Appendices

 Appendix A: Overview of the criminal trial process for victims 

Phase

Victim’s role

Decision to prosecute

Victoria Police decides to charge a suspect, sometimes after obtaining advice from the Office of Public Prosecutions.1

The victim’s views may be considered but the decision to charge a suspect is based on an assessment of the evidence, the law and the public interest.

The Office of Public Prosecutions must inform the victim, as soon as reasonably practicable, about the offences charged or why no offence is charged.2

Commencement of criminal proceedings in the Magistrates’ Court

There are three ways to begin a criminal prosecution:

  • A police officer or other public official files a charge sheet containing a charge with the Magistrates’ Court.3
  • The Director of Public Prosecutions or a Crown Prosecutor files a direct indictment in the Supreme or County Court.4
  • A judge directs that a person be tried for perjury.5

The victim has no role.

 

Decision to continue or discontinue a prosecution

The Director of Public Prosecutions may decide to discontinue a prosecution at any time during proceedings, except during a trial.6

The Office of Public Prosecutions must inform the victim, as soon as reasonably practicable, of a decision not to proceed with a prosecution.7

The Director of Public Prosecution’s policy
is that:

  • the victim’s views should be taken into account but are not determinative
  • the victim should be informed of
    a decision to discontinue before it
    is publicly announced.8

Plea negotiations

Plea negotiations between the prosecution and the accused can occur in a range of circumstances for a range of reasons.

The accused commonly offers to plead guilty to an offence with a lower penalty if a more serious offence is discontinued, or to plead guilty to a more serious charge if an agreement can be reached about the facts on which the plea is based.

The prosecution may be disposed to negotiate rather than proceed to trial because of:

  • an evidentiary problem that will make it difficult to prove a necessary element of an offence
  • a legal issue that undermines the strength of the prosecution case
  • an issue with the availability, reliability or credibility of crucial prosecution witnesses
  • some other reason in the public interest.

The Office of Public Prosecutions must inform the victim, as soon as reasonably practicable, of a decision to substantially modify or not to proceed with a charge, or to accept a plea of guilty to a lesser offence.9

The Director of Public Prosecution’s policy
is that:

  • when considering a plea of guilty, the views of the victim must be taken into account but are not determinative
  • the prosecution should consult the victim prior to the resolution of a prosecution by a plea of guilty to lesser charges
  • the victim should be informed if a prosecution resolves in a plea of guilty, regardless of whether the plea of guilty is to lesser charges.10

Hand-up brief at committal mention hearing

At a committal mention hearing, the accused may waive the right to a committal hearing and proceed by way of hand-up brief.

If so, the prosecutor submits (hands up) to the magistrate the evidence against the accused, including witness statements and exhibits.

The accused then either

  • pleads guilty and is committed to the Supreme or County Court for a sentence hearing if the magistrate is satisfied that there is enough evidence to support a conviction.11
  • pleads not guilty and elects to stand trial. The accused is then committed for trial in the Supreme or County Court if the magistrate is satisfied that the accused understands the nature and consequences of the election.12

The victim has no right to participate in the committal mention hearing.

 

Application at committal mention hearing for leave to cross-examine witnesses

If the accused wishes to exercise the right to a committal hearing, the court is informed at a committal mention hearing and the committal hearing is scheduled.

If wanting to cross-examine witnesses (including the victim) at the committal hearing, the accused must apply at a committal mention hearing for leave to do so.13 The magistrate must not grant leave unless satisfied that cross-examination of the witnesses is justified, having regard to factors set out in the Criminal Procedure Act 2009 (Vic).14

The cross-examination of child victims and cognitively impaired victims in sexual assault matters is absolutely prohibited.15 The crossexamination by the accused of any victim of a sexual offence or family violence is also prohibited.16

The victim has no right to participate in the committal mention hearing and there is no obligation on the prosecution to consult the victim before deciding whether to consent
to or oppose an application to cross-examine witnesses.

