact statement as therapeutic, cathartic and in other positive terms.142
    For some victims, it was also difficult and emotionally challenging.143 For a few, it caused frustration and disappointment.144 Where a family member has been killed, a victim impact statement may be an important opportunity to make a loved one visible.145 Contributions to the Commission’s review reflect existing research, which shows that victim impact statements allow victims to have a voice in the sentencing process and have the harm they have suffered publicly acknowledged.146

Who can make a victim impact statement?

  1. 7.90 Individuals who fall within the definition of ‘victim’ in the Sentencing Act can submit
    or read out a victim impact statement. A victim is defined as:

a person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender.147

  1. 7.91 The Victorian Court of Appeal has held that witnesses to an offence may be victims
    if they have suffered injury, loss or damage as a direct result of the offence.148
  2. 7.92 The Commission’s consultation paper asked if a broader group of victims should be able to make victim impact statements. Some victims suggested that friends should be permitted to do so.149 The DPP submitted that the right to make a victim impact statement should be expanded in certain limited circumstances, such as to neighbours of premises where a violent offence occurred, or to first responders to crimes that are committed in public spaces.150
  3. 7.93 The Supreme Court, Victoria Legal Aid and the Law Institute of Victoria rejected expanding the definition of victim.151 Expanding the definition risks reducing the appropriate focus on the primary victim and those closest to them.152 The Supreme Court of Victoria submitted that, in cases involving a death, allowing people other than immediate family to read out a victim impact statement can re-traumatise a victim’s immediate family and extend the sentencing hearing by days.153 It may also place pressure on the immediate family to read out their statements when they might not wish to do so.154 Phil Cleary submitted that where the victim has been killed, no one beyond immediate family should be allowed to read a victim impact statement out in court.155
  4. 7.94 The Commission considers that the definition of victim in the Sentencing Act appropriately prioritises the needs and interests of primary victims and their families.
    The Commission does not consider there is a need for reform.

 

Managing the contents of victim impact statements

Law and procedure
  1. 7.95 In Victoria victim impact statements may only contain information about the harm experienced by the victim as a direct result of the crime.156 Specifically, the information is confined to the ‘impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence’.157 This includes ‘grief, distress, trauma or other significant adverse impact’.158 The offender need not have been able
    to reasonably foresee the impact.159
  2. 7.96 Victim impact statements are statutory declarations or sworn oral evidence.160 The victim must prepare the statement and provide it to the court, the prosecutor and the offender (or the offender’s lawyer) within a reasonable time before the sentencing hearing.161
  3. 7.97 Victims can choose how the statement is presented to the court. The victim may read it out, or may request that it be read by another person, or by the prosecutor.162 The victim impact statement, including any photographs or drawings may be displayed during the sentencing hearing.163 Medical reports can also be attached.164
  4. 7.98 Alternative arrangements may be made for the presentation of the victim impact statement, including the use of a remote witness facility and allowing a support person to sit with the victim.165 Victims may be cross-examined about the contents of their victim impact statement, although in practice this occurs very rarely.166
  5. 7.99 The court may rule all or part of the victim impact statement inadmissible, meaning that it cannot be presented at the sentencing hearing or taken into account by the court in making its decision.167 If a victim impact statement is read out, the court must ensure that the parts that are admissable are read out.168
What should victim impact statements contain?
  1. 7.100 Since victim impact statements were introduced, their admissibility has been a contentious issue. Victims feel constrained by restrictions on what they can say in their victim impact statement.169 They often want to, and do, include information in their statement that is not admissible. The next section of this report considers whether victims should be able to include more in their victim impact statements than is currently permitted. It concludes that the current limits on the admissibility of victim impact statements are appropriate, but that the Sentencing Act should provide more guidance. It also outlines reforms to the process for preparing victim impact statements, to ensure victims can properly participate in the sentencing process.
 
The sentencing context
  1. 7.101 The admissibility of a victim impact statement is largely determined by the point in the criminal trial process at which it is taken into account: the sentencing hearing.
  2. 7.102 The purposes for which sentences are imposed and the factors relevant to making sentencing decisions are set out in the Sentencing Act and reflect longstanding sentencing principles. The purposes for which sentences may be imposed are restricted to:
  • punishing the offender in a way that is just in all the circumstances
  • deterring the offender or other persons from committing the same or similar offences
  • establishing conditions that will rehabilitate the offender
  • denouncing the offender’s conduct
  • protecting the community from the offender.170
  1. 7.103 In determining the sentence, the court must have regard to a range of factors, including:
  • the nature and gravity of the offence
  • the offender’s culpability and degree of responsibility
  • the offender’s previous character
  • whether the offender pleaded guilty and other indications of remorse shown
    by the offender
  • the existence of any mitigating or aggravating factor concerning the offender
  • the impact of the offence on any victim
  • any injury, loss or damage resulting directly from the offence
  • the personal circumstances of any victim.171
  1. 7.104 Victim impact statements are relevant to the last three factors. This means that victims
    are not allowed to mention:
  • the effects of the crime on anyone except the person making the statement172
  • information about the offender or their circumstances173
  • opinions about what kind of sentence should be imposed or its length174
  • anything not directly relevant to the offence for which the offender has been found guilty or has admitted guilt, even if useful for background and context.175
Past conduct and other offences
  1. 7.105 Where offenders have a history of violent behaviour, victims may understandably find it difficult to confine their statement to the offences before the court.176 This is a particular issue for victims of family violence who want to give context to offending by telling the court about past abusive behaviour.177
  2. 7.106 Similarly, where the prosecution has agreed to a guilty plea to lesser charges, victims are limited to describing the harm caused to them in terms of the lesser charges.178 However, victims will often include, or want to include, information in their victim impact statement that reflects the more serious offences that were originally charged.179 In her detailed study of victim impact statements in Australia, Tracey Booth observed:

it is neither uncommon nor surprising for victims to … write in their VISs from their own perspective about their own experience of victimisation rather than from the ‘legal’ picture of the offending that has been constructed for the court.180

  1. 7.107 However, the court sentences an offender for offences for which they have either pleaded guilty or been found guilty. Although the offender’s past conduct is relevant—their criminal history is usually taken into account—it is a fundamental principle of sentencing that the court can only take into account harm caused by the offences for which the offender is being sentenced.181 Allowing victims to make representations about other charges contravenes this principle.
Victims’ views about sentencing
  1. 7.108 Victim impact statements can affect sentencing outcomes: by providing information to the judge about the consequences of the crime, victim impact statements assist judges to determine the seriousness of the offending.182 Similarly, where a victim indicates forgiveness in their victim impact statement, this may be taken into account as evidence of the offender’s remorse, prospects for rehabilitation and the impact of the offending
    on the victim.183
  2. 7.109 Some victims told the Commission that they wanted to make submissions to the court about the sentence the offender should receive.184 Expressing a view to the court about an appropriate sentence can be understood as allowing victims to express ‘what constitutes justice for them and the perpetrator’.185
  3. 7.110 The Supreme Court, the Law Institute of Victoria, the DPP, the Victorian Bar and Criminal Bar Association and a number of others opposed victims being able to make submissions about sentencing outcomes.186 The Commission agrees.
  4. 7.111 The Commission is not persuaded that the long standing principles that underpin sentencing should be disturbed. Whatever a victim’s attitude towards sentencing, it is critical that an offender’s sentence does not depend on whether the victim is forgiving
    or punitive.187 Sentencing decisions, which might deprive an offender of their liberty, must be made by an impartial and objective tribunal.188 It is the court’s duty to weigh the factors relevant to sentencing before deciding the sentence, which is a complicated exercise that demands legal expertise.189 A victim’s views about sentencing are considered to be opinions and are therefore not considered relevant.190 Similarly, the prosecution’s representations about the range of sentences to which the offender could be sentenced
    is ‘a statement of opinion’ and not admissible.191
 
Rules of evidence—guidance and clarity
  1. 7.112 Generally speaking, evidence is admissible if it is probative to a fact in issue—meaning that it ‘could rationally affect the assessment of…a fact in issue’192—and should not be excluded on some other grounds.193 In the context of victim impact statements, the fact in issue is the impact of the offence on the victim.
  2. 7.113 The probative value of evidence depends on the nature of the fact in issue and the importance of the evidence in establishing that fact.194 It should be assessed by reference to the factual and legal context in which it is received.195
  3. 7.114 Whether evidence should be excluded by reason of some unfairness to the offender also depends on the legal and factual context.196 Unfairness tends to arise where there is a potential for evidence to be misused by the fact-finder.197 Probative value and unfairness are interdependent: whether it is fair or unfair to admit something into evidence will depend on its probative value.198
  4. 7.115 These considerations are relevant to decisions about the admissibility of victim impact statements. Accordingly, admissibility should be determined by reference the purpose of victim impact statements and the nature of the evidence they contain, as well as the point in the criminal trial process at which they are taken into account.
  5. 7.116 Victim impact statements provide victims with an opportunity to participate in the criminal trial process by speaking and being heard.199 This purpose is reflected in the attitude taken by Victorian courts in receiving victim impact statements and determining their admissibility. In DPP v DJK, the Victorian Court of Appeal stated that victim impact statements:

provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court’s attention the damage and sense of anguish which
has been created and which can be of a very long duration … Obviously, the contents
of the statements must be approached with care and understanding.200

  1. 7.117 Similarly, in The Queen v Swift the Victorian Court of Appeal stated that:

it would be destructive of the purpose of victim impact statements if their reception in evidence were surrounded or confined by the sorts of procedural rules which are applicable to the treatment of witness statements in commercial cases.201

  1. 7.118 The nature of the evidence in victim impact statements is highly personal, which sets
    it apart from other evidence. Tracey Booth’s extensive study on victim impact statements in Australia notes that ‘the content of [victim impact statements] is highly subjective,
    the language frequently emotive and the oral presentation of those statements allows
    the expression of strong emotions in the courtroom’.202
  2. 7.119 In addition, the Commission notes that a key purpose of the laws surrounding the admissibility of evidence is to ‘keep from juries evidence that may be misused by them’.203 Sentencing hearings do not involve juries. This also weighs against taking a strict approach to determining the admissibility of victim impact statements.
  3. 7.120 These considerations are reflected in the permissive approach taken by courts in some cases. The Commission sees merit in providing statutory backing for this practice by amending section 8L(3) of the Sentencing Act. Section 8L(3) states that:

The court may rule as inadmissible the whole or any part of a victim impact statement, including the whole or any part of a medical report attached to it.

  1. 7.121 The Commission considers that this provision should be amended to clearly reflect that when determining admissibility, the court is to have regard to the purposes of the victim impact statement scheme and the context within which victim impact statements are made. Specifically, admissibility is to be determined by reference to these facts:
  • The purpose is to allow the victim to tell the court about the impact of the crime
    on them.
  • The probative value of the evidence and any potential unfairness must be assessed
    in light of this purpose.
  • A victim impact statement will not be inadmissible because it contains subjective
    or emotive material.
  • The victim impact statement is received by the court in the absence of the jury.

Recommendation

  1. 26 Section 8L of the Sentencing Act 1991 (Vic) should be amended to provide the following guidance to courts when determining the admissibility of material contained in victim impact statements:

(a) the purpose of a victim impact statement is to allow the victim to tell
the court about the crime’s impact on them and the probative value
of the evidence and any potential unfairness must be assessed in light
of this purpose.

(b) a victim impact statement will not be inadmissible because it contains subjective or emotive material.

