8 Protection

 

Introduction

  1. 8.1 Chapter 7 discussed opportunities for victims to participate in the criminal trial process and the different forms that participation can take. By far the most challenging is to give evidence as a witness for the prosecution. Some victims are able to meet the challenge with relative ease. For others, the experience can be harrowing. Their private lives may
    be exposed to public scrutiny. They may be traumatised by seeing the accused in court and may find the courtroom environment intimidating and stressful. Cross-examination
    in particular can cause victims distress and further emotional harm.
  2. 8.2 Victims expect to be protected from further harm and trauma throughout the criminal trial process. Successive reforms over the past 30 years have focused on reducing the difficulties experienced when victims participate as witnesses. Protective measures have been introduced to reduce the distress of publicly responding to questions about the crime in an adversarial setting.
  3. 8.3 The first part of this chapter focuses on victims as witnesses. It examines whether reforms that protect certain victims from giving evidence multiple times, and that limit their exposure to the accused and the courtroom, should apply to other victims. It also reviews measures to protect victims’ safety in and around courthouses.
  4. 8.4 Victims expect their privacy not to be infringed without their consent or sound justification. It can be particularly distressing for victims of sexual offences when personal and sensitive information is made public during a criminal trial. Limits have been imposed on the accused’s access to a victim’s medical and counselling records, and these are considered in the second part of this chapter.
  5. 8.5 Of course, accused persons have a right to cross-examine witnesses and access relevant material in order to make a full and proper defence. These are significant elements of the fundamental right to a fair trial and should be protected.1 This does not mean that victims should not also be treated fairly and with appropriate respect for their dignity
    and humanity.2

Victims as witnesses: reducing trauma and intimidation

  1. 8.6 In the criminal trial process, some victims give evidence at least twice: once at the committal hearing and again at the trial. Sections 123 and 124 of the Criminal Procedure Act 2009 (Vic) restrict the cross-examination of witnesses, including victims, at committal hearings. Part 8.2 of the Act, which deals with witnesses, contains measures to reduce the likelihood of traumatisation, intimidation and distress when giving evidence.
  2. 8.7 These provisions establish protections for victims that are described in more detail below. Each measure applies to different victims, depending on certain characteristics and the crime committed. In broad terms, however, they fall into two categories:
  • Special protections for child victims and victims with a cognitive impairment in sexual offence cases.3 Special protections involve using audiovisual recordings of the victim’s statement to police as evidence-in-chief, cross-examining the victim at a special hearing, and prohibiting the victim’s cross-examination at a committal hearing.
  • Alternative arrangements for other victims who appear as witnesses in sexual offence cases and cases involving conduct that constitutes family violence. These include various physical interventions such as remote facilities, support people
    and screens.
  1. 8.8 The Commission considers that these protections should be made available to a broader group of victims. The remainder of this section examines:
  • which victims should be eligible and on what basis
  • the implications for the accused’s fair trial
  • how the purpose of the reforms can be achieved.

Special protections

  1. 8.9 In sexual offences cases, child victims and victims with a cognitive impairment are required to give evidence only once. This is achieved by separate provisions in the Criminal Procedure Act that allow the victim to have an audiovisual recording of their statement used as evidence-in-chief, to be cross-examined only at a special hearing, and prohibit their cross-examination at a committal hearing.
  2. 8.10 These measures were introduced as part of a suite of reforms in response to recommendations made in the Commission’s Sexual Offences: Law and Procedure report.4 They are designed to protect child victims and victims with a cognitive impairment in sexual offence cases from ‘unnecessary delays and further trauma in the prosecution of sexual offences against them’.5 In doing so, special protections can improve the reliability and accuracy of a victim’s evidence.6

Audiovisual recorded statement as evidence-in-chief

  1. 8.11 An audiovisual recorded statement is an audiovisual recording of a victim’s interview with police.7 Typically the victim describes the offending and is asked questions by a police officer. In practice, such statements are made at a police station with a specially trained police officer soon after the alleged offending has occurred.
  2. 8.12 In sexual offence cases, child victims and victims with a cognitive impairment are permitted to have their audiovisual recorded statement admitted as their evidence-in-chief at the trial. This measure is also available to child victims and victims with a cognitive impairment in proceedings for:
  • indictable offences involving an assault, injury or threat of injury
  • certain offences involving child pornography.8
  1. 8.13 The Royal Commission into Family Violence recommended that the Victorian Government consider introducing legislation allowing audiovisual recorded statements of adult and child victims of family violence to be admissible as their evidence-in-chief.9 The Victorian Government has accepted all of the Royal Commission’s recommendations.
  2. 8.14 The use of audiovisual recorded statements has certain benefits:
  • It reduces the number of times the victim must give an account of the offending.10
  • It captures the victim’s account closer to the time of the alleged offending.11
  • The interview format means the victim’s description of the offending is likely to have a more logical and narrative sequence than the traditional form of giving evidence-in-chief.12 This can improve the accuracy and reliability of the victim’s evidence.13

Special hearings

  1. 8.15 Special hearings take place in the Supreme Court or County Court. There is often an audiovisual recorded statement, which can be admitted as the victim’s evidence-in-chief.
    If there is no audiovisual recorded statement, the victim gives their evidence-in-chief at the special hearing.14 After the evidence-in-chief has been either admitted in recorded form or given in person, the victim is cross-examined and re-examined.
  2. 8.16 During the special hearing, the victim is in a remote witness facility and the accused and their lawyer remain in the courtroom.15 The special hearing is video-recorded.16 The recording becomes the entirety of the evidence of the victim in the trial and in any subsequent retrial or civil proceeding.17
  3. 8.17 Special hearings can occur either before the jury has been empanelled and the trial has commenced, or during the trial. If it is held before the trial, the recording of the special hearing is played to the jury as the evidence of the victim.18
  4. 8.18 In deciding whether to hold the special hearing before or during the trial, the judge must have regard to:
  • in the case of child victims, the victim’s age and maturity
  • the severity of any cognitive impairment
  • any preference expressed by the victim
  • whether holding the special hearing during the trial is likely to intimidate or have
    an adverse effect on the victim
  • the need to complete the victim’s evidence expeditiously
  • the likelihood that the victim’s evidence will include inadmissible evidence that may
    result in the discharge of the jury
  • any other relevant matter.19
  1. 8.19 A special hearing must happen within three months of the accused’s committal from
    the Magistrates’ Court or, if the special hearing occurs during the trial, on a date specified at the pre-trial directions hearing.20
  2. 8.20 If a victim’s evidence has been taken by special hearing, the accused’s lawyer can
    further cross-examine the victim only with the permission of the court in a narrow set
    of circumstances.21
  3. 8.21 Special hearings are mandatory in sexual offence matters where the victim is a child or has a cognitive impairment, although the prosecution may apply for the victim’s evidence to be given in court.22 The judge may grant this application if satisfied that the victim is aware of the right to have a special hearing, and is able and wishes to give evidence in court.23
  4. 8.22 There can be significant benefits to victims who give evidence in a special hearing:
  • It relieves them of the need to give evidence in the traditional courtroom environment, which many victims find stressful and foreign.24
  • Special hearings can occur separately from the trial and there is scope for them to be conducted earlier in the criminal trial process. This means that the victim is cross-examined closer in time to the offending, which can enhance the quality of a victim’s account when subject to cross-examination.
  • The special hearing process allows for more judicial intervention. Improper questioning and the intervention of the judge can be edited out of the recording, which deals with concerns about judicial intervention prejudicing the jury against
    the accused.25
  • The recording of the special hearing is admissible as the victim’s evidence in subsequent related proceedings, which avoids the victim giving evidence multiple times.26

