Victims of Crime in the Criminal Trial Process: Report (html)
Executive summary
Introduction
1 This report completes the Victorian Law Reform Commission’s review of the role of victims of crime in the criminal trial process, referred to the Commission by the then Attorney-General, the Honourable Robert Clark MP, on 27 October 2014.
2 For the purposes of the review, ‘victim’ generally refers to a person who has directly suffered harm at the action of the offender and includes a parent of a child victim or
a family member of a homicide victim. It applies to a person alleged by the prosecution
to be a victim prior to a determination of guilt as well as a victim of an offence for which an offender has been found guilty.
3 The ‘criminal trial process’ refers to proceedings involving the prosecution of indictable offences, from the point when the Director of Public Prosecutions Victoria commences or takes over a prosecution. It includes committal proceedings in the Magistrates’ Court, trials and sentencing proceedings in the Supreme or County Courts and related applications for compensation and restitution orders, and appeals to the Court of Appeal. It does not include criminal offences that are prosecuted summarily within the jurisdiction of the Magistrates’ Court and are therefore not tried before a judge and jury, such as many family violence offences.
4 Consistent with the terms of reference, the review focused on the criminal trial process itself and not the outcomes of trials, sentencing or appeals. The matter of sentencing levels was not referred to the Commission.
5 Reviewing the role of the victim in Victoria’s adversarial criminal trial process calls for both a theoretical and practical understanding of how and why the criminal justice system has evolved as it has, how effectively it serves the needs of the community today, and the nature of pressure for change.
6 The Commission published four information papers that discussed victims’ needs and rights, examined the development and fundamental principles of Victoria’s adversarial criminal trial process, and considered, as a case study, the role of victims in the International Criminal Court. The Commission’s consultation paper set out each step of the criminal trial process and compared current law and practice in Victoria with other common law jurisdictions, civil law jurisdictions in Europe and the International Criminal Court. It posed an extensive range of questions which guided the consultation process.
7 Consultations were held in Melbourne and across regional Victoria with individual victims of crime, lawyers, judicial officers, academics, and victim support and therapeutic professionals. The Commission convened 57 individual meetings and 18 roundtable discussions with victims and professionals. In addition, 43 written submissions were received.
8 The Commission’s conclusions are summarised below. The 51 recommendations are listed on page xxi–xxviii.
9 Many of the recommendations are relevant and adaptable to criminal cases that are dealt with summarily in the Magistrates’ Court, where the vast majority of criminal matters start and end. If the recommendations are applied to the Magistrates’ Court’s jurisdiction, further consideration of the resourcing, cost and time implications would be required.
The victim’s role
The adversarial criminal trial
10 The adversarial criminal trial is an essential feature of Australia’s common law legal system. It is a contest between the prosecution, acting as the state’s representative, and the accused, who is usually represented by a defence lawyer. The victim is not a party to the proceeding.
11 The prosecution and defence decide how their respective cases will be conducted and define the issues for the jury to consider. The case is presented primarily by witnesses giving oral evidence in court. The judge ensures that the rules of evidence and procedure are followed and instructs the jury about the law to be applied. The jury then decides whether the prosecution has proved beyond reasonable doubt that the accused committed the crimes charged.
12 Principles and rules to ensure fairness for the accused against the power and resources of the state are entrenched in Victoria’s criminal trial processes. The prosecution must act impartially and in the public interest. The accused, who faces serious consequences upon conviction, has a number of rights, including the right to be presumed innocent until proven guilty, to be subject to a fair and impartial prosecution, and to test the evidence against them.
An evolving role for victims
13 The fact that the victim is not a party traditionally meant that the victim had no formal role in the criminal trial process, unless as a witness for the prosecution.
14 Over the past three decades, law and policy reforms in Victoria and other common law jurisdictions have progressively created opportunities for victims to engage with the criminal trial process in a variety of capacities. Victims are now entitled to be supported during the criminal trial process and to be kept informed about its progress; they are empowered to present a victim impact statement to the court at sentencing; and they may apply for compensation or restitution to be paid directly by the offender. For those who appear as witnesses, procedures have been introduced for victims of sexual offences and family violence to reduce the trauma of giving evidence. In a profound and significant sense, there is now a place for victims.
