Improving the Justice System Response to Sexual Offences: Report (html)

17. Police to prosecution in sexual violence cases

Overview

• The police and prosecution are the gateway to the criminal justice system.

• People need to feel confident that police will respond appropriately to their diverse needs and experiences before reporting. This requires many measures, including improving the accessibility of police stations and improving police training.

• While there has been progress in improving the responses of police and the prosecution, still more can be done to improve the consistency of practice in key areas.

• There should also be a focus on improving the quality of police interviews with children and young people and other aspects of police responses through training and resources.

• We need to understand more about why police and prosecution cases do not progress and introduce more independence and accountability into decision making by police and prosecution.

The police and prosecution are a key part of the response to sexual offences

17.1 The police are the entry point into the criminal justice system. For many people, this is itself a barrier to reporting, as we discuss in Chapter 2. To improve access to justice, people need to feel confident that police will respond appropriately to their diverse needs and experiences.

17.2 For most people who report sexual offences, the experience of the criminal justice system is largely an experience of how the police respond, and to a lesser extent, how the prosecution responds. Most cases involving sexual offences do not end up in court. The police lay charges in about a quarter of all cases reported to them, and in about half of the cases reported where an offender is identified.^[1] Of these, a further 10 per cent of incidents reported to police drop out of the criminal justice system at the prosecution stage.^[2]

17.3 This chapter looks at ways to improve these responses. We discuss other aspects of prosecution, including training, in Chapter 18.

17.4 We recognise that the law and policy in this area are already pointing in the right direction. There have been many reforms and significant cultural change within Victoria Police. However, more can be done to ensure consistent practice.

17.5 There are underlying challenges, including a need for more funding of police (see Chapter 4). There has been a significant increase in the number of cases being reported to police, and sexual offending is often more difficult to investigate and prove than other types of offence (see Chapter 19). We also make recommendations in Chapter 14 that give police more powers to investigate image-based sexual abuse.

17.6 Moreover, there are challenges associated with expecting police to act both as investigators and as a source of support through the criminal justice system. To do both requires time and resources, and also distinct skills and attitudes.

17.7 For this reason, we recommend funding a model of continuous and dedicated victim support (see Chapter 12) and improving the capacity of community-based organisations to support people (see Chapter 8).

17.8 Most relevantly, in Chapter 4 we recommend extending rights under the Victims’ Charter Act 2006 (Vic) and developing a new multi-agency protocol. Together, these measures aim to embed procedures and improve the consistency of practice across agencies, and to ensure accountability for compliance with those standards.

The police response to sexual offences has been an area for reform

17.9 There have been many reforms to police since we last inquired into sexual offences in 2004.^[3] The police response is specialised, with investigators in Sexual Offence and Child Abuse Investigation Teams (SOCITs) who receive specialised training.^[4] The SANO task force was also established to specialise in historical sexual assault and child abuse.

17.10 As discussed in Chapter 5, the new multi-disciplinary centres (MDCs) provide a more collaborative approach to responding to sexual assault. These centres co-locate a range of services together with police, including counselling services provided by centres against sexual assault (CASAs), and Child Protection.^[5]

17.11 Other recent reforms include:

• Victoria Police’s strategy for family violence, sexual offences and child abuse^[6]

• a new booklet on reporting sexual offences to police, published in 20 languages^[7]

• a review of police training for members responsible for investigating sexual offences and child abuse, comprehensive guidelines for initial reports to police, and guidelines for first responders to the scene of a sexual crime^[8]

• an audit on sexual harassment within Victoria Police.^[9]

17.12 We discuss other relevant reforms in this chapter.

Access to reporting is an area of priority

17.13 In Chapter 15, we discuss the importance of access to justice for everyone, including:

• being treated as equal before the law

• not experiencing discrimination

• having the assistance to communicate.^[10]

17.14 A key part of access to justice is access to police, including reporting to police. Victoria Police already recognises this.

Victoria Police is committed to increasing accessibility

17.15 For many police forces, improving police–community relations is a priority.^[11] Police–community relations can be improved in a range of ways. Officers in specific roles can receive specialised training to enable them to be more responsive to the needs of all people in the community. There are measures to increase workforce diversity. Community liaison officers work to improve relationships between police and the community. Police-led community forums bring people together.^[12]

17.16 Victoria Police already adopts similar measures. It is committed to improving its service to ‘priority communities’, meaning communities who are ‘both over and underrepresented in terms of police interactions’.^[13]

17.17 This commitment is reflected in:

• a human rights framework that guides staff training and operations so that all police officers are responsive to diversity and individual needs^[14]

• portfolio reference groups, which are forums for engaging with community stakeholders from its priority communities^[15]

• community liaison positions, such as Aboriginal community liaison officers and lesbian, gay, bisexual, transgender, intersex and queer liaison officers.^[16] 

17.18 In its 2018–23 Strategy for Family Violence, Sexual Offences and Child Abuse, Victoria Police confirms its commitment to improving its workforce diversity and responsiveness to priority communities.^[17] It has an action plan that sets out its activities to increase access to justice for people with disability, including the development of hubs that are accessible physically and have tools to assist communication (are ‘communication accessible’) in all police regions.^[18]

Some communities still face barriers to reporting to police

17.19 We heard that people still face police barriers to reporting. For example, people told us:

• Aboriginal women experience discrimination when they report, particularly when the alleged perpetrator is not Aboriginal.^[19]

• Women with disability, especially those with communication difficulties, are not believed or enabled to tell their story.^[20]

• People with lived experience of mental illness or psychological distress are discounted as ‘serial reporters’, even though they may have experienced sexual violence on multiple occasions, and can even be charged with making a false report.^[21]

• Care leavers do not have their reports taken seriously.^[22]

• Children and young people are not believed.^[23]

• Children and young people in out-of-home care are not taken seriously and treated more like potential offenders.^[24]

• Women already in contact with the justice system (see Chapter 8) are arrested in relation to outstanding matters (like fines) when they report, or are not believed.^[25]

• Police do not come to take statements from people living in institutional contexts (like prison or mental health in-patient units).^[26]

A program of reforms should increase access to justice

17.20 We address these issues in recommendations throughout our report. In Chapter 8, we recommend the development of community pathways to reporting. Specialist police (SOCIT) teams would engage with community organisations and institutions (including prisons) in their regions and develop arrangements for people to report to police. These would be based on existing successful police engagement models, like the SANO Taskforce, and would enable flexible approaches to taking reports and statements (discussed below).

17.21 In Chapter 15, we discuss the importance of making justice processes accessible to all, through the use of independent third persons, interpreters and intermediaries. These support people would work with police.

17.22 A key priority is to ensure that police stations can communicate with people in a range of ways and are ‘communication accessible’. For example, staff could be trained to use different methods of communication, such as using gestures or pointing to objects.^[27]

17.23 We understand progress is underway on a previous recommendation for all police stations to be accredited by Scope, a disability support provider.^[28] This accreditation guarantees that a service is communication accessible. We welcome other accessibility measures, including the plan for accessible hubs noted earlier.^[29]

17.24 While Scope accreditation for all police stations is crucial, given the focus of this inquiry we emphasise the need to accredit police stations that specialise in sexual offences, such as in MDCs. As Victoria Police’s action plan identifies, an estimated 90 per cent of women with intellectual disabilities experience sexual violence.^[30] In the meantime, a priority should be to ensure that necessary communication support programs are available and adequately funded (see Chapter 15).^[31]

17.25 In Chapter 18, we propose a specialised approach to training throughout the criminal justice system, including to understand and respond to people from diverse communities. Later in this chapter, we address the need for further training of police.

How can the experience of police responses be improved?

People told us about the first response

17.26 The first response of police to a report of sexual violence is crucial to a victim survivor’s experience of the justice system. It may be the first time someone has disclosed their experience of sexual violence. A supportive response can often be the difference between someone choosing to engage with the criminal justice system or walking away.

