Family Violence and the Victims of Crime Assistance Act 1996: Consultation Paper

9. VOCAT hearings—notification, appearance and open court provisions

Introduction

9.1 This chapter gives an overview of the procedure in the Victims of Crime Assistance Tribunal (VOCAT) hearings.

9.2 It relates to the third matter in the terms of reference, which asks the Victorian Law Reform Commission (the Commission) to consider the requirement to notify a perpetrator, especially where the matter has not been reported to police, or no charges have been laid, or the prosecution discontinued or the person is acquitted.

9.3 This chapter also provides information in relation to general procedure, appearances, open hearings, VOCAT’s capacity to determine an application without a hearing and alternative evidentiary arrangements.

9.4 This chapter then discusses the ways that VOCAT procedure, especially notification of the alleged perpetrator, can have a negative impact on victims of family violence.

9.5 Aspects of the VOCAT procedure can act as a disincentive for victims of family violence to make an application, may re-traumatise victims and can result in inconsistencies in the awards granted.

9.6 This chapter concludes by providing options for reform to improve access and safety for victims of family violence, and poses questions for consideration.

Notification to interested persons

9.7 Under the Victims of Crime Assistance Act 1996 (Vic) (the Act), VOCAT may give notice of the time and place for a hearing to any other person whom it considers to have a ‘legitimate interest’ in the matter.^[1] This can include the alleged perpetrator.^[2]

9.8 The Act also provides that VOCAT must not notify the alleged perpetrator or an interested third party without first providing the applicant an opportunity to be heard on whether or not they should be notified.^[3]

9.9 The process for notifying an alleged perpetrator or interested third party is set out in Practice Direction No.4 of 2008: Notification of Alleged Offenders and Third Parties. The Practice Direction uses the phrase ‘legitimate or substantial interest’, while the Act uses the term ‘legitimate interest’ in the notification provision. This is most likely because the provision of the Act dealing with persons who are entitled to make an appearance at VOCAT refers to those with a ‘substantial interest’, rather than ‘legitimate interest’. It is unclear whether there is any substantial distinction between these terms. For consistency with the Act, this chapter will only refer to ‘legitimate interest’ in the context of notification and ‘substantial interest’ in the context of entitlement to appear.

9.10 In relation to the notification of alleged perpetrators, the Practice Direction provides that VOCAT must advise the applicant in writing that such notification is being considered and allow 21 days for the applicant to respond.^[4] At the conclusion of 21 days, the tribunal member will make a decision on whether the alleged perpetrator is to be notified of the application.^[5]

9.11 If the tribunal member decides to notify the alleged perpetrator, the applicant has 21 days to decide whether she or he still wishes to pursue their application.^[6] If the application proceeds, the registrar will send notification of the application to the alleged perpetrator. The alleged perpetrator then has 14 days to advise the registrar as to whether she or he intends to participate in the hearing.^[7]

9.12 The same process applies for third parties other than the alleged perpetrator who VOCAT identifies as having a legitimate interest in the matter.^[8]

9.13 In addition, persons who consider that they have a legitimate interest in an application for assistance, including the alleged perpetrator, can apply to VOCAT to be notified of the proceedings.^[9] The application must be made in writing and must set out why they consider that they have a legitimate interest or should be notified of the proceedings.^[10]

9.14 Unless otherwise ordered by a tribunal member, the application by the third party will be forwarded to the applicant, who then has 21 days to respond to VOCAT as to whether she or he objects to the third party or the alleged perpetrator participating in the proceeding.^[11]

9.15 If the applicant does not oppose the application or VOCAT receives no response, it will be determined by a tribunal member in chambers.^[12] If the applicant opposes the application, the matter will be referred to a tribunal member for listing advice and there may be a directions hearing.^[13]

Persons entitled to appear

9.16 In addition to the applicant, persons who are entitled to appear and be heard by VOCAT on the hearing of the matter are:

• persons who have been accepted by VOCAT as having a ‘substantial interest’ in an application for assistance, including the alleged perpetrator^[14]