15 While victims’ experience of the criminal justice system, and their confidence in it, appear to have improved, there is a significant disparity between the victim’s role as conveyed in legislation and the victim’s experience in practice. The Commission heard that many victims are marginalised and offended by the attitude conveyed by prosecution and defence lawyers, and by their treatment in the courtroom generally, including by some judicial officers. There are also lapses in the continuity and consistency of information and services provided to victims across Victoria.
16 The promise of reforms will not be fully realised without cultural change within the criminal justice system. Changes have been made to the victim’s role as a result of the cumulative effect of these reforms but the reforms have not been driven by a vision of what the role should be. The ambiguity this has created has fostered inconsistencies in how victims are perceived, how they see themselves, their expectations and how they are treated. This has, in part, undermined a coherent approach to victim-oriented reform and has meant that changes in the practices and attitudes of those who work within the criminal justice system have not met the ambitions of the reforms.
17 There is a need to clearly state what the victim’s role has become and to embed it in the language and perceptions of criminal justice agencies. A better understanding of the victim’s role in our adversarial criminal trial process will assist with driving cultural change, clarifying expectations and entitlements, and guiding future reforms.
The victim’s inherent interest
18 The role has evolved in a way that recognises the inherent interest that a victim of crime has in how the criminal justice system responds to that crime. This interest arises from the crime and its impact on the victim’s life. It is not confined to, nor defined by, the criminal trial process.
19 Crime is invasive in nature, and even minor criminal acts can have psychological, physical, financial and other consequences for victims. In all cases, victims are harmed or directly affected.
20 By reporting to police, many victims set in train action that leads to a person being prosecuted. In reporting crime and acting as a witness for the prosecution, victims play an integral role in the effective functioning of Victoria’s criminal justice system.
21 The experience of crime differs from one victim to the next, as do their needs and expectations of the criminal justice system. They have various reasons for engaging in the criminal trial process: to seek justice, healing, offender accountability, public acknowledgment, and to protect themselves and others from future victimisation. Victims may seek emotional or financial restoration. Sometimes they just want the offender to be punished.
A triangulation of interests
22 Fair trials are in the public interest, as well as the accused’s interest. While it remains crucial that laws and procedures ensure the accused receives a fair trial, fairness to the accused does not preclude recognition of the victim’s interest.
23 Fairness is a dynamic concept, changing over time alongside changes in community values and expectations. Increasingly, it is recognised that the public interest can be served not only by safeguarding the rights of the accused and the independence of the prosecution but also by taking into account the victim’s interest. Procedures and rights that regulate the contest between the prosecution and defence have been supplemented by reforms that allow for the victim’s interest to be taken into account, although only to the extent that fairness permits in an adversarial system.
24 There may be measures sought by some victims to protect their interests that compromise the independence of the prosecution or a fair trial. Similarly, accused persons may seek protections that go beyond what is required to ensure a fair trial. The legitimate rights of victims, properly understood, do not undermine the legitimate rights of the accused or of the community, properly understood. The true interrelationship of the three—victim, accused and community—is mutual and complementary, not exclusory.
Victims as participants
25 The Commission has characterised the role of the victim as that of a participant, but not a party, with an inherent interest in the criminal trial process. The victim’s interest arises from the person’s victimhood, and is given effect through rights and entitlements. Understanding the role of victims in this way reflects the reality of victims’ inherent interest in the criminal trial process and the various capacities in which they may be involved. It also accords with comments that victims made in response to the consultation paper.
26 The recommendations made in this report flow from the Commission’s conceptualisation of the victim’s role and are consistent with modern standards of fairness in criminal trials.
27 The role of the victim does not require prescriptive definition. The role will differ based on the circumstances of the individual and the prosecution. It will also evolve with changes in the administration of justice. The Commission’s report looks at specific aspects of the role in terms of five overarching rights and entitlements arising from the victim’s inherent interest:
• to be treated with respect and dignity
• to be provided with information and support
• to be able to participate in processes and decision making, without carrying the burden of prosecutorial decision making
• to be protected from trauma, intimidation and unjustified interference with privacy during the criminal trial process
• to be able to seek reparation.
28 These rights and entitlements are consistent with how individuals and organisations consulted by the Commission said they expect victims to be treated by those working in the criminal justice system. They align with the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, the foundational international instrument on victims’ entitlements. They are reflected in victim-oriented laws, including the Victims’ Charter Act 2006 (Vic), the Sentencing Act 1991 (Vic), the Criminal Procedure Act 2009 (Vic) and the Evidence Act 2008 (Vic).