17.27 We heard from many people who reported positive experiences with police (see box).

17.28 We still heard, however, of issues with police practices. We discuss the need for more trauma-informed responses later in this chapter. We identified four themes in police responses that should be addressed in the Victims’ Charter Act or the multi-agency protocol:

• more flexible approaches to reporting and taking statements

• improving the consistency of practice in communication

• giving victim survivors more choices over the gender of the person interviewing them

• improving the use of intervention orders.

Taking reports and statements could happen more flexibly

17.29 The way police reports and statements are taken can have a profound effect on people’s experiences of the criminal justice system (see also Chapters 7 and 8). For example, people told us what a difference it had made when they spoke to police over the phone, at home, or in another safe and supported environment (see box).

17.30 Victoria Police recognises this in its policies and procedures. Its Code of Practice sets out guidance on interviewing. Interviewers are required to provide a ‘private and comfortable setting to conduct the interview’, limit the number of people present, and try to build rapport. The Code advises police to ‘thoroughly explain’ the interviewing process and to prepare the complainant for the questions.^[41]

17.31 In taking the statement, the Code advises the investigator to allow the person to disclose details ‘in their own words without interruptions’, and to phrase ‘questions in a clear and sensitive manner’ to reduce their ‘embarrassment, shame or self-blame’.^[42]

17.32 Sexual Assault Services Victoria told us that sometimes police interview victim survivors in their homes or at a service with counsellor advocates. It thought this was ‘a great option’ for helping people feel safer that ‘could be offered more regularly rather than only when a [counsellor advocate] has advocated for this to happen’.^[43]

17.33 Knowmore legal service similarly supported people:

having access to a safe and supportive environment when they make a report to police, … [and] especially support victims and survivors being able to make all reports directly to specialist police officers, and ideally outside of the normal police station environment.^[44]

17.34 The value of a safe and supportive environment was supported by people who had reported to police. Deborah told us she had found it ‘very confronting’ to make her report in the large police station at Spencer Street, and that it would have been ‘much better’ to report in an environment where she was more comfortable. She also noted that being in the police station can make people feel as though they are the criminal, and victim survivors can feel very sensitive to this.^[45]

17.35 We heard that police members often do not provide people with enough information when they are making a statement. The Law Institute of Victoria told us that police often assume that victim survivors are aware of the legal process, its drawn-out nature, and what might happen to the alleged offender.^[46]

17.36 Victoria Police told us it had already made available internal guidance to support victim survivors to ‘engage with police at a time and location they feel comfortable doing so’. It noted that arrangements for taking formal statements outside a police station were ‘already in place and routinely offered and taken up’. However, ‘in certain circumstances practical requirements, such as access to technology [for recording evidence], must take precedent’. ^[47]

17.37 We also heard concerns from victim survivors about the process of taking a statement (see box).^[48] They emphasised that police should allow more breaks and offer more support in practice.

17.38 Victoria Police, in contrast, emphasised that ‘a central focus of members engaging with victim-survivors, including at the time of taking a statement, is to assess an individual’s needs are met. This includes allowing for, or of (sic) required prompting individuals to take breaks.’^[53]

The gender of interviewer matters

17.39 We heard from several people about the need to be interviewed by a police officer of the same gender (see box).^[54] We were told that requests for a female police officer were not always granted, which could lead to a person withdrawing from the process.^[55]

17.40 Sexual Assault Services Victoria (SAS Victoria) observed that, while the establishment of SOCITs had improved the process, it had also led to changes in the gender composition of the police. This meant many women had no choice other than to provide details of their experience of sexual violence to male investigators.^[56]

17.41 The Victoria Police Manual already advises that the SOCIT member responsible for conducting the interview should be of the same gender as the victim, unless otherwise requested by the victim.^[63] Victoria Police told us that, while it tried to meet requests for a police officer of a specific gender, it was not always possible to do so.

17.42 However, in cases where the request could not be met immediately, Victoria Police would ‘ensure the immediate support and forensic needs of the individual are facilitated’, while deferring the taking of the statement for a later time.^[64] Victoria Police also told us that only a small percentage of victims requested female officers, and that this number was declining, reflecting SOCITs’ high level of training.^[65] It said that gender-identified positions would not be viable from either a workforce or operational perspective.^[66]

17.43 Gender is only one factor in a police response, of course. Specialist training and aptitude are also key. However, given the gender-based nature of the crime, for some complainants a choice of gender in the officer they deal with can be a key part of their experience.^[67]

17.44 An evaluation in New Zealand shows people value having a choice of police officer by gender and this contributes to their sense of safety and comfort. People are more satisfied if they are offered an option or can express a preference, even if they do not end up requesting a police officer of their own gender.^[68]

Communication could be improved

17.45 Another key theme in this, as in our previous inquiry into the victims of crime, was the value of regular and effective communication with the police throughout the case.^[69] This is key to keeping people engaged with the criminal justice process.^[70]

17.46 The Victims’ Charter Act already requires:

• the police and prosecution to consider certain matters when communicating with a victim, such as their preferred method of contact and issues affecting their communication

• the police to provide ‘at reasonable intervals’ information about the progress of an investigation (unless this would jeopardise the investigation)

• the police and prosecution, when prosecuting offences, to provide information about the charges and any changes to charges, including not charging or accepting pleas of guilty to lesser charges.^[71]

17.47 Victoria Police’s Code of Practice advises that police should provide ongoing support by engaging in regular communication, either by phone or in person. Its guidance states that:

It is the responsibility of the investigator to provide regular status updates to the victim so they are fully informed of the investigation and any key events, i.e., court dates, court outcomes, bail applications, appeals etc. Police are to maintain regular contact with the victim regardless of what investigation progress, if any, has been made.^[72]

17.48 The Code also sets out in more detail the responsibilities of police to communicate at key stages, such as the release of the suspect, and to advise and assist with matters such as crimes compensation or transport to court.^[73]

17.49 Some people told us of excellent practice by police in this respect.^[74] However, this practice appears to be inconsistent (see box). SAS Victoria described victim survivors often reporting ‘feeling in the dark’ about the investigation process, and stated that this caused significant anxiety.^[75] Sarah, a counsellor with Northern CASA, explained that one client:

From the beginning … reported feeling invalidated by the police. In the preceding 6 months, the detectives have not once contacted the Victim/Survivor to provide her with an update on the investigation. … as time went on with no communication, she started to doubt the seriousness of the crimes she suffered … [The client] described feeling disappointed by the process. This client suffered serious PTSD symptoms from the sexual assault and her symptoms were compounded by SOCIT’s lack of communication with her.^[76]

17.50 Victoria Police told us that ‘requiring a member to prioritise (for example) telephoning a victim survivor to provide a regular update, over responding to a more urgent matter such as a victim survivor who has walked into a police station to report a sexual offence would be unrealistic in an operational policing context’.^[81]

17.51 The Royal Commission into Institutional Responses to Child Sexual Abuse has also emphasised the importance of ongoing communication by police.^[82]

We heard concerns about the use of intervention orders

17.52 In Victoria, a person can apply for an intervention order to protect them from physical or mental harm. The order has conditions which the respondent (the person the order is made against) must follow. An intervention order can be against a family member (a Family Violence Intervention Order) or someone else (a Personal Safety Intervention Order). The police can make an application for an intervention order on someone’s behalf.^[83]

17.53 Victoria Legal Aid told us that:

women who have disclosed sexual assault do not receive sufficient support from Victoria Police to make an application for [an intervention order]. This can occur even where allegations of sexual offending are being actively investigated by Victoria Police and an alleged perpetrator has been arrested and charged with a sexual offence.^[84]

17.54 Victoria Legal Aid told us that police should be more active in applying for intervention orders if a complainant supported it, unless the person accused is a child or a person with a cognitive impairment. It illustrated this with a case study (see box).^[85]