 

Committal hearing

If the magistrate grants all or part of the accused’s application to cross-examine a witness or witnesses, a committal hearing is held and the relevant witnesses are required to attend court.17

At the conclusion, the magistrate must either find that there is enough evidence to support a conviction and commit the accused to stand trial in the Supreme or County Court, or discharge the accused.18

If the committal hearing involves a sexual offence, the only people permitted to be present in court while the victim is giving evidence are the police officer, the accused, a support person, the lawyers for the prosecution and the accused, specified court officials and anyone authorised by the court.19

A victim who is a witness may be crossexamined on the issues that the magistrate has permitted.20

If the victim is to appear as a witness, the Office of Public Prosecutions must ensure that the victim is informed about the process of the hearing and the victim’s role as a witness for the prosecution.21

 

Directions hearings in the Supreme and County Court

Typically, two directions hearing are held: one immediately after the accused has been committed for trial and a second in the lead-up to the trial. The purpose of these hearings is to make any necessary orders for the fair and efficient conduct of the proceedings.22 These pre-trial procedures play an important role in shaping the future conduct of the trial by narrowing the issues and evidence in dispute and setting the limits on what evidence can be used.

The victim has no role in directions hearings.

Pre-trial applications

Matters identified at the directions hearings that require pre-trial resolution or rulings by the judge are generally addressed at the commencement of the trial, before the jury is empanelled. Such matters might include:

  • general evidentiary applications
  • arguments about whether multiple charges or charges against co-accused should be heard within the same trial or in separate trials
  • evidence of the victim’s prior sexual history
  • publication of the identity of the victim
  • confidential communications
  • special hearings.

Applications to cross-examine or admit evidence about the victim’s sexual activities must be made at least 14 days before the trial.23 There is no obligation to serve the notice on the victim or for the victim to be informed that the application is being made.

Any party who seeks to subpoena, produce or adduce a confidential communication must give each party in the proceedings, the informant and the medical practitioner or counsellor, at least 14 days notice.24 The informant must give a copy of the notice to the victim within a reasonable time.25

Victims have no role in any pre-trial matters, apart from applications relating to confidential communications (discussed below) and, if relevant, as a witness.

The accused can request that the victim not be present in court when an application to cross-examine or admit evidence about the victim’s sexual activities is heard. If this occurs, the court must order that the victim not be present.26

The victim may seek permission from the judge to appear in court and make submissions in relation to any confidential communications. As the recipient of the subpoena, the medical practitioner or counsellor may also appear and make submissions.27

The trial

The first step in the formal trial is when the charge(s) on the indictment are read out to the accused, who pleads not guilty28 in the presence of a panel of potential jurors.29 A jury of 12 people is then selected.30

The victim is not present during, and has
no input into, the selection of the jury.

The victim’s role may be that of witness
for the prosecution.

The structure of the trial is as follows:

  • The judge gives preliminary instructions to the jury about the trial process and procedures.
  • The prosecutor gives an opening address to the jury setting out the prosecution case against the accused.31
  • The accused’s lawyer presents to the jury a response to the prosecution’s opening.32
  • The prosecution case is presented to the jury, through the evidence of witnesses and exhibits.
  • Each witness for the prosecution, including the victim, gives evidence in three stages: evidence-in-chief, where open-ended question are asked by the prosecution; cross-examination by the accused’s lawyer; re-examination by the prosecutor.
  • The accused may give evidence and call other witnesses to give evidence but is not required to do so.33
  • After the jury has heard all the evidence, the prosecutor and accused’s lawyer make submissions to the judge about what directions of law should be given to the jury.
  • The prosecutor, followed by the accused's lawyer, make closing addresses to the jury for the purpose of summing up the evidence
  • The trial judge gives directions of law to the jury so as to enable the jury to properly consider its verdict
  • The jury deliberates and decides whether the verdict is guilty or not guilty.

 

If the victim is to appear as a witness, the Office of Public Prosecutions must ensure that the victim is informed about the process of the trial and the victim’s role as a witness for the prosecution.37

At the start of the trial before the jury the judge will often make an order that all witnesses are to remain outside the courtroom until they have given their evidence. This is to prevent them from being influenced by what is said by the judge, prosecutor, accused’s lawyer or other witnesses.

This general order does not apply to victims. Rather, judges may only exclude victims at this stage if they consider it ‘appropriate to do so’.38 The judge can order the victim to leave the court at any time after he or she has given evidence.39

Prosecutors make numerous decisions in the lead-up to and throughout the trial. These decisions generally relate to what evidence to put before the jury, which witnesses to call and how to respond to defence cross-examination questions, legal applications and witnesses.

In making these decisions, the prosecutor has considerable discretion, which is limited by general principles of fairness. The victim has no say in these decisions.

Sentencing; compensation and restitution

Once an accused has been found guilty by jury verdict or has pleaded guilty, the matter proceeds to a sentencing hearing (also known as a plea hearing). Most matters are resolved by a plea of guilty.

Unless the judge orders otherwise, sentencing hearings are conducted in open court. The victim and any of their support people may be present, as may support people for the offender, members of the public and the media.