Prohibition on cross-examination at committal hearings

  1. 8.23 Section 123 of the Criminal Procedure Act prohibits magistrates from allowing child victims and victims with a cognitive impairment in sexual offence cases to be cross-examined at a committal hearing.27 The prohibition was introduced in response to recommendations made by the Victorian Law Reform Commission in its final report
    on Sexual Offences.28

 

Expanding eligibility for special protections

  1. 8.24 Broad support was expressed in submissions and consultations for expanding eligibility for some or all of the special protections to other victims.29 The Victorian Bar and Criminal Bar Association, the Law Institute of Victoria and some lawyers consulted by the Commission opposed expanding eligibility.30
  2. 8.25 The Commission considers that special protections should be made available to a wider group of victims. The criteria for eligibility should be the same for each measure, so that eligibility for one means eligibility for all.
  3. 8.26 The combination of protections available to child victims and victims with a cognitive impairment in sexual offence cases is unique to Victoria. All Australian jurisdictions except Queensland allow certain victims to have an audiovisual recording of their interview with police admitted as their evidence-in-chief.31 Similarly, all Australian jurisdictions except New South Wales provide for certain victims to give their evidence at the equivalent of
    a special hearing.32 Equivalent provisions exist in New Zealand and the United Kingdom.33
  4. 8.27 While comparable laws in other jurisdictions contain features from which Victoria could draw, the strength of the Victorian special protections is that, combined, they allow the victim to give evidence only once and away from the accused and the courtroom. This result is lost if any one of the three elements is excluded.
Who should be eligible?
Victims of certain offences
  1. 8.28 It was suggested to the Commission that special protections could be expanded on the basis of the type of offending, specifically to:
  • all victims of sexual offences34
  • victims of family violence, or where there is an ongoing relationship between the accused and the victim35
  • victims of offences where intimidation is a feature in the offending, such as hate crimes, kidnapping, false imprisonment and human trafficking36
  • victims of offences involving serious physical violence.37
  1. 8.29 This approach provides a simple means of limiting access to special protections. Eligibility would be based on forms of offending that are most likely to cause the victim such severe emotional trauma, intimidation or distress that the quality of their evidence is likely to be diminished unless they have access to the special protections.
  2. 8.30 Adult victims of sexual offences can have an audiovisual recording of their statement admitted as their evidence-in-chief, and be cross-examined at a special hearing, in the Northern Territory38 and the United Kingdom.39 In the United Kingdom, there is a presumption in favour of this procedure being used for adult victims of sexual offences
    on the basis that these victims are assumed to be fearful or distressed about testifying unless they inform the court otherwise.40
  3. 8.31 In the Australian Capital Territory, victims of sexual offences are not required to give evidence at committal hearings.41 Special hearings are available for adult victims of
    sexual offences who are likely to ‘suffer severe emotional trauma’, or ‘be intimidated
    or distressed’.42 The Australian Capital Territory introduced these reforms as part of
    a deliberate effort to reduce trauma and intimidation.43
  4. 8.32 There will certainly be adult victims of sexual offences who can benefit from having their evidence-in-chief video-recorded, for the same reasons as do child victims and victims
    of sexual offences who have cognitive impairments.44 Adult victims can also find retelling their story and being cross-examined particularly distressing, given the nature of the offending.45
  5. 8.33 However, the Commission is not persuaded that special protections should automatically be available to all victims of sexual offences. Not all victims of sexual offences require
    or seek special protection. Moreover, sexual offences constitute a sizeable portion of the Magistrates’ Court and County Court workloads: in 2015, just over 200 cases involving sexual offences had committal hearings with cross-examination.46 In a 12-month period, approximately 255 cases involving sexual offences proceeded to a trial in the County Court.47 Given this volume, extending special protections to all victims of sexual offences would have considerable resource implications for police, the prosecution and courts. These implications are discussed further at [8.50]–[8.53].
  6. 8.34 Making special protections available to all victims of family violence-related offending would be even more resource-intensive. Family violence encompasses a large number of offences, including sexual offences,48 serious assaults, homicide offences, and threats to kill or cause serious injury, as well as property offences involving theft, burglary and damage to property.49 The Office of Public Prosecutions (OPP) reportedly deals with 400 to 500 cases ‘nominated’ as family violence matters each year,50 although it is unclear how many of these cases involve cross-examination at a committal hearing (of the victim or other witnesses) or proceed to a trial.
Victims with certain characteristics
  1. 8.35 Extending special protections to victims of certain offences invariably leaves out victims
    of other offences. The Victorian Equal Opportunity and Human Rights Commission noted, for example, that victims with disabilities experience ‘a range of serious crimes against the person, not just sexual offences’ and that these other victims should be eligible for special hearing procedures.51 It also observed that current special protections do not protect those with communication difficulties who do not also experience a cognitive impairment, despite these victims facing significant challenges giving evidence in sexual offence trials.52
  2. 8.36 The Commission received a number of proposals to base eligibility for special protections on the individual victim’s characteristics, sometimes in combination with the type of offending. Suggested categories included:
  • all child victims53
  • child victims and victims with a cognitive impairment in cases involving serious violence, such as homicides and serious assaults54
  • people with disabilities who are victims of indictable offences involving an assault, injury or threat of injury55
  • victims with communication difficulties.56
  1. 8.37 Some other jurisdictions have taken an approach along these lines. In South Australia and New South Wales, all child victims can have an audiovisual recording of their police interview admitted as their evidence-in-chief.57 In New South Wales, this measure is also available to all victims with a cognitive impairment, regardless of offence type.58
A case-by-case approach
  1. 8.38 Others who commented on this issue favoured a more discretionary approach.59
    This approach would see the court determine eligibility for special protections on
    a case-by-case basis, with regard to the victim’s personal characteristics and the nature
    of the offending.
  2. 8.39 This approach has been taken in New Zealand. There, the question of whether a victim should be entitled to give evidence using ‘alternative ways’, including audiovisual recorded evidence-in-chief and special hearings, is determined entirely on a case-by-case basis. Many factors are relevant to such a determination, including ‘age or maturity’ (no age is specified), ‘physical, intellectual, psychological, or psychiatric impairment’, ‘trauma suffered’ by the victim, ‘fear of intimidation’, ‘linguistic or cultural background or religious
    beliefs’, relationship with another party to the proceeding, ‘nature of the evidence’, ‘nature of the proceeding’, and any other ground.60
Conclusion
  1. 8.40 The comments received by the Commission were instructive but no clear consensus emerged. Similarly, a survey of other jurisdictions revealed that they take a variety of approaches, depending on features particular to that jurisdiction. None can be easily transposed to Victoria. The range of approaches proposed in submissions and consultations and taken in other jurisdictions illustrates how difficult it can be to be prescriptive about the circumstances in which protective measures should be taken while at the same time preserving a fair trial.
  2. 8.41 Ultimately, special protections are about protecting victims from unnecessary trauma, intimidation and distress, and ensuring they are able to give their best evidence. This rationale should form the basis of any expansion of existing special protections. Material gathered by the Commission shows that victims, other than child victims and victims with a cognitive impairment in sexual offence cases, can be unnecessarily traumatised, fearful and distressed by giving evidence in a courtroom and in the presence of the accused. This may unfairly undermine the accuracy and reliability of their evidence.
  3. 8.42 The Commission considers that where this is the case, victims should be eligible to benefit from special protections. That is, eligibility for special protections should be based on criteria relating to the victim’s likely experience of the criminal trial process, rather than
    to the type of offending or the victim’s personal characteristics. This would be achieved
    by making special protections available to:
  • all child victims
  • ‘protected victims’.
Child victims
  1. 8.43 All child victims should be able to use the special protections unless they do not wish to do so. The challenges faced by child victims giving evidence are well established.61 The child’s age alone is sufficient reason to protect them from the distress of giving oral evidence, and being cross-examined, in the courtroom in front of the accused.
  2. 8.44 This approach is consistent with protections available in most Australian jurisdictions, and in the United Kingdom, and is supported by contributors to this reference.62 It is also consistent with the Commission’s view that all child victims should be eligible to use alternative arrangements (discussed below) and intermediaries (discussed in Chapter 7).63
Protected victims
  1. 8.45 The Commission considers that for all other victims eligibility for special protections should be determined on a case-by-case basis. Victims would be eligible if assessed as a ‘protected victim’ as defined in the Criminal Procedure Act. Protected victims should be defined as victims who are likely to experience unnecessary trauma, intimidation or distress as a result of giving evidence.64