Conveying the role in statute
29 The Victims’ Charter Act governs the response of investigatory, prosecuting and victims’ services agencies to victims of crime in Victoria. Accordingly, it is appropriate that this Act explicitly recognises the inherent interest of victims. The Commission recommends that the recognition of the victim’s inherent interest, as reflected in their role as a participant with corresponding entitlements, be included in the objects of the Act.
30 The transformation of the criminal trial process into one in which the victim has a role as a participant should also be reflected in Victoria’s Charter of Human Rights and Responsibilities Act 2006 (Vic) (Human Rights Charter). The Human Rights Charter applies to all criminal proceedings in Victoria. Expressly recognising the interests of victims in the Human Rights Charter makes it clear that these interests must be protected and promoted in the criminal trial process. It ensures that legislation is drafted and interpreted in a manner consistent with victims’ interests, and that all public authorities, including the courts, act in a manner that is consistent with them. It would also bolster existing obligations on investigatory, prosecuting and victims’ services agencies contained in the Victims’ Charter Act.
Consolidating the role in practice
31 Re-conceptualising the role of the victim as a participant in the criminal trial process and clearly stating it in legislation would complement recent law and policy reforms and provide a robust foundation for the role in practice.
32 Cultural change is ongoing, and past reforms have already been transformational, but progress has been at times slow and limited. The Commission proposes three broad strategies to strengthen the existing foundation of law and practice and support the implementation of recommendations made throughout this report:
1. Build understanding and acceptance of victims’ perspectives, needs and challenges,
as well as their rights and entitlements, through further education and training programs for lawyers and judicial officers.
2. Improve compliance with victim-oriented law and policy by strengthening complaint processes and accountability mechanisms and giving the Victims of Crime Commissioner responsibility for monitoring and reporting on the implementation of the Victims’ Charter principles.
3. Create a coherent legislative and policy framework by amending the Victims’ Charter Act to more accurately reflect victims’ entitlements and criminal justice agencies’ obligations.
Respect for the dignity of victims
33 Treating victims with respect for their dignity is a multifaceted concept. At its core, it is about the personal interactions that victims have with the criminal justice system. Victims seek honesty and respect from these interactions. Ultimately, victims navigating the criminal justice system should consistently experience respectful encounters with those
in authority.
34 Treating victims with respect is closely connected to the victim’s role as a participant and is about meeting victims’ other expectations. Victims feel respected when they are provided with information and support, have the option of participating in decision making, are protected from unnecessary trauma, intimidation and unjustified interference with their privacy, and are given a means to claim compensation or restitution from the offender.
35 Respectful treatment also requires criminal justice system authorities to respond to the diverse needs of all victims. The Victims’ Charter Act expressly recognises that victims’ needs may vary according to their race, gender or sexual orientation, cultural or linguistic background, disability, religious views, age or Indigenous background. However, the particular needs of victims living in rural and regional Victoria, who experience a number of barriers to accessing justice, are not explicitly recognised.
36 The Commission recommends amending the Victims’ Charter Act to ensure that the multifaceted nature of treating all victims with respect is properly reflected in the principles set out in the Act.
Respect in the courtroom
37 Attending court is the focal point of most victims’ experience of the criminal trial process. In discussions with the Commission, victims consistently linked the way they were treated during court proceedings by judicial officers, the prosecutor and the defence lawyer to their assessment of whether they were treated with respect.
38 Respectful treatment by judicial officers and lawyers shows victims that they are valued as participants in the criminal trial process. The Commission’s recommendations are designed to ensure that judicial officers and lawyers are provided with practical guidance about responding to the particular needs and interests of victims in the courtroom environment.
39 Victims who gave evidence as a witness linked the nature and manner in which cross-examination was conducted to whether they were treated respectfully. Cross-examination was often perceived by victims as aggressive, insensitive, offensive, patronising, confusing, misleading and ultimately disrespectful. In Victoria, the law prohibits improper questions being asked of certain vulnerable victims. There are no circumstances in which an improper question is appropriate and should be allowed. The Commission’s recommendation requires judicial officers to intervene when any victim is asked an improper question.
Information and support
40 Victims’ experiences of the criminal trial process depend in large part on how well they are prepared and supported. This is influenced by when, how and by whom information
is communicated to victims and the type of support they receive. Victims need information that is specific to the various stages of the criminal trial process and responsive to their communication needs and capabilities.