The factors which the sentencing court must have regard to include:

  • the impact of the offending on any victim
  • the personal circumstances of any victim
  • any injury, loss or damage resulting directly from the offence.40

Following a sentence, the judge may also consider making an order that the offender pay compensation or make restitution to the victim. These orders are ancillary to the sentencing orders.41

The victim may present a victim impact statement to the court about the impact, injury, loss or damage resulting from the offence, and may read it out in court.

The Office of Public Prosecutions must inform the victim, as soon as reasonably practicable, of the outcome of the criminal proceeding, including any sentence imposed.42

The victim can apply for an order that the offender pay compensation or make restitution for harm caused as a direct result of the offence. In certain circumstances, the Director of Public Prosecutions will apply on the victim’s behalf.

 

Appeals

The prosecution or the offender may appeal to the Court of Appeal during the trial process against an interlocutory decision made by a trial judge (a decision made either before or during the trial). The prosecution or offender may also appeal against a sentence imposed after conviction. An offender may appeal against a conviction. The prosecution may apply for a fresh trial after acquittal in limited circumstances.

The victim has no role in interlocutory appeals, appeals against convictions or appeals against a sentence.

The Office of Public Prosecutions must inform the victim, as soon as reasonably practicable, when an appeal has been instituted, the grounds of the appeal and the result of the appeal.43

If the Court of Appeal sets aside an offender’s conviction and is considering whether a compensation or restitution order made in connection with that conviction should not take effect, the Supreme Court rules state that victims ‘may be heard’ in the appeal.44

 

 

Appendix B: Submissions

1.

      1 Australian Law Reform Commission
      2 Seppy Pour
      3. Melville Miranda
      4. Victorian Equal Opportunity and Human Rights Commission
      5. Centre for Rural Regional Law and Justice, Deakin University Law School (Centre for Rural Regional Law and Justice)
      6. Confidential
      7. Youthlaw 
      8. Mary Iliadis
      9. Associate Professor Tracey Booth
      10. Victoria Legal Aid
      11. Sandra Betts
      12. Arnold Dallas McPherson Lawyers
      13. David Levesque
      14. Victims of Crime Commissioner, Victoria
      15. Kristy McKellar
      16. Name withheld
      17. Office of the Public Advocate
      18. Women with Disabilities Victoria
      19. Dr Tyrone Kirchengast, University of New South Wales
      20. Phil Cleary
      21. Dianne Hadden
      22. Joy and Roger Membrey
      23. Director of Public Prosecutions Victoria (DPP)
      24. Fiona Tait
      25. Law Institute of Victoria
      26. Victoria Police
      27. Supreme Court of Victoria
      28. Chris Gill
      29. Victorian Bar and Criminal Bar Association
      30. Loddon Campaspe Centre Against Sexual Assault
      31. Professor Jonathan Doak, Nottingham Trent University
      32. Professor Edna Erez, University of Illinois at Chicago
      33. Professor Jo-Anne Wemmers
      34. Northern Centre Against Sexual Assault
      35. Annalise Roberts and Miranda Escott-Burton
      36. Centre for Innovative Justice, RMIT University (Centre for Innovative Justice)
      37. Dr Margaret Camilleri
      38. Name withheld
      39. Safe Steps Family Violence Response Centre (Safe Steps)
      40. Victim representatives on the inaugural Victims of Crime Consultative Committee (Former VOCCC victim representatives)
      41. Colleen Murphy (Kelly)
      42. Vixen Collective
      43. Liberty Victoria

 

Appendix C: Consultations

Consultations were held in Ballarat, Bendigo, Geelong, Melbourne, Mildura, Morwell, Shepparton, Sydney, Warrnambool and Wodonga.

Separate discussions

The Commission consulted separately with the people and organisations listed below
in chronological order.

