Victims of Crime in the Criminal Trial Process: Report (html)

Recommendations

[In these recommendations, ‘victim’ includes 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.]

Chapter 3. The victim as a participant in the criminal trial process

Articulating the role in statute

1 The objects of the Victims’ Charter Act 2006 (Vic) should be amended to include recognition that a victim of crime has an inherent interest in the response by the criminal justice system to that crime, which gives rise to the rights and entitlements that are conveyed in the Act and shape the victim’s role as a participant in the criminal trial process.

2 Part 2 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) should be amended to include a right for a victim of a criminal offence that contains the following minimum guarantees:

(a) to be acknowledged as a participant (but not a party) with an interest in the proceedings

(b) to be treated with respect at all times

(c) to be protected from unnecessary trauma, intimidation and distress when giving evidence.

Chapter 4. Consolidating the role in practice

Education and training

3 The Victorian Legal Admissions Board, through its membership of the Law Admissions Consultative Committee, should advocate for the education and training requirements for admission to the legal profession to include the study of law and procedures relevant to victims, and the causes and effects of victimisation.

4 The Legal Services Board should take a lead role in encouraging barristers practising in criminal law to receive victim-related professional development training including, if necessary, exercising its power under the Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 to specify that they must complete such training within their first three years of practice.

5 Victoria Legal Aid and the Office of Public Prosecutions should encourage the Law Institute of Victoria and the Victorian Bar to require candidates for accreditation as specialists in criminal law or indictable crime to be competent in victim-related laws and the role of the victim as a participant in the criminal trial process.

6 Victoria Legal Aid and the Office of Public Prosecutions should lead, in consultation with stakeholders, the development and delivery of a training program to foster cultural change in how victims are perceived and treated during the criminal trial process, based on the Sexual Offences Interactive Legal Education Project.

Compliance with the Victims’ Charter principles

7 The Victims’ Charter Act 2006 (Vic) should:

(a) provide victims of crime with a right to make a complaint to the relevant

investigatory, prosecuting or victims’ services agency about a breach of a Victims’ Charter principle and

(b) impose an obligation on investigatory, prosecuting and victims’ services agencies

to provide accessible and transparent complaint-handling systems and offer fair and reasonable remedies.

8 The Victims of Crime Commissioner should be empowered to review the outcome of complaints regarding compliance by investigatory, prosecuting and victims’ services agencies with the Victims’ Charter Act 2006 (Vic) principles, on application by the complainant, if the complainant is not satisfied with the agency’s response to the complaint.

9 Section 9 of the Victims’ Charter Act 2006 (Vic) should be amended to require the Director of Public Prosecutions to give victims written reasons for the decisions listed at paragraph (c) of that section, unless the victim has expressed a wish not to be so informed.

10 The Victims’ Charter Act 2006 (Vic) should be amended to:

(a) establish a right for victims to seek internal review of a decision by the Director

of Public Prosecutions to discontinue a prosecution or to proceed with a guilty plea

to lesser charges

(b) require the Director of Public Prosecutions, when informing the victim of these decisions, and the reasons for these decisions, to notify the victim of their right

to seek internal review and the procedure for doing so.

11 Section 27(1) of the Victims of Crime Commissioner Act 2015 (Vic) should be amended to empower the Victims of Crime Commissioner to refer a matter to the Victorian Legal Services Commissioner.

System-wide monitoring and review

12 The Victims of Crime Commissioner should be required to report annually to Parliament on the implementation of the Victims’ Charter Act 2006 (Vic) by all investigatory, prosecuting and victims’ services agencies, including information about the number of complaints made and processed about compliance with the Victims’ Charter principles.

13 The Victims of Crime Commissioner should establish arrangements with the Supreme Court, County Court, Magistrates’ Court, Office of Public Prosecutions, Victoria Police and Department of Justice and Regulation to collect data about implementation of the Victims’ Charter Act 2006 (Vic) to enable the preparation of annual reports to Parliament.