 

Factors relevant to assessment

  1. 8.46 The likelihood of trauma, intimidation or distress should be the principal issue when a court decides whether a victim is eligible for special protection. The most relevant factors should be those connected to the criminal trial process itself, in particular:
  • the victim’s relationship with the accused
  • the subject matter of the victim’s expected evidence
  • the nature of the alleged offending perpetrated against the victim
  • the victim’s preference.
  1. 8.47 Queensland, South Australia, Tasmania, New Zealand and the United Kingdom also list the victim’s age, any disability, and cultural or linguistic background as relevant factors.65 The presence of one or more of these factors does not automatically mean that a victim will be in need of special protections. However, material gathered by the Commission
    and existing research demonstrate that such personal characteristics are often relevant
    to whether a victim is likely to be traumatised, intimidated or distressed by giving evidence in court.66
  2. 8.48 Recognising the significance of a victim’s personal characteristics is consistent with the Victims’ Charter Act 2006 (Vic). Section 6(2) requires that investigatory, prosecuting and victims’ services agencies take into account and be responsive to the diverse characteristics of victims.
  3. 8.49 In considering whether a victim’s disability should be a relevant factor, disability should be understood as defined in the Equal Opportunity Act 2010 (Vic).67 Existing provisions limiting special protections to victims with a cognitive impairment (as defined in the Criminal Procedure Act) are unduly restrictive. The Office of the Public Advocate, the Victorian Equal Opportunity and Human Rights Commission, Women with Disabilities Victoria and the Child Witness Service all observed that other types of disability, such
    as blindness or mental illness, may make individuals vulnerable to trauma or more fearful or intimidated in the courtroom.68
Practical implications
  1. 8.50 The Commission’s recommendations have implications for police and prosecution practices and the courts. The existing police practice of audiovisually recording the statement of child victims and victims with a cognitive impairment in sexual offence matters will have to be expanded.69 In addition, a case-by-case approach requires police to identify victims who fall within the definition of protected victim, so that an audiovisual recording of the victim’s evidence-in-chief can be taken. This may not always occur.
  2. 8.51 Until audiovisual recordings of interviews are made more widely available, not all victims will give their evidence-in-chief in this way. This should not entirely undermine the effect of the Commission’s recommendations. Protected victims will still benefit from giving their evidence-in-chief and being cross-examined at a special hearing.
  3. 8.52 Prosecution lawyers will also need to assess whether a victim may be eligible for special protections and discuss this with the victim. In addition, the prosecution should be responsible for applying to the court for the victim to be considered a protected victim. This accords with the Commission’s view of the relationship between the victim and the prosecution, and the OPP’s responsibilities to provide victims with information and consult with them throughout the criminal trial process.70
  4. 8.53 There will also be some implications for the courts. Most notably, the reforms proposed will reduce the number of victims giving evidence at committal hearings and increase the use of special hearings. Some judges of the County Court, some magistrates and the Director of Public Prosecutions (DPP) recognised that this is likely to increase the workload of the higher courts.71 Changes in listing procedures will be required, although judges consulted by the Commission did not view these practical concerns as insurmountable.72

Alternative arrangements

Law and procedure

  1. 8.54 Certain victims can also take advantage of modifications to normal arrangements during court proceedings. These measures also aim to reduce the trauma, intimidation and distress associated with giving evidence, although they are arguably less protective than special protections. They are described in the Criminal Procedure Act as alternative arrangements, and include:
  • the use of remote witness facilities, whereby the victim gives evidence from a room separate from the courtroom and the evidence is transmitted to the courtroom via closed circuit television (‘remote witness facilities’)73
  • the placement of screens in the courtroom to remove the accused from the direct line of vision of the victim when giving evidence74
  • having a support person beside the victim when giving evidence, to provide emotional support75
  • allowing only specified people to be present in court76
  • requiring lawyers not wear robes, and to be seated rather than standing when questioning the victim.77
  1. 8.55 In sexual offence cases, the judge must order that remote witness facilities be used and that a support person be present.78 If the victim elects not to use remote facilities, the judge must then direct that a screen be in place and a support person be available.79 If the victim does not want to use either the remote facility or a support person and a screen, the judge can permit this only if satisfied that the victim is aware that the alternative arrangement is available and is willing and able to give evidence without it.80
  2. 8.56 In cases involving family violence, the court may order the use of alternative arrangements at its discretion.81 The Royal Commission into Family Violence recommended that it be mandatory that victims in family violence-related proceedings be able to give evidence remotely, unless they wish to give evidence in the courtroom.82

Expanding alternative arrangements

  1. 8.57 A number of victims consulted by the Commission used alternative arrangements when giving evidence.83 Some found this experience positive.84
  2. 8.58 Alternative arrangements are only expressly available for victims of sexual offences and offences involving family violence. There was broad support among victims, support workers, academics, police, some lawyers and a member of the judiciary for expanding the availability of alternative arrangements to a broader group of victims.85 Remote witness facilities were especially highlighted as a positive arrangement that should be readily available to more victims.86
  3. 8.59 Similarly to proposals regarding special protections, contributors suggested that alternative arrangements should be made available:
  • to victims of certain offence types or victims with certain characteristics87
  • on a case-by-case basis.88
The Commission’s conclusion
  1. 8.60 As with special protections, proposals made by contributors and a survey of other jurisdictions were instructive, but did not reveal a clear consensus about the basis for expanding eligibility for alternative arrangements.
  2. 8.61 The Commission considers that an approach that avoids complexity and achieves consistency with its recommendations about special protections, and ensures victims who require alternative arrangements can use them, should be preferred.
  3. 8.62 Therefore, in accordance with the Commission’s recommendations regarding special protections, all child victims should be eligible to use alternative arrangements unless they do not wish to do so. This is consistent with protections available in most Australian jurisdictions, and in the United Kingdom, and is supported by contributors to this reference.89 Other victims should be eligible to use alternative arrangements if they fall within the definition of a ‘protected victim’ described at [8.45]–[8.49].

Limits on giving evidence at committal for other victims

  1. 8.63 Being cross-examined at committal can be distressing for all victims, not just victims
    who need protection. The stress experienced by victims who are cross-examined at committal can limit their ability or willingness to give evidence at trial.90
  2. 8.64 Cross-examination at a committal hearing is often described as worse than at the trial. Material gathered by the Commission suggests two reasons for this:
  • Victims cannot tell their story through evidence-in-chief. Rather, their statement
    is tendered to the magistrate and they are subject only to cross-examination.91
  • The manner of questioning by the defence is not constrained by the presence
    of a jury. As a result it may be more oppressive or intimidating.92
  1. 8.65 To address these problems, the Commission considered whether reforms were necessary to limit cross-examination at committal of victims who do not fall within the definition
    of ‘protected victim’.