 

The response to inadmissible material
  1. 7.122 When a victim impact statement contains inadmissible material, how the prosecution, defence and court responds is important for victims. A prosecutor who identifies material in a victim impact statement that is clearly inadmissible is obliged to bring it to the sentencing judge’s attention.204 If the defence identifies it, or is informed about it, Supreme Court and County Court practice notes require the defence to raise objections about admissibility with the prosecution as soon as reasonably practicable after receiving the statement.205
  2. 7.123 If objections cannot be resolved before the sentencing hearing, the defence should raise their objections to the inadmissible content in court.206 Where there is inadmissible material in a victim impact statement, objecting to that material ensures that the offender can raise the admission of this material as a ground of appeal in any later appeal against their sentence.207
The role of the sentencing judge
  1. 7.124 It is distressing for victims to have their statements edited just before the sentencing hearing or objected to in court.208 One way to address this problem would be to give judges more responsibility for assessing the admissibility of material in victim impact statements. This could avoid the distress and awkwardness caused by the current practice of editing victim impact statements or raising objections in court.209 This is the approach taken in New South Wales, where the court decides whether a victim impact statement
    is admissible and how much weight it should be given.210
  2. 7.125 There are some risks associated with relying on the sentencing judge to determine admissibility. It may not be clear whether or not the sentencing decision was affected by inadmissible material, which would undermine transparency in sentencing. Moreover, allowing victims the freedom to include inadmissible material in their victim impact statements could create the false impression that their entire statement will be taken
    into account.211 Tracey Booth states:

[I]t is ‘tokenistic’ to offer victims the chance to express their opinion as to the punishment to be imposed when that opinion cannot change the law that has to be applied by the judge … it is likely that victims’ expectations would be ‘dashed’, resulting in disappointed, perhaps angry and bitter victims perceiving themselves as victimised
by the law as well as by the crime.212

  1. 7.126 Conversely, strict rules about the contents of victim impact statements limit victims’ autonomy and voice.213 Allowing victims more freedom in what they can include in victim impact statements, and then relying on judges to take only admissible content into account, may allow victims to convey the impact of the offending more authentically.214
  2. 7.127 Weighing these competing considerations, the Commission considers that, on balance, the sentencing judge should not have primary responsibility for determining the admissibility of victim impact statements. Rather, victims should be assisted in preparing their victim impact statements so as to ensure their statements principally contain admissible material. Victims’ participation is enhanced by ensuring their victim impact statements can be taken into account in the sentencing process. Victims told the Commission that having the judge refer to or read out significant portions of their victim impact statement was an important and validating experience.215 Prosecutors and defence lawyers also told the Commission that well-prepared victim impact statements can have
    a powerful impact on the court and the offender.216
Assisting victims prepare admissible victim impact statements
  1. 7.128 Victims should be given the best possible opportunity to prepare a victim impact statement that is admissible. This can be achieved by:
  • providing support and assistance when they draft their statement
  • providing an opportunity for the statement to be reviewed by the prosecution.
  1. 7.129 In submissions and consultations, victims, support workers, academics, lawyers and some members of the judiciary stressed the need for victims to be adequately supported when preparing victim impact statements.217 A victim who is informed as to the purposes of their victim impact statement, and is assisted in preparing it, is more likely to find the process positive and to produce a powerful statement that is accepted in full by the judge.218 Assistance particularly makes a difference for individuals who have limited literacy skills or communication difficulties.219
  2. 7.130 The Department of Justice and Regulation has produced a Guide to Victim Impact Statements and a booklet, Victim Impact Statements Made Easy, including a template,
    to help people draft their victim impact statements. For some victims, this guidance is useful; others require personal assistance.220 Personal assistance is not always available. Only some victims consulted by the Commission were helped by a support worker or lawyer in preparing their victim impact statement.221
  3. 7.131 The OPP, including the Witness Assistance Service, has no formal role in preparing victim impact statements, beyond informing victims that they have the right to provide a statement and referring them to information and the Victims of Crime Helpline, which can refer them to a Victims Assistance Program provider.222
  4. 7.132 Victims Assistance Program workers are trained to help victims when preparing a victim impact statement. Centres Against Sexual Assault also provide assistance. If victims are not referred to a Victims Assistance Program provider, or not supported by a Centre Against Sexual Assault, it is unclear who helps them. Assistance should be consistently available to victims across Victoria.223
  5. 7.133 The Supreme Court, some judges of the County Court, the Law Institute of Victoria and Tracey Booth saw merit in giving the prosecution a role in preparing victim impact statements.224 This proposal would give victims an opportunity to engage with the prosecution. In view of its knowledge of the case, the prosecution would be in a good position to ensure that victims are informed of potentially inadmissible material.
  6. 7.134 Practice notes of the Supreme Court and County Court require the prosecution to be
    mindful of its obligation to ensure that only admissible parts of victim impact statements are read out.225 The Supreme Court submitted that prosecutors should provide information to victims about what is admissible, and resolve issues about admissibility, before the sentencing hearing.226 Some of the County Court judges who were consulted observed that the prosecution should be more willing to edit victim impact statements.227 However, the DPP considers such a role would undermine the independence of the prosecution.228
  7. 7.135 The Commission considers that the best approach involves a combination of assistance from victim support workers and review by prosecution lawyers. Concerns were expressed that routinely involving lawyers in the preparation of victim impact statements could remove the emotion from such statements and undermine their authenticity.229 Support workers will often be better equipped to provide the therapeutic support that victims might need when drafting their statement.230 Support workers consulted by the Commission understood the role of victim impact statements, and did not describe any problems explaining this to victims.231
  8. 7.136 Prosecution lawyers should complement this by reviewing statements as early as possible and informing victims about material that might be inadmissible. This does not make them responsible for the contents of the statement. In this way, prosecutorial independence is maintained. However, to remove doubt about the appropriateness
    of the prosecution taking on this role, it should be given statutory backing.

Recommendation

  1. 27 The Victims’ Charter Act 2006 (Vic) should be amended to require the prosecution to inform the victim about any material in a victim impact statement that the court may rule inadmissible, before the statement is given to the court and the offender or their lawyer. The Act should provide that the prosecution is not responsible for the contents of a victim impact statement.

 

Providing the victim impact statement to the court
  1. 7.137 The Commission also considers that the prosecution should be responsible for providing the victim impact statement to the court and the offender (or the offender’s lawyer) once the victim has finalised it.
  2. 7.138 The Sentencing Act currently places this obligation on victims. Section 8N states that

If the victim prepares a victim impact statement, the victim must, a reasonable time before sentencing is to take place—

(a) file a copy with the court; and

(b) provide a copy to—

(i) the offender or the legal practitioner representing the offender; and

(ii) the prosecutor—

and the copy must include a copy of any medical report attached to the victim impact statement.

  1. 7.139 This requirement is at odds with the need to minimise the victim’s contact with the offender. It also conflicts with existing Supreme Court and County Court practice notes, which oblige the prosecution to file the victim impact statement with the court, and provide a copy to the offender at least five days before the sentencing hearing.232

    It is more appropriate for the prosecution to communicate with the offender or their lawyer and file documents with the court. This position should be reflected in the Sentencing Act.

Recommendation

  1. 28 Section 8N of the Sentencing Act 1991 (Vic) should be amended to require
    the prosecutor to file with the court and serve on the offender, or their lawyer, a copy of any victim impact statement.

 

Timing and disclosure
  1. 7.140 Victims need to prepare their victim impact statement and have it reviewed by the prosecution before it is then provided to the court and the defence.233 There should also be enough time for the parties to address any admissibility issues before the sentencing hearing.234 Victims, victim support workers and lawyers have observed that some victims are not given enough time to work on their statements.235
  2. 7.141 Victims are likely to have the least time to prepare their statement where an offender is found guilty after a trial and a sentencing hearing is listed a short time later.236 This problem arises because victims are instructed not to prepare their victim impact statement until after a guilty verdict.237 If a victim impact statement is prepared before or during a trial, the prosecution may be required to disclose it to the defence or it could be subpoenaed. The defence may then use it in cross-examination, particularly if it contains details that are inconsistent with other accounts of the offending.238
  3. 7.142 Judicial officers, prosecution lawyers and support workers expressed clear support for restricting the admissibility of victim impact statements until after a finding of guilt.239 This should ensure victims whose cases proceed through a trial have adequate time to prepare their victim impact statement without it being made available to the defence before the sentencing hearing. The Law Institute of Victoria objected to this proposal. It argued that a victim impact statement that contains material that is relevant, such as an inconsistent statement, should be made available to the defence.240
  4. 7.143 The Commission considers that victim impact statements should not be admissible before a finding or plea of guilty, for the following reasons:
  • The Commission has recommended a scheme of assistance and review to help victims prepare statements that primarily contain admissible material. It would undermine the Commission’s recommendations if victims whose cases proceed through a trial were precluded from preparing that statement until after a guilty verdict.
  • Where victims seek the assistance of a lawyer in the preparation of their victim impact statement, legal professional privilege attaches to that statement so that it cannot be disclosed. This means that victims who seek non-legal assistance are disadvantaged.
  • Requiring victims to delay preparing their statement until after a finding of guilt limits their capacity to exercise a substantive legal entitlement to participate.
  1. 7.144 Victoria is the only state in Australia in which victim impact statements are statutory declarations.241 This reflects the important status they have in the Victorian criminal trial process. The Commission considers that they could be prevented from being used during the trial by rendering them inadmissible until they are actually declared in accordance with Division 4 of Part IV of the Evidence (Miscellaneous Provisions) Act 1958 (Vic). This would allow a statement to be prepared at any time before or during the trial but it would not be admissible until it is declared.
  2. 7.145 Victims would need to be told not to declare their statement until after the offender has been found guilty or pleaded guilty. This information should be provided by OPP solicitors as part of their information obligations to victims.

Recommendation

  1. 29 The Sentencing Act 1991 (Vic) should be amended to provide that only victim impact statements that have been declared in accordance with Division 4 of Part IV of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) are admissible in criminal proceedings to which the victim impact statement relates.

 

Expanding participation in court

  1. 7.146 One of the most contentious issues raised by the Commission’s terms of reference was whether to expand victims’ entitlement to participate directly in court proceedings beyond responding to applications regarding confidential communications and providing victim impact statements.
  2. 7.147 The Commission’s consultation paper asked a series of questions about whether victims should be entitled to appear in court at various stages of the criminal trial process, from committals through to appeals.
  3. 7.148 In response, the Supreme Court, some of the County Court judges consulted by the Commission, the Victorian Bar and Criminal Bar Association, the Law Institute of Victoria, Victoria Legal Aid, Liberty Victoria and other legal practitioners opposed increasing the opportunities for victims to participate directly in court proceedings.242 They expressed concern that expanding the victim’s role in the courtroom would undermine the principles of a fair trial, lead to delays and add complexity. Other mechanisms for victim input, such as meaningful consultation with the prosecution and restorative justice processes (discussed below) were viewed as posing fewer risks to the integrity of the criminal trial process and being more consistent with victims’ expectations in relation to participation.
  4. 7.149 Conversely, victims, support workers, academics, some lawyers, Victoria Police and the Victorian Victims of Crime Commissioner expressed support for victims being permitted to participate in court at certain points of the criminal trial process.243 Generally speaking, allowing victims to participate in court proceedings was seen as a way to recognise that they are entitled to be included in decision making.244
  5. 7.150 Among those stakeholders in favour of greater victim participation in court proceedings, three primary themes emerged:
  • Victims should be able to participate where their personal interests are affected.
  • Victims should be able to participate in proceedings to assert provisions designed
    to protect them.
  • Victims should be able to participate in proceedings in a manner similar to the prosecutor.
  1. 7.151 The following sections consider these themes in more detail. The Commission concludes that there may be exceptional and limited circumstances where intervention by a victim is justified and necessary, and does not undermine a fair trial or the integrity of the criminal justice system. However, being prescriptive about those circumstances is not appropriate.