• an officer of VOCAT or a legal practitioner assisting VOCAT^[15]

• the state, if it considers that it has a legitimate interest in the matter.^[16]

9.17 A person or body who is entitled to appear and be heard by VOCAT is considered a party to the matter.^[17]

9.18 A party may appear personally or by a legal practitioner.^[18] They may also appear by another representative with the leave of VOCAT.^[19]

Procedure

9.19 On the hearing of a matter, VOCAT is not required to conduct itself in a formal manner.^[20] The Act does provide, however, that VOCAT has a duty to act fairly, expeditiously (promptly) and according to the substantial merits of the case.^[21]

9.20 VOCAT must give a party to the matter a reasonable opportunity to call or give evidence, examine, cross-examine or re-examine witnesses and to make submissions.^[22] Nevertheless, the decision of Justice McDonald of the Supreme Court of Victoria in AB v Victims of Crime Assistance Tribunal ^[23] indicates that the duty to give a party a reasonable opportunity to call evidence can be tempered by concern for the wellbeing of the applicant. In that case, the alleged perpetrator, the applicant’s father, had been joined as a party to the proceedings. He wished to call the applicant’s mother as a witness but the mother expressed concern that her daughter might self-harm or commit suicide if the mother were to give evidence. VOCAT excused the mother from giving evidence, ruling that ‘the risks of self-harm [were] too great’.^[24] The applicant’s father appealed VOCAT’s decision to the Supreme Court.

9.21 In dismissing the appeal, Justice McDonald stated:

I am satisfied that there are credible arguments in support of the Tribunal having the power to excuse a witness from giving evidence in circumstances where such evidence could result in an applicant committing an act of self-harm, including suicide.^[25]

9.22 Further special arrangements for vulnerable victims and witnesses are discussed in more detail below.

9.23 VOCAT is also not bound by the rules of evidence, and may inform itself in relation to the matter in any manner that it thinks fit.^[26]

9.24 Section 39 of the Act gives VOCAT broad investigative powers. VOCAT is able to authorise a member of staff, a legal practitioner or a person appearing on behalf of the state to make any enquiry or carry out any investigation that it requires. VOCAT can also order a medical or counselling report to be prepared or submitted and it can order the applicant to provide any document VOCAT may require.

9.25 During preliminary consultations, the Commission heard that VOCAT makes frequent requests for further documentation, especially in family violence matters where the alleged perpetrator has not been charged or convicted, or the applicant has provided little corroborating evidence.

9.26 Under the Act, VOCAT also has the power to issue a warrant for the arrest of a witness who has been served with a summons to attend VOCAT but has failed to do so.^[27]

Alternative evidentiary arrangements

9.27 VOCAT is able to direct that alternative arrangements be made for the giving of evidence by a witness.^[28] This may be done on its own initiative or on the application of a party to a proceeding.^[29]

9.28 Some of the alternative arrangements that can be made are:

• permitting use of closed-circuit television or other facilities that enable a witness to give evidence from a place other than the room in which VOCAT is sitting

• using screens to remove the alleged perpetrator from the witness’ direct line of vision

• permitting a person to be beside the witness while they are giving evidence for the purpose of emotional support

• requiring counsel to be seated while examining or cross-examining the witness.

9.29 These provisions have been considered by the Supreme Court of Victoria. In AB v Victims of Crime Assistance Tribunal,^[30] Justice McDonald noted that these provisions highlighted the victim-centred approach of the statutory scheme.^[31] His Honour drew on them, along with VOCAT’s power to conduct a hearing without giving notice to the alleged perpetrator, to conclude that in making procedural decisions VOCAT is required to give consideration to the interests of the applicant.^[32]

Open court

9.30 The Act requires VOCAT hearings to be open to the public.^[33] However, VOCAT can direct that whole or part of the hearing be closed to members of the public.^[34] It can also direct that only certain persons, or classes of persons, may be present during the whole or any part of the hearing.^[35]

9.31 The Act provides that a direction to close or restrict access to a hearing may be given on the application of a party or on VOCAT’s own initiative.^[36]

9.32 In addition, the Act requires VOCAT to close the hearing to the public if an application is made for it to be closed in the following circumstances:^[37]

• The applicant is a primary victim and their injury resulted from a sexual offence.^[38]

• The applicant is a primary victim and is a child.

