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

2. The evolution of the victim’s role

Introduction

2.1 Over the past three decades, a series of victim-oriented reforms have changed the role

of the victim from that of simply a witness for the prosecution. The criminal justice system has evolved. In a profound and significant sense, there is now a place for victims.

2.2 This chapter outlines the major reforms that have modified the interaction between victims and key actors in the criminal trial process. Today, whether or not the victim appears as a witness for the prosecution, they are entitled to be supported in recovering from the harm caused by the crime, kept informed about the progress of the trial, and empowered to present a statement on the impact of the crime to the court at the time

of sentencing. In essence, victims are entitled to be respected, to be informed, and to

be heard.

2.3 The changes in the victim’s role are the cumulative result of separate law and policy reforms that lacked a vision of what the victim’s role would become. The Commission’s conclusions on how the role should now be conceptualised are discussed in Chapter 3.

The adversarial criminal trial

2.4 The paradigm within which the victim’s role has developed in Victoria is the adversarial criminal trial. The adversarial criminal trial is a central feature of Australia’s common law legal system. The rules of evidence and procedure that govern it reflect the traditional legal sense of what is fair. It is a contest between the prosecution, acting as the state’s representative, and the accused, usually represented by a defence lawyer. The victim

is not a party to the proceeding.

2.5 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 witness evidence, and may include the victim as a witness. Witnesses usually give oral evidence

in person in the courtroom and are subject to cross-examination. The judge ensures that the rules of evidence and procedure are followed and, after the prosecution and the defence have presented their cases, instructs the jury about the law to be applied. The jury then determines whether the prosecution has proved beyond reasonable doubt that the accused committed the crimes charged.

2.6 The accused is entitled to a fair trial. Importantly, this means being presumed innocent until proven guilty beyond reasonable doubt. Technically, a person’s status as a victim is uncertain until the accused’s guilt has been determined. However, in most cases, the fact that a person is a victim is not in contest. Usually, the contest is whether the accused committed the crime, or whether the accused had the requisite mental intent. Sometimes—for example, where consent is in issue—the question is whether the alleged victim is or is not a victim of crime as defined in law.

2.7 The principles that underpin a fair trial are well established. In Victoria, the accused person’s rights in criminal proceedings are set out in section 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic), which includes the following minimum guarantees:

• to be informed promptly and in detail of the nature and reason for the charge

in a way the accused understands

• to have adequate time and facilities to prepare the defence and communicate with

a lawyer or advisor of the accused’s choosing

• to be tried without unreasonable delay

• to be tried in person, and to be defended through legal assistance

• to be informed about and receive legal aid if eligible

• to examine witnesses for the prosecution, unless not permitted by law

• to obtain the attendance and examination of witnesses for the defence under

the same conditions as witnesses for the prosecution

• to have the free assistance of an interpreter if unable to understand or speak English

• to have assistants and specialised communication tools and technology if needed

to assist communication, at no charge

• not to be compelled to testify against himself or herself or to confess guilt.

2.8 The prosecution is obliged to act independently and impartially and to conduct the case fairly.^[1] It must disclose all evidence relevant to the charges against the accused, even

if it might undermine the prosecution case or assist the defence.^[2] The prosecution must also act in the public interest, which may not always align with the victim’s interest. Legally and operationally, the prosecution represents the state—not the victim.

2.9 Within this system, the traditional role of the victim is limited to that of a witness who gives evidence on behalf of the prosecution. A victim who is not a witness has no role at all. Observing that victims are viewed as outsiders to criminal proceedings, Jonathan Doak has commented on how poorly their interests have been recognised:

Although many victims may feel as though they are ‘owed’ a right to exercise a voice in decision-making processes, such as prosecution, reparation and sentencing, the criminal justice system places such rights or interests in a firmly subservient position to the collective interests of society in prosecuting the crime and imposing a denunciatory punishment.^[3]

2.10 The law and procedures of the criminal trial process are constantly changing, as is the nature of a common law system guided by custom and precedent. However, modifying the adversarial system in the interests of victims requires a major shift that can be achieved only by the intervention of Parliament.