Participation for personal interests

  1. 7.152 Greater participation in court proceedings was often justified in submissions and during consultations on the basis that victims have a personal interest in the proceedings before the court.245 Participation on this basis would see the victim make submissions to the court, through a lawyer, in pre-trial applications that have a bearing on the victim’s personal interests. There could also be other instances during the trial process where matters pertinent to the victims’ personal interests arise.
  2. 7.153 Victoria Police, former Victims of Crime Consultative Committee victim representatives, Jonathan Doak and Dianne Hadden maintained that victims should be able to participate in appeals against decisions that affect their personal interests, where the victim appeared in relation to the original decision.246 The Supreme Court observed:

It may be argued that rulings by the trial court on matters affecting the interests of any witness or third party should be subject to appeal. Decisions not to set aside a subpoena or rejecting a claim of privilege have consequences which cannot be addressed through a later appeal. There are very few examples in Victoria where a decision at first instance is not subject to some form of appeal or review. Whilst there is a clear risk of fragmentation of the criminal trial in permitting such appeals, significant rights can be
at stake.247

 
Defining personal interests
  1. 7.154 Not all contributors who expressed support for victims participating in court where their personal interests are affected defined what was meant by ‘personal interests’.248 Some equated personal interests with privacy interests.249 Others identified particular proceedings in which victims should be able to participate. These included applications:
  • to cross-examine victims about their sexual activities250
  • about the use of protective procedures for giving evidence251
  • for separate trials252
  • regarding the use of tendency or coincidence evidence.253
  1. 7.155 Tyrone Kirchengast advanced a more principled approach. He argued that there will be instances during the criminal trial process where the ‘personal and private interests of the victim, and their right to integrity and personal autonomy, are squarely raised’.254 In such instances, the question is whether public interest considerations outweigh the private interests of the victim. Kirchengast provides the following example: where a decision is being made to admit certain evidence, the victim’s private interests will outweigh public interests where the evidence is not substantially probative and admitting the evidence will cause significant harm to the victim.255
  2. 7.156 The right of victims to participate in applications to use their confidential communications is an example of these principles operating in practice. Kirchengast argues that allowing victims to participate in court where their personal interests are implicated simply expands the principles underlying confidential communications applications to a broader range of interests.256
  3. 7.157 Expanding victims’ participation where their personal interests are affected raises a number of distinct issues. First, the different approaches taken in contributions to this reference demonstrate that it is difficult to define what ‘personal interests’ means.257 There will be circumstances where a victim’s personal interest in an aspect of the criminal trial process warrants their participation. However, a meaningful test or definition for those circumstances is elusive.
  4. 7.158 Secondly, examples provided to the Commission suggest that victims’ personal interests are implicated most commonly in the context of evidentiary applications, such as in applications to cross-examine the victim about their sexual history, or applications to have separate trials where there are related charges against co-accused, or multiple charges against the one accused. The outcome of such applications can have a significant impact on the victim—it may affect the nature of the evidence they give or how many times they must give it. However, there are other public interests at stake. Participation in response to such applications may alert victims who are also witnesses to potential lines of cross-examination, undermining the integrity of their evidence.258

 

Participation for protection

  1. 7.159 Some supporters of greater participation by victims in court perceive it as a way of ensuring that obligations to protect victims are complied with. Participation on this basis would involve a lawyer intervening to ensure that a victim can use a protective procedure, such as a remote witness facility.259
  2. 7.160 More controversially, Jonathan Doak and a number of victim support workers favour victims being permitted to have a lawyer appear in court to protect them from improper questioning during cross-examination by objecting to such questions.260
  3. 7.161 The Commission considers that participatory reforms that see victims appearing (personally or through a lawyer) in front of the jury cannot be accommodated in Victoria’s adversarial criminal trial.
  4. 7.162 Reform proposals that permit lawyers to appear on behalf of victims to object to improper questioning, introduce evidence or cross-examine witnesses would introduce significant complexity into the trial process and risk prejudicing the jury against the accused. It would require the accused’s lawyer to respond to objections, legal submissions and evidence introduced by both the prosecution and the victim’s lawyer, and therefore undermine the accused’s fair trial.

Participation as prosecution

  1. 7.163 Very little support was expressed for victims having functions in court that are similar to those of the prosecution. This form of participation would see victims gaining access to the prosecution’s evidentiary material, introducing evidence, cross-examining witnesses, making legal submissions during the trial and in sentencing, or appearing in relation to appeals.261 These functions mirror those afforded to auxiliary prosecutors in inquisitorial jurisdictions in parts of Europe.262
  2. 7.164 Jonathan Doak suggested that the International Criminal Court’s (ICC) approach to victim participation could be adapted for Victoria. In the ICC, victims can apply to the court to present their ‘views and concerns’ at certain stages of the proceedings, where their personal interests are affected.263 The Rome Statute, which governs the operation of the ICC, states that victim participation must not prejudice the rights of the accused and a fair trial.264 The court has held that victim participation encompasses victims introducing evidence, cross-examining witnesses and making opening and closing statements.265
    All of these are functions of the prosecution.
  3. 7.165 Jonathan Doak, Tyrone Kirchengast, Victoria Police, Dianne Hadden and two victims urged the Commission to consider greater victim participation in the sentencing phase.266 Such participation is justified on the basis that, by the time of the sentencing hearing,
    the accused’s guilt has been determined; while the offender is still entitled to fairness
    in the sentencing hearing, there is no risk that a jury will be prejudiced.267
  4. 7.166 Victims, through a lawyer, could supplement the victim impact statement, lead evidence to support it, make submissions about sentencing or challenge evidence put before the court in support of the offender’s plea.268 A number of victims consulted by the Commission wanted an opportunity to challenge representations made by offenders
    in sentencing hearings.269
  5. 7.167 The risks to a fair trial and an independent prosecution associated with expanding victims’ involvement in sentencing proceedings, beyond the existing victim impact statement scheme, are discussed at [7.101]–[7.111]. Similar concerns arise in appeal proceedings. Although there is no risk of prejudicing the jury, sentences and appeal proceedings must be decided by an impartial and objective tribunal in accordance with relevant evidence and legal principles.
  6. 7.168 The Commission considers that allowing victims to appear as a matter of course in sentencing or appeal proceedings goes beyond the victim’s proper role in a criminal justice system, even one which recognises a triangulation of interests between the accused, the community and the victim. Rather, it elevates victims to the role of secondary prosecutor. In many cases, this would require the offender to respond to two sets of evidence and legal argument, which may be unfair in a two-party adversarial process.
    In addition, victims may make submissions based on their personal interests, which could conflict with the prosecution’s submissions. Taking the victim’s submissions into account may mean that decisions about sentencing and appeal proceedings might be determined by reference to factors which are not independent, impartial and fair.
  7. 7.169 The alternative is to allow victims to appear and make submissions, but not take their contribution into account. This risks falsely suggesting to victims that their input will have a bearing on judicial decision making. The Supreme Court of Victoria drew attention to this risk:

Where the law does not include the interests or views of victims as a relevant factor in the determination of a legal issue, permitting the victim to make separate submissions is unlikely to serve the interests of the victim, or the interests of justice. Obviously, the Court can give no more weight to a legal argument merely because it is put forward by the victim. The only effect would be to create a false expectation that the Court should give greater weight to a victim’s submission, which would potentially undermine the confidence of the community and the victim in the justice system. Alternatively a situation may arise in which the victim and the prosecution make contrary legal submissions, potentially undermining the effectiveness of an independent prosecution.270

Conclusion

  1. 7.170 The Commission does not recommended expanding victims’ existing entitlements
    to participate in court beyond responding to applications regarding their confidential communications and presenting victim impact statements.
  2. 7.171 All forms of participation outlined above contemplate introducing another actor—the victim—into the adversarial criminal trial process, to varying degrees. This is difficult to manage, and in some circumstances impossible, without prejudicing a fair trial. Moreover, adding a victim participant to the court proceedings would mean more court dates and documents to file, creating more delay and complexity. Reforms should be necessary, practical and feasible. Any consequential lengthening of timelines or increase in costs needs to be justified by the benefit to victims, the accused and the community.
  3. 7.172 Victims’ participation can be enhanced in ways that are compatible with an adversarial criminal trial process. Participation is about ensuring victims feel included, can make their views known and have their concerns heard. This can be achieved through regular, meaningful and effective communication and consultation with victims by OPP solicitors and prosecutors; and respectful treatment by all those involved in the criminal justice system.
  4. 7.173 Participation can also occur through restorative justice processes, which provide victims with another avenue for input, voice and participation. These processes are discussed
    in detail at [7.237—7.331].
An ad hoc right to participate
  1. 7.174 While the Commission does not recommended expanding victims’ existing entitlements to appear in court, the court may permit them to appear in other circumstances. It is well recognised that non-parties, including victims, can appear in proceedings where:
  • Their interests would be directly affected by a decision in the proceeding, in that they would be bound by the decision.
  • They can show that the parties to the proceedings may not present all factual and legal information necessary for the court to reach a correct decision.
  • The court can be satisfied it will be ‘significantly assisted’ by the information that the non-party can provide, and that costs or delays are not disproportionate to the expected assistance.271
  1. 7.175 Courts considering whether to allow non-parties to appear have refused to outline exhaustively the circumstances in which such intervention should be allowed.272 Nonetheless, a key factor is whether the non-party is ‘willing to offer the Court a submission on law or relevant fact which will assist the Court in a way which the Court would not otherwise have been assisted’.273
  2. 7.176 The Supreme Court of Victoria observed that it is not uncommon for non-parties, including victims, to seek leave to address the Court.274 The Court has accepted the interest of non-parties and received submissions on behalf of witnesses where a witness objects to giving evidence on the grounds of a privilege or a potential witness applies to have a subpoena set aside.275
  3. 7.177 Similarly, section 18 of the Evidence Act permits a child, spouse, de facto partner or parent of an accused to object to giving evidence for the prosecution.276 These witnesses will not be required to give evidence where:

(a) there is a likelihood that harm would or might be caused (whether directly
or indirectly) to the person, or to the relationship between the person and
the accused, if the person gives the evidence; and

(b) the nature and extent of that harm outweighs the desirability of having the evidence given.277

  1. 7.178 As noted in Chapter 6, child witnesses facing the prospect of giving evidence against
    a parent are entitled to independent legal advice and representation, which is provided on a pro bono basis by the Victorian Bar.278 Whether or not the child objects to giving evidence, the independent lawyer is expected to convey the child’s wishes to the court.279
  2. 7.179 These examples are indicative of circumstances where the interests of the prosecution and the victim may diverge and, as a result, the prosecution cannot discharge its obligation to act in the public interest while also furnishing the court with all the information necessary to make a proper decision.
  3. 7.180 The Commission considers that circumstances will arise, beyond those provided for in legislation, where victims may seek to appear and address the court about a matter affecting them. Interventions of this nature have been contemplated and can be accommodated by the courts. As the Supreme Court submitted:

[a]s new provisions are introduced to protect victim–witnesses, it would be consistent with existing law and practice to allow a victim–witness to make submissions where
the application of those provisions is considered by the Court.280

  1. 7.181 Interventions by the Commissioner for Victims’ Rights in South Australia show how this works in practice. The Commissioner has intervened in a limited number of cases, based on the exceptional circumstances of each case. Examples include:
  • Funding a barrister to assess and represent a child where the child’s capacity and competency to give evidence were in question.281
  • Approving legal representation for a victim of a sexual assault in order to protect private and irrelevant information belonging to the victim on a laptop seized from
    the accused by police.282
  1. 7.182 Similarly, when in her former role as ACT Victims’ Services Coordinator, Robyn Holder sought advice from an independent lawyer willing to intervene on behalf of a victim where the DPP would not apply for suppression orders despite serious and obvious safety concerns.283 The Commissioner for Victims’ Rights in South Australia has also provided victims with legal representation for the purposes of seeking the suppression of certain information.284
  2. 7.183 Holder noted that laws which permit victims to appear in relation to confidential communications simply provide expressly for a right that already exists: the right to be heard by the court where this is justified by an individual’s interest in a matter.285 The South Australian Commissioner considers his ad hoc interventions as augmenting the existing right of victims to appear in relation to confidential communications applications.286
  3. 7.184 In Chapter 3, the Commission recommends that the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) be amended to expressly recognise the interests that victims have in criminal proceedings. If this recommendation is adopted, victims may be able to use this provision to justify their participation in court proceedings. Victims may also be able to appear to assert existing Human Rights Charter rights, such as the right
    to privacy.287 In Canada,288 the United Kingdom,289 and continental Europe,290 victims
    have pointed to human rights, in particular rights to privacy and to security of the person, to assert their interests in the context of criminal proceedings.291
  4. 7.185 As noted in Chapter 6, exceptional circumstances might justify legal assistance being given to victims to assert a particular interest or human right, or to protect particularly vulnerable victims, where the prosecution’s obligations to be impartial prevent it from doing so. The Commission considers it impractical to specify when such assistance would be necessary. This is consistent with the reluctance of the courts to create strict rules around when non-parties are entitled to appear and make submissions.292 However,
    the occasions when legal assistance is provided to victims should be monitored as part
    of the evaluation of the recommended legal service.