• The applicant is a primary victim and has a cognitive impairment.

• VOCAT is satisfied that the applicant is likely to suffer distress if the hearing is open to the public.

• VOCAT is satisfied that the applicant is likely to feel intimidated if the hearing is open to the public.

9.33 The Act also permits VOCAT to restrict the publication of material produced as part of an application for assistance if it is satisfied that it is in the public interest to do so.^[39] This includes the whole or part of the evidence given at a hearing,^[40] the content of whole or part of any specified documents^[41] and any information likely to lead to the identification of a party or another person who appears at a hearing.^[42]

9.34 Section 43(3) of the Act makes it an offence to publish any material subject to such an order by VOCAT. The penalty is 100 penalty units or imprisonment for two years for a natural person and 500 penalty units for a body corporate.

Determination without hearing

9.35 Under section 33 of the Act, VOCAT has the power to determine an application without conducting a hearing. VOCAT can do this in the following circumstances:

• The applicant has stated in the application a wish for VOCAT to determine their application ‘on the papers’.^[43]

• The applicant consents in writing for VOCAT to do so.^[44]

• The application relates to the making of an interim award, unless VOCAT considers that, in the particular circumstances, a hearing is necessary or desirable.^[45]

9.36 If VOCAT does determine an application ‘on the papers’, it must notify the applicant of its decision, including details of the amount of assistance awarded, the purpose for which assistance was awarded, any conditions to which the award is subject, the persons(s) to whom assistance is payable and any other order that it makes.^[46]

9.37 Preliminary consultations undertaken by the Commission indicated that in practice, this often functions as a two-step process in which the applicant will first ask VOCAT to determine their application without a hearing and, if they are unhappy with the outcome, they will subsequently request a hearing. In this sense, the process under section 33 seems to resemble an offer of settlement in the course of civil proceedings, but one that comes from the deciding authority itself.

Effect of notification, appearance and open court provisions on victims of family violence

Perpetrator notification

9.38 In its submission to the Victorian Royal Commission into Family Violence (the Royal Commission), the Women’s Legal Service identified VOCAT’s discretion to notify an alleged perpetrator and invite their participation in the proceedings as a potential issue for family violence victims.^[47] This is because it may re-traumatise victims.^[48]

9.39 In addition, the Magistrates’ Court and Children’s Court highlighted alleged perpetrator notification as a concern due to ‘the safety risks that commonly arise in applications involving family violence’.^[49]

9.40 The Royal Commission noted that VOCAT advises on its website that it rarely notifies perpetrators and that it is ‘always mindful of the potential discomfort and additional distress caused to applicants in the relatively few matters where an alleged offender is notified of an application’.^[50] However, the Royal Commission heard of situations where VOCAT had invited the perpetrator to participate in the proceedings or intended to do so.^[51]

9.41 The case law also reveals situations in which alleged perpetrators have been notified of VOCAT proceedings in the context of family violence. In AB v Victims of Crime Assistance Tribunal,^[52] the applicant made a claim for assistance with respect to alleged physical and sexual abuse by her father. The applicant’s father was given notice of her application and, pursuant to section 35(4) of the Act, he became a party to the proceeding. The father wished to call his own witnesses, including the applicant’s mother. However, as noted above, VOCAT excused the mother from giving evidence out of concern for the wellbeing of the applicant. (See [9.20].)

9.42 In BFK v Victims of Crime Assistance Tribunal,^[53] the applicant made a claim to VOCAT in relation to an alleged rape by a former boyfriend. The alleged perpetrator was notified of the proceedings and later provided evidence in the form of a written statement and oral evidence at the Victorian Civil and Administrative Tribunal (VCAT) hearing. VCAT took his evidence into account in deciding that the Tribunal was no longer able to make a fair decision on the matter due to the applicant’s delay in making an application and, therefore, held that the application should be struck out.