2.11 Numerous reforms to the law have been introduced in Victoria to enhance the victim’s role. These reforms have been accompanied by government programs designed to support victims during the criminal trial process and help them cope with the aftermath of the crime.

Drivers of reform

2.12 The 1960s saw the emergence of a ‘victims’ movement’ and the expansion of academic interest in victim rights, led by feminists who challenged notions that victims were to blame for crimes such as rape, child abuse and family violence. These commentators also raised awareness of hidden and overlooked victimisation in the community. Over the next two decades, researchers studied the experiences of victims, government agencies and structures were critically examined, and legal reform followed.^[4]

2.13 In recent times governments, commentators and media have paid more attention to family violence, child abuse and sexual offences. There has been increased and widespread concern with human rights. These factors have fuelled the victims’ movement and the evolution of victims’ lobby groups.^[5]

2.14 It was not until the 1980s that the interests of victims began to play a prominent role in the formulation of criminal policy.^[6] The concept of consumerism in particular, which encouraged government agencies to focus on the needs of citizens as consumers of their services, fostered greater awareness within the criminal justice system of the specific needs of victims of crime.^[7]

2.15 Early reforms focused on the creation of support services for victims, such as rape crisis centres and counselling services. These reforms left the foundations of the adversarial criminal trial process largely untouched.

2.16 There are now numerous entitlements and obligations in law and policy concerning victims and the criminal trial process. The main sources of law are to be found in the Victims’ Charter Act 2006 (Vic), Criminal Procedure Act 2009 (Vic), Evidence (Miscellaneous Provisions) Act 1958 (Vic), Evidence Act 2008 (Vic), Sentencing Act 1991 (Vic), Public Prosecutions Act 1994 (Vic), Judicial Proceedings Reports Act 1958 (Vic),

and Open Courts Act 2013 (Vic). There are also relevant practice notes issued by the courts and policy obligations created by the Director of Public Prosecutions (DPP) and Victoria Police.

2.17 Today, the victim is recognised as a stakeholder in the criminal justice system. Victims and victim advocacy groups in Victoria can directly influence government decisions about their rights and the services they receive, and can influence the direction of future initiatives through the Victims of Crime Consultative Committee and the Victims of Crime Commissioner. With regard to the criminal trial process, victims’ needs and interests

are better acknowledged and accommodated although, in practice, gaps and inconsistencies remain.

Law and policy reform in Victoria

2.18 Law and policy reform over the past 30 years has afforded victims a greater presence

in the criminal trial process. Victims are entitled to be kept informed about the progress of the proceedings and assisted when participating directly in them. They may contribute to decision making about the sentencing of the offender and, if a custodial sentence is imposed, are entitled to be informed of the release of the offender at its conclusion.

2.19 These reform initiatives are largely uncontroversial. They are widely accepted among the individuals and organisations who contributed to this review. However, their introduction has been piecemeal. The victim’s role in the criminal trial process has been modified as

a cumulative effect of these reforms, rather than as the realisation of a goal.

2.20 The key reforms are summarised in the following passages to illustrate their focus and breadth.^[8] They are discussed in closer detail in the remaining chapters of this report,

in the context of the need for further reform.

Recognition of the victim’s interest in the criminal trial process

2.21 Several legislative reforms have validated the victim’s place in the criminal trial process. They manifest the principle that the victim has an interest in the process that is not confined to the role of witness.

Public Prosecutions Act 1994 (Vic)

2.22 In 1994, the Public Prosecutions Act 1994 (Vic) established the DPP and the Office of Public Prosecutions (OPP) as independent statutory offices.