Law and policy

  1. 8.66 The accused is only allowed to cross-examine a witness at a committal hearing if the magistrate is satisfied that the accused has identified an issue to which the proposed cross-examination relates, and that cross-examination on that issue is ‘justified’.93 In making this determination, the magistrate must have regard to whether the informant consents to cross-examination being allowed,94 and the need to ensure that:
  • the prosecution case is adequately disclosed.
  • the issues are adequately defined.
  • the evidence is of sufficient weight to support a conviction.
  • a fair trial will take place (including that the accused is able to prepare and present
    a defence).
  • matters relevant to a potential plea of guilty, or a potential discontinuance,
    are clarified.
  • trivial, vexatious or oppressive cross-examination is not permitted.
  • the interests of justice are otherwise served.95
  1. 8.67 The restrictions on cross-examining witnesses described above were put in place
    to reduce delays, identify guilty pleas earlier in the criminal trial process and encourage
    a cooperative approach.96 They were not introduced for the benefit of victims.

The test for cross-examining victims at committal

  1. 8.68 Over the last three decades, all Australian jurisdictions have considered, and imposed, restrictions on the accused’s right to examine witnesses at committal. Western Australia and Tasmania have removed this right entirely.97 Committal hearings were abolished in the United Kingdom in 2001 and in New Zealand 2011.98 Although there was support for this reform among contributors, including some judges of the County Court,99 abolishing committals entirely involves considerations beyond the role of the victim and is outside the Commission’s terms of reference.
  2. 8.69 Members of the judiciary, victim support workers and former victim representatives on the Victims of Crime Consultative Committee also expressed support for expanding the prohibition on cross-examination at committal to all victims and allowing greater pre-trial management.100 However, as with expanding special protections to all sexual offence or family violence victims, removing all victims from committal hearings is likely
    to have considerable resource implications and may reduce the fairness of the criminal trial process.101
  3. 8.70 The Commission considers that a more balanced approach involves strengthening the test for cross-examining victims at committal hearings. The DPP, a number of magistrates and former Victims of Crime Consultative Committee victim representatives supported such an approach.102 The terms of this test are discussed below.
Substantial reasons in the interests of justice
  1. 8.71 The DPP proposed that the current committal test be amended to require the accused
    to identify a ‘substantial issue’ to which the proposed questioning relates, rather than just an ‘issue’.103
  2. 8.72 This would bring the test in Victoria closer to those that exist in Queensland and New South Wales, where the magistrate must be satisfied that there are ‘substantial reasons why, in the interests of justice’, the witness should be required to give oral evidence or
    be cross-examined’ (‘substantial reasons test’).104
  3. 8.73 In Queensland, the substantial reasons test applies to all witnesses, whereas in New South Wales it applies to witnesses other than victims of serious offences, for whom a stricter test applies (discussed below at [8.75]–[8.77]).
Central to whether the accused stands trial
  1. 8.74 The former victim representatives of the inaugural Victims of Crime Consultative Committee proposed a stricter test than the ‘substantial reasons’ tests in New South Wales and Queensland. They recommended that cross-examination only be permitted where the defence can demonstrate that the issue in question is central to whether the accused should stand trial.105
  2. 8.75 This proposal mirrors elements of the committal hearing test in New South Wales for victims of ‘offences of violence’ which include sexual offences, attempted murder, grievous bodily harm, abduction, kidnapping and robbery.106 For these offences, cross-examination of the victim will only be permitted where there are ‘special reasons why the alleged victims should, in the interests of justice, attend to give oral evidence’.107 The New South Wales test was introduced with the express intention of reducing the trauma experienced by victims from being cross-examined multiple times.108
  3. 8.76 Courts have interpreted the term ‘special reasons’ as including a real possibility that
    if the victim is subject to cross-examination, the defendant will not be committed for trial.109 However, special reasons may arise in a broader set of circumstances. The New South Wales Court of Criminal Appeal has stated that what amounts to special reasons must be assessed on a case-by-case basis:

there must be some features of the particular case by reason of which [the case] is out of the ordinary and it is in the interests of justice that the alleged victim should be called to give oral evidence.110

  1. 8.77 Special reasons do not justify cross-examination ‘in the hope that some issue of credibility or fact might arise’.111 Special reasons can be established in a range of circumstances, including:
  • where a victim has given inconsistent accounts of the offending (although this is often insufficient on its own)
  • where cross-examination will eliminate possible areas of dispute
  • where it is necessary to establish important facts as the foundation of the defence
    (or eliminate any possibility of a particular defence)
  • in the context of scientific witnesses, where it is necessary to explore possible avenues of inquiry such as alternative hypotheses or the need for further forensic testing or analysis
  • where cross-examination is the only way to obtain proper disclosure.112
The Commission’s conclusion
  1. 8.78 When compared with other jurisdictions surveyed by the Commission, Victoria has the least restrictive threshold test to cross-examine witnesses at committal. In a 12-month period, there were 1309 applications to cross-examine witnesses at a committal hearing, out of a total 2830 committal hearings finalised. Of those applications, 1170 (approximately 89 per cent) were granted, although it is unknown what proportion of those were to cross-examine victim–witnesses.
  2. 8.79 The Commission considers it appropriate to impose stricter limits on the accused’s right to cross-examine victims at the committal. Victims should only be cross-examined where cross-examination relates directly and substantially to the decision to commit for trial. This test draws on the interpretation of ‘special reasons’ in New South Wales and South Australia, and the proposal of the former Victims of Crime Consultative Committee victim representatives.
  3. 8.80 The Commission considers that this stronger test is in keeping with the original purpose of committals: to filter out weak or inappropriate cases. It limits cross-examination of victims to a narrow set of circumstances where the interests of justice require it. The Commission’s approach, in effect, sets out in legislation the definition of ‘special reasons’ already established by the New South Wales Court of Appeal. However, the Commission considers that the wholesale adoption of the New South Wales test in Victoria would not achieve the purposes of reform. Providing a clear legislative definition of the test eliminates the risk that the test might be expanded too widely, which would undermine the point of the reform.113