9.43 These cases show that alleged perpetrators are sometimes notified and do participate in proceedings, even in the highly vulnerable context of family violence and sexual assault.

9.44 The Commission heard during preliminary consultations that a perpetrator is more likely to be notified when the applicant has not reported the incident to the police or charges have not been laid against the alleged perpetrator, when they have been acquitted, or when there is little evidence to support an applicant’s claim.

9.45 Reporting rates, prosecution rates and conviction rates are low in cases of family violence.^[54] Furthermore, as family violence tends to occur in private, there is often little corroborating evidence beyond that of the applicant and the perpetrator.^[55] These factors may lead to victims of family violence being more susceptible to the perpetrator notification procedure, despite its potential to be highly traumatic.^[56]

9.46 In addition, preliminary consultations identified that even if perpetrator notification occurs rarely, the fact that it exists at all can be a deterrent for victims of family violence.

Evidentiary protections

9.47 As noted above, VOCAT has the power to close the court, restrict publication of material, and permit alternative evidentiary procedures, in order to protect vulnerable applicants.

9.48 However, the Royal Commission was informed that these evidentiary and procedural protections do not go far enough. The Magistrates’ Court and Children’s Court noted in their submission that ‘the specific … provisions that protect sexual assault complainants and protected witnesses in criminal proceedings and intervention order matters do not explicitly extend to VOCAT hearings’.^[57]

9.49 For example, the Courts identified that unlike the Criminal Procedure Act 2009 (Vic) and the Family Violence Protection Act 2008 (Vic), the Act does not specifically prohibit a victim of a sexual offence being personally cross-examined by the offender, or explicitly require questioning to be appropriately constrained.^[58] In addition, in contrast to the Criminal Procedure Act 2009 (Vic) and the Family Violence Protection Act 2008 (Vic), the Victims of Crime Assistance Act 1996 (Vic) (the Act) does not contain any explicit protections for the giving of evidence by child applicants and witnesses.

9.50 The Act gives VOCAT the discretion to put in place these kinds of evidentiary protections. During preliminary consultations the Commission heard that they are used in some family violence matters. However, the fact that these kinds of procedure are not explicitly incorporated into the Act may mean that such protections are underused or used inconsistently.

Determination without hearing

9.51 The procedure under section 33 of the Act, which enables VOCAT to determine an application ‘on the papers’, can be a beneficial way for victims to have their applications determined quickly and without having to attend court. ‘Section 33 determinations’ also present a way for victims of family violence to avoid the alleged perpetrator participating in the hearing and any concerns they may have about giving evidence.

9.52 However, in its submission to the Royal Commission, Women’s Legal Service Victoria expressed concern that there may be inconsistency in outcomes for victims whose applications are decided on the papers and those whose applications are determined at a hearing.^[59]

9.53 Preliminary consultations undertaken by the Commission also disclosed that awards granted at a hearing tended to be for larger amounts than those awarded pursuant to a section 33 determination.

9.54 These issues may be a disincentive for victims of family violence to ask for their application to be determined without a hearing, despite the potential benefits that this process can offer them.

Discussion and options for reform

9.55 The areas that are most in need of reform in relation to procedure, as identified by the Royal Commission, are the perpetrator notification provision and the evidentiary and procedural protections for vulnerable witnesses. This section discusses options for reform in these two areas.

Alleged perpetrator notification

9.56 In their submission to the Royal Commission, the Magistrates’ and Children’s Courts recommended that ‘section 34 (alleged perpetrator notification) operat[e] appropriately having regard to the specific safety risks which commonly arise in applications involving family violence’.^[60]

9.57 This could be achieved by removing the notification provision, either entirely or specifically for vulnerable victims, such as family violence victims and, in particular child victims of family violence.