A coherent legislative and policy framework

14 The Victims of Crime Commissioner should lead a comprehensive review of the Victims’ Charter Act 2006 (Vic) not later than five years after the commencement of reforms recommended in this report.

Chapter 5. Respect

The Victims’ Charter principle

15 Section 6(2) of the Victims’ Charter Act 2006 (Vic) should be amended to require investigatory, prosecuting and victims’ services agencies to treat victims with courtesy and to respect their dignity and their rights and entitlements as participants in the criminal trial process.

16 Section 6(2) of the Victims’ Charter Act 2006 (Vic) should be amended to include ‘living

in a regional or rural location’ as a need that investigatory, prosecuting and victims’ services agencies must take into account and be responsive to.

Respect in the courtroom

17 The Judicial College of Victoria, in consultation with the heads of jurisdictions, should include in its practical guides for judicial officers information and guidance about responding to the needs and interests of victims in the courtroom, including preferred practices in acknowledging victims in the courtroom and referring to deceased victims by name rather than as ‘the deceased’.

18 Section 41 of the Evidence Act 2008 (Vic) should be amended to require a judicial officer to disallow improper questioning in relation to all victims, in accordance with the Uniform Evidence Act provisions adopted by New South Wales, Tasmania and the Australian Capital Territory insofar as they relate to victims.

19 Subsection (2) of section 336A of the Criminal Procedure Act 2009 (Vic) should be repealed.

Chapter 6. Information and support

Relationship between victims and the prosecution

20 The Victims’ Charter Act 2006 (Vic) should be amended to require prosecuting agencies to:

(a) ensure that victims know the date, time and location of a contested committal, trial, plea hearing, sentencing hearing, and appeal hearing

(b) advise victims about the progress of the prosecution and the outcome of committal proceedings, a trial, plea hearing, sentencing hearing and appeal hearing

(c) inform victims that they have a right to make a victim impact statement at sentencing.

21 The Victims’ Charter Act 2006 (Vic) should be amended to require prosecuting agencies to offer conferences before and after important court dates, including committal hearings, trials and retrials, sentencing hearings in the Supreme Court and County Court and appeals to the Court of Appeal, to the following:

(a) family members of deceased victims

(b) victims of sexual offences

(c) all victims of offences involving conduct that falls within the definition of family violence in the Family Violence Protection Act 2008 (Vic)

(d) child victims

(e) victims with disabilities

(f) Aboriginal and Torres Strait Islander victims

(g) victims whose first language is not English

(h) on request to other victims of crime.

22 The Director of Public Prosecutions should cause a review to be undertaken of the delivery

of prosecution and witness assistance services across regional Victoria with the objective of:

(a) improving the Office of Public Prosecutions’ presence and delivery of services in regional Victoria

(b) ensuring that Office of Public Prosecutions solicitors are able to consistently meet obligations owed to victims under the Victims’ Charter Act 2006 (Vic) and the Director of Public Prosecutions’ policies.

Legal advice and assistance for victims

23 Victoria Legal Aid should be funded to establish a service for victims of violent indictable crimes, modelled on the Sexual Assault Communications Privilege Service at Legal Aid NSW. It should provide legal advice and assistance, in accordance with the Legal Aid Act 1978 (Vic), in relation to:

(a) substantive legal entitlements connected with the criminal trial process

(b) asserting a human right, or protecting vulnerable individuals, in exceptional circumstances.

The legal service should be independently evaluated not more than three years after commencement.

Chapter 7. Participation

Consultation throughout the criminal trial process

24 The Victims’ Charter Act 2006 (Vic) should be amended to require prosecuting agencies

to consult with victims before the prosecution makes a decision to:

(a) not proceed with some or all charges

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

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

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

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

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

Participation and substantive rights in court

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

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

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

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

(d) providing victims with standing to appear

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

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

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

(b) a victim impact statement will not be inadmissible because it contains subjective

or emotive material.