Protection and a fair trial

  1. 8.81 The protective measures discussed above may have implications for the fairness of the criminal trial process. In particular:
  • Special protections and the Commission’s proposed test for cross-examining victims
    at a committal hearing may limit the accused’s opportunity to test the evidence at
    the committal hearing stage of the criminal trial process.
  • Special protections and the use of remote facilities and other alternative arrangements depart from traditional trial procedures and may impact on the jury’s assessment of the evidence.
  1. 8.82 These concerns are discussed in turn below.
Restricting cross-examination of victims at committal hearings
  1. 8.83 In most jurisdictions, reforms to the committal process have been implemented after careful consideration of their implications for a fair trial.114 The advantages and disadvantages associated with whether the accused should retain their right to examine witnesses at committal have been ably documented elsewhere.115 The Commission has found no evidence that these reforms have undermined a fair trial. Jonathan Doak noted that the legal profession has adapted effectively to the removal of oral committal hearings in the United Kingdom.116
  2. 8.84 The primary objection to reform was that cross-examining the victim at a committal hearing provides the accused and the prosecution with an opportunity to assess the strength of the case. This promotes the early resolution of cases without the need for a trial.117 It was argued that there are advantages for both the accused and the victim—the accused gets a benefit at sentence for the early guilty plea and the victim benefits from faster disposition of the case.118
  3. 8.85 The Commission heard that committal hearings with cross-examination lead to resolution ‘frequently’119 and for ‘numerous’120 and ‘many’ cases.121 This assessment is anecdotal and difficult to evaluate.
  4. 8.86 The Magistrates’ Court, the County Court and the Supreme Court do not have data that show whether committal hearings encourage early pleas of guilty. The available data shows the percentage of cases passing through a committal hearing which involve cross-examination of one or more witnesses. For example, over a 12-month period in the Magistrates’ Court, 46 per cent of matters that proceeded through a committal involved cross-examination of one or more witnesses.122 Data from the Supreme Court and County Court shows the percentage of cases that are finalised following a trial over a 12 month period: 22 per cent in the County Court; and 38 per cent in the Supreme Court.123
  5. 8.87 The data does not show how many of these cases involved cross-examination of the victim. Nor does it show whether a decision to plead guilty is related to evidence gathered through cross-examination of the victim, or whether any decision is an early one. Moreover, it is not possible to link cases committed from the Magistrates’ Court to the corresponding proceedings in the Supreme or County Courts. Ultimately, determining whether cross-examination of the victim at a committal hearing encourages early pleas of guilty requires an examination of individual court files and interviews with practitioners and accused persons about decisions to plead guilty.
  6. 8.88 Moreover, some judges of the County Court and support workers expressed scepticism about whether committal hearings facilitate the early resolution of cases.124 It was suggested that committal hearings are instead used to generate inconsistencies in victims’ evidence.125 The Moynihan Review of the civil and criminal justice system in Queensland also concluded that the primary purpose of committal hearings is ‘exposing inconsistencies in [witness’s] testimony … a purpose which is quite different from the historical purpose of the committal’.126
  7. 8.89 Committal hearings are not the only way to encourage early pleas. The special protection process also allows the accused to see the strength of the case against them. Viewing an audiovisual recording of the victim’s statement allows an early assessment of the victim’s evidence-in-chief.127 Special hearings can also be held before the trial, thereby allowing the victim to be cross-examined earlier in the criminal trial process.128
  8. 8.90 The Commission considers that, in the absence of evidence to the contrary, reducing the risk of victims being unnecessarily intimidated and traumatised outweighs (potentially unfounded) concerns that fewer cases will be resolved early through cross-examination
    at committal.129
Prejudice against the accused
  1. 8.91 Remote facilities, special hearings and the use of screens are sometimes said to prejudice the jury against the accused.130 Such measures, it is suggested, may convey to the jury that the accused is so dangerous that the victim must be in a different room or hidden behind a screen.131 Protective procedures may also imbue the victim’s evidence with more credibility than it deserves.132
  2. 8.92 However, consultation participants told the Commission that protective procedures can work in favour of the accused. A victim’s evidence may have less impact, or appear less realistic, when it is given from a remote facility.133 This perception was a focus of discussion in the 2011 Final Evaluation Report for the Sexual Assault Reform Strategy, and has been raised in evaluations of similar reforms introduced in the United Kingdom in 1999.134
  3. 8.93 Research suggests that juries’ assessments of the accused’s or the victim’s evidence
    are not significantly affected by the use of remote facilities, screens or support people.
    A 2011 study examining mock juror perception of rape victims giving evidence using remote facilities, pre-recorded evidence or screens was ‘unable to identify any clear or consistent evidence of a detrimental impact on either party as a consequence of using divergent modes of giving evidence’.135 The authors noted that their findings:

should go some way towards assuaging the concerns of critics and—in the context in which previous research has strongly indicated that their use is welcomed by vulnerable witnesses themselves—they should give advocates greater confidence in encouraging complainants of sexual offence to make use of protective special measures.136

  1. 8.94 Similarly, a 2005 Australian-based study of mock sexual assault jury trials concluded that there was ‘no consistent pattern’ to suggest that jurors were being ‘systematically affected’ by whether the victim gave evidence in court, through a remote witness facility, or using a pre-recorded tape.137
  2. 8.95 Victim support specialists consulted by the Commission felt strongly that the potential for such measures to reduce the distress experienced by victims giving evidence outweighed the risk that the impact of the victim’s evidence would be diminished.138
  3. 8.96 The Commission notes that any residual concern about the impact of special hearings and alternative arrangements on the fair trial of the accused can be remedied by an appropriate direction from the trial judge to the jury. The Criminal Procedure Act currently requires judges to warn juries that they are ‘not to draw any inference adverse to the accused or give the evidence greater or lesser weight because of the making of [alternative] arrangements’.139

 

 

Recommendations

  1. 37 The Criminal Procedure Act 2009 (Vic) should be amended to include a definition of protected victim. A protected victim should be defined as
    a victim who is likely to suffer severe emotional trauma or be so intimidated
    or distressed as to be unable to give evidence or give evidence fairly.

Factors relevant to determining whether a victim is a protected victim should include:

(a) the nature of the offending perpetrated against the victim

(b) the victim’s relationship with the accused

(c) the subject matter of the evidence the victim is expected to give

(d) the victim’s views

(e) and any other factor the court considers relevant.

  1. 38 Eligibility for protective procedures under section 123 and Divisions 5 and 6 of Part 8.2 of the Criminal Procedure Act 2009 (Vic) should be extended to also apply to protected victims. All child victims other than child victims of sexual offences should be considered protected victims unless the court is satisfied that the child victim is aware that the protective procedures are available and does not wish to use them.
  2. 39 Section 124 of the Criminal Procedure Act 2009 (Vic) should be amended to provide that the Magistrates’ Court must not grant leave to cross-examine a victim at a committal hearing except on a matter that relates directly and substantially to the decision to commit for trial. The test for granting leave should include reference to whether the victim is able to and wishes to be cross-examined at a committal hearing.
  3. 40 The Criminal Procedure Act 2009 (Vic) should be amended so that the court must order the use of alternative arrangements set out in section 360 of the Act for:

(a) child victims and victims with a cognitive impairment

(b) victims determined to be protected victims in accordance with recommendation 37,

unless the court is satisfied that the victim is aware of their right to use those arrangements and is able and wishes to give evidence without them.

 

Achieving the purpose of reforms

A guiding principle

  1. 8.97 The Commission considers that a guiding principle should augment the above recommendations to ensure their consistent application by professionals in the criminal justice system and by the courts. Guiding principles assist courts in interpreting and giving meaning to statutory provisions.140
  2. 8.98 In its report on sexual offences, the Commission recommended that a guiding principle be included in relevant legislation to ensure that laws related to sexual offences are interpreted in accordance with the ‘social problem that the legislation seeks to address and the principles the legislation endeavours to uphold’.141
  3. 8.99 This recommendation is reflected in Part 8.2 of the Criminal Procedure Act, which contains principles about how to interpret provisions relating to witnesses in sexual offence proceedings. Part 8.2 now also applies to victims of family violence.142 The recommendations in this report see the application of Part 8.2 of the Criminal Procedure Act expanded to all victims in need of protection from unjustified trauma, intimidation and distress arising from giving evidence. This expanded application should be reflected
    in the guiding principle in Part 8.2.
  4. 8.100 The new guiding principle should explicitly recognise that all victims are entitled to protection from the unnecessary trauma, intimidation and distress experienced when they give evidence in a criminal trial because of exposure to the accused, the formality and unfamiliarity of the courtroom environment, and the conduct of cross-examination.143
  5. 8.101 The Commission considers that the guiding principle does not undermine the right of the accused to have the victim cross-examined. In addition, the Commission acknowledges that, while all victims respond differently to stress, even well-conducted criminal proceedings and proper cross-examination can be traumatic and challenging.

Recommendation

  1. 41 The Criminal Procedure Act 2009 (Vic) should be amended to include a guiding principle that, in interpreting and applying Part 8.2, courts are to have regard to the fact that measures should be taken that limit, to the fullest practical extent, the trauma, intimidation and distress suffered by victims when giving evidence.