9.58 There were differences of opinion in the preliminary consultations with key stakeholders as to whether or not removing the perpetrator notification provision would raise procedural fairness concerns.

9.59 Some stakeholders considered that notifying the alleged perpetrator serves little purpose in the context of the Act, as the outcome of a VOCAT proceeding does not affect the rights and interests of an alleged perpetrator. This view is consistent with the victim-centred approach of the VOCAT process, as described by Justice McDonald in AB v Victims of Crime Assistance Tribunal.^[61]

9.60 Other stakeholders, however, considered that it was important for the purposes of procedural fairness that persons are notified of an application being made which contains serious allegations against them and which could result in serious findings being made against them.

9.61 Another option is to amend the Act to explicitly list the safety concerns associated with family violence as a factor to which VOCAT must have regard when considering whether to notify an alleged perpetrator. This could result in fewer notifications being made in the context of family violence.

9.62 A third option is to improve the evidentiary and procedural protections for victims of family violence. This option is discussed below.

Evidentiary and procedural protections

9.63 The Magistrates’ and Children’s Courts recommended to the Royal Commission that the Act replicate the procedural and evidentiary protections in place in the Criminal Procedure Act 2009 (Vic) and the Family Violence Protection Act 2008 (Vic) for vulnerable victims.^[62]

9.64 This would involve extending explicit protections, such as, in relation to sexual offences, prohibiting the alleged perpetrator from cross-examining the applicant and preventing inappropriate questions being asked of the applicant.

9.65 It would also entail ensuring that there are specific protections for child victims. For example, like the Criminal Procedure Act 2009 (Vic), the Victims of Crime Assistance Act 1996 (Vic) (the Act) could explicitly prohibit the cross-examination of a child victim of a sexual offence.^[63] Moreover, in considering whether or not a child should give evidence the Act could take a similar approach to the Family Violence Protection Act 2008 (Vic), and require VOCAT to have regard to the desirability of protecting children from unnecessary exposure to the court system and the harm that could occur to the child and to family relationships if a child gives evidence.^[64]

9.66 This option for reform would ensure greater consistency in the kinds of evidentiary and procedural protections that VOCAT provides for victims who are particularly vulnerable.

9.67 Additionally or alternatively, the Act could be amended to include an overarching principle that guides the procedure of VOCAT hearings.

9.68 In its Victims of Crime in the Criminal Trial Process Report, the Commission made a recommendation regarding Part 8.2 of the Criminal Procedure Act 2009 (Vic) which relates to witnesses in criminal proceedings:

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.^[65]

9.69 A similar principle regarding VOCAT procedure could be incorporated into the Act. The Act could be amended to include a guiding principle that in determining the procedure of hearings and the giving of evidence, VOCAT is to have regard to the fact that measures should be taken that limit the trauma, intimidation and distress suffered by victims when giving or hearing evidence.

9.70 The Commission seeks the views of victims, persons affected, professionals, stakeholders and the community on what changes should be made to the Act to help ensure VOCAT processes more appropriately address the needs of family violence victims at the same time as ensuring procedural fairness. Specific questions for consideration are set out below.

1. Victims of Crime Assistance Act 1996 (Vic) s 34(2).

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2. Ibid s 34.

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3. Ibidt s 34(3).

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4. Victims of Crime Assistance Tribunal, Melbourne Magistrates’ Court, Practice Direction No. 4 of 2008: Notification of Alleged Offenders and Third Parties, 1 January 2009, 1.

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5. Ibid 2.

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6. Ibid.

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7. Ibid.

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8. Ibid 2–3.

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9. Ibid 3.

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10. Ibid.

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11. Ibid.

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12. Ibid.

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13. Ibid.

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14. Victims of Crime Assistance Act 1996 (Vic) s 35(1).

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15. Ibid s 35(2).

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16. Ibid s 35(3).

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17. Ibid s 35(4).

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18. Ibid s 36(1).

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19. Ibid.

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20. Ibid s 38(1)(a).

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21. Ibid s 32(1).

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22. Ibid s 38(1)(c).