2.23 The Public Prosecutions Act states that, in performing their functions, the DPP, Crown Prosecutors, Associate Crown Prosecutors, the Solicitor of Public Prosecutions and staff of the OPP must have regard to ‘the need to ensure that the prosecutorial system gives appropriate consideration to the concerns of victims of crime’.^[9]

2.24 The obligation is broadly expressed and allows significant latitude in determining how the victim’s concerns are identified and when they will be taken into account. It is not contingent on the victim being a witness for the prosecution.

2.25 The DPP has issued a detailed policy on the treatment of victims that reinforces and clarifies, and in some cases exceeds, the obligations to victims arising under the Victims’ Charter Act and other relevant legislation.^[10]

Victims’ Charter Act 2006 (Vic)

2.26 The Victims’ Charter Act sets out principles that govern the response by criminal justice and government agencies to victims of crime. The Act did not create any new entitlements for victims. Rather, it brought together those that already existed and put in place mechanisms for improved policy coordination, accountability and service delivery.

2.27 The Victims’ Charter Act was intended to create ‘a framework for system-wide reforms that recognise and promote the rights of victims of crime’.^[11] Importantly, it focused on the victim as a key participant in the criminal justice system, with legitimate expectations that agencies have a responsibility to meet.

2.28 The objects of the Victims’ Charter Act are based on the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.^[12] They show that the victim has an interest, born of the experience of being harmed by the crime, that criminal justice agencies should recognise and respect. The objects are:

• to recognise the impact of crime on the victims of that crime, including the impact on members of victims’ families, witnesses to the crime and in some cases, the broader community

• to recognise that all persons adversely affected by crime, regardless of whether they report the offence, should be treated with respect by all investigatory, prosecuting and victims’ services agencies and should be offered information to enable them to access appropriate services to help with the recovery process

• to help reduce the likelihood of secondary victimisation by the criminal system.^[13]

2.29 The Victims’ Charter Act also gave statutory force to the policy and strategic role of the Department of Justice and Regulation in changing how victims are treated by the criminal justice system. It requires the Secretary to:

• develop policies and plans to promote the Victims’ Charter principles

• monitor, evaluate and review the operation of the Victims’ Charter Act and its benefits for victims

• ensure that appropriate processes are established for complaints to be made by persons adversely affected by crime if the Victims’ Charter principles are not upheld.^[14]

2.30 In this way, the Victims’ Charter Act has reinforced a shift in the way in which victims of crime are perceived in Victoria, from consumers of support services to stakeholders in the criminal justice system. The Attorney-General acknowledged the need for a shift in perceptions when presenting the Bill to Parliament. He said that the legislation was intended to enable a ‘phased and closely monitored approach to implementation’ that would bring about cultural change:

Implementing the victims’ charter in this way will mean that criminal justice, investigating, prosecuting and victim services agencies will be developing consistent

and systemic approaches to responding to victims. This will facilitate the ongoing

cultural change within the criminal justice system which is necessary to ensure they

are adequately and consistently responding to victims of crime.^[15]

Victims of Crime Commissioner Act 2015 (Vic)

2.31 The Victims of Crime Commissioner Act 2015 (Vic) came into effect on 3 February 2016.

It created the statutory office of Victims of Crime Commissioner and legislatively established the Victims of Crime Consultative Committee. The legislation has given the role of victims greater prominence and provides a means of identifiying and addressing systemic issues.

2.32 The Victims of Crime Commissioner is independent of government. The functions

of the position are:

(a) to advocate for the recognition, inclusion, participation and respect of victims of crime by government departments, bodies responsible for conducting public prosecutions and Victoria Police;

(b) to carry out inquiries on systemic victim of crime matters;

(c) to report to the Attorney-General on any systemic victim of crime matter;

(d) to provide advice to the Attorney-General and government departments and agencies regarding improvements to the justice system to meet the needs of victims of crime.^[16]

2.33 The Victims of Crime Consultative Committee provides advice to the Attorney-General on policies, practices and service delivery and on any other matter that the Attorney-General refers to it. The Committee also promotes the interests of victims of crime in the administration of the justice system.^[17] The membership comprises a chairperson, the Commissioner, victims of crime and representatives from courts, police, the Adult Parole Board, the OPP and victims’ support services.^[18]

2.34 In effect, the Victims of Crime Commissioner Act has formalised the role performed

by a Victims of Crime Commissioner since October 2014 and the operation of a Victims

of Crime Consultative Committee that was first appointed in February 2013.