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

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

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

Equal participation in the court process

30 The Department of Justice and Regulation, in consultation with the Office of the Public Advocate, should establish a scheme for the appointment of professional intermediaries, modelled on the Witness Intermediary Scheme in England and Wales. The intermediaries would assist in obtaining evidence from child victims and victims who have a disability,

as defined by the Equal Opportunity Act 2010 (Vic), that is likely to diminish the quality

of their evidence.

31 The intermediary scheme should be underpinned by legislation that:

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

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

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

Participation in restorative processes

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

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

a prosecution

(b) after a guilty plea and before sentencing

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

33 The restorative justice conferencing scheme for indictable offences in Victoria should

be based on:

(a) voluntary and informed victim consent and participation

(b) voluntary and informed offender consent and participation

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

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

34 The restorative justice conferencing scheme should apply initially to offences that do not involve sexual violence and family violence and be extended to sexual violence and family violence offences at a later stage.

35 The Victims’ Charter Act 2006 (Vic) should require prosecuting agencies to inform victims about their entitlement to request restorative justice conferencing and refer them to legal advice.

36 The Department of Justice and Regulation should be responsible for implementing the restorative justice conferencing scheme.

Chapter 8. Protection

Victims as witnesses: reducing trauma and intimidation

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.

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.

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.

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.

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.

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.

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

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).

Chapter 9. Financial reparation

Restitution and compensation orders against offenders

45 Divisions 1 and 2 of Part 4 of the Sentencing Act 1991 (Vic) should be consolidated to provide a consistent set of procedures for restitution and compensation orders in the Supreme Court and County Court, and include the following elements:

(a) The court may make restitution and compensation orders on its own motion.

(b) The court must make inquiries as to whether an application for restitution or compensation orders will be made.

(c) A simple form prescribed in the Sentencing Regulations 2011 (Vic) to assist victims and their representatives in making an application for restitution or compensation orders.

46 Sections 85H and 86(2) of the Sentencing Act 1991 (Vic) should be repealed to the extent that they apply to applications made by individuals in the Supreme Court and County Court under Division 2 of Part 4 of that Act.

47 The Victims’ Charter Act 2006 (Vic) should be amended to require investigatory and prosecuting agencies to inform victims of their possible entitlements under Part 4 of the Sentencing Act 1991 (Vic) and refer them to available legal assistance.

48 The Criminal Procedure Act 2009 (Vic) should be amended to enable victims to seek leave

to appeal, independently of the Director of Public Prosecutions:

(a) a refusal by the Supreme Court or County Court to make an order pursuant to Divisions 1 and 2 of Part 4 of the Sentencing Act 1991 (Vic)

(b) orders made by the Supreme Court or County Court pursuant to Divisions 1 and 2

of Part 4 of the Sentencing Act 1991 (Vic).

49 The Attorney-General should ask the Sentencing Advisory Council to review whether orders made under Divisions 1 and 2 of Part 4 of the Sentencing Act 1991 (Vic) should become

a sentencing option. The review should consider:

(a) whether the purposes of sentencing should include the financial reparation of victims

(b) whether there should be a presumption in favour of courts making such orders

(c) whether such orders should be enforced by the state in the manner of a fine.

State-funded financial assistance

50 Applications, supporting documentation and documents provided to or prepared for, or on behalf of, the Victims of Crime Assistance Tribunal at any time in connection with an application for financial assistance under the Victims of Crime Assistance Act 1996 (Vic) should be inadmissible as evidence in any criminal legal proceedings except:

(a) in criminal proceedings in which the applicant is the accused

(b) in or arising out of proceedings before the Victims of Crime Assistance Tribunal

(c) with the applicant’s consent.

51 A person should not be required by subpoena or any other procedure to produce any application or document that would be inadmissible following the implementation of recommendation 50.