Equal participation in the court process

Participation for people with disabilities

  1. 7.186 People with disabilities,293 in particular people with cognitive impairment, are disproportionately represented among victims of crime.294 However, very few see the offender prosecuted.295 For those whose case does lead to a prosecution, there are barriers to equal participation. The language and procedures used in court are rigid and complex, and adjustments are not always made to accommodate sensory, physical, learning or communication difficulties.296 These factors prevent full and effective participation by people with disabilities.297
  2. 7.187 Successful prosecutions where the victim has a disability are described as ‘the exception’ in the Victorian Equal Opportunity and Human Rights Commission’s report, Beyond Doubt: The Experiences of People with Disabilities Reporting Crime.298 Prosecutions can succeed when institutions adjust their practices to address the needs of people with disabilities.299 Specific measures are required to enable people with disabilities
    to participate equally in the criminal trial process.300 Chapter 8 of this report considers a number of protective reforms for victims, including those with disabilities. This section is concerned with measures that facilitate equal participation by victims in court proceedings.

Reforms recommended by other reviews

  1. 7.188 Recent reviews by the Australian Human Rights Commission, the Victorian Equal Opportunity and Human Rights Commission, and the Law Reform Committee of the Victorian Parliament, have identified the following major barriers to equal participation
    by victims with disabilities in the criminal trial process:
  • courts and criminal justice agencies not identifying that a person has a disability301
  • failures to make adjustments and modifications to court practices and facilities or provide aids to meet the needs of people with disabilities302
  • perceptions of people with disabilities as ‘unreliable, not credible or incapable of being a witness’303
  • communication techniques and styles of questioning that are not suited to the communication needs of the person, causing confusion and undermining their ability to give accurate and cogent evidence.304
  1. 7.189 In Beyond Doubt, the Victorian Equal Opportunity and Human Rights Commission made the following recommendations that, although directed to a wider group of people, are pertinent to victims of crime:
  • Court Services Victoria should give priority to improving accessibility for people with disabilities across all courts, with particular priority given to hearing loops and space for mobility aides in courtrooms.305
  • A centralised booking system should be established for augmentative and alternative communication for use by Victoria Police, the OPP, Victoria Legal Aid, courts, tribunals, the Victims Support Agency and other justice agencies.306
  1. 7.190 The Commission endorses these recommendations.
  2. 7.191 Section 31 of the Evidence Act 2008 (Vic) gives courts the discretion to make adjustments to the way they receive evidence from people who cannot ‘hear adequately’ or ‘speak adequately’. The Uniform Evidence Manual, published by the Judicial College of Victoria
    to assist judges in applying the Evidence Act, states that section 31 permits ‘the use
    of augmentative and alternative communication to enhance or replace speech’.307
  3. 7.192 The Victorian Royal Commission into Family Violence recommended that the Judicial College of Victoria provide training to judicial officers to promote consistent application
    of section 31.308 This training could also address the following additional issues raised
    by the Victorian Equal Opportunity and Human Rights Commission:
  • the need for judicial officers to consider the effects of disability, such as physical barriers to court access, on a person’s manner and ability to participate in court
  • the importance of adjusting judicial communication, and directing others in the court to do so where possible, such as in cross-examination
  • general education about disabilities and associated needs.309
  1. 7.193 The Commission considers that the early identification of a disability and associated needs, and the style of communication used by judicial officers and lawyers, are issues that can also be addressed by the introduction of intermediaries in Victoria.

Intermediaries

  1. 7.194 Intermediary schemes aim to protect and empower vulnerable witnesses to give their best evidence. Intermediaries are not advocates or support workers. Their role is to facilitate communication between a witness and the court, to ‘ensure that communication with
    the witness is as complete, coherent and accurate as possible’.310 The general function
    of an intermediary is to:
  • communicate to the witness any questions put to the witness
  • communicate to the person asking such questions the responses given in reply
  • explain the questions and answers as far as necessary to enable them to be understood by the witness and the questioner.311
  1. 7.195 Intermediaries are available in England and Wales where the quality of a witness’s evidence is likely to be diminished because of a mental or physical disorder or an ‘impairment of intelligence or social functioning’.312
  2. 7.196 Intermediaries can also be appointed for child witnesses in England and Wales.
    Children experience significant disadvantage when giving evidence in court, with the extent of the disadvantage depending on their age and maturity. Communication techniques used in cross-examination, such as leading questions, repetitive questioning, closed statements requiring affirmation or rejection, double-barrelled questions or questions phrased negatively, have been shown to confuse and mislead children.313 Research has established that:

the bundle of techniques and tactics which make up conventional cross-examination are quite remarkably unfit for the task of assessing the credibility and accuracy of a child’s evidence, or at least, they are unfit if any part of the criterion for success is that the outcome of testing be itself credible and reliable.314

 

The role of intermediaries

  1. 7.197 Intermediaries have been a part of the criminal justice system in England and Wales since 2008, and can be used by victims, witnesses or accused persons.315 They assist in court, during police interviews and in meetings with the prosecution service. Intermediaries assist the prosecution, defence and court in the lead-up to and during a trial in the following ways:
  • preparing reports for the court about comprehension and communication capacity
  • participating during a ground rules hearing, in which rules are established about how the witness will be questioned based on the intermediary’s assessment report
  • providing guidance on appropriate styles of questioning and reviewing the questions of counsel before trial
  • providing assistance with identifying the need for other communication aids when necessary
  • alerting the court to issues such as fatigue.316
  1. 7.198 Intermediaries are permitted to intervene where they believe that a question is too complicated or a witness has not understood it. The lawyer must be given a chance to rephrase the question before the judge can invite the intermediary to put the question
    to the witness.317 Intermediaries have been reported as:
  • empowering vulnerable witnesses, including victims
  • helping to bring offenders to justice
  • altering how judicial officers and lawyers understand effective communication.318
  1. 7.199 While improper questioning does still occur and procedures are reportedly not followed
    in some cases,319 the English Court of Appeal has said:

It is now generally accepted that if justice is to be done to the vulnerable witness and also to the accused, a radical departure from the traditional style of advocacy will be necessary. Advocates must adapt to the witness, not the other way round.320

  1. 7.200 In Australia, more limited schemes have been introduced in South Australia and New South Wales. South Australian legislation entitles witnesses with complex communication needs to be given communication assistance in court, including through a volunteer ‘communication partner’.321 New South Wales has introduced legislation for a pilot witness intermediary program for child victims of sexual offences.322 The Tasmania Law Reform Institute is currently investigating the feasibility of introducing an intermediary scheme in Tasmania to facilitate equal access to justice for victims, witnesses and accused persons with complex communication needs.323

 

Is an intermediary scheme needed in Victoria?

  1. 7.201 In 2013, the Victorian Parliament Law Reform Committee recommended that the Government consider establishing a witness intermediary scheme, modelled on that of England and Wales, for individuals with an intellectual disability or cognitive impairment.324 This recommendation was given in-principle support by the government of the day.325
  2. 7.202 Almost universal support for the introduction of an intermediary scheme in Victoria was expressed in submissions to the Commission and during consultations.326 The Commission was told that intermediaries are needed for child victims, vulnerable victims and those with a cognitive impairment, communication difficulty, mental illness or physical disability (such as blindness or deafness). The Office of the Public Advocate (OPA), DPP and the Supreme Court noted that intermediaries would facilitate access to the justice system.327
  3. 7.203 Only the Law Institute of Victoria and the Victorian Bar and Criminal Bar Association expressed opposition, on the basis that existing obligations for lawyers and judicial officers are sufficient and supported by training.328 The Commission does not agree.
    The findings of earlier reviews about the barriers encountered by child victims and victims who have a disability, together with comments made during the Commission’s review, have established that current arrangements are inadequate.
  4. 7.204 There is a need for intermediaries during the criminal trial process for child victims and for victims who have a disability that is likely to undermine the quality of their evidence. The scheme should be underpinned by legislation, to reinforce the victim’s right to be assisted in this way.
  5. 7.205 The use of intermediaries may cause some delays in preparing for the trial, and cross-examination may take longer. However, as the Supreme Court noted, promoting access
    to the justice system is a strong justification.329