Enabling and supporting the victim’s participation in the criminal trial process

2.35 The DPP has primary responsibility for helping victims of serious crime to understand, cope with and participate in the criminal trial process. Support services that are less directly related to the conduct of criminal proceedings are provided by the Department of Justice and Regulation through the Victims Support Agency. The Victims Support Agency coordinates the delivery of support and programs for victims, by funding and providing training to services that provide practical assistance, counselling and support to victims.^[19] It also conducts research, raises awareness and develops policy in relation to victims, monitors compliance with the Victims’ Charter Act and gives secretariat support to the Victims of Crime Consultative Committee.^[20]

2.36 Perceiving a distinction between services that are directly related to criminal proceedings, and those that are not, can be difficult. In practice, responsibilities often overlap. Further, in regional areas where resources are more thinly spread, the demarcation

of responsibilities can create disruption and gaps in the services provided. This issue

is explored in Chapter 6.

2.37 With regard to initiatives that directly connect the victim with the criminal trial process, the DPP has a number of specific statutory obligations to provide information to victims, either in all cases or on request, at all key points of the process.^[21] The obligations are owed to any victim and do not depend on the victim being a witness for the prosecution. They are discussed in Chapter 6.

2.38 Responsibility for complying with these obligations is shared between the OPP solicitors who conduct the prosecution and the social workers on staff who provide the OPP’s Witness Assistance Service.^[22]

2.39 Established in 1995, the Witness Assistance Service provides victims with information

and supports and assists them throughout the court process.^[23] In allocating its resources, the Witness Assistance Service gives priority to:

• individuals who have lost family members

• victims and witnesses in sexual offence matters

• family violence matters

• matters involving vulnerable victims.^[24]

2.40 A further initiative that assists victims in dealing with the trial process is the Child Witness Service. It was established within the Department of Justice and Regulation in 2007 to provide support and court education to children who have been victims of, or witnesses to, violent crimes.^[25]

Reforms to evidence law and court procedure

2.41 There have been extensive reforms to law and procedure to reduce the trauma of participating in the criminal trial process for victims of sexual offences and family violence, child victims and victims with cognitive impairment. They are discussed in detail in Chapter 8. While not expanding the role of the victim from that of a witness, these reforms underscored the need to recognise and respond to the distinct interests of victims that set them apart from other witnesses.

2.42 Many of the reforms to evidence law and court procedure arose from a report in 2004 by the Victorian Law Reform Commission on the response of the criminal justice system to the needs of victims in sexual offence cases.^[26] Most of the Commission’s recommendations for legislative reform were implemented by the Crimes (Sexual Offences) Act 2006 (Vic). They have directly affected how criminal trials are conducted:

• In sexual offence cases, child victims and victims with a cognitive impairment have their evidence-in-chief audiovisually recorded. These victims cannot be cross-examined during committal proceedings. During the trial, they give their evidence in a special hearing.^[27]

• In cases involving sexual offending or family violence, victims can use alternative arrangements while giving evidence (for example, using a screen to hide the victim from the offender, or using a remote witness facility).^[28] They are protected from being cross-examined directly by an unrepresented accused person.^[29]

• There is a prohibition on asking victims questions about their sexual reputation,

and restrictions on questions about sexual history.^[30]

• In sexual offence cases, a victim’s evidence is recorded so that it can be replayed

in any subsequent proceedings, such as a retrial or related civil proceeding.^[31]

• Suppression and closed court orders are available in proceedings involving sexual offences or family violence offences to prevent undue distress or embarrassment.^[32]

• In sexual offence cases, there are restrictions on accessing and using a victim’s confidential counselling and medical records.^[33]

Expansion of opportunities to participate

2.43 Other reforms have provided additional capacities in which victims can participate

in criminal proceedings. They are discussed in Chapter 7.