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23. [2015] VSC 245 (5 June 2015).

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24. Victims of Crime Assistance Tribunal quoted in AB v Victims of Crime Assistance Tribunal [2015] VSC 245 (5 June 2015) [4].

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25. AB v Victims of Crime Assistance Tribunal [2015] VSC 245 (5 June 2015) [43].

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26. Victims of Crime Assistance Act 1996 (Vic) s 38(1)(b).

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27. Ibid s 37(1A).

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28. Ibid s 37(2).

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29. Ibid.

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30. [2015] VSC 245 (5 June 2015).

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31. Ibid [27]–[28].

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32. Ibid [27].

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33. Victims of Crime Assistance Act 1996 (Vic) s 42(1).

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34. Ibid s 42(1)(a).

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35. Ibid s 42(1)(b).

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36. Ibid s 42(2).

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37. Ibid s 42(3).

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38. Ibid s 42(3)(a)(i). Specifically, an offence against Subdivisions (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I of the Crimes Act 1958 (Vic) or any corresponding previous enactment (sexual offences) or an offence at common law of rape or assault with intent to rape, see Victims of Crime Assistance Act 1996 (Vic) s 3(1).

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39. Ibid s 43(1).

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40. Ibid s 43(1)(a).

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41. Ibid s 43(1)(b).

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42. Ibid s 43(1)(c).

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43. Ibid s 33(1)(a)

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44. Ibid s 33(1)(b).

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45. Ibid s 33(1)(c).

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46. Ibid s 33(2).

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47. Women’s Legal Service Victoria, Submission 940 (No 1) to Royal Commission into Family Violence, Royal Commission into Family Violence (19 June 2015) 53.

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48. Ibid. See also Victoria, Royal Commission into Family Violence, Report and Recommendations Volume IV (2016) 80.

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49. Magistrates’ Court of Victoria and Children’s Court of Victoria, Submission No 978 to Royal Commission into Family Violence, Royal Commission into Family Violence (June 2015) 58 and 60.

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50. Victoria, Royal Commission into Family Violence, Report and Recommendations Volume IV (2016) 80.

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51. Ibid.

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52. [2015] VSC 245 (5 June 2015).

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53. [2017] VCAT 289 (15 March 2017).

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54. Christine Forster, ‘Compensating for the Harms of Family Violence: Statutory Barriers in Australian Victims of Crime Compensation Schemes’ (2014) 22 Journal of Law and Medicine 188, 194.

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55. Ibid 197.

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56. Women’s Legal Service Victoria, Submission 940 (No 1) to Royal Commission into Family Violence, Royal Commission into Family Violence (19 June 2015) 53.

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57. Magistrates’ Court of Victoria and Children’s Court of Victoria, Submission No 978 to Royal Commission into Family Violence, Royal Commission into Family Violence (June 2015) 60.

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58. Ibid.

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59. Women’s Legal Service Victoria, Submission 940 (No 1) to Royal Commission into Family Violence, Royal Commission into Family Violence (19 June 2015) 53.

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60. Magistrates’ Court of Victoria and Children’s Court of Victoria, Submission No 978 to Royal Commission into Family Violence, Royal Commission into Family Violence (June 2015) 60 (Recommendation 25).

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61. [2015] VSC 245 (5 June 2015) [28].

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62. Magistrates’ Court of Victoria and Children’s Court of Victoria, Submission No 978 to Royal Commission into Family Violence, Royal Commission into Family Violence (June 2015) 60 (Recommendation 25).

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63. Criminal Procedure Act 2009 (Vic) s 123.

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64. The Family Violence Protection Act 2008 (Vic) prevents a child, other than a child who is an applicant for a family violence intervention order, from giving evidence in a proceeding under that Act unless the court grants them leave to do so. In deciding whether to grant such leave, the court must have regard to the desirability of protecting children from unnecessary exposure to the court system and the harm that could occur to the child and to family relationships if the child gives evidence, see s 67.

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65. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016), 214 (Recommendation 41).

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