Features of a Victorian intermediary scheme

Ground rules hearings
  1. 7.206 In England and Wales, intermediaries provide an assessment report which informs
    a subsequent ‘ground rules hearing’.
  2. 7.207 Ground rules hearings are a pre-trial process that involves all parties and the judge.
    During the hearing, rules are established about ‘the conduct of questioning’. The court may give directions that:
  • relieve a party of any duty to put its case to a witness in its entirety
  • concern the manner or duration of questioning
  • concern questions that may or may not be asked
  • allocate question topics among defendants where there is more than one defendant
  • concern the use of aids to help with communicating a question or answer.330
  1. 7.208 Ground rules hearings appear to be vital in bringing to the attention of lawyers and judicial officers the comprehension capacity and communication needs of the witness. This helps the parties in planning questions and communication and the running of the trial. If a ground rules hearing is done effectively, there should be less need for an intermediary to intervene during cross-examination.331
  2. 7.209 Under the New South Wales pilot scheme, there is no provision for a ground rules hearing although the court can order that an intermediary provide an assessment report.332 However, comments made to the Commission clearly support the approach taken in England and Wales.
  3. 7.210 The Child Witness Service noted that ground rules hearings would help judges understand a child’s needs.333 The DPP noted that ground rules conferences allow rules to be made by the judge about appropriate questioning, as well as identifying other measures to help the victim feel safe and confident.334 The executive officer of the Barwon South West Regional Aboriginal Justice Advisory Committee told the Commission that an intermediary should assess the needs of a witness and rules should be established before the trial.335 The Commission agrees and considers that assessment reports and ground rules hearings should be an integral aspect of an intermediary scheme in Victoria.
Professional and impartial facilitators
  1. 7.211 Intermediaries in England and Wales are drawn from speech therapists, occupational therapists, psychologists, social workers, nurses and teachers, among others. They are selected to assist a particular witness on the basis of their skills and experience.336
  2. 7.212 In England and Wales and New South Wales, intermediaries are paid professional roles forming part of a registry or panel, and in England and Wales they must be accredited.337 In contrast, in South Australia, communication partners are trained volunteers and a non-government organisation runs the Communication Partner Service.338
  3. 7.213 The paramount duty of intermediaries is to the court and they must perform their role impartially and neutrally.339 In New South Wales, England and Wales, the intermediary must undertake to faithfully perform their functions before the witness gives their evidence.340 A guidance issued by the Ministry of Justice for intermediaries in England and Wales states that they should not be alone with a witness at court, discuss the witness’s evidence or express an opinion about evidence or about the prosecution.341 A code of practice and a code of ethics guide their role.342
  4. 7.214 The DPP, Supreme Court and Child Witness Service supported the introduction of a scheme that uses professional qualified intermediaries with experience and training relevant to the role.343 Liberty Victoria noted that intermediaries should be officers of
    the court with a duty to be impartial and ensure a witness gives their best evidence.344
  5. 7.215 The Commission favours an intermediary model that involves professionals with a range of skills, experience and qualifications, and from a range of cultural backgrounds. Intermediaries should be paid and trained to perform this vital role, with a paramount duty to the court. Ideally, Aboriginal victims of crime should be able to access the services
    of an Aboriginal intermediary.
  6. 7.216 The Child Witness Service already conducts an assessment of the needs of child witnesses and provides a service valued by victims, lawyers and the judiciary. There is no equivalent service in England and Wales. Also in Victoria, the OPA coordinates a volunteer independent third person service that provides support and communication assistance to people with cognitive impairment and mental illness at police interviews. The OPA supported legislative reform that would see the introduction of intermediaries during criminal trials for victims, but offered the expansion of the independent third persons program as an alternative.345
  7. 7.217 Given the existence of these services in Victoria, it may be more appropriate to use existing expertise to coordinate a professional intermediary service rather than create a new service.
When intermediaries may be used
  1. 7.218 Intermediaries can be used in England and Wales as part of police interviews, including interviews recorded for the purposes of evidence-in-chief.346 Intermediaries are also available to the police in New South Wales for interviews.347
  2. 7.219 The Child Witness Service told the Commission that it would be important to have intermediaries involved with police statements that are recorded for the purposes of forming a person’s evidence-in-chief.348 The OPA’s independent third person program sees volunteers support and assist people with a cognitive impairment or mental illness in police interviews, including the video-recording of the victim’s evidence-in-chief.349
  3. 7.220 The Commission considers that there should be continuity between the communication assistance provided at police interviews and in court, particularly where interviews are recorded as the victim’s evidence-in-chief.350 Simply expanding the OPA’s volunteer service is not appropriate because the program lacks legislative foundation and resources.351 Professional intermediaries should be used, with an overriding duty to the court. However, independent third person volunteers would still have an important role to play, particularly in assisting those not eligible for an intermediary. This is a matter about which close consultation with the OPA is required.
Eligibility for and appointment of intermediaries
  1. 7.221 In England and Wales, intermediaries can be appointed in any criminal proceedings
    for a witness who is under 17, or where the quality of the witness’s evidence is likely
    to be diminished by reason of:
  • ‘mental disorder’ as defined by the Mental Health Act 1983
  • ‘significant impairment of intelligence or social functioning’
  • a physical disability or disorder.352
  1. 7.222 The prosecution can apply to use an intermediary, or the court can do this on its own initiative.353 The court is required to take the views of the witness into account.354
  2. 7.223 In New South Wales, access to an intermediary is limited to child victims of sexual offences. For child victims under 16 years, the court must appoint an intermediary unless one is not available or it is impractical, unnecessary, inappropriate or not in the interests of justice.355 For children 16 years and over, an application can be made or the court can appoint an intermediary on its own initiative where it is satisfied that the witness has difficulty communicating.356
  3. 7.224 The DPP expressed support for the use of intermediaries as a measure to ensure access
    to justice for victims and witnesses with a cognitive, communication, or physical disability, including individuals who are blind or deaf or who have autism or a speech disorder.357 While submitting that intermediaries were not needed, the Law Institute of Victoria stated that, if intermediaries were introduced, they should be restricted to the most vulnerable victims of sexual and violent offences.358
  4. 7.225 The OPA recommended that intermediaries be available to people with a cognitive disability or mental illness.359 Victim support specialists in Wodonga recommended
    that an individualised assessment process be part of the decision as to whether an intermediary is appointed.360 Victoria Police said that the views of of the victim should
    be taken into account.361
  5. 7.226 The Child Witness Service suggested that all children under the age of 10 should be able to access an intermediary and that children over 10 should have their need for an intermediary assessed. They also considered that individuals with a cognitive impairment, complex mental illness, or neurological conditions such as aphasia, dyslexia, serious learning difficulties and early stage dementia should be able to access an intermediary.362
  6. 7.227 Intermediaries aim not only to protect vulnerable witnesses from further trauma or distress, but also to promote equal participation in the criminal trial process. They do not stop an accused person from challenging the victim’s evidence; rather, their role is to make sure this is done in a way that ensures fairness for the accused and the victim. For these reasons, restricting the availability of intermediaries to children only, or closed definitions of disability, or certain offences is not justified.
Conclusion
  1. 7.228 Following the example set by New South Wales, the court should be required to appoint an intermediary in all cases where a child witness is under the age of 16. Further, any child under the age of 18 should be able to apply for an intermediary to be appointed where
    it is not otherwise mandatory.
  2. 7.229 However, if a child under the age of 16 requests that an intermediary not be appointed and is assessed as not needing one, the child’s wishes should be respected and an intermediary should not be appointed.
  3. 7.230 The Commission acknowledges that the maximum age at which the law should presume that a child needs an intermediary is a matter that may require further consultation with experts in the development of communication and comprehension skills in children.
  4. 7.231 For adults, the Commission prefers an approach modelled on the Youth Justice and Criminal Evidence Act 1999 in England and Wales. An assessment would be made of the victim’s need for an intermediary based on whether a disability, as defined by the Equal Opportunity Act 2010 (Vic), is likely to diminish the quality of their evidence. This assessment would then guide the court in determining whether an intermediary is required. There should also be a requirement to consider the victim’s views. The Commission accepts that, for resourcing and initial implementation purposes, a phased introduction of intermediaries may be required, starting with, for example, sexual offences and family violence cases before broadening to other offences.
  5. 7.232 With regard to how an intermediary is appointed, the Commission considers that there is merit in a tripartite approach that:
  • requires the court to appoint an intermediary for a child victim under 16 years of age unless the child requests that an intermediary not be appointed and is assessed as not needing one
  • empowers the court to appoint an intermediary by its own initiative for a child victim who is 16 years of age or older or a victim with a disability
  • allows a party to make an application for an intermediary to be appointed for a child victim who is 16 years of age or older or a victim with a disability.
  1. 7.233 Victoria Police and the DPP would need to have procedures in place to ensure that victims who would benefit from an intermediary are identified early and made aware of the role of intermediaries, and that the prosecution applies to the court, where required, to have an intermediary appointed for proceedings.
Fair trial considerations
  1. 7.234 The role of intermediaries is an active one—they are involved in pre-trial ground rules hearings and decisions about how a witness will give evidence, and they may intervene while the witness gives evidence where a question is too complicated or not understood. Although not raised in submissions and during consultations, there could be concern
    that intermediaries may undermine the principle of party control over the presentation
    of evidence to the court and the ability of the accused to test the prosecution’s evidence.
  2. 7.235 Commentary, evaluation and case law have not indicated that intermediaries in England and Wales intervene excessively, or otherwise threaten a fair trial for an accused.363 Rather, their function has been described as aiming to remedy an ‘illegitimate advantage’ over a particularly disadvantaged witness.364 Creating doubt about a victim’s testimony is a legitimate aim of cross-examination but it must be done in a manner that is also fair for children and people with disabilities and does not exploit vulnerability. Professionalism, impartiality, comprehensive guidance, detailed assessment procedures, appropriate jury directions and ground rules hearings are central to ensuring that the role of an intermediary does not undermine fairness to the accused.
  3. 7.236 Accused persons are not covered by the formal intermediary scheme in England and Wales, however courts have appointed intermediaries to assist vulnerable accused
    persons where necessary to ensure a fair trial.365 While beyond its terms of reference,
    the Commission supports in principle the appointment of intermediaries to assist accused persons and other witnesses, to promote equal participation.366

 

Recommendations

  1. 30 The Department of Justice and Regulation, in consultation with the Office of the Public Advocate, should establish a scheme for the appointment of professional intermediaries, modelled on the Witness Intermediary Scheme in England and Wales. The intermediaries would assist in obtaining evidence from child victims and victims who have a disability, as defined by the Equal Opportunity Act 2010 (Vic), that is likely to diminish the quality of their evidence.
  2. 31 The intermediary scheme should be underpinned by legislation that:

(a) requires that an intermediary will be appointed for a child victim under 16 years of age, unless the child requests that an intermediary not be appointed and is assessed as not needing one

(b) empowers the court to appoint an intermediary, either upon application or by the court’s own initiative, for a child victim 16 years or over

(c) empowers the court to appoint an intermediary, either upon application or by the court’s own initiative, for a victim with a disability, as defined by the Equal Opportunity Act 2010 (Vic), that is likely to diminish the quality of their evidence.  

Participation in restorative processes

  1. 7.237 Many victims of crime seek a more meaningful and inclusive way to participate, including more effective means of conveying their story and the impact of the offending.367 The need to ensure a fair and impartial prosecution limits the extent to which victims can actively participate in court proceedings. Restorative justice conferences could offer victims who want to participate a supportive and flexible forum, responsive to their needs and interests, in which to voice their views and ask questions.368
  2. 7.238 Studies have consistently reported high levels of satisfaction among victims who choose to participate in restorative justice conferencing, including in the context of serious crimes.369 For offenders who accept responsibility, restorative justice conferencing can be a satisfactory experience because it provides a forum in which to offer an explanation, express remorse or seek to make amends. There may also be benefits for the community to the extent that it increases confidence in the criminal justice system.370
  3. 7.239 However, restorative justice is not a process that every victim or offender would want to participate in and nor would it always be appropriate for them to do so. For this reason, it is crucial that any restorative justice scheme is based on informed consent and includes rigorous assessment of when it is suitable and safeguards for both victims and offenders.
  4. 7.240 Consistent with the terms of reference, the discussion and recommendations in this
    report about introducing restorative justice in Victoria focus on the criminal trial process for indictable offences. The stages at which restorative justice conferencing
    is contemplated include:
  • where a decision is made by the DPP to discontinue a prosecution
  • after a plea of guilty and before sentencing
  • after a plea of guilty and in connection with an application for compensation
    or restitution orders (which may be made after sentencing).

What is restorative justice?

  1. 7.241 The term restorative justice has been applied to a range of different justice innovations and interventions. Some of these, such as the County Koori Court sentencing process, do not require the victim to be involved and are more appropriately characterised as therapeutic justice or community justice.371 Defining restorative justice is important because misunderstandings and inflated expectations about what restorative justice is, and can achieve, contribute to unease about incorporating it into criminal justice systems.
  2. 7.242 Restorative justice is a process, not an outcome.372 The European Union Directive that sets out minimum standards for victims of crime describes restorative justice as:

any process whereby the victim and the offender are enabled, if they freely consent,
to participate actively in the resolution of matters arising from the criminal offence through the help of an impartial third party.373

  1. 7.243 It is distinguished from the traditional criminal process both in terms of how crime is framed and the response to crime. Restorative justice is ‘based on the fundamental principle that criminal behaviour not only violates the law, but also injures victims and the community’.374 It gives priority to repairing harm and directly involving the affected people. Offenders are required to accept responsibility and confront the consequences
    of their actions. In this way, restorative justice demands that offenders actively engage in the process. It also requires active input from victims. Some victims will not desire this; some may not feel ready until years after criminal proceedings finish; and some may be placed at risk of further harm.375

Victim-offender restorative justice conferences

  1. 7.244 The Commission’s consideration of restorative justice has focused on victim–offender conferencing (sometimes referred to as ‘mediation’). Many of the essential elements of restorative justice conferencing that have emerged from practice, research and guidelines promote the entitlements and interests of victims as well as offenders and are consistent with the United Nations Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters.376 They include:
  • One or more conferences or meetings are conducted in person, by video link, through representatives, or through written correspondence.
  • There is rigorous assessment of suitability, extensive preparation and debriefing,
    and an impartial, skilled and professional facilitator.
  • Victims and offenders give free and informed consent to participation, and have
    the right to seek legal advice and to withdraw at any time.
  • Offenders fully accept responsibility for the crimes charged.
  • There are safeguards to protect the safety, privacy and legal rights of victims and offenders.
  • Victims and offenders are actively involved.377 Active involvement does not require victims to speak directly to offenders. It refers to the opportunity to consent to restorative justice and contribute to the direction and goals of the process.
  • The process is dialogue-driven rather than a settlement-driven.378 Reaching an outcome or agreement, whether financial, symbolic or otherwise, should be an option but not the predetermined aim. As Daly notes, ‘[a] meeting assumes an encounter or process conception … not an outcome conception, because desired outcomes will vary by the context and purpose of the meeting’.379
  • Agreements, where reached, are fair, reasonable and capable of being fulfilled by the offender.
  • Offender participation in restorative justice after a guilty plea and before sentencing may be taken into account at the discretion of the sentencing judge.
  1. 7.245 Restorative justice processes are based on principles of respect, inclusion, direct accountability, consensual and empowered participation, safety, facilitator neutrality, direct communication and material and emotional reparation.380 Many of these correlate with what Mary Koss refers to as victims’ ‘justice needs’.381
  2. 7.246 Restorative justice may therefore offer a more just experience for victims, as well as offenders, when compared to their interaction with the formal criminal trial process.382 This is not to say that restorative justice should be a substitute for the criminal trial process. The formal justice system can be experienced as restorative by victims and will
    be viewed as the primary site for justice by many.383