2.44 A significant initiative was introduced in 1994, when victims were given the right to submit a victim impact statement to the court at sentencing hearings, and the court was required to have regard to the victim’s personal circumstances in sentencing the offender.^[34] The Sentencing Act 1991 (Vic) was further amended in 2005 to require the court to take account of the impact of the crime on any victim when sentencing.^[35] The right to make a victim impact statement was reinforced in 2011 when victims were granted the right to read it out in court or have a nominated representative do so on their behalf.^[36] The right to make an impact statement is reiterated as a principle in the Victims’ Charter Act.^[37]

2.45 Another provision allows victims to seek leave to appear in court when an application

is made to subpoena, access or use their confidential counselling and medical records.^[38]

2.46 Finally, victims are entitled to have input into prosecutorial decisions. As a matter of policy, the OPP solicitor with conduct of the prosecution is required to ensure that victims are consulted about decisions to:

• substantially modify charges

• not proceed with some or all charges

• accept a plea to a lesser charge.^[39]

2.47 The victim’s views are taken into account in making the decision but they do not determine the outcome.

Financial reparation for harm

2.48 Victims are able to apply for state-funded financial assistance from the Victims of Crime Assistance Tribunal (VOCAT) to pay for certain expenses arising as a result of a violent crime. Limited entitlements to payments for pain and suffering are available in the form of special financial assistance.^[40] VOCAT was established in 1997 and replaced the Crimes Compensation Tribunal, which had been operating since 1983.^[41]

2.49 Since 2000, victims have been able to seek compensation for injury, pain and suffering

as orders against an offender at the end of the criminal trial process.^[42] This supplemented an existing right to seek compensation for property loss, damage and destruction.

2.50 The introduction of these reforms recognised that, although the offender is answerable

to the community for committing the crime, the victim has a personal interest in holding the offender to account for the harm caused. Financial reparation for victims is discussed in Chapter 9.

1. Jeremy Gans et al, Criminal Process and Human Rights (Federation Press, 2011) 379, 486–92.

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2. Ibid 489–90.

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3. Jonathan Doak, ‘Victims’ Rights in Criminal Trials: Prospects for Participation’ (2005) 32 Journal of Law and Society 294, 300.

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4. Bree Cook, Fiona David and Anna Grant, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia (Research and Public Policy Series No 19, Australian Insitute of Criminology, 1999) 81–4.

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5. Ibid 86.

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6. Jonathan Doak. ‘Victims’ Rights in Criminal Trials: Prospects for Participation’ (2005) 32 Journal of Law and Society 294.

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7. Bree Cook, Fiona David and Anna Grant, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia (Research and Public Policy Series No 19, 1999) 85.

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8. This report does not attempt to give a full account of the many and far-reaching initiatives that have been introduced to protect, inform and empower victims of crime throughout the broader criminal justice system as it would take discussion beyond the terms of reference. It is nevertheless important to note that there have been extensive reforms to police procedures, court processes, sentencing law, family violence law, the detention and supervision of offenders and the delivery and availability of support services that have transformed the criminal justice system’s response to crime in Victoria.

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9. Public Prosecutions Act 1994 (Vic) ss 24(c), 36(3), 38(2), 41(2), 43(3).

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10. Director of Public Policy, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015). As enacted, section 42 of the Public Prosecutions Act 1994 (Vic) established a Committee for Public Prosecutions comprising the Director of Public Prosecutions, Chief Crown Prosecutor, the Solicitor for Public Prosecutions and a person appointed by the Governor-in-Council. Its functions included ‘to establish guidelines on the treatment of victims of crime by the prosecutorial system having regard to the duties of the Director, the Crown Prosecutors, the Solicitor for Public Prosecutions and the Office of Public Prosecutions’. It issued such guidelines in 1998 and rescinded them 10 years later, in view of the passage of the Victims’ Charter Act 2006 (Vic) and the production of Director’s Policy: Victims and Persons Adversely Affected by Crime. The Committee did not meet again after 2008–2009 and was abolished in 2012 by the Public Prosecutions (Amendment) Act 2012 (Vic).