41 Victims receive information and support from a range of sources. The Victims Support Agency of the Victorian Department of Justice and Regulation has an overarching function to provide support services to victims, primarily through funding and coordinating the Victims Assistance Program, which is delivered by six community organisations. Support for victims in preparing for and attending criminal proceedings,
is also provided by 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.
42 Most obligations to provide information and support in connection with the criminal trial process itself fall on the public prosecutions service, particularly the solicitor in charge of a prosecution. While they are comprehensively detailed in policies issued by the Director of Public Prosecutions, those in the Victims’ Charter Act are typically expressed in more general terms. The Commission has made recommendations throughout this report that expand the information obligations in the Victims’ Charter Act, and in some cases reflect obligations that already exist in policy. The Victims’ Charter Act is the most visible statutory reference point for victims in terms of their rights and entitlements during the criminal trial process, and it is the instrument against which compliance with obligations can be monitored.
43 The time, resources, attitude and communication skills of prosecution lawyers are vital to ensuring that victims are properly informed. Increasingly, prosecution lawyers are taking seriously their obligations to inform, support and consult with victims. The Commission’s recommendations aim to ensure that conferencing with victims before and after key court dates becomes integral to the prosecution process, including for victims living in regional locations.
44 Victims have substantive legal entitlements connected with the criminal trial process and should have access to legal advice and assistance in exercising them. They include entitlements to:
• appear in court in response to applications to subpoena, access and use confidential counselling and medical records
• object to giving evidence where the accused person is their spouse, de facto partner, parent or child and they believe giving evidence will cause them harm
• object to giving evidence if it may prove that they committed an offence or are liable to a civil penalty.
• provide a victim impact statement and read it out in court
• apply for a compensation or restitution order against the offender as an ancillary order to sentencing.
45 The prosecution is unable to assist victims in asserting substantive entitlements if doing
so conflicts with its duty to act impartially and independently. There is no designated legal service for victims to access. The Commission therefore recommends that a legal service for victims of violent indictable crimes be established to advise and, where appropriate, represent victims about substantive entitlements connected to the criminal trial process.
46 The Victims’ Charter Act requires investigatory, prosecuting and victims’ services agencies to be responsive to the diverse needs of victims, including those marginalised by the criminal justice system. Shortcomings in the referral and coordination of services can disproportionately affect Aboriginal people, culturally and linguistically diverse communities, people with disabilities, regional communities and victims of non-violent and property crimes. These are important matters that go beyond the Commission’s terms of reference. They should be monitored by the Victims of Crime Commissioner
and included in a comprehensive review of the Victims’ Charter Act in five years.
Participation
47 Many victims seek opportunities to participate in the criminal trial process. Participation is often equated with giving victims a voice in proceedings—the opportunity to tell their story and to feel that they have been heard. Participation can mean interacting with criminal justice agencies that are required to seek and consider the views or preferences of victims. Where the interaction is meaningful, it can provide victims with a sense of empowerment and convey official acknowledgment of their interest.
48 The Commission does not make recommendations that would see victims have power over prosecutorial decisions or give them a role similar to the prosecution. Such proposals would fundamentally alter Victoria’s criminal justice system. Moreover, many victims do not seek the responsibilities that come with prosecutorial decision making.
Consultation
49 Consultation with the prosecution is an important form of participation. Victims want prosecution lawyers to seek out their views and consider them when making decisions that will significantly affect their interests. The Commission’s recommendations expand and clarify the circumstances in which prosecuting agencies are obliged to consult with victims, and call for those obligations to be incorporated into the Victims’ Charter Act.
Participation in court
50 The adversarial criminal trial process has been reformed to accommodate some limited participation by victims in court proceedings. Notably, victims of sexual offences may seek leave to appear in court when the accused applies to subpoena, access or use their confidential counselling and medical records, and all victims have the right to submit and read out a victim impact statement in sentencing hearings. The Commission’s recommendations aim to ensure that these existing entitlements provide an effective and meaningful form of participation for victims in practice, without undermining the accused’s rights.
51 The Commission considered whether existing opportunities for victims to participate in court should be expanded. Greater direct participation by victims in court proceedings risks undermining the accused’s right to a fair trial and the conduct of an independent and impartial prosecution. It is also likely to create delay, and add costs and complexity
to the trial process.