 

 

Information for victims

  1. 8.102 Victims need to be informed about whether they may be eligible to use special protections and alternative arrangements. Those who are eligible must be equipped to make an informed decision about whether to use them. This point was repeatedly highlighted in consultations and submissions, and is supported by existing research.144 Several consultation participants suggested that victims are not receiving the information they need to make an informed decision about whether to use protective procedures.145
  2. 8.103 This can be a complicated choice and not all victims will want to, or should, use protective procedures.146 One victim said that she wanted to give evidence in court so that she was standing up to the perpetrator as a grown woman—she said that there was something ‘raw and empowering about being in the same room’. At the same time, she knew that she may be more nervous, have more anxiety and find giving evidence much more difficult.147 Another victim described giving evidence in the remote facility as more intimidating than in the courtroom, and would have liked more information about which option to choose.148
  3. 8.104 As the decision may not be easy, victims need time to make it. Support workers expressed concern that some victims are being asked on the day they are to give evidence whether they would like to use a remote facility.149 This was considered inadequate notice.150
  4. 8.105 To ensure victims are consistently provided with adequate information about using special protections or alternative arrangements, the Commission recommends that the Victims’ Charter Act be amended so that prosecution lawyers are obliged to provide this information to victims.151 Prosecution lawyers should also be obliged to relay the victim’s views to the court. This accords with recommendations 37 and 38, which require the court to consider the victim’s views as part of deciding whether to order special protections or alternative arrangements.

Recommendation

  1. 42 The Victims’ Charter Act 2006 (Vic) should be amended to require prosecuting agencies to inform victims about special protections and alternative arrangements for giving evidence and to state the victim’s preferences about the use of such procedures to the court.

 

Protection measures addressed by the Victorian Royal Commission into Family Violence

Recording a victim’s evidence at the scene

  1. 8.106 The practice of recording evidence and a victim’s statement at the scene (scene-recorded evidence) is one way to reduce the number of times a victim must give evidence. Scene-recorded statements differ from audiovisual recorded statements that constitute a victim’s evidence-in-chief in special hearings. The latter are recorded in a police station shortly after the offence, usually with a specialised investigator present—see [8.11]–[8.14]. In contrast, scene-recorded statements are taken by front-line police officers at the scene
    of the alleged offence.
  2. 8.107 Scene-recorded evidence is an aspect of broader reforms aimed at improving police responses to family violence.152 This is beyond the Commission’s terms of reference. However, scene-recorded evidence and statements may have an impact on the criminal trial process. The New South Wales Office of the Director of Public Prosecutions told the Commission there is anecdotal evidence that the use of scene-recorded statements has led to an increase in early pleas of guilty.153
  3. 8.108 Scene-recorded statements aim to increase reporting of family violence, guilty pleas
    and conviction rates by reducing:
  • the trauma associated with giving evidence in criminal proceedings
  • the likelihood that the victim will be pressured into changing their evidence or not cooperating with the prosecution.154
Royal Commission recommendation
  1. 8.109 The Victorian Royal Commission into Family Violence considered whether ‘body-worn cameras’ should be introduced more widely to improve police responses to family violence.155 Body-worn cameras can be used to collect evidence at the scene, including scene-recorded statements. The Royal Commission recommended that:

Victoria Police conduct a trial in two divisions of the use of body-worn cameras to collect statements and other evidence from family violence incident scenes [within 12 months]. The trial should be supported by any necessary legislative amendment to ensure the admissibility of evidence collected in criminal and civil proceedings. It should also be subject to a legislative sunset period, evaluation and the use of any evidence only with the victim’s consent.156

  1. 8.110 The Commission notes that the Royal Commission expressed concern about the use
    of scene-recorded evidence without the victim’s consent and welcomes the proposal
    to conduct a small trial, subject to evaluation.157 This approach seems appropriate given the following problems associated with the use of scene-recorded statements:
  • Police may inadvertently capture evidence or material that is harmful to the victim. Statements may be recorded in a victim’s home and may be ‘highly personal and extremely graphic’.158 This has implications for the victim’s privacy.
  • Not all victims of family violence will conform to expectations about how they
    are supposed to behave at the scene.159
  • The victim may be perceived as involved in the offending and there could be ‘unintended criminalisation of a victim if the video depicts injuries inflicted on
    the perpetrator in self-defence’.160
  • In New South Wales, there have been circumstances in which adverse inferences
    have been drawn from a victim’s refusal to consent to a scene-recorded statement.161
  • It is unclear whether the New South Wales legislation permits a scene-recorded statement to be edited, or whether a victim can view the statement before it is disclosed.162
  1. 8.111 It is not clear whether the Royal Commission’s recommendation will encompass family violence offending that is dealt with in the Supreme Court or County Court, in particular sexual offending. In light of the concerns noted above, it may be appropriate to limit the pilot to summary criminal proceedings in the Magistrates’ Court at first.

Court architecture and facilities

  1. 8.112 The Victims’ Charter Act includes a principle that ‘a prosecuting agency and the courts should, during the course of a court proceeding and within a court building’ minimise the victim’s exposure to unnecessary contact with, or protect them from intimidation by, the accused, witnesses for the defence and the accused’s family or supporters.163
  2. 8.113 The layout of courts and their infrastructure can make it very difficult to observe this requirement. The Royal Commission into Family Violence identified as a consistent theme the need for improvements to court infrastructure and technology.164 Similar themes were echoed during this reference. Victims should be able to feel safe, have private conversations and access facilities for this purpose throughout the criminal trial process.
Court architecture
  1. 8.114 Contributors told the Commission about deficiencies in court architecture which heighten the anxiety of attending court. These include:
  • having to pass closely by the accused or their family inside the courtroom165
  • using the same entry and exit to the court precinct as the accused and their family and other members of the public166
  • having to wait in public areas with the accused and their family and other members
    of the public.167
  1. 8.115 The Royal Commission into Family Violence identified the lack of separate entry and exits and adequate waiting rooms as creating a risk for victims in court precincts. It concluded:

As a community we should not tolerate situations where emotionally stressed and fearful victims, who are often accompanied by young children, have to spend lengthy periods in court waiting areas in the vicinity of perpetrators and, sometimes, perpetrators’ supporters. Nor should we tolerate situations in which people with disabilities or people who are from culturally and linguistically diverse backgrounds and others are forced to attend court premises that do not meet their needs or which make them feel unsafe.168

  1. 8.116 Remodelling court precincts to have more than one entry and sufficient private waiting areas will require significant investment by the Victorian Government, particularly in regional Victoria, where court buildings are often smaller, older and less well equipped.169 For example, the Shepparton courthouse is currently undergoing a $73 million redevelopment over three years, with security and safety for all court users a priority.170
Facilities
  1. 8.117 Most remote witness facilities are located within court precincts. Numerous victims and victim support workers told the Commission that the value of giving evidence by way of a remote witness facility can be undermined by the prospect, and reality, of seeing the accused while entering the court precinct or waiting to give evidence.171
  2. 8.118 This problem need not await major building works to be resolved. Remote witness facilities could be located away from the court precinct, or made accessible by a separate entrance. The OPP in Melbourne has remote witness facilities on the premises from which victims give evidence.172 In Wangaratta, the remote witness facility at the court has a separate entrance, which protects victims from encountering the accused and their supporters.173
  3. 8.119 While the development of modern, safe, accessible court buildings should be a priority, the urgency can be reduced to some extent by investing in off-site or alternative entry remote witness facilities.174 Remote witness facilities are used frequently where they are available, with some variation between metropolitan and regional areas.175 In regional courts, facilities struggle to meet demand.176 The Wodonga court has only one remote facility and one court with a videolink facility, which is also used by people in custody.177 Victim support specialists in Shepparton and Ballarat identified the same problem.178
  4. 8.120 The use of a screen in the courtroom to prevent the victim seeing the accused appears to be used relatively rarely.179 When a screen is used, it is often just a whiteboard.180 A victim may be required to enter the court in view of the accused, before the screen is placed in front of the accused.181 The Commission was told that more sophisticated screens should be available.182 Investing in more sophisticated screens will help address the demand for remote witness facilities and videolink technology in regional courts.
  5. 8.121 Comments to the Commission are consistent with the 2011 final evaluation report of the sexual assault reform strategy, which noted that access to remote facilities, screens and the use of support people was working well in Melbourne but less so in regional courts.183 Victims across Victoria should have equal access to protective procedures.
Royal Commission recommendation
  1. 8.122 Recommendation 70 of the Victorian Royal Commission into Family Violence, which has been accepted by the Victorian Government, should go some way towards addressing the concerns outlined above. Most relevantly to the problems identified by this Commission, the recommendation obliges the Victorian Government to fund and complete works
    in all courts hearing family violence matters so that there are:
  • safe waiting areas
  • separate entry and exit points for applicants and respondents
  • remote witness facilities to allow witnesses to give evidence off-site and from court-based interview rooms.184
  1. 8.123 The recommendation is primarily directed towards applicants in family violence intervention order proceedings and victims of family violence-related offences, but will benefit those who are victims of other offences. However, the recommendation is limited to the headquarter courts for each of the 12 Magistrates’ Court regions.185
Conclusion
  1. 8.124 The Commission considers that the substance of recommendation 70 should be extended to victims of crime who use courthouses in which the Supreme and County Courts sit.
    In their submissions to the Royal Commission into Family Violence, the Supreme Court
    and the County Court acknowledged the need for their court buildings and facilities
    to be improved so that victims’ exposure to the accused is reduced or eliminated.186
  2. 8.125 The submission of Court Services Victoria to the Royal Commission into Family Violence noted that it has been funded to conduct an audit of all Victorian courts ‘to upgrade existing court facilities to overcome safety shortcomings’.187 The results of this audit should inform the implementation of the Commission’s recommendation, made below.