Restorative justice in Victoria

  1. 7.247 There is no legislated restorative justice process available in Victoria for indictable crimes committed by adults.384 The South Eastern Centre Against Sexual Assault operates a restorative justice program for victims of sexual offences.385 Two other Centres Against Sexual Assault told the Commission that they run a form of restorative justice with a therapeutic focus or as family therapy.386 These processes operate independently of the criminal justice system and should not be affected by the recommendations in this report.
  2. 7.248 Section 83A of the Sentencing Act 1991 (Vic) allows the Magistrates’ Court and County Court to defer sentencing for up to 12 months. This requires the agreement of the offender. Sentencing can be deferred for a number of purposes, including to allow the offender to participate in programs aimed at addressing the underlying causes of offending or the impact of offending on the victim.387 When the matter returns to the court for sentencing, the court is required to consider the offender’s behaviour during the deferral period. If a pre-sentence report was ordered, it must take that report into account, together with ‘any other relevant matter’.388 Emeritus Professor Arie Freiberg suggested that this provision would enable the County Court to order the deferral of
    a sentence for the purposes of a restorative justice conference.389

Restorative justice for more serious offences

  1. 7.249 Significant concerns have been raised about the use of restorative justice to respond to serious violent offending, particularly sexual and family violence. These concerns include:
  • victims being re-traumatised by the conduct or comments of the offender during the meeting
  • unequal power relationships, and the risk of an offender exerting subtle forms of intimidation or control over the process
  • failure to understand that apologies and forgiveness are often characteristic of a cycle of family violence
  • inappropriate pressure being applied to victims to participate or to restore relationships when this is not safe or desirable
  • the possibility of offending not being publicly denounced, thereby undermining goals of both specific and general deterrence
  • gendered crimes that were historically minimised and regarded as ‘private matters’ may become private again if justice is meted out in a private conference rather than
    a public sentencing hearing
  • a risk that restorative justice will be seen as a soft option for offenders or as
    a substandard justice option.390

A supplementary measure

  1. 7.250 Some of the above concerns can be alleviated if restorative justice is understood as having a supplementary role in cases of serious offending, not a diversionary role. Restorative justice can be used to divert offenders away from the formal criminal process, but this is typically a response to less serious offending dealt with in the Magistrates’ or Children’s Court, which is outside the Commission’s terms of reference.
  2. 7.251 The Commission’s terms of reference encompass indictable (serious) offences dealt with by the Supreme or County Court.391 For these matters, restorative justice as a diversionary measure is not appropriate. It is not about keeping serious matters out of court. Restorative justice conferencing should instead be understood as supplementing the formal court process in appropriate cases. This allows public accountability, denunciation, deterrence and punishment to occur in those cases where a prosecution can proceed.

 

Potential benefits for victims

  1. 7.252 Restorative justice conferencing has been described as ‘one of the most researched justice innovations of the twenty-first century’.392 Research has shown that restorative justice can deliver positive outcomes for victims who want to participate and are ready to do so, including victims of serious and violent crimes.393 It is often victims of serious crimes who expect more from their involvement in the criminal trial process.394
  2. 7.253 The Jerry Lee Program of randomised trials of restorative justice conferencing has conducted 12 trial programs over two decades in Canberra and different sites in the United Kingdom.395 The programs in the United Kingdom include pre-sentence restorative justice conferences and serious robbery and burglary offences in the Crown Courts of London. The Jerry Lee Program found that, overall, victims who attended restorative justice conferences were:

less fearful of repeat attack by the same person, more pleased with the way their case was handled, and less desirous of violent revenge against their offenders, after receiving far more offender apologies and satisfaction with their justice.396

  1. 7.254 A link between participation in restorative justice and reduced levels of post-traumatic stress symptoms among robbery and burglary victims in the short term was also identified.397
  2. 7.255 A separate evaluation by the University of Sheffield of the above restorative justice trials
    in the United Kingdom found that 85 per cent of victims and 80 per cent of offenders were satisfied overall.398 Most also considered the process to be a fair one. A small number of participants were dissatisfied as a result of communication problems, disagreement about the circumstances of the offending or the lack of an outcome agreement.399 While the Commission acknowledges that victims may not seek an apology from an offender, it is worth noting that 90 per cent of victims who participated in a conference received an apology compared to only 19 per cent of those who went through the traditional court process.400 Overall, the University of Sheffield evaluation concluded that:

Conference victims and offenders were significantly more satisfied with what the criminal justice system had done with their case than control group participants, suggesting there is a positive effect of participating in restorative justice on confidence
in criminal justice.401

  1. 7.256 Positive results have also emerged in New Zealand. A 2011 survey of 154 victims revealing that 82 per cent felt satisfied with their restorative justice experience, while 74 per cent felt better after the conference.402 The Australian Institute for Criminology has noted that the potential benefits of restorative justice include:
  • victim satisfaction and the meeting of unmet justice needs
  • offenders taking responsibility for their actions
  • increased compliance with a range of orders.403
  1. 7.257 Many victims will not be ready to participate in restorative justice conferencing until some time after criminal proceedings have been finalised. This is a matter outside the Commission’s terms of reference. However, it is worth noting that the post-sentencing restorative justice program run by Corrective Services NSW has reportedly satisfied the unmet justice interests of victims of serious crimes, including murder, manslaughter, culpable driving and sexual offences.404

Restorative justice and reoffending

  1. 7.258 The impact of restorative justice on reoffending rates has implications for the community in terms of costs and safety. Restorative justice conferencing does not always correlate
    to a reduction in reoffending, but it is rarely linked to an increase.405
  2. 7.259 It appears that, where an adult offender is willing to participate and a victim also wants to participate, the risk of reoffending can decrease.406 The outcomes of the Jerry Lee Program in the United Kingdom demonstrated a reduction in the frequency of repeat offending where a personal victim was involved and the offending involved violence.407 Overall £8 were saved in the costs of crime prevented for every £1 spent running restorative justice conferencing as a supplementary process, with greater cost-effectiveness found in cases involving serious offenders with prior convictions.408
  3. 7.260 An Australian Institute for Criminology review of restorative justice published in 2014 reached a similar conclusion. It found that restorative justice:
  • may be more effective for more ‘prolific offenders’
  • may prevent some offenders from further criminal activity, slow the offending
    of others, but have no effect on the criminal activity of others
  • is more effective in response to violent offending than property offending
  • benefits those who are willing to engage.409

Developments in the use of restorative justice

New Zealand
  1. 7.261 Restorative justice has been part of New Zealand’s criminal justice system since 1989.410 Any court, including the High Court, can adjourn sentencing to allow a restorative justice conference to take place.411 Since 2014, the Sentencing Act 2002 (NZ) has required District Court judges to adjourn sentencing so that inquiries can be made to determine whether restorative justice is appropriate where:
  • an offender pleads guilty
  • there are one or more victims
  • a restorative justice process has not taken place
  • the judge is aware that an appropriate restorative justice process can be accessed.412
  1. 7.262 The wishes of the victim must be taken into account in determining whether restorative justice is appropriate. Matters assessed as suitable proceed to a restorative justice conference. The delivery of restorative justice services is guided by best practice standards published by the Ministry of Justice.413The court must take any outcomes arising from a restorative justice conference into account in sentencing.414 The District Court’s jurisdiction includes serious offences, but not murder, manslaughter or serious drug offences.
England and Wales
  1. 7.263 England and Wales have recently introduced legislation that expressly provides for deferral of sentencing to allow for a restorative justice meeting to occur.415 This is conditional on all parties consenting, including the victim. The Act does not exclude specific offences, offenders or victims. A Ministry of Justice Guidance states that restorative justice may be appropriate for any offence and can be more effective where greater harm has been experienced. It ‘should not normally be used’ in cases of domestic violence and should not proceed for hate crimes and sexual offences unless a victim requests it and there is a suitably skilled facilitator.416 The Code of Practice for Victims of Crime requires information about restorative justice to be provided to victims of adult and youth offenders.417
  2. 7.264 The aims of the pre-sentence restorative justice scheme are:
  • to provide victims with the opportunity to take part in restorative justice at an early stage of the criminal justice process
  • to offer victims more direct involvement in the criminal justice process, giving victims
    a voice and increasing victim satisfaction
  • to reduce reoffending.418
  1. 7.265 Victim–offender conferences, community conferences and indirect communication are listed as types of restorative justice activities.419 Restorative justice services are dispersed across a range of organisations.
Australian Capital Territory
  1. 7.266 In February 2016, the Australian Capital Territory became the first state or territory in Australia to adopt legislation that allows the use of restorative justice as a supplementary response to the formal criminal process for serious offending.420 Restorative justice has been expanded from youth offending to serious offences committed by adults, excluding sexual offences and domestic violence offences. Sexual offences and domestic violence offences will be included at a later date.421 Referrals for prosecutions involving serious offences are permitted only after a guilty plea or finding of guilt.422 In all cases, the victim and offender must consent and a suitability assessment is required.
  2. 7.267 One of the key objects of the Crimes (Restorative Justice) Act 2004 (ACT) is to empower victims ‘to make decisions about how to repair the harm done by offences’.423 The Act requires the purposes, procedures and potential impact of restorative justice to be explained to victims and offenders.424 This is to ensure victims and offenders are able to provide informed consent. In contrast to England and Wales, a centralised approach is taken. Referrals to restorative justice go through the director-general of the unit responsible for administering the Act.425

Restorative justice conferencing for indictable offences in Victoria

  1. 7.268 In 2009, the Victorian Parliament Law Reform Committee recommended a pilot restorative justice program for serious offences involving adults, with clear eligibility guidelines and comprehensive specialist training for facilitators.426 The Victorian Government accepted this recommendation ‘in principle’.427
  2. 7.269 The Committee recommended further research into whether restorative justice
    is appropriate for family violence and sexual offences before including those offences
    in a restorative justice program.428 The Government indicated that it only had plans to research the use of restorative justice in response to family violence in Koori families.429

The views of victims

  1. 7.270 Victims of sexual offences who spoke to the Commission about restorative justice supported victims having choice about whether to participate, although some had
    no interest in confronting the offender themselves.430 The parents of some child victims
    of sexual offences stated that they would have liked to have confronted the offender
    to explain the harm caused, or at least have had the option of participating in restorative justice.431 Some victims sought no more than to have the offender appropriately punished by the court.432
  2. 7.271 The criminal trial process has been criticised for encouraging guilty offenders to deny and minimise their offending, rather than take responsibility for their actions.433 Victims saw restorative justice as an opportunity to confront an offender with the consequences of their wrongdoing, and possibly obtaining an acknowledgment of wrongdoing or an apology. The absence of a more empowering process for victims who seek direct offender accountability and acknowledgment may mean more pressure is placed on sentencing outcomes to achieve justice.

The views of legal and victim support professionals

  1. 7.272 Legal professionals, victim support specialists and academics consulted by the Commission expressed support for restorative justice.434 Restorative justice was considered to be particularly appropriate after a guilty plea, as a supplementary process to formal court proceedings. It was also suggested that compensation discussions could form part of restorative justice conferences.435
  2. 7.273 In addition, some contributors stated that restorative justice could be useful before guilt was determined, either while proceedings are under way or after a decision by the DPP
    to discontinue a prosecution.436
  3. 7.274 The Victims of Crime Commissioner, the Law Institute of Victoria and a participant at a regional roundtable questioned the appropriateness of restorative justice for serious offences or sexual offences.437 The Victims of Crime Commissioner expressed concern about victims feeling pressured to participate in circumstances where confronting an offender may in fact exacerbate trauma or reinforce existing power imbalances. This legitimate concern is addressed below in relation to eligibility and suitability for
    restorative justice.