52 The Commission considers that the expectation of some victims that they be able to participate in court can be achieved in ways that are more compatible with the adversarial trial process. The Commission does not consider it necessary or appropriate that the victim have a statutory right to appear throughout a trial. It recognises, though, that there may be exceptional circumstances in which intervention is necessary to assert a particular interest or human right or to protect a vulnerable victim. This would not mean that the victim becomes a party to the criminal proceedings.
Equal participation
53 Some victims face particular barriers to equal participation, including as witnesses. Cross-examination can be particularly challenging for children and individuals who have a disability that affects their capacity to communicate or comprehend. Victims with disabilities face multifaceted barriers in the criminal trial process: their disability may not be identified, they may not be perceived as credible or competent, and there may be inadequate or no adjustments made to accommodate their disability.
54 The Commission recommends that an intermediary scheme be established for child victims and for victims who have a disability which is likely to diminish the quality of
their evidence, modelled on an existing scheme in England and Wales.
Restorative justice
55 Restorative justice conferencing offers a more supportive and flexible forum for active participation. For indictable offences, the Commission considers that restorative justice conferencing should only operate as a supplementary process. It should not replace the criminal trial process where there is a viable prosecution.
56 Studies have reported high levels of satisfaction among victims who elect to participate
in restorative justice conferencing, including victims of serious crimes. However, restorative justice is not a process in which every victim or offender would want to participate and
it is not appropriate in all cases.
57 The Commission recommends a phased introduction of restorative justice conferencing for indictable offences in Victoria. The critical elements of a successful restorative justice process include:
• voluntary and informed consent by victims and offenders
• full acceptance by offenders of responsibility for the crimes charged
• rigorous processes to assess the suitability of restorative justice based on the individuals involved and the circumstances of each case
• skilled and impartial facilitators
• safeguards to protect the interests and integrity of victims and offenders.
Protection
58 Victims find that giving evidence in court, and cross-examination in particular, can be traumatic and intimidating. To address this, reforms have been introduced to reduce the number of times certain victims are required to give evidence, as well as to protect victims’ safety in and around courthouses. Many of these reforms have been directed towards victims who are considered the most vulnerable, such as children and individuals with a cognitive impairment in sexual offence cases.
59 Many contributors to the Commission’s reference proposed that protective measures be expanded to other victims who are likely to be traumatised by the criminal trial process. The Commission’s recommendations aim to ensure a consistent approach to protecting victims when they give evidence.
60 It can be particularly traumatic for victims of sexual offences when sensitive information
is made public during a criminal trial. The Commission considers that restrictions on access to the personal records of sexual assault victims should be expanded.
61 Accused persons have a right to cross-examine witnesses, test the case against them and access relevant material in order to make a full and proper defence. These are significant elements of a fair trial and should be protected. However, these rights do not mean that victims should not also be treated fairly and with appropriate respect for their dignity, humanity and human rights.
Financial reparation
62 Victims have an interest in how harm can be repaired as part of the criminal justice system’s response to offending. Harm may be repaired in a variety of ways, such as through the payment of compensation, the performance of work or an apology. The Commission’s terms of reference focus its review on financial reparations and the victim’s role in the making of restitution and compensation orders against offenders for the benefit of individual victims. These orders can be made as ancillary non-punitive orders through the Sentencing Act 1991 (Vic). Victims rarely use these provisions and, when they do, the process is difficult to navigate without a lawyer. The Commission’s recommendations aim to make the process more accessible and to ensure victims are aware of, and can seek legal advice about, their entitlements.
63 Victims who obtain restitution or compensation orders often struggle to enforce them.
As the orders do not form part of an offender’s punishment, they cannot be enforced by the state like a court-ordered fine. Victims must instead commence separate legal proceedings to enforce the order as a judgment debt.
64 Allowing restitution and compensation orders to be enforced by the state gives rise
to questions beyond the scope of the Commission’s review, such as whether the orders should become a sentencing option. The Commission recommends that these questions are best considered through a separate review by the Sentencing Advisory Council.
65 For some victims, state-funded financial assistance through the Victims of Crime Assistance Tribunal (VOCAT) will be the only means of obtaining a degree of financial reparation. While the Commission’s terms of reference did not allow for a thorough review, recommendations are made to limit access to and use of VOCAT records for
the purposes of criminal proceedings.
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