Recommendation

  1. 43 Court Services Victoria, in consultation with investigatory, prosecuting and victims’ services agencies, should implement measures to protect victims attending court proceedings on indictable criminal matters, including by:

(a) ensuring that victims can enter and leave courthouses safely, including, where possible, allowing them to use a separate entrance and exit

(b) making available separate rooms for victims to wait in at court and ensuring victims know where they are

(c) establishing remote witness facilities that are off-site or accessed via
a separate entry to that used by other court users

(d) using more appropriate means to screen victims from the accused when giving evidence in the courtroom.

 

Victims’ privacy: protection from unjustified interference

  1. 8.126 The criminal trial process makes public the private lives of victims. The prosecution or the accused may seek access to the victim’s records on the basis that the accused is entitled to all relevant material in order to make a full defence.188 In addition, it is a tenet of the adversarial criminal justice system that justice is administered in open court.189 Generally speaking, evidence about the victim, including about their private life, can be seen or accessed by the public.
  2. 8.127 Victims expect that their privacy will not be interfered with unlawfully or arbitrarily and that measures will be taken to protect their privacy interests.190 This section focuses on two issues:
  • restrictions on the right of the accused to access victims’ private information
  • restrictions on criminal trial proceedings being public.

The meaning of privacy

  1. 8.128 Privacy ensures individuals are able to live dignified and autonomous lives, in which they are safe, and exercise control over the use and disclosure of their personal information.191
  2. 8.129 In Victoria, the Charter of Human Rights and Responsibilities 2006 (Vic) protects a person’s right ‘not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’ and ‘not to have his or her reputation unlawfully attacked’.192 Legislation at a federal, state and territory level regulates how private information is handled by public and private entities.193 In Victoria, the way that criminal justice agencies handle victims’ personal information is regulated by the Privacy and Data Protection Act 2014 (Vic) and the Health Records Act 2001 (Vic).194 Victims’ privacy is also protected by certain provisions of the Open Courts Act 2015 (Vic), which regulates public access to court proceedings.
  3. 8.130 Privacy is a broad concept and has been described as notoriously difficult to define.195 What is regarded as private differs between people, and between contexts. It is not necessary to provide an exhaustive definition here. It is enough to recognise that privacy is premised on the autonomy and dignity of the individual. Dignity and autonomy are achieved by ensuring victims can exercise a measure of control over access to their personal information and the purposes for which it may be disclosed and used. This understanding informs the Commission’s discussion about the appropriate level of access to, and use of, a victim’s private information.

Access to the victim’s records

  1. 8.131 An accused is entitled to seek access to a victim’s records and to introduce those records into evidence, provided they are relevant to the facts in issue.196
  2. 8.132 An accused can seek access to records by filing a subpoena with the court. Subpoenas are used to compel individuals or organisations to produce documents or to appear in court. In criminal proceedings, an accused may subpoena a range of the victim’s personal records, including:
  • medical records
  • psychological or psychiatric history
  • dealings with government departments
  • bank records.
  1. 8.133 Generally speaking, the documents sought under a subpoena must be provided if they have evidentiary value, also described as a legitimate forensic purpose.197 According to the High Court of Australia, this means that it must be ‘on the cards’ that the document would assist the accused in their defence.198

Confidential communications

  1. 8.134 In recent years, Victoria and other Australian and overseas jurisdictions have introduced reforms that restrict the records the accused can obtain, by limiting access to the victim’s ‘confidential communications’.199 Confidential communications are communications made in confidence by a victim of a sexual offence to a medical practitioner or counsellor, either before or after the alleged sexual offending occurred.200
  2. 8.135 Chapter 7 discusses reforms to victims’ participation in applications to access and use their confidential communications. The focus of this section is on what information personal
    to the victim should fall within the definition of a confidential communications.
  3. 8.136 Part 2, division 2A of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) relates to confidential communications. The aims of the confidential communications provisions are:
  • to promote the public interest in victims of sexual assault seeking counselling
  • to protect victims from the harm that might be caused if their private information
    is made public.201
  1. 8.137 The court is required to grant leave before the accused (or any other party) can subpoena, access or use a victim’s confidential communications.202
  2. 8.138 The judge must balance various factors when deciding whether to allow access to a victim’s confidential communications.203 The court grants leave only if it is satisfied that:
  • the evidence will have substantial probative value to a fact in issue
  • other evidence relating to the matter contained in the confidential communication, and of similar or greater probative value, is not available
  • the public interest in allowing the evidence to be introduced outweighs the public interest in confidentiality and protecting the victim from harm.204
  1. 8.139 In balancing the public interest, the judge must take into account:
  • the likelihood, nature and extent of harm that may be caused to the victim
  • the extent to which the evidence is necessary to allow the accused to make
    a full defence
  • the need to encourage victims of sexual offences to seek counselling
  • the extent to which victims may be discouraged from seeking counselling
    if the confidential communications are accessed
  • the extent to which the effectiveness of counselling may be diminished,
    if the confidential communications are accessed
  • whether a discriminatory belief or bias is behind the application
  • whether the victim objects to the disclosure
  • the nature and extent of the reasonable expectation of confidentiality and
    the potential prejudice to the privacy of the person.205
 