Conclusion

  1. 7.275 Research demonstrates that restorative justice conferencing has something to offer victims of serious offences, where both the victim and offender want to participate. It can provide a satisfying and fair process that encourages offenders to be accountable. It may also help with the victim’s recovery. It offers offenders willing to accept responsibility a procedurally fair process and has the potential to reduce the rates of reoffending.
  2. 7.276 Restorative justice conferencing appears to be better placed than the court process to respond to what Heather Strang has described as the ‘non-material dimensions of victimization’ such as anger, fear and mistrust.438 Restorative justice can respond to the procedural justice needs of victims within a process that is flexible, supportive and focused on dialogue.439 It requires active participation and allows for private interests (such as an apology, answers to questions or compensation) to be advanced. Focusing on the victim’s interests and providing an additional option for their participation are consistent with the modern criminal trial process.
  3. 7.277 Given the recent research, and the support expressed in submissions and during consultations, the Commission considers that restorative justice should no longer be seen as a process appropriate only for summary or non-violent offences in Victoria.
  4. 7.278 Restorative justice conferencing for indictable crime must be understood as requiring
    a different approach to that applied for less serious offending or youth offending:
  • It should be supplementary, not diversionary.
  • It should only ever proceed with the informed consent of any victims involved.
  • It should be tailored to respond to the interests and needs of victims, rather than focusing primarily on the rehabilitation of the offender.

When should restorative justice be available?

  1. 7.279 Theoretically, restorative justice could be used as a supplementary measure at any stage during or after the criminal trial process.440 The stages within the scope of the Commission’s terms of reference where restorative justice would be most appropriate
    and feasible are:
  • where a decision is made by the DPP to discontinue a prosecution
  • after a guilty plea and before sentencing in the Supreme or County Court
  • after a guilty plea and in connection with an application for compensation or restitution orders by a victim in the Supreme or County Court (which may occur after sentencing).
Prior to a determination of guilt
Ongoing prosecution
  1. 7.280 Some contributors to the Commission’s reference suggested that restorative justice could be made available as an option while a prosecution is live and before a guilty verdict, with appropriate safeguards.441 Restorative justice in this context presents unique challenges.
  2. 7.281 Before guilt has been legally determined, the accused is presumed innocent. Restorative justice requires the accused to accept responsibility. There may be little incentive for an accused to admit wrongdoing or demonstrate remorse while a prosecution is ongoing.
  3. 7.282 For victims, an expression of responsibility during a conference may be tarnished by the accused maintaining legal innocence.442 In addition, if the prosecution came across material from the restorative justice conference that is relevant but harmful to the prosecution, it would be obliged to disclose it to the defence.443 The victim may face a conflict between their role as a witness for the prosecution and the pursuit of more personal interests through a restorative justice conference.
  4. 7.283 Given these complexities, the Commission does not consider it appropriate at this time
    to introduce restorative justice conferencing as an option during live prosecutions before
    a finding of guilt.
 
Decision made by the DPP to discontinue a prosecution
  1. 7.284 Restorative justice conferencing could be used where a prosecution will not be, or
    is no longer being, pursued. In line with the Commission’s terms of reference, the
    use of restorative justice was considered in the context of the DPP making a decision
    not to proceed with a prosecution but not to a decision made by Victoria Police not
    to file charges.
  2. 7.285 Where offending is historical or occurs within a family, the Commission was told that restorative justice may have a role to play. This is particularly the case where a victim does not want a perpetrator imprisoned, or there is insufficient evidence for a prosecution, but the victim wants an acknowledgment or apology.444 Historical sexual offences are notoriously difficult to prosecute successfully.445 In many cases, the person accused will not be tried or convicted.446 Victims may seek an alternative form of justice or a way to manage an ongoing family relationship.

Additional safeguards

  1. 7.286 Restorative justice when the DPP has decided to discontinue a prosecution would require additional safeguards to protect the legal interests of victims and offenders. For offenders in particular, who would be required to admit responsibility after a prosecution has been discontinued, there would be little incentive to participate if doing so could be used against them in subsequent legal proceedings. Consistent with the United Nations’ Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, the fact of participation by an offender should not be used as evidence of guilt in subsequent legal proceedings.447
  2. 7.287 The Basic Principles require the discussions to be confidential, except where disclosure is agreed to by the parties or required by law.448 In its report about the use of restorative justice in response to sexual offending, the Centre for Innovative Justice suggested that
    all discussions should be protected except where a conference facilitator considers a person to be at immediate risk.449
  3. 7.288 The Commission considers that a privilege should apply to discussions in the course of restorative justice conferencing, with disclosure permitted where agreed by all participants or where there is an immediate risk of harm to a person. It may be reassuring to victims, as well as offenders, to know that what they say cannot be disclosed or used against them in later legal proceedings. Details about the application of the privilege and its relationship with the conference facilitator’s report and any agreement reached by the parties, and whether any other exceptions should apply, are matters that require additional consideration.
  4. 7.289 These safeguards would not stop a prosecution from being pursued later or prevent
    a victim from pursuing a civil claim for compensation.450 They would protect statements and admissions made by participants from unlawful or unauthorised disclosure and prevent the fact of an offender’s participation from being used as evidence of guilt.
  5. 7.290 Victoria Police expressed concern about the impact of restorative justice on a victim’s compensation interests in matters where a conviction might be possible.451 As stated above, restorative justice conferencing as a response to serious offending should supplement the formal court process, not replace it. Thus, if there is a reasonable prospect of conviction and the prosecution is in the public interest, the prosecution should continue in accordance with the DPP’s policies.452
Conclusion
  1. 7.291 In the context of indictable (serious) offences dealt with by the Supreme and County Courts, restorative justice conferencing should be supplementary to the traditional criminal trial process. The Commission considers it consistent with this position that victims can request a restorative justice conference where a prosecution has been pursued but is discontinued by the DPP. Restorative justice conferences and agreements should not bar further criminal proceedings. The fact of participation should not be admissible as evidence of guilt in subsequent legal proceedings and a privilege should apply to restorative justice discussions, the details of which require further consideration.
  2. 7.292 The potential appropriateness or otherwise of restorative justice should not be taken into account by the DPP in deciding whether to continue with a prosecution. That decision should be guided by the prospects of conviction and the public interest.
After a determination of guilt
  1. 7.293 As noted above, legal and victim specialists consider restorative justice most appropriate after a determination of guilt, either before or after sentencing. Beyond the making of compensation and restitution orders, which may occur after sentencing, the Commission cannot make recommendations about restorative justice as a post-sentencing option but acknowledges that it may be more effective after sentencing for some victims.453
Prior to sentencing or compensation and restitution orders
  1. 7.294 If restorative justice conferencing were undertaken before sentencing, the court could supervise the process. Subject to the consent of the victim and offender, the court could have the discretion to defer sentencing to allow time to assess whether restorative justice is appropriate, and for a restorative justice conference to take place. The offender would then return to the court for sentencing regardless of whether the restorative justice conference went ahead or its outcomes. Courts would therefore retain the function
    of publicly denouncing the offending and punishing the offender.
  2. 7.295 The DPP has expressed the view that restorative justice processes should not involve prosecution lawyers.454 The Commission agrees that it is not appropriate to have the representative of the state in a conference focused on the private interests of individuals. The conference facilitator could keep the parties and court updated about progress.
    The facilitator could prepare an outcome report, attaching any agreement reached,
    for consideration by the prosecution, defence and judge.455

Impact on sentencing

  1. 7.296 The DPP and the OPP Witness Assistance Service expressed concern that, if restorative justice conferencing were permitted before sentencing, and taken into account at sentencing, offenders may participate for disingenuous reasons, such as to have their sentence reduced.456
  2. 7.297 Rigorous processes to assess suitability, thorough preparation and skilled facilitation can reduce this risk. The Commission also considers that it can partly be lessened by allowing restorative justice to be an option only where an offender pleads guilty, as distinct from a guilty verdict after a trial. In addition, if offenders do not participate genuinely, this could be reflected in the conference facilitator’s outcome report and considered by the sentencing judge. The victim’s views about the restorative justice conference could also
    be incorporated into the facilitator’s report.457
  3. 7.298 Restorative justice is onerous for offenders because they are required to directly respond to the consequences of their actions, as narrated by the victim, and actively participate in the repair of harm. If judges do not have the discretion to take into account the offender’s participation in a restorative justice conference, there may be little motivation for an offender to consent. Furthermore, the option of participating in a restorative process may also motivate some offenders to plead guilty early, thereby circumventing the need for the victim to give evidence at committal and/or trial.
  4. 7.299 In New Zealand, sentencing courts must take into account restorative factors, such as offers or agreements to make amends, remedial action, apologies, and compensation. The court must consider whether such offers or actions are genuine, capable of being achieved and acceptable to the victim.458
  5. 7.300 In England and Wales, the facilitator’s report about the outcomes of the restorative justice process is provided to the court. The court has discretion as to how it takes participation in restorative justice into account at sentencing.459 In the Australian Capital Territory, the court ‘may consider whether the offender accepts responsibility for the offence to take part in restorative justice, but is not required to reduce the severity of any sentence as a result’.460 If an offender elects not to take part, this cannot be taken into account.461
  6. 7.301 Victoria’s Sentencing Act already requires judges to take a range of matters into account, such as the stage at which an offender pleaded guilty and any mitigating factor or relevant circumstance.462 In addition, the County Court can defer sentencing to allow for participation in certain programs, and then take the offender’s behaviour during the deferral period, and any pre-sentence report, into account at sentencing.463
  7. 7.302 The Commission is of the view that judges should decide how participation in restorative justice is taken into account at sentencing, based on consideration of the facilitator’s report and any agreement reached between the offender and victim. It is also important for the law to state that participation in restorative justice will not automatically reduce the severity of a sentence. The Commission therefore favours the approach taken in the Australian Capital Territory.

 

Relationship between restorative justice outcomes and compensation

  1. 7.303 It was suggested that Victoria could follow New Zealand’s approach of incorporating compensation agreements reached in restorative justice conferences into sentencing decisions.464 As discussed in Chapter 9, having compensation orders form part of sentencing represents a substantial departure from current Victorian sentencing law. Sentencing orders are punitive, whereas compensation orders are ancillary (additional)
    civil orders.
  2. 7.304 Restorative justice involving serious offences should be dialogue-driven and flexible, rather than focusing on a particular outcome or agreement about compensation. For some victims, the financial aspects of harm will take a back seat to the emotional aspects.465 Where an agreement is reached, the court could be empowered to take it into account
    in making a compensation or restitution order in addition to sentencing. Research suggests that payment of compensation by an offender can be validating, and that payment is more likely to be made where the offender has participated in a restorative justice conference than when they have not.466
  3. 7.305 Restorative justice conferences could take place after sentencing, in connection with
    an application for restitution or compensation orders.467 This would separate restorative justice from sentencing, while retaining its connection to the criminal trial process, and allowing compensation orders to be made by a court where agreement is reached. Negotiating a compensation amount should not be seen as the aim of restorative justice conferencing where it occurs at this stage.

Conclusion

  1. 7.306 The Commission considers that restorative justice should be made available as a pre-sentence option, and as an option in connection with applications for restitution or compensation under the Sentencing Act. The Supreme Court and County Court should be empowered to refer matters for a restorative justice conference, subject to the consent of victims and offenders and a suitability assessment.
  2. 7.307 This would require OPP solicitors to inform victims about their entitlement to request a restorative justice conference and refer them to sources of further information and legal advice. In Chapter 6, the Commission recommends the establishment of a legal service
    for victims at Victoria Legal Aid. This service should provide legal advice about participation in restorative justice conferencing.
Applications for state-funded financial assistance
  1. 7.308 Finally, some contributors suggested that restorative justice could be incorporated into the processes of the Victims of Crime Assistance Tribunal (VOCAT).468 The Commission’s research and consultations indicate that restorative processes do not sit easily within the scheme that VOCAT administers for providing state-funded financial assistance to victims of crime.
  2. 7.309 Offenders do not need to admit wrongdoing for the victim to obtain financial assistance, and may not be involved. In contrast, restorative justice requires the consensual involvement of victims and offenders, and an acceptance of responsibility.
  3. 7.310 Victoria Legal Aid told the Commission that its clients want to get an order from
    VOCAT as quickly as possible and without contact with the offender.469 On balance,
    the Commission considers it inappropriate to incorporate restorative justice conferencing into current VOCAT processes.