17.55 It recommended establishing new protocols to ensure that disclosures of sexual violence, either directly to police or in intervention order applications, would trigger a police response, including applications for intervention orders in appropriate circumstances. This would ensure people were given advice on their criminal justice options and received appropriate referrals for advice and support services.^[86]

17.56 We put this proposal to Victoria Police, with an indication that ‘appropriate circumstances’ could include where the complainant was supportive of an application for an intervention order, or the accused was not a child or a person with a cognitive impairment. Victoria Police expressed ‘significant concerns’ about this, fearing that it ‘would potentially make FVIOs into a tool for coercive control; have FVIOs be viewed as a secondary form of punishment; and potentially be seen to trivialise their value and application as a key community safety mechanism’.^[87] It stressed that the ‘purpose and intent of FVIOs … is to address real and immediate risk’.^[88]

17.57 This concern was reflected in some stories shared with us by people who had experienced sexual violence.^[90] For example, Ani told us of her experience of being stalked and eventually raped by a former boyfriend. Ani told us that, although police had at first offered to help with an intervention order, when she gave the statement they told her they would not help her. She ‘wound up having to deal with the … continued stalking and harassment on [her] own’.^[91]

17.58 Kelly told us of a similar experience. The police were investigating her sexual assault by a former partner, and she asked for help to get an intervention order. She continued:

They said they could, but it would take some time. I was being threatened still and I was in the house where the abuse took place. So, I went to the Magistrates’ Court to get the order myself. As soon as they learned I was linked in with a SOCIT, they advised that I wait for them to do it. I was in fear for my children’s and my own safety, as I suspected the offender would return to the house to assault me. His family members were also threatening me. I was extremely frustrated by this judicial response. Fortunately, the counsellor I saw at CASA assisted me to self-apply and I was able to get an [intervention order] in place.^[92]

What reforms would strengthen the police response?

17.59 The law and policies already support flexible reporting and interviewing processes, a choice of gender of interviewer, ongoing communication by police, and applying for intervention orders by police. What is needed now is to improve the consistency of practice.

17.60 Our approach to improving the consistency of practice is to embed good practice into a multi-agency protocol and to set clear expectations through changes to the Victims’ Charter Act. This will provide a framework for collaboration, transparency and accountability, with the Victims of Crime Commissioner to provide oversight. (See Chapter 4.)

17.61 The Charter already includes rights to communication on the progress of cases, and the Code of Practice provides guidance on these responsibilities. However, the protocol would be an appropriate place to detail and entrench those responsibilities clearly.

17.62 This would be especially helpful in identifying who communicates with a victim, including if the model of victim advocates recommended in Chapter 12 is introduced. For example, the model protocol in Virginia includes a template checklist for who should be responsible for communicating with a person (see Figure 18). The protocol could also identify who should be involved in the discussion about the options available to the victim survivor (the ‘options talk’), and the content of the options talk.

Figure 18: Checklist from Virginia SART model protocol^[93]

17.63 Similarly, we consider it would be useful to address in the protocol the role of intervention orders. Intervention orders are one of the justice options that should be considered to meet the needs of victim survivors. We recognise the concerns of Victoria Police that intervention orders may not always be appropriate, and we do not propose changing the way they are used.

17.64 Rather, we recommend that the protocol provides clear processes and guidance for when they are appropriate, and who should provide support to make intervention order applications. For example, if it is not appropriate for the police to help apply for an intervention order in a case, another person, such as the victim advocate recommended in Chapter 12, could provide that support. Spelling this out in a protocol will help all partners, and complainants, understand who is responsible and when to consider an intervention order.

17.65 We recommend extending the Charter to include a right to specify the gender of a police officer. This can be modelled after the right in the comparable legislation in Scotland.

17.66 This provides a right for victims of specified offences, including sexual offences, to specify the gender of an investigating officer who is carrying out an interview. However, the investigating officer need not comply with the request if complying is likely to prejudice a criminal investigation, or it would not be reasonably practicable to do so.^[94]

17.67 This communicates clearly the right of someone to specify the gender of an interviewer, but also takes into account the practical concerns of Victoria Police. While this already reflects existing policy, including the right in the Charter will have several benefits. It will:

• communicate clearly to victim survivors the right to make the request

• improve consistency of practice in ensuring that the request is heard

• provide people supporting victim survivors with clear guidance about this right

• introduce a mechanism for monitoring and oversight of this right in practice.

17.68 It would be useful to extend the Charter to include a right to flexible arrangements for police interviews, for the same reasons. This right can be subject to similar conditions as the right to specify the gender of a police officer, such as that it is reasonably practicable to comply with the request. The kinds of flexible arrangements for police interviews should also be spelt out in the multi-agency protocol. It could set expectations for routinely offering to take statements in more supportive environments, and standard practices on matters such as taking breaks.

17.69 We recommend in Chapter 4 that the multi-agency protocol include feedback processes, including from people who report and those who support them such as victim advocates or community-based organisations. This will help improve the consistency of practice.

17.70 These issues are addressed in our recommendations in Chapter 4, detailing the issues that should be covered within the multi-agency protocol and the changes that should be made to the Victims’ Charter Act.

How can information and evidence gathering for children be improved?

Interviewing children requires skill

17.71 Interviews with children need to take into account factors unique to children, such as:

• the nature of child development

• their different communication needs

• the impact of trauma on children

• barriers to reporting such as the fear of disclosure that is typical of child sexual abuse.^[95]

17.72 Laws aim to minimise the need to interview children through the recording of their evidence, including the police interview (see Chapter 21). Child sexual abuse intersects with other legal systems, including Child Protection investigations (see Chapter 5). Although the aims of these laws and systems are important, they also make child interviewing both more complex and more crucial.

17.73 In Chapter 5, we recommend a revised protocol for joint Child Protection and criminal investigations into child sexual abuse. The aim of this protocol is to bring those involved in responding to child sexual abuse into an effective and integrated partnership model.

17.74 Child interviewing will become more common under the reportable conduct scheme introduced in Victoria (see Chapter 4). The body responsible for that scheme, the Commission for Children and Young People, has commissioned publicly available resources for interviewing children and young people.^[96]

17.75 A recent reform in Victoria has piloted the use of intermediaries who work with police and courts to improve communication with children and people with a cognitive impairment. Their role includes working with police to improve interviews with children. This has been an extremely successful reform that we recommend expanding as a priority (see Chapter 15).

Concerns were raised about child interviewing

17.76 There have long been concerns about the quality of police interviews with children in cases involving sexual offences.^[97] In this inquiry we heard two key concerns.

17.77 The first is that interviews with children were not always trauma-informed and did not always take into account child development. For example, the Gatehouse Centre, a specialist provider of sexual assault services for children, told us about practical issues with interviews:

• Interviewers seldom meet the children beforehand, reducing their ability to build rapport with the children.

• Some interviewers do not thoroughly assess the needs and circumstances of the children before the interview, which can lead to poor decisions about where the interview takes place, the accused family member being too close to the child during the interview and ineffective strategies for interviewing children.

• Interviews can be arranged with little notice to families and no coordination with support services.

• Some interviews, such as separate Child Protection and police interviews, duplicate each other.^[98]

17.78 The Gatehouse Centre suggested including a documented planning meeting prior to any interview, to address health, child development and communication needs.^[99] We discuss the need to strengthen collaborative approaches to child sexual abuse, including through interviews, in Chapter 5.

17.79 The second key concern is that the quality of interviews, especially the use of questions, needs to be improved.^[100] This problem has been researched for decades.^[101] For example, studies show that police officers consistently fail to use enough free narrative-style questions,^[102] even though such questions are known to improve the accuracy of testimony.^[103]

17.80 We discuss in Chapter 21 concerns about the quality of the video and audio-recorded evidence (VAREs) in the courtroom. These VAREs are used for children and for people with cognitive impairment. These include concerns about the dual purpose of the police interview, both as an investigative tool and as evidence, as well as practical and technical concerns about the quality of the interviews.