Expanding the protection to a broader range of records
  1. 8.140 As noted above, protecting confidential communications is about ensuring victims of sexual offences are not discouraged from seeking counselling.206 This purpose is integral to the current definition of a confidential communication. All Australian jurisdictions require a counselling relationship to exist before a record can be protected.207
  2. 8.141 Support was expressed in consultations and submissions for expanding the confidential communications provisions to a broader range of records, such as:208
  • medical records (other than records already falling within the definition of confidential communications), including psychiatric or psychological records209
  • records held by the Department of Health and Human Services210
  • records made by social workers211
  • school records212
  • records held by specialist family violence services (the nature of these records was not specified).213
  1. 8.142 Most of this information, other than school records, would be health information for the purposes of the Health Records Act 2001 (Vic). As such, it is protected from being used or disclosed for any purpose other than the purpose for which it was collected, unless authorised or required by law or the person concerned.214
  2. 8.143 The definition relevantly includes personal information or an opinion about a person’s physical, mental or psychological health or disability. It extends to all personal information collected in providing a health service. It also encompasses the dispensing of a prescription drug.215
The role of privacy
  1. 8.144 Some contributors who told the Commission that the confidential communications provisions should be expanded suggested that certain types of personal information, such as contact with alcohol and drug rehabilitation services, records relating to psychiatric treatment, or records indicating contact with child safety workers, are being sought and used to undermine a victim’s credibility.216 This view was advanced by support specialists, counsellors and victims, who considered that personal information about the victim, created in a particular context for a particular purpose, should not be treated as relevant to the victim’s credibility, or lack of it, in a criminal trial.217
  2. 8.145 On the other hand, lawyers argued that if a record is relevant to the criminal proceedings, including to the credibility of the victim, it should be admitted as evidence.218 According to the Law Institute of Victoria, ‘consistency is one of the hallmarks of truth and the issues communicated by complainants at different times can serve as an effective test
    of credibility.’219
  3. 8.146 The divergent views put to the Commission reflect different attitudes about the balance between the privacy interests of victims and the accused’s interest in having access to all relevant material.
  4. 8.147 The approach taken in Canada in reconciling these interests is instructive. Privacy is central to the Canadian provisions relating to confidential communications. They expressly protect records about which the victim has a ‘reasonable expectation of privacy’.220 Examples are provided in Canada’s Criminal Code and include:

medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social service records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature but does not include records made by persons responsible for the investigation or prosecution of the offence.221

  1. 8.148 As is the case in Victoria, the Canadian law is aimed at encouraging victims to seek counselling and report sexual offences. However, the Canadian provisions place greater emphasis on promoting the equality, personal security and privacy rights of victims.222
  2. 8.149 An evaluation of the operation of the Canadian provisions in 2012 concluded that the scheme was ‘for the most part, working well’ and that it ‘strikes an appropriate balance between the competing interests of complainants and defendants’.223
  3. 8.150 The Supreme Court of Canada has found that the Canadian provisions do not violate the right of an accused to ‘make a full answer and defence’.224 In reaching its conclusion, the court noted that the right to make a full answer and defence does not include a right to records that are not relevant or ‘would serve to distort the search for truth’.225 The Court noted that a victim’s records, in particular therapeutic records, are made in a particular context and are unreliable as a factual account of an event.226 The Court cautioned against the use of records that challenge the credibility of the victim at large, on the basis that doing so operates unfairly against victims whose lives have been more heavily documented.227
The Commission’s conclusion
  1. 8.151 The Commission has concerns about victims’ privacy similar to those stated by the Supreme Court of Canada. Victims and victim support specialists consulted by the Commission stressed that some victims have long-term contact with social services and there is a risk that records about regular contact with child safety, family violence or drug and alcohol support services will be used to undermine the victim’s reliability and inaccurately depict their life.228
  2. 8.152 The right not to have privacy unlawfully or arbitrarily interfered with is protected in Victoria’s Human Rights Charter. As in Canada, a balancing exercise would need to occur where fair trial rights and the victim’s right to privacy compete. Where the accused can demonstrate that the records have a substantial probative value, and that their interest in accessing the records should prevail over the interests of preserving confidentiality and protecting the victim from harm, they will be permitted to subpoena, access and use the relevant records. The Commission does not propose to deny the accused access to evidence that is necessary to make an effective defence. Rather, the Commission seeks to limit access to the victim’s private records in the absence of a good reason for their disclosure or the victim’s consent.
  3. 8.153 The Commission considers that the current confidential communications provisions should be expanded to include records defined as health information and protected by the Health Records Act. These records contain personal information about the victim’s contact with social services and medical and psychiatric treatment. Victims are entitled to expect that these sensitive records will be private and protected against misuse in a criminal trial.
Practical concerns
  1. 8.154 Expanding the range of records to which the confidential communications provisions apply will make it more cumbersome for accused people to gain access to these documents. It is likely to impose a burden on judicial resources and lawyers. Improving the ability of victims to respond to applications to subpoena, access or use confidential communications, as recommended in Chapter 7, could also increase the burden on courts and lawyers.
  2. 8.155 Concerns about delays and the impact on judicial resources were raised by the Victorian Bar and Criminal Bar Association and some judges of the County Court.229 County Court judges are already spending considerable time reviewing the materials sought and redacting it where necessary.230
  3. 8.156 As discussed in Chapter 7, delays have been a particular problem in New South Wales.231 However, in Victoria, practice notes issued by the Supreme Court and County Court set strict timeframes that require the defence to turn its mind early to whether confidential communications will be sought.232 Delays should be more manageable in Victoria if compliance with practice notes is enforced.
  4. 8.157 It is difficult to estimate the magnitude of any potential delay, cost or resourcing issues without data about the number of applications presently being made or the volume of the records being sought. Reforms to expand and improve the operation of the Victorian provisions will need to be monitored. Recommendations about data collection and monitoring reforms are made in Chapter 4.
  5. 8.158 Practical and resource-related concerns alone should not stand in the way of reforms. As part of the statutory responsibility of the office to report on systemic issues affecting victims, the Victims of Crime Commissioner should monitor the implementation of the expanded confidential communications provisions, and propose reforms if necessary.

 

 

Recommendation

  1. 44 Division 2A of Part 2 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) should apply to the victim’s health information as defined by the Health Records Act 2001 (Vic).

 

Publication of criminal proceedings

  1. 8.159 Privacy issues also arise in the context of victim impact statements. Concerns were raised in submissions and consultations about the media or public gaining access to the contents of victim impact statements.233 Victim impact statements often contain sensitive and personal information so it is understandable that some victims seek control over their publication.
  2. 8.160 The contents of victim impact statements become public when victims read them out in court, or the judge refers to them in sentencing remarks. Additionally, court proceedings are a matter of public record.
  3. 8.161 Criminal proceedings are public because a fundamental element of a fair trial is the principle of open justice.234 Criminal proceedings should take place in open court so that they can be subject to ‘public and professional scrutiny’.235 Courts will depart from this principle only in exceptional circumstances.236
  4. 8.162 In Victoria, common law principles relating to open courts are consolidated in the Open Courts Act 2013 (Vic). The Open Courts Act contains a statutory presumption in favour
    of proceedings being public. However, it also allows for suppression orders or closed court orders in a range of circumstances, including, most relevantly, where the order
    is necessary to:
  • ‘protect the safety of any person’.237
  • ‘avoid causing undue distress or embarrassment’ to a victim or witness in ‘any criminal proceeding involving a sexual offence or a family violence offence’.238
  • ‘avoid causing undue distress or embarrassment to a child who is a witness in any criminal proceeding’.239
  1. 8.163 Suppression orders are orders that prohibit or restrict the publication or report of all or part of a proceeding or any information derived from it.240 A closed court order is an order that the court be closed to the public for some or all of a proceeding, or that only certain persons be allowed in.241 Given the fundamental importance of the open courts principle, the Commission does not propose that these categories be extended to a broader range of victims or other categories of offences.
  2. 8.164 More informal measures are also in place. The Supreme Court and the former victim representatives of the inaugural Victims of Crime Consultative Committee told the Commission that where a victim does not want certain parts of their victim impact statement referred to by the judge, this can be conveyed to the court.242 The Commission has not been told that this approach is not working in practice.
  3. 8.165 In addition, in practice the Supreme Court and the County Court files are not open for inspection by the public. Victim impact statements are made available only with the courts’ permission, and will not ordinarily be released.243 Similarly, the DPP’s media policy is that the OPP will not give victim impact statements to the media.244
  4. 8.166 The Commission considers that for victims who seek to prevent the contents of their victim impact statements from being made public, the current mechanisms for ensuring non-disclosure are adequate.

 

 

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