Eligibility and suitability

Free and informed consent
  1. 7.311 To be considered eligible and suitable for restorative justice, victims must provide free and informed consent. It is also critical that offenders provide informed consent, and accept full responsibility for their offending.470 These conditions should be statutory prerequisites.471
  2. 7.312 Consent should be understood as a continuing prerequisite, which may be withdrawn at any time. One of the principles underlying the ACT Crimes (Restorative Justice) Act is that victims and offenders are under no obligation to take part or to continue to take part once started.472 Victims and offenders must also be informed about their entitlement to seek legal advice.473 These elements are essential, not only to prevent harm to the interests of victims and offenders, but also to facilitate a process that has the greatest potential to be restorative.
Case-by-case suitability assessment
  1. 7.313 Robust procedures will also be necessary to assess whether each case referred by the court or other agency is suitable, in view of the unique circumstances and individuals.
    This is common to restorative justice conferencing programs.
  2. 7.314 The restorative justice program run by Corrective Services NSW has a thorough assessment process that includes separate interviews with the victim and offender.474
    In the Australian Capital Territory, the decision as to whether a matter is suitable lies with the director-general of the administrative unit responsible for the Crimes (Restorative Justice) Act, and the legislation lists factors relevant to suitability.475 Suitability assessments for New Zealand’s sexual offences restorative justice program involve a specialist clinical team made up of a senior restorative justice facilitator, a victim–survivor specialist (who
    is also a counsellor) and an offender specialist and psychologist.476
  3. 7.315 While victims come from a diversity of backgrounds and experience crime in many ways, a desire for procedurally just processes is common. The Commission therefore considers that each case should be rigorously assessed for suitability based on the circumstances and individuals involved, rather than having a blanket inclusion or exclusion of certain offences, offenders or victims.477 General suitability factors could be prescribed in legislation, as occurs in the Australian Capital Territory, and allow for more detailed factors and considerations to be addressed in policy.
  4. 7.316 Cases may be assessed for a video link or shuttle conference rather than a face-to-face conference. Relevant factors could include:
  • the nature of the offending, level of harm and level of violence
  • the full acceptance by the offender of responsibility for the crime charged
  • the extent of the offender’s contrition or remorse
  • the offender’s criminal history
  • the personal characteristics, motivations, empathy and resilience of the victim
    and the offender, and their needs or sensitivities
  • whether appropriate support is available for the victim and the offender
  • physical and psychological safety
  • the nature and dynamic of any past or present relationship between the victim
    and the offender
  • any power imbalance between the victim and the offender
  • the balance of the benefits for the victim against the risk of further harm
  • the broader family or community context of the offending
  • any government or administrative policy that relates to the treatment of certain
    types of offences.478
Family violence and sexual violence
  1. 7.317 Sexual violence and family violence are often viewed as inappropriate for restorative justice. In a 2014 report examining the potential for a restorative justice program for sexual offences in Victoria, the Centre for Innovative Justice suggested that the debate has been focused on ‘ideology, principle and precaution’ because of a lack of existing programs.479
  2. 7.318 The Commission notes that, while sexual offences often occur in the context of a family relationship, some sexual offending involves an unknown perpetrator and some family violence will not involve sexual violence. Offending may be reported years after it occurred, when the offender is no longer a threat, or it may be reported with the threat of ongoing and escalating violence. The offences prosecuted may form part of an ongoing relationship of control, manipulation and abuse. Sexual violence and family violence are forms of gendered violence, to which the conventional justice system has historically failed to provide an appropriate response.480 However, victims will have varied experiences and capacities, which require the availability of a range of options. Restorative justice, where carefully tailored to respond to the particular dynamics of gendered violence, is one such option.
  3. 7.319 Excluding sexual violence or family violence offences from restorative justice conferencing on principle denies some victims an option available to others. It ignores the fact that victims are autonomous individuals who have a clear understanding of their interests and capabilities. A number of sexual offence victims told the Commission that they were interested in restorative justice, or that it should at least be an option, even if they would

    not participate in it themselves.481 Rather than excluding particular offences, assessment procedures and conferencing processes should be developed to respond specifically to the circumstances and dynamics of gender-based violence.

  4. 7.320 There are significant and real concerns about re-privatising gendered crimes, re-inforcing power imbalances and re-traumatising victims, necessitating a specialised approach.482 In addition, offences involving sexual or family violence should continue to be prosecuted where there is a reasonable prospect of conviction and it is in the public interest. Restorative justice should be supplementary to this process. The Commission notes the potential benefits for victims identified by the Victorian Parliament Law Reform Committee in 2009:
  • Violence is condemned in a meaningful manner.
  • Victims are given an opportunity to tell their story.
  • The process encourages admissions of offending.
  • The victim’s experiences may be validated.
  • Recognition can be given to the fact that the victim and offender may have an ongoing relationship.
  • There is a focus on rehabilitation over retribution.
  • The process promotes a more holistic understanding of the offending.
  • It may encourage the reporting of such crimes.483
  1. 7.321 Where violence involves family members, the question of whether restorative justice is appropriate will depend on the parties and circumstances involved. For example, a small study in New Zealand suggested that restorative justice conferences, combined with other interventions, could lead to positive change for victims who want or need to maintain
    a relationship with the offender.484 As a dialogue-based process though, there is significant risk that it may ‘be unintentionally coercive’ and victims may ‘put their needs aside “for the greater good”’ of the family.485
  2. 7.322 A restorative justice scheme incorporating family violence matters needs to respond to the complexity and dynamics of family relationships and the fact that family violence is typically characterised by an ongoing pattern of behaviour in which emotional, financial, physical and sexual violence are used as tools of domination and subordination. Julie Stubbs has written extensively on restorative justice and family violence andwarns against the use of generic models. She emphasises that for restorative justice to be safe and meaningful, facilitators and participants must fully understand the nature and dynamics of gendered violence and how it affects participation and decision making.486 Referrals to professional support, treatment and intervention services would need to be integrated.487
 
Existing practices and recent developments
  1. 7.323 Restorative justice is available for serious offences in Belgium, including sexual offences.
    It operates as a supplementary measure, available at any stage of the court process. Access to restorative justice is considered a right for victims.488
  2. 7.324 Restorative justice is also permitted in New Zealand in response to family violence and sexual violence. Best practices standards have developed for the use of restorative justice in response to sexual offences.489 Project Restore offers a specialist restorative justice program for victims of sexual offences. It employs a clinical team model, with offender and victim specialists, a senior facilitator and a clinical supervisor all involved in risk and readiness assessment procedures. A small file review in 2012 concluded that in most cases, the outcomes sought by victims were achieved and their justice interests met.490
  3. 7.325 In 2009, the National Council to Reduce Violence against Women and their Children recommended trials to evaluate the ‘utility and suitability’ of restorative justice in the context of sexual and family violence, including processes driven by Aboriginal and Torres Strait Islander communities.491 A report by the Centre for Innovative Justice in 2014 stated that there was sufficient evidence from programs in other jurisdictions to support a best-practice restorative justice model for sexual offences.492 The model draws from the New Zealand experience and involves a specialised gender violence oversight team, specialist facilitators and an assessment process involving an expert panel.
  4. 7.326 A review of research commissioned by the Royal Commission into Institutional Responses to Child Sexual Abuse was published in March 2016. It concluded that restorative justice ‘can be practised to good effect following sexual abuse’ subject to conditions.493 Those conditions include:
  • specialised facilitators and sexual violence experts
  • vigilant suitability assessment
  • responsiveness to participant needs
  • victim readiness
  • targeted sex offender treatment programs.
  1. 7.327 In March 2016, the Victorian Royal Commission into Family Violence recommended the development of a framework and pilot program for restorative justice within two years as an additional option to formal court proceedings.494 The seriousness of the offence in determining gateways and eligibility for restorative justice was noted as a matter to be addressed. The Royal Commission emphasised the importance of victims being involved
    in decision making about the appropriateness of restorative justice in their case.495
 
Conclusion
  1. 7.328 The Commission supports a phased approach to the implementation of restorative justice, in line with the approach recently taken in the Australian Capital Territory. Victims of sexual and family violence should initially be excluded from eligibility to allow time to develop appropriate processes and procedures. A specialised team should be involved in the careful development and implementation of restorative justice conferencing for sexual and family violence. The Commission considers such an approach to strike the balance between a safe and supportive process for victims and respecting their autonomy and expectations.

Safeguards, procedures and oversight

  1. 7.329 Restorative justice conferencing should be a voluntary, safe and accessible process, which holds offenders to account and involves a neutral facilitator.496 In addition to free and informed consent, and a rigorous and tailored suitability assessment process, the following matters, some of which are discussed above, will need to be addressed in legislation:
  • the obligations owed to victims and offenders by those referring them to, assessing their suitability for, and facilitating restorative justice conferences, to provide relevant information (including about their right to seek legal advice)497
  • that participation by an offender in restorative justice conferencing cannot be used as evidence of guilt in subsequent legal proceedings498
  • the nature and extent of the privilege that applies to communications by participants during restorative justice conferencing499
  • any restrictions that should apply to the content of restorative justice agreements between victims and offenders500
  • monitoring and reporting of compliance with restorative justice agreements
    by offenders.501
  1. 7.330 A dedicated unit, independent of the criminal trial process, would be needed to develop best practice procedures and standards, provide oversight, promote awareness and monitor a restorative justice scheme in Victoria.502 The Commission expects that the Department of Justice and Regulation would have responsibility for implementing the scheme. In doing so, it would need to ensure the following matters are addressed:
  • Robust suitability assessment procedures so that only appropriate matters proceed
    to a conference.
  • Procedures for preparing and debriefing victims and offenders, and for facilitating restorative justice conferences. Thorough preparation and debriefing are critical
    to avoid distress or harm to victims and offenders.503
  • Processes that are responsive to the diverse needs and interests of victims
    and offenders, including adequate support.
  • Procedural safeguards to:

– ensure victims and offenders provide informed consent throughout the process

– ensure the physical and psychological safety of victims and offenders

– protect communications by participants in the preparation, conference and debriefing stages of restorative justice conferences

– monitor compliance by offenders with restorative justice agreements and keep victims informed.

  • Clear referral pathways to support and legal advice.
  • The qualifications, training and accreditation required of restorative justice facilitators, including specialisation for restorative justice conferences involving sexual or family violence.504
  • Educating and training the community, legal profession, judiciary and victim support workers about restorative justice conferencing.
  • Monitoring and evaluating the effectiveness of restorative justice conferences and
    the restorative justice scheme.
  1. 7.331 Careful consultation is required with Aboriginal people in Victoria about when and how restorative justice will be an appropriate response to offending. Particular consideration needs to be given to the interests of Aboriginal women. Indigenous women in Australia are more likely than non-Indigenous women to be the victims of gendered violence, the implications of which are affected by the ongoing impact of colonisation.505 Separate models might be required, with oversight and control involving Aboriginal people.506 In addition, consideration would need to be given to the interaction between pre-sentencing restorative justice conferencing and the County Koori Court sentencing process. The Commission was told that if victims were going to be encouraged to participate more
    in this process, there would need to be a Koori support worker for this purpose.507

Recommendations

  1. 32 The Victorian Government should establish a statutory scheme for restorative justice conferencing for indictable offences in Victoria that is supplementary
    to the criminal trial process and available in the following contexts:

(a) where a decision is made by the Director of Public Prosecutions
to discontinue a prosecution

(b) after a guilty plea and before sentencing

(c) after a guilty plea and in connection with an application for restitution or compensation orders by a victim.

  1. 33 The restorative justice conferencing scheme for indictable offences in Victoria should be based on:

(a) voluntary and informed victim consent and participation

(b) voluntary and informed offender consent and participation

(c) full acceptance by the offender of responsibility for the crimes charged

(d) rigorous processes to assess the suitability of restorative justice based on the individuals involved and the circumstances of each case.

  1. 34 The restorative justice conferencing scheme should apply initially to offences that do not involve sexual violence and family violence and be extended to sexual violence and family violence offences at a later stage.
  2. 35 The Victims’ Charter Act 2006 (Vic) should require prosecuting agencies to inform victims about their entitlement to request restorative justice conferencing and refer them to legal advice.
  3. 36 The Department of Justice and Regulation should be responsible for implementing the restorative justice conferencing scheme.

 

Footnotes

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