17.81 Ffyona Livingstone Clark, a barrister and a PhD student researching this topic, helpfully identified three key problems from the increasing research into this area:

• the need to use ‘narrative’ questioning (open-ended questioning)

• the need to consistently describe (‘particularise’) specific allegations, and to differentiate these from other allegations

• the training of investigators.^[104]

17.82 Professor Martine Powell, a leading expert on police interviewing, led a study evaluating police interviews in child sexual abuse cases for the Royal Commission into Institutional Responses to Child Sexual Abuse (see box).^[105] That research, which included specially trained investigators in Victoria, found that the interviews had too few open-ended questions and a high number of specific, leading and developmentally inappropriate questions. It also identified other failings that undermined the value of the evidence.^[106]

17.83 At a roundtable on children and young people, Professor Martine Powell told us that there had been a cultural shift such that allegations of abuse are more likely to be heard and taken seriously. However, the questioning approach used to elicit witness evidence has not kept up with the science (see box). The typical style of questioning tends to compound error and inconsistencies in witness’ accounts.^[110]

17.84 To improve conviction rates, there needs to be more detail and a tighter focus on the elements of the offence. She told us that the ‘good news’ was that knowledge about how to train people to interview effectively was ‘becoming settled in the science’. We now know which series of activities should be followed, and in which order, for learning to transfer to the field.^[111]

17.85 In her view, the key was to have a skilled interviewer from the beginning. This would reduce the need for an independent examiner, which adds complexity to the system.^[112]

17.86 Ms Livingstone Clark observed it was challenging for police used to interviewing the accused to ‘flip that switch’ and use an open-ended interview style. She supported exploring different models, including a model of an independent child examiner.^[118] This was also supported by Sexual Assault Services Victoria and the Gatehouse Centre.^[119]

17.87 These expert interviewers would be skilled in eliciting testimony from children, and could conduct interviews that would meet both child protection and investigation needs. The interviewers would be highly trained and independent of both Victoria Police and Child Protection, and would be regulated by the state and recognised as expert witnesses in all aspects of child testimony.

17.88 These interviews would be conducted in a way consistent with VAREs, although the Gatehouse Centre proposed further innovations by allowing people to give real-time written responses to interview questions (for example, by typing answers) or other appropriate communication supports. They could produce reports to assist police officers, Child Protection and the courts.^[120]

17.89 This model is used in the United States, as part of a broader model of a Child Advocacy Centre. Ffyona Livingstone Clark pointed to an example in Texas where a ‘neutral individual’ conducted the interview.^[121] Carolyn Worth and Mary Lancaster suggested looking at a model in Santa Monica in which the police, child support, interviewer and legal counsel are all present, using one-way screens while the child is interviewed by an expert. The videotape is then presented in court.^[122]

17.90 In Australia, most states use police to interview children. New South Wales has moved away from using child protection interviewers more recently, because police were trained in obtaining evidence and ensuring that evidence was admissible in court, although in a Western Australian pilot, specialist child protection interviewers worked together with specialist police interviewers (see Chapter 5).^[123]

17.91 However, Victoria Police told us that this model, of having a specialist unit within a specialist unit, would probably not be feasible because of limits on resources.^[124]

There should be a renewed focus on improving interviews with children

17.92 There is consensus that much can and should still be done to improve the quality of interviews with children. Interviewing needs to be planned for carefully and in a trauma-informed way. The research indicates that this requires a special set of skills which can be taught, but that there are challenges in training people and maintaining those skills.

17.93 The question is how to achieve this. The option of an independent child examiner would be likely to improve the quality of interviews but would be difficult to implement. There would be a much smaller pool of interviewers, which could cause delays, and there may be flow-on effects into the criminal justice system, such as whether examiners would be available to testify in court.

17.94 The challenge appears to be more about a lack of adequate planning and training than a model that requires institutional independence from the police. This indicates instead a need for Victoria Police to improve its processes. This usually requires a mix of measures, such as:

• guidance, procedures and other resources

• training programs

• feedback processes

• quality assurance processes

• organisational measures to improve and reward performance

• leadership within the organisation to drive improvement.

17.95 We discuss the need for training later in this chapter. We also emphasise the need for quality assurance, which was a key part of the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse.^[125] This aspect and other measures should be discussed as part of a broader plan with those working with children within the sexual assault system, and this should also include some measures of accountability.

17.96 The ideal forum for this discussion would be in the development of the revised protocol for child sexual abuse recommended in Chapter 5. The protocol will need to cover joint child interviews, and could usefully include both best-practice principles in interviewing and a feedback process for partners.

17.97 The protocol could mirror the approach taken to child sexual exploitation under the existing Protecting Children Protocol by establishing a subcommittee that has a mandate to develop a strategy for improving the quality of child interviewing.

17.98 We therefore recommend that the revised protocol on child sexual abuse should identify as a priority child interviewing, and include ways to measure and improve the quality of interviewing.

What opportunities are there to improve police training?

Police training has been the subject of reform

17.99 Since 2004, there have been significant changes to the education and training of SOCIT officers.

17.100 All members of Victoria Police receive training around sexual offences. Victoria Police recently reviewed and updated foundational training for general duties members in response to recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse.^[126] This included providing guidelines to police members who are first responders to the scene of a sexual crime, as well as to police members who receive reports of such crimes.^[127]

17.101 Family violence reforms have also had a significant impact, including the establishment of the Family Violence Centre of Learning.^[128] As discussed in Chapter 18, police are also included within system-wide training requirements as part of family violence reforms.

17.102 Victoria Police requires specialised training for police specialising in sexual offences.^[129] SOCITs are trained in the ‘Whole Story’ investigative framework. This was developed from research that identified the need for contextual evidence gathered about the offending, such as any relationship dynamics between those experiencing and causing sexual violence.^[130] This framework has positively influenced the mindsets and practice of investigators.^[131]

17.103 Victoria Police also offers sexual offences training to police prosecutors, who receive a shortened version of the SOCIT program.^[132] In our report Committals, we also recommended Victoria Police should receive regular and up-to-date training on charging.^[133]

Work is already underway on police training

17.104 Victoria Police has committed to strengthening its training. This includes expanding ‘initial and refresher targeted training in the Whole Story Investigative Framework, including across [Family Violence Investigation Units], Sex Crimes Squad and relevant taskforces’.^[134]

17.105 Victoria Police has also taken steps to improve its specialisation in the prosecution of sexual offences, including by:

• appointing a Senior Sergeant to oversee sexual offence prosecutions statewide

• creating a dedicated team of prosecutors at the Melbourne Magistrates’ Court of Victoria

• establishing a Senior Advocacy Team of qualified lawyers for sexual offence matters.^[135]

What still needs to be done on police training?

There needs to be an understanding of how people experience sexual violence and its effects

17.106 We continued to hear of the need for police to be trained in understanding trauma and its impacts on how people who have experienced trauma behave or communicate (see Chapter 18), and in understanding the experiences and contexts of diverse communities (see box). This was true of both general duties members and specialised police.