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11. Victoria, Parliamentary Debates, Legislative Assembly, 14 June 2006, 2047 (Rob Hulls).

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12. United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res 40/34, 96th plen mtg, UN Doc A/RES/40/34 (29 November 1985). The Commonwealth of Australia is a signatory to the Declaration and the Victims’ Charter Act 2006 (Vic) gives effect to this in Victoria.

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13. Victims’ Charter Act 2006 (Vic) s 4(1).

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14. Ibid s 20.

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15. Victoria, Parliamentary Debates, Legislative Assembly, 14 June 2006, 2047 (Rob Hulls).

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16. Victims of Crime Commissioner Act 2015 (Vic) s 13(1).

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17. Ibid s 32.

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18. Ibid ss 38–41.

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19. Consultation 47 (Victims Support Agency); Department of Justice and Regulation, Annual Report 2014–15 (2015) 25; Victims Support Agency, About Us (1 August 2015) <http://www.victimsofcrime.vic.gov.au/utility/about+us/victims+support+agency/>.

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20. Consultation 47 (Victims Support Agency); Department of Justice and Regulation, Annual Report 2014–15 (2015) 25. See also Chapter 4.

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21. Victims’ Charter Act 2006 (Vic) s 9–11.

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22. Director of Public Policy, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015).

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23. Office of Public Prosecutions, Witness Assistance Service: We Can Help You <http://www.opp.vic.gov.au/Witnesses-and-Victims>.

    See further Chapter 6.

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24. Director of Public Prosecutions and Office of Public Prosecutions, Annual Report 14/15 (2015).

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25. Victims of Crime, Child Witness Service (27 January 2016). <http://www.victimsofcrime.vic.gov.au/home/going+to+court/giving+evidence/child+witness+service>. The Child Witness Service was established in response to recommendations made in the Victorian Law Reform Commission’s Sexual Offences: Law and Procedure, Final Report (2004) [5.10]–[5.22] (recommendations 105–111).

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26. Victorian Law Reform Commission, Sexual Offences: Law and Procedure, Final Report (2004).

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27. Criminal Procedure Act 2009 (Vic) ss 123, 369–370, 372–374, 376.

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28. Ibid ss 360, 363–365. Sections 363–365 set out the presumptions that apply for victims of sexual offences. Section 133(2) restricts who can be in court for cross-examination of a victim of a sexual offence in a committal. Alternative arrangements are also available to victims when reading out their victim impact statement; or when giving evidence at sentencing: Sentencing Act 1991 (Vic) ss 8R–8S.

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29. Criminal Procedure Act 2009 (Vic) ss 353–355.

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30. Ibid ss 339, 341, 342, 349.

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31. Ibid ss 378–379.

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32. Open Courts Act 2013 (Vic) ss 18(1)(d), 30(2)(d).

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33. Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32C.

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34. Sentencing (Victim Impact Statement) Act 1994 (Vic) (now repealed). See Sentencing Act 1991 (Vic) ss 5(2)(sa), 8K.

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35. Sentencing Act 1991 (Vic) s 5(2)(daa).

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36. Ibid ss 8Q, 8R.

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37. Victims’ Charter Act 2006 (Vic) s 13.

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38. Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32C.

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39. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [25]; Director’s Policy: Prosecutorial Discretion (24 November 2014) [12]; Director’s Policy: Resolution (24 November 2014) [7].

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40. Victims of Crime Assistance Act 1996 (Vic).

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41. Criminal Injuries Compensation Act 1983 (Vic) (repealed).

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42. Sentencing Act 1991 (Vic) pt 4.

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