 

 

 

      1. A victim
      2. Commissioner for Victims’ Rights, South Australia
      3. Parent of a victim
      4. Parent of victims
      5. Sue and Don Scales, Mildura
      6. Magistrate Lesley Flemming
      7. Aimee Mazaa, Mallee District Aboriginal Services
      8. Parent of a victim
      9. Magistrate Ron Saines
      10. A victim
      11. Parent of a victim
      12. Parent of a victim
      13. Parents of a victim
      14. A victim
      15. Director of Public Prosecutions Victoria (DPP)
      16. Judges of the County Court of Victoria
      17. Dr Robyn Holder, Griffith University
      18. Child Witness Service, Department of Justice and Regulation
      19. Victims of Crime Commissioner, Victoria
      20. Parent of victims
      21. Victoria Police
      22. Professor Jonathan Doak, Nottingham Trent University
      23. Court Network staff and a Court Networker—County Court
      24. Justin Lewis, Crown Prosecutor
      25. Aboriginal Family Violence Prevention & Legal Service Victoria
      26. Magistrate Stella Stuthridge
      27. Loddon Campaspe Centre Against Sexual Assault
      28. Laurie Krause
      29. Parent of victims
      30. Dr Tyrone Kirchengast, University of New South Wales
      31. Judge of the County Court of Victoria
      32. Legal Aid NSW
      33. Women’s Legal Service NSW
      34. Office of the Director of Public Prosecutions, NSW
      35. Parent of a victim
      36. Magistrate John Lesser
      37. Centacare, Barwon South West Region
      38. Executive Officer, Barwon South West Regional Aboriginal Justice Advisory Committee (RAJAC)
      39. Office of Public Prosecutions Victoria (OPP)
      40. A victim
      41. A victim
      42. Relative of a victim; a victim
      43. Victoria Police Sexual Offences and Child Abuse Investigation Team, Wodonga (Victoria Police SOCIT, Wodonga)
      44. Kristy McKellar
      45. Victims Support Agency, Department of Justice and Regulation
      46. A victim
      47. Victoria Legal Aid
      48. Dr Heather Strang, University of Cambridge
      49. Commissioner of Victims Rights, New South Wales
      50. Witness Assistance Service, OPP Victoria
      51. Criminal Law Section, Law Institute of Victoria
      52. Emeritus Professor Arie Freiberg AM
      53. Parent of a victim
      54. Victorian Bar and Criminal Bar Association
      55. Professor Edna Erez, University of Illinois at Chicago
      56. Colleen Murphy (Kelly)
      57. Victorian Legal Services Commissioner and CEO Victorian Legal Services Board

 

Roundtable discussions

The Commission convened group discussions with the people and organisations listed below
in chronological order.

 

      1. Victim support specialists, Mildura: Mallee Sexual Assault Unit and Mallee DomesticViolence Unit; Victims Assistance Program—St Luke’s
      2. Legal practitioners, Mildura: Rebecca Boreham, Barrister and Solicitor; Jade Bott & Associates; Martin Irwin & Richards; Mallee District Aboriginal Service; Murray Mallee Community Legal Centre
      3. Victim support specialists and academic, Geelong: Barwon Centre Against Sexual Assault; Court Network; Victims Assistance Program—Centacare; Ian Parsons, Research Fellow, Centre for Rural Regional Law and Justice, Deakin University Law School
      4. Legal practitioners, Geelong: Criminal Lawyers Geelong; Office of Public Prosecutions; Victoria Legal Aid; WS Lawyers
      5. Victim support specialists, Morwell: Court Network; Gippsland Centre Against Sexual Assault; Ramahyuck District Aboriginal Corporation; Victims Assistance Program—Windermere
      6. Legal practitioners, Morwell: Verhoeven & Curtain; Victoria Legal Aid
      7. Victim support specialists, Melbourne: metropolitan Victims Assistance Program workers
      8. Metropolitan Centres Against Sexual Assault: Gatehouse Centre; Eastern Centre Against Sexual Assault; Northern Centre Against Sexual Assault; Western Region Centre Against Sexual Assault
      9. Victim support and therapeutic specialists, Shepparton: Victims Assistance Program—Gateway Health, and a therapeutic professional
      10. Legal practitioners, Shepparton: Camerons Lawyers; Deane & Associates; Faram Ritchie Davies; Victoria Legal Aid
      11. Judges of the County Court of Victoria
      12. Victim support specialists, Wodonga: Centre Against Violence; Court Network; Victims Assistance Program—Gateway Health
      13. Victim support specialists, Ballarat: Ballarat Centre Against Sexual Assault; Victims Assistance Program—Centacare
      14. Legal practitioners, Ballarat: Central Highlands Community Legal Centre; Dianne Hadden Lawyer; Justin Burke Lawyers; Victoria Legal Aid
      15. Magistrates of the Magistrates’ Court of Victoria
      16. Community legal centres: Federation of Community Legal Centres (Vic); Goulburn Valley Community Legal Centre; Youthlaw; Eastern Community Legal Centre; Knowmore
      17. Criminal justice agencies and stakeholder organisations
      18. Victims of crime

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