17.107 Sexual Assault Services Victoria noted improvements in practice as a result of SOCIT training, but told us ‘police responses continue to be experienced by [victim survivors] as inconsistent, insensitive, dismissive and disbelieving’.^[140] They described a need for ‘ongoing training and skill development in relation to understanding the impact of sexual assault, and trauma informed liaison and care’.^[141]

17.108 They also proposed measures to ‘increase [SOCIT] responsiveness’ to Aboriginal, LGBTIQA+ and culturally and linguistically diverse communities.^[142] The need for greater responsiveness and engagement with these communities was echoed by most groups we spoke to.^[143]

17.109 Project Respect and Sex Work Law Reform Victoria highlighted the need for further police training to support people working in the sex industry.^[144] We also heard of the need for peer-led sensitivity training for police regarding sex workers and the need to protect their identities.^[145]

17.110 Advocates and organisations working with people with disability also raised concerns about the ‘variability of police responses at the point of the first report’ and about police approaches to the credibility of people with disability.^[146]

17.111 Elizabeth Morgan House, which works with Aboriginal women, told us that training police and court staff in trauma-informed practice should be a priority. They told us:  

The clients feel like they are criminals – there is no differentiation between the victim-survivor and the perpetrator.^[147] 

17.112 The Commission for Children and Young People (CCYP) similarly told us that specialist police training about children and trauma needed to be more sophisticated and noted the variable quality of investigators.^[148] The CCYP and others also recommended further resources and training for police in relation to children in out-of-home care.^[149] Care Leavers Australia Network said that police need to be better educated about the experience of people who grew up in out-of-home care.^[150]

17.113 The Victims of Crime Commissioner emphasised the role of the police as ‘gatekeepers’ to the system and the way misconceptions held by police directly affect people’s experiences and willingness to engage with the criminal justice system. It supported a universally accessible specialist response and cultural change within Victoria Police.^[151]

Skills need to be improved

17.114 We discuss above and in Chapter 21 concerns about the quality of police interviewing of children and in video and audio-recorded evidence (VAREs). The County Court of Victoria told us that expanding education could improve the quality of the evidence.^[152] The Law Institute of Victoria similarly said that a significant number of charges do not proceed because of evidence gathered by police being insufficient, and called for ‘a more prescriptive approach’ to writing briefs of evidence.^[153]

17.115 Experts told us there was a need to improve police knowledge and attitudes about image-based sexual abuse offences.^[154] Associate Professor Nicola Henry identified concerns with ‘unsympathetic’ police responses and ‘lack of knowledge of the laws’.^[155] The Sentencing Advisory Council also identified this in a recent report.^[156]

17.116 Victoria Police itself acknowledged that there is an opportunity to improve ‘technology literacy’ within the force, though it emphasised the challenge of providing deeper training in sexual assault to frontline police in an already busy 31-week training program.^[157]

17.117 The Magistrates’ Court of Victoria highlighted a need for better resourcing and training for police prosecutors in summary hearings for sexual offences.^[158] While acknowledging Victoria Police efforts to improve training, the Magistrates’ Court of Victoria noted that police prosecutors are ‘invariably at a disadvantage’ against experienced defence barristers.^[159]

17.118 One person who had experienced sexual violence told us that, in her experience, police did not understand the law well enough to know if a crime had been committed.^[160]

We recommend improvements to training and skills

17.119 Police are, as the Victims of Crime Commissioner told us, the ‘gatekeepers’ to the criminal justice system.^[161] Their responses can make all the difference to the experience of a victim survivor, and to their decision to continue with a case. Their skills are also key to proving a case in court.

17.120 Specialisation has clearly improved the experience of victim survivors, and we welcome the commitments of Victoria Police to further training. We recognise the challenges of training a diverse workforce, especially in such a complex context.

17.121 This report has made other recommendations that will support the police in improving their response. A key theme is improving supports and pathways so that people will be supported to report to police and to stay engaged in the criminal justice system (see Chapters 7 and 8). These should give those who are not reporting recent sexual assaults options that do not involve reporting at a local police station. A more collaborative approach, as discussed in Chapter 5, can also improve police responses.

17.122 In Chapter 18, we discuss how the same needs for more training to understand the diverse contexts of sexual violence and trauma exist across the criminal justice system. We recommend in that chapter more training for all those working in the criminal justice system about:

• the prevalence, nature and dynamics of sexual harm and how it affects victim survivors, including their ability to give evidence

• how to respond empathetically to disclosures of sexual violence

• responding appropriately to people with diverse needs and experiences

• myths and misconceptions about sexual harm, such as data on the low rate of false allegations, the background to and application of any recent legislative changes, and legislative changes arising from this report.

17.123 In this chapter, we recommend identifying other areas that police should address in a strengthened program of training and resources, including areas that are discussed in other chapters. These reflect the concerns we identified through our inquiry and are not intended to be comprehensive. They include strengthening training and resources for specialised police officers to address:

• interviewing of children and the recording of VAREs (see above and Chapter 21)

• responses to children in out-of-home care, people who have contact with the justice system and people working in the sex industry (see Chapters 7 and 8)

• the appropriate use of interpreters, including through existing training developed for family violence (see Chapter 15)

• its understanding of image-based sexual abuse (see above)

• the quality of evidence gathering (see above)

• the quality of police prosecutions (see above).

17.124 We recognise that there are many ways of delivering training and resources to improve police responses, and so we do not prescribe methods of training or types of resources. We note Victoria Police’s view that recommendations targeting police training can be difficult to put into practice, because police officers only have a certain number of hours allocated to training per year.^[162] However, we are equally conscious of the need to ensure that training ‘transfers’ to the workplace, and that training needs to be refreshed to prevent it fading.^[163] In Chapter 18, we also talk of the value of cross-agency training.

How can decision making be improved?

We have made recommendations to reduce delays in charging

17.125 Victoria Police conducts most criminal investigations in this state. As we discussed in our 2020 report Committals, the Director of Public Prosecutions (DPP) is not involved in the drafting of charges by police in lower courts, although it can advise in some cases. The DPP is also not often involved until later in committal proceedings.^[164]

17.126 In that report, we recommended that the DPP should be involved in reviewing and instructing on the most appropriate charges at an earlier stage. This was widely supported. In cases such as sexual offences where a brief of evidence could be filed, we recommended that the police should prepare an ‘initial charge brief’ with a summary of the evidence and the proposed charges. The DPP should review this brief and instruct on the suitability of the proposed charges. These instructions should be binding.^[165]

17.127 These changes are similar to the process of ‘early investigative advice’ used in England and Wales. This process allows the police to ask for guidance and advice in serious, sensitive or complex cases. A recent change in policy means that all rape cases should receive this advice.^[166]

17.128 A recent review of rape in the criminal justice system has found promising results in the work of different areas of England and Wales promoting the use of early investigative advice. While evaluations were still underway, early results are promising (see box).

Should there be an independent review function?

17.129 In our issues paper we asked how well decisions to charge and prosecute were working and how they could be improved.^[168] We referred to our previous recommendations on charging in our 2020 report Committals, and to our recommendations in our 2016 report The Role of Victims of Crime in the Criminal Trial Process.^[169]

We made previous recommendations on reviews of prosecution decisions

17.130 In 2016, we heard support for the review of prosecutorial decisions based on a model similar to the Victims’ Right to Review scheme in England and Wales (see box). This included support from the Victims of Crime Commissioner and several academics specialising in this area.^[170]

17.131 As we noted in our 2016 inquiry, the key benefits of this scheme are:

• It provides a greater sense of transparency and accountability in decision-making processes.

• It enables the public prosecutions service to measure where failures are made and to rectify incorrect decisions.

• It gives victims a mechanism to challenge prosecutorial decisions.

• It could increase victims’ understanding and confidence in the validity, transparency and accountability of the criminal trial process.

