Table of contents
Long judicial experience, and this inquiry by the Commission, reveal that victims, because they
are victims, have an inherent interest in the criminal trial. This report addresses that interest.
Victims of crime seek—and are entitled to—acknowledgement and respect; information and support; participation; and protection. Acknowledgment and respect involve victims being treated properly as persons affected, often grievously, by what has occurred. Information and support involve victims being provided with appropriate and relevant material about the process they are
to experience and the means to negotiate that process with minimum trauma. Participation involves allowing victims to have their views considered and the ability to make their concerns known. For those victims who give evidence, protection involves ensuring that they are treated properly as witnesses.
Victims, and the community, are also entitled to a just outcome. The sentencing outcome of the criminal trial where the accused is convicted was not within the Commission’s terms of reference.
It has therefore not been considered in the inquiry or reviewed in this report.
The epicentre of the inquiry was the role of victims in the criminal trial itself.
The judiciary applies itself assiduously and conscientiously to the demanding task of ensuring that every trial is fair. And yet the overwhelming—not universal—response of victims to the Commission’s inquiry was dismay at how poorly they were treated in the trial process: how they were not acknowledged or respected; how they were demeaned; how they were re-traumatised; and how they were not participants.
Why is this so?
Victims generally understand and accept that, if they are a witness, their evidence is entitled to
be tested. The testing of evidence of victims is a necessary and proper part of the criminal trial. But it is never necessary or proper for witnesses in the criminal trial to be demeaned, humiliated, abused, or treated with derision or contempt.
Victims generally understand and accept that, in the criminal trial, the accused properly is presumed innocent of the crime charged and that the burden of proof beyond reasonable doubt
is on the prosecution.
Victims, as this inquiry revealed, generally do not seek a prosecutorial role in the criminal trial. They accept that that is a State responsibility. This report does not propose that victims become a party
to the criminal trial. The report does propose substantial legislative and cultural change to secure the proper rights of victims—whether a witness or not—as participants in the modern criminal trial.
I think that the foundational reason that there is such a clear divergence between the responsible work of the courts and the legitimate expectations of victims and of the community is that the courts have remained confined by the binary interests of the prosecution and defence, whereas jurisprudence has evolved to a broader understanding of the criminal trial, and legitimate public expectation has likewise evolved. While the courts have secured the responsibilities of the prosecution and the rights of the accused, the rights of the victim have not been addressed.
During the twentieth century, the law developed a suite of protections for the accused in the criminal trial. Properly so. In a striking passage, the distinguished Lord Bingham of Cornhill stated on behalf of the Appellate Committee of the House of Lords:
Fairness is a constantly evolving concept. Hawkins J (Reminiscences (1904) vol I, chap IV,
p 34) recalled a defendant convicted of theft at the Old Bailey in the 1840s after a trial which lasted 2 minutes 53 seconds, including a terse jury direction: ‘Gentlemen, I suppose you have no doubt? I have none’. Until 1898 a defendant could not generally testify on his own behalf. Such practices could not bear scrutiny today. But it is important to recognise that standards and perceptions of fairness may change, not only from one century to another but also, sometimes, from one decade to another.1
In the late twentieth and early twenty-first centuries, the proper rights of victims in the trial process have come to be articulated. In 1989 Justice (later Chief Justice) Brennan of the High Court of Australia stated that, as victims of crime are not parties to prosecution, their ‘interests have generally gone unacknowledged until recent times’.2 In 2001 Lord Steyn stated, with the approval of the other members of the House of Lords:
The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.3
The time has come for the proper interests of the victim as a participant—whether a witness or not—in the criminal trial process to be recognised. This is part of the evolution of the criminal law. While securing the proper rights of the State and of the accused, this report shows a way forward for securing the rights of victims as participants in the modern criminal trial.
The Commission was greatly assisted by the many agencies that deliver information and support to victims. The Victims Support Agency of the Victorian Department of Justice and Regulation, which provides professional and community education about victims and has an overarching responsibility for the funding and coordination of services through the Victims Assistance Program and the Victims of Crime Helpline, provided substantial material and assistance. Valuable contributions were also made by Victims Assistance Program providers, the Child Witness Service of the Department of Justice and Regulation, the Witness Assistance Service of the Office of Public Prosecutions, Centres Against Sexual Assault, and Court Network Inc. I commend those agencies for their important work.
In February 2013, the then Attorney-General, the Hon. Robert Clark MP, established the Victims of Crime Consultative Committee. The present Attorney-General, the Hon. Martin Pakula MP, secured the continuation and development of that Committee by Part 3 of the Victims of Crime Commissioner Act 2015 (Vic). I commend both Attorneys-General upon those initiatives. The Victims of Crime Consultative Committee is an independent, high level, inclusive entity constituted by members of the judiciary, government, relevant bodies, service providers and, importantly, victims. It is chaired by a retired Supreme Court judge, the Hon. Bernard Teague AO. I had the honour of being the inaugural Chair of the Committee.
I express my warm thanks to the judiciary, the legal profession, the academics, the many government and other agencies, and the community for their contribution to this major inquiry. I express my gratitude to my fellow Commissioners and to Lindy Smith, team leader, her predecessor as team leader Peta Murphy, research and policy officers Adrianne Walters and Megan Pearce, and others
at the Commission for their commitment and the high quality of their work on this reference. Finally
I thank the many victims who have contributed to this inquiry and for whom I have profound respect.
I commend the report to you.
The Hon. P.D. Cummins AM
Chair, Victorian Law Reform Commission