• Even where decisions are not overturned, the scheme can provide victims with an explanation and better understanding of why the case cannot proceed.^[177]

17.132 Researchers have confirmed that the scheme does have many of these benefits, including giving victims a voice, validation, control and greater transparency. However, it also noted limitations on how it worked in practice, including the lack of information on the decision making before a charge, and the review being an internal and not an independent review.^[178]

17.133 In our previous report, we said that, in principle, we would support the introduction of a similar scheme. However, the Victims’ Right to Review scheme could not simply be adopted in Victoria, because:

• the design of the scheme in England and Wales was not appropriate for the size and scale of the Victorian DPP

• most decisions reviewed under the Victims’ Right to Review scheme are of decisions not to file charges, which are made by police in Victoria.^[179]

17.134 Instead, we recommended that victims be granted a right ‘to seek internal review of a decision by the DPP to discontinue a prosecution or to proceed with a guilty plea to lesser charges’.^[180]

We said independent reviews should be revisited

17.135 Our Victims of Crime inquiry also considered the need for review by an independent entity other than a court. We heard support for different models, such as:

• an independent reviewer from a panel of independent senior counsel

• review by the DPP followed by review by an independent barrister

• an independent oversight mechanism, similar to the Crown Prosecution Inspectorate (which reviews processes rather than individual cases)

• a review body that could review and refer matters back for consideration.^[181]

17.136 We concluded that the need for a scheme for independent review of decisions to discontinue a prosecution or proceed with lesser charges should be revisited in five years, by which time the internal review process should have been operating for several years. We said that if this scheme had not been established or an evaluation revealed that it was not working effectively, a statutory independent review process should be created.^[182]

We did not recommend judicial review

17.137 In Australia, prosecutorial decisions are not subject to judicial review. The position is different in the United Kingdom. In our previous inquiry, we found no support for access to judicial review, and ‘unequivocal’ opposition to introducing judicial review. We therefore did not recommend this as an option.^[183]

What did the Royal Commission into Institutional Responses to Child Sexual Abuse recommend?

17.138 The Royal Commission into Institutional Responses to Child Sexual Abuse came to similar conclusions when it canvassed these issues. It held a national roundtable with prosecutors to discuss options for internal, independent and judicial review. Part of this roundtable included a recording of a discussion between the Commission and staff involved in the Victims’ Right to Review Scheme and the UK Crown Inspectorate.^[184]

17.139 The roundtable identified several concerns about establishing a process of review when requested by the victim survivors. These included:

• concerns about undermining the constitutional independence of the DPP by a reviewer directing the making of a different decision

• the small size of prosecutorial offices and the senior level of decision making and existing multiple layers of internal review, which made this a very different context from the United Kingdom

• a preference for ongoing and supported engagement with complainants instead of a process that focused on review

• concerns about the challenge in striking a balance in explaining the reasons for the decision about the charges, in a way that did not undermine a person’s mental health

• concerns about the value of oversight bodies with recommendatory powers, and the extra layers of bureaucracy involved.^[185]

17.140 The Royal Commission recommended that each state should have an internal merits review scheme for key decisions.^[186] It found the Victims’ Right to Review scheme could not be adopted for practical reasons in the same form.^[187] It also did not recommend judicial review because of ‘strong opposition’ from stakeholders.^[188]

The OPP has a discontinuance framework

17.141 An internal review scheme has been implemented through the Office of Public Prosecution’s (OPP) Discontinuance Framework. This framework applies to decisions to discontinue all charges against an accused, or to discontinue all charges regarding a complainant. The complainant must first be consulted before decisions to discontinue are made and before these decisions are reviewed.^[189]

17.142 In cases that do not involve a death, a decision by a Crown Prosecutor or Senior Crown Prosecutor is reviewed by another Senior Crown Prosecutor. If the reviewer disagrees with the decision, the DPP makes the final decision.^[190]

17.143 The OPP indicated there are several benefits to this review process. First, it can review the merits of the decision, and not just the procedure. Secondly, the decision is reviewed before the discontinuance is filed. Thirdly, the review process can be used for decisions to discontinue cases well before a trial, as well as decisions to discontinue when a trial is about to start or is already being heard. It also told us that it had not received any complaints from victim survivors about this process, and many had appreciated the care taken in making both the initial and the review decisions.^[191]

Victoria Police is running a ‘brief authorisation’ pilot

17.144 In June 2021, Victoria Police announced it had established an independent panel of experts to re-examine closed sexual assault cases. This would determine if further work could be done to get more evidence and lay charges.^[192]

17.145 The pilot, known as the ‘brief authorisation program’, will run for the next 12 months. It will involve a specialist lawyer from the OPP and an experienced detective not involved in the original sexual assault investigation. Victoria Police said, in support of the pilot:

We think it’s really important to go back and give victims that option. We want to give every brief the best chance it can to go through to court if the evidence is there.^[193]

17.146 Victoria Police opposed introducing an independent review scheme of police and prosecution decisions. Victoria Police stated that any external oversight of such decisions would be ‘legally and procedurally problematic’. It emphasised that ‘it would not be appropriate’ for an external review process to overturn charging and prosecutorial decisions or to direct Victoria Police to prosecute a matter which had been determined as not having a reasonable prospect of success.^[199]

17.147 Victoria Police also suggested that such a scheme might ‘compound victim dissatisfaction’ with their overall experience of the justice system, lead to ‘perverse outcomes’ for both complainants and the accused, and ‘overlap with the powers and authorities of many existing agencies’ and functions of government.^[200]

17.148 The OPP similarly opposed such a scheme, emphasising the importance of the DPP, Chief Crown Prosecutor and Senior Crown Prosecutors remaining independent. On a practical level, the OPP also questioned whether the DPP would be required to prosecute a case after having previously considered the matter and determined otherwise.^[201]

17.149 The OPP also questioned how the members of any review panel could have more expertise than the original decision makers. Finally, the OPP emphasised the rigour of the current internal review process.^[202]

17.150 The Victims of Crime Commissioner expressed support for an independent review scheme. The Commissioner emphasised that value judgments about reliability and credibility in sexual offences could lead to cases not progressing.^[203]

17.151 To remedy this situation, the Commissioner recommended that the Victorian Government should:

introduce a Victims’ Right to Review scheme underpinned by new rights contained in the Victims’ Charter Act enabling independent review of police and prosecution decisions after internal review options are exhausted.^[204]

17.152 Dr Kerstin Braun also endorsed an independent review scheme modelled on the system in England and Wales.^[205]

An independent review of police and prosecution decisions is needed

Why is an independent review needed?

17.153 In principle, we continue to support more transparency and accountability in the decision-making process than exists now. As with any exercise of public power, there are benefits in processes of review and accountability. These are:

• improving the quality of decision making

• providing transparency and accountability

• ensuring that people can provide their views before decisions are made.

17.154 While these benefits are general, there are reasons why they are of special importance in sexual offences. Sexual offences have a high attrition rate, and the reasons for this remain unclear. The public, including victim survivors, need to be confident that the police and the prosecution are taking sexual offences seriously, and that their decisions are being made on the evidence and not because of misconceptions or a lack of effort. If cases are filtered out because the laws need to be changed, this will help us target future law reforms.

17.155 Decision making on sexual offences also often turns on an assessment of a person’s credibility or reliability. This is relevant to whether there is a ‘reasonable prospect’ of conviction, but often this assessment will lead to victim survivors being dissatisfied with prosecutorial decisions. These assessments should be subject to scrutiny, so that we can be sure that flawed reasoning about a person’s credibility or reliability is not the reason a case has been discontinued.

17.156 We continue to be concerned that we do not know enough about the quality of decision-making processes. In this inquiry, we did not have access to police or prosecution files, and as we discuss in Chapter 6, this is an area that is poorly researched. We therefore recommend in that chapter an analysis of police and prosecution files as a step towards improving our understanding of the decision-making processes.

17.157 We continue to be concerned that victim survivors do not feel confident in the validity, transparency and accountability of the decision-making process. Too many are left without a good enough explanation or understanding of why the case did not proceed.

17.158 More needs to be done to address these concerns, including introducing a model of independent review in Victoria.

We recommend an independent panel to review prosecution decisions

17.159 There are many ways to achieve these aims, and the best method depends on the context. We recognise that police and prosecutorial decisions are complex decisions which weigh many factors. While the interests and views of victim survivors should be important factors, they are only part of the decision-making process.

17.160 We recognise the improvements that have already been made. These changes include a review panel established by police, although we note that victim survivors do not appear to have a way to raise cases for review. We also note the DPP has established a clear process on discontinuance and is working on improving the way it communicates with victim survivors in understanding prosecution decisions.

17.161 We note that the prosecution process in Victoria differs greatly from the context in England and Wales. Discontinuance decisions are already being made at the most senior levels in Victoria, with levels of internal review.

17.162 This makes it difficult to establish a scheme of review that would overturn the decision personally made by the DPP. This is very different from the scheme in England and Wales, where the decisions being overturned were made within the office of the Crown Prosecution Service, as the Director does not take as direct a role in decision making.

17.163 We recognise the concerns raised by the police and prosecution about a system of review that would allow decisions to be formally overturned, and therefore do not recommend such a system of review. However, we consider that many of the same benefits could be achieved by a method of independent review that:

• reviews the quality of decision making

• makes recommendations to the police and prosecution to continue with charges

• makes recommendations to address other issues identified as part of that review.

17.164 This model leaves the final decision to the police and prosecution. This would be similar in nature to the pilot being run by Victoria Police. It would aim to review cases with fresh eyes to assess if cases should be progressed further. In reviewing the merits of decisions, it would apply the same guidelines as those making the original decision.

17.165 An example of how this can be done is the Crown Prosecution Inspectorate in England and Wales. As part of the comprehensive review of rape recently completed in England and Wales, the Crown Prosecution Inspectorate conducted a thematic review of rape cases. This review assessed the standard of casework and the inspectors were asked to identify whether they would have made a different decision in the same case.^[206] This review could also provide a way to identify how to improve the procedures for involving complainants in the decision-making process or their treatment. Even if prosecutions are discontinued, there may be ways to improve processes so that complainants feel a sense of procedural justice.

17.166 The scope of the review should include identifying any legal issues that act as barriers to decision making as part of the review of individual cases. For example, as we discuss in Chapter 19, appeals in sexual offence cases may affect the capacity of the police or prosecution to continue with historical cases. This could provide evidence that will help shape future legal reforms.

17.167 While these powers overlap to some extent with the role of the Victorian Auditor-General by examining processes,^[207] the specialist expertise of the panel means that it can make recommendations that go beyond the mandate and expertise of the Auditor-General. These powers are confined to the review of individual cases, too, rather than general powers to examine processes as a whole.

17.168 There would be three key differences between our proposed model and the pilot established by Victoria Police. First, the review should be conducted by an independent panel, so that victim survivors can be confident that their case will be looked at independently. We note that research into the Victims’ Right to Review scheme in England and Wales suggested that the perception of a lack of independence meant that some of the benefits of that scheme were not realised in practice.^[208]

17.169 This review should be conducted by a panel that includes highly qualified and experienced police and prosecutors, as in the model used by Victoria Police. The seniority of those on the panel, and their experience within the operational context, will be important for ensuring that their recommendations are soundly based and are more likely to be accepted by the police and prosecution.

17.170 We note that there are concerns that it will be difficult to find suitable people to sit on this panel because of the small pool of people with such experience and the potential for a perception of conflict of interest. We consider, however, that the panel would only need a few members, and that these could be recruited from retired or interstate prosecutors.

17.171 Secondly, unlike the pilot being run by Victoria Police, these reviews would be triggered by a request by complainants or people acting on their behalf (such as the parents of child complainants). As research on the Victims’ Right to Review scheme suggests, it can be empowering for victim survivors to have a right to request review.^[209] This independent review should, however, only be available after completion of any internal reviews, including the OPP’s discontinuance process.

17.172 Thirdly, while the panel for an independent review should include people with experience of police and prosecutorial decision making, we also consider a multi-disciplinary approach should be taken. A key area of concern for many people is whether misconceptions and other biases are used in decision making (see Chapter 6). Having people who are from a different discipline allows for the testing of assumptions that might be held by the police and prosecution due to their organisational cultures and practices.

17.173 A model for this kind of multi-disciplinary approach that can also enhance transparency and improve partnerships is the Philadelphia rape audit (see box). Some of the benefits of this model can be achieved by including within the panel independent review advocates and researchers with specialised expertise in sexual offending. This would increase public confidence and trust, and provide a different disciplinary perspective on decision making.

17.174 We note that the OPP’s discontinuance framework is limited to decisions to discontinue all charges either against an accused or in respect of a complainant. We recommend that the panel should also have the power to review decisions not to file charges or indictments, as these have similar effects on the interests of complainants.

17.175 Decisions to drop some but not all charges, or to proceed with lesser charges than originally filed, may have a similar impact on complainants. But expanding the powers of the panel to review these decisions would increase the workload of the reviewers, especially as such cases are not usually reviewed internally. The scope of the panel’s powers requires further consideration – in particular, whether it should be able to review decisions not to proceed with some charges, or to substitute lesser charges, including during ‘plea negotiations’.

17.176 Consistently with the approach taken elsewhere in this report, we also recommend that the right to request a review should be included within the Victims’ Charter Act to ensure that its operation can be monitored by the Victims of Crime Commissioner. This right is included in our recommendation for changes to the Act in Chapter 4.

17.177 Finally, we note that our recommendation is for a panel that will review sexual offence cases, in line with our terms of reference. Our 2016 inquiry recommended establishing an independent review for all victims of crime. As noted earlier, there are reasons why an independent review is especially important to sexual offences. However, we note that there may be merit in extending the scope of this panel to other offences, either when it is established or at a later stage.

1. In cases from 2015–16 and 2016–17: S Bright et al, Attrition of Sexual Offence Incidents through the Victorian Criminal Justice System: 2021 Update (Report, Crime Statistics Agency, 2021). Charges were laid in 23% of the cases reported to police, and in 51% of the cases where an offender was identified. An offender is ‘identified’ where police have formally recorded an alleged offender against an offence. Where an offender has been recorded, police must record an outcome for how they dealt with that offender.

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2. Ibid.

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3. Victorian Law Reform Commission, Sexual Offences (Report No 5, July 2004).

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4. See Martine B Powell and Rebecca Wright, ‘Professionals’ Perceptions of a New Model of Sexual Assault Investigation Adopted by Victoria Police’ (2012) 23(3) Current Issues in Criminal Justice 333, 333–4.

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5. Ibid 334.

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6. Victoria Police, Policing Harm, Upholding the Right: Victoria Police Strategy for Family Violence, Sexual Offences and Child Abuse 2018-2023 (Policy, 2017) <https://www.police.vic.gov.au/sites/default/files/2019-03/Policing-Harm-Upholding-The-Right.pdf>. This implemented Recommendation 46 of Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) <http://rcfv.archive.royalcommission.vic.gov.au/Report-Recommendations.html>.

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7. Victoria Police, Reporting Sexual Assault (Booklet, 2020) <https://www.police.vic.gov.au/resources-and-fact-sheets-0>.

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8. Victorian Government, Annual Report 2020—Royal Commission into Institutional Responses to Child Sexual Abuse (Report, December 2020) 21 <https://content.vic.gov.au/sites/default/files/2020-12/RCIIR%20to%20Child%20Sexual%20Abuse%20Annual%20Report20.pdf>.

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9. Victorian Equal Opportunity and Human Rights Commission, Independent Review into Sex Discrimination and Sexual Harassment, Including Predatory Behaviour, in Victoria Police: Phase 3 Audit and Review (Report, August 2019) <https://www.humanrights.vic.gov.au/resources/independent-review-victoria-police-phase-3/>.

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10. Equal Opportunity Act 2010 (Vic) ss 15, 44–45; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 8.

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11. See, eg, Isabelle Bartkowiak-Théron and Anna Corbo Crehan, ‘A New Movement in Community Policing? From Community Policing to Vulnerable People Policing’ in Judy Putt (ed), Community Policing in Australia (Australian Institute of Criminology (Cth), Research and Public Policy Series 111, 2010) 16.

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12. See generally Judy Putt (ed), Community Policing in Australia (Australian Institute of Criminology (Cth), Research and Public Policy Series 111, 2010).

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13. Consultation 80 (Victoria Police (No 2)).

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14. Ibid.

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15. Victoria Police has seven Portfolio Reference Groups: Aboriginal, Disability, LGBTIQ, Mental Health, Multicultural, Seniors and Youth, as well as the Human Rights Strategic Advisory Committee. See also ‘Reference Groups’, Victoria Police (Web Page, 5 July 2021) <https://www.police.vic.gov.au/reference-groups>.

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16. See ‘Community Liaison Officers’, Victoria Police (Web Page, 23 June 2021) <https://www.police.vic.gov.au/community-liaison-officers>.

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17. Victoria Police, Policing Harm, Upholding the Right: Victoria Police Strategy for Family Violence, Sexual Offences and Child Abuse 2018-2023 (Policy, 2017) 15, 24 <https://www.police.vic.gov.au/sites/default/files/2019-03/Policing-Harm-Upholding-The-Right.pdf>.

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18. Victoria Police, Accessibility Action Plan 2021–2023 (Action Plan, April 2021) 11 <https://www.police.vic.gov.au/sites/default/files/2021-06/Accessibility%20Action%20Plan%2021-23.pdf>.

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19. Consultation 30 (Djirra).

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20. Consultations 11 (Family violence and sexual assault practitioners focusing on disability inclusion), 17 (Roundtable consultation focused on the experience of women with disability).

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21. Consultation 66 (Consultation focused on people who have a lived experience of states of mental and emotional distress commonly labelled as ‘mental health challenges’).

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22. Consultation 98 (Care Leavers Australasia Network).

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23. Consultation 68 (Youthlaw).

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24. Consultation 85 (Roundtable on the experience of children and young people).

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25. Submission 58 (Law and Advocacy Centre for Women Ltd); Consultation 30 (Djirra).

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26. Consultation 66 (Consultation focused on people who have a lived experience of states of mental and emotional distress commonly labelled as ‘mental health challenges’).

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27. Scope, Communication Access for All: Introducing the Communication Access Symbol (Booklet, 2015) 20 <https://www.scopeaust.org.au/wp-content/uploads/2014/12/A4-Communication-Access-for-All-Booklet-2015-web1.pdf>.

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28. Consultation 70 (Victoria Police (No 1)); Victorian Equal Opportunity and Human Rights Commission, Beyond Doubt: The Experiences of People with Disabilities Reporting Crime—Research Findings (Report, July 2014) Recommendation 5 <https://www.humanrights.vic.gov.au/resources/beyond-doubt-the-experiences-of-people-with-disabilities-reporting-crime-jul-2014/>.

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29. Other recent initiatives include the development of an Easy English guide to reporting sexual offences and established arrangements between police and disability service providers to respond to allegations of abuse: see Victoria Police, How to Report a Sexual Offence (Booklet, 2020) <https://www.police.vic.gov.au/resources-and-fact-sheets-0>; Consultation 91 (Victoria Police (No 3)). On the accessibility hubs, see Victoria Police, Accessibility Action Plan 2021–2023 (Action Plan, April 2021) <https://www.police.vic.gov.au/sites/default/files/2021-06/Accessibility%20Action%20Plan%2021-23.pdf>.

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30. Victoria Police, Accessibility Action Plan 2021–2023 (Action Plan, April 2021) 7 <https://www.police.vic.gov.au/sites/default/files/2021-06/Accessibility%20Action%20Plan%2021-23.pdf>.

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31. Another proposal that we heard was regularly rostering communication assistants at multi-disciplinary centres: see Consultation 11 (Family violence and sexual assault practitioners focusing on disability inclusion).

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32. Submission 32 (A victim survivor of sexual assault (name withheld)).

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33. Consultation 56 (Cecilia, a victim survivor of sexual assault).

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34. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

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35. Consultation 69 (Deborah, a victim survivor of sexual assault).

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36. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

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37. Ibid.

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38. Ibid.

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39. Consultation 54 (Lucille Kent, a victim survivor of sexual assault).

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40. Consultation 62 (Mark, a person who has experienced sexual harm).

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41. Victoria Police, Code of Practice for the Investigation of Sexual Crime (Policy, 2016) 25 <https://content.police.vic.gov.au/sites/default/files/2019-01/Code-of-Practice-for-the-Investigation-of-Sexual-Crime-%282016%29.pdf>.

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42. Ibid. This is also reflected in the Victoria Police, ‘Sexual Offence Investigations’ in Victoria Police Manual (2018) 2–3.

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43. Submission 17 (Sexual Assault Services Victoria).

    ↑

44. Submission 22 (knowmore legal service).

    ↑

45. Consultation 69 (Deborah, a victim survivor of sexual assault).

    ↑

46. Submission 40 (Law Institute of Victoria).

    ↑

47. Consultation 93 (Victoria Police (No 4)).

    ↑

48. See also Submission 64 (Victorian Advocacy League for Individuals with Disability).

    ↑

49. Consultation 81 (Danielle, a victim survivor).

    ↑

50. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

    ↑

51. Ibid.

    ↑

52. Submission 15 (Danielle).

    ↑

53. Consultation 93 (Victoria Police (No 4)).

    ↑

54. See also Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

    ↑

55. Consultation 17 (Roundtable consultation focused on the experience of women with disability).

    ↑

56. Submission 17 (Sexual Assault Services Victoria).

    ↑

57. Consultation 32 (Anonymous member, Victim Survivors’ Advisory Council ).

    ↑

58. Consultation 76 (YACVic and YACVic Young People).

    ↑

59. Consultation 62 (Mark, a person who has experienced sexual harm).

    ↑

60. Ibid.

    ↑

61. Consultation 69 (Deborah, a victim survivor of sexual assault).

    ↑

62. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

    ↑

63. Victoria Police, ‘Sexual Offence Investigations’ in Victoria Police Manual (2018) 2.

    ↑

64. Consultation 93 (Victoria Police (No 4)).

    ↑

65. Consultation 70 (Victoria Police (No 1)).

    ↑

66. Consultation 93 (Victoria Police (No 4)).

    ↑

67. Jan Jordan, ‘Will Any Woman Do?’ (2002) 25(2) Policing: An International Journal of Police Strategies & Management 319.

    ↑

68. Tania Boyer et al, Improving the Justice Response to Victims of Sexual Violence: Victims’ Experiences (Research Report, Ministry of Justice (NZ), August 2018) 40–1 <https://www.justice.govt.nz/assets/Documents/Publications/Improving-the-justice-response-to-victims-of-sexual-violence-victims-experiences.pdf>.

    ↑

69. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [6.17]–[6.49].

    ↑

70. S Caroline Taylor et al, Policing Just Outcomes: Improving the Police Response to Adults Reporting Sexual Assault (Report, Social Justice Research Centre, Edith Cowan University, October 2012) 102–3 <https://apo.org.au/node/34661>.

    ↑

71. Victims’ Charter Act 2006 (Vic) ss 7B, 8–9.

    ↑

72. Victoria Police, Code of Practice for the Investigation of Sexual Crime (Policy, 2016) 26 <https://content.police.vic.gov.au/sites/default/files/2019-01/Code-of-Practice-for-the-Investigation-of-Sexual-Crime-%282016%29.pdf>.

    ↑

73. Ibid.

    ↑

74. See, eg, Submission 32 (A victim survivor of sexual assault (name withheld)); Consultation 56 (Cecilia, a victim survivor of sexual assault); Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021). See also Submission 26 (Northern CASA).

    ↑

75. Submission 17 (Sexual Assault Services Victoria).

    ↑

76. Submission 26 (Northern CASA).

    ↑

77. Consultation 53 (Elizabeth Morgan House and a victim survivor of sexual assault).

    ↑

78. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

    ↑

79. Ibid.

    ↑

80. Submission 15 (Danielle).

    ↑

81. Consultation 93 (Victoria Police (No 4)).

    ↑

82. Royal Commission into Institutional Responses to Child Sexual Abuse: Criminal Justice Report (Parts III to VI, 2017) Recommendation 7(b).

    ↑

83. Family Violence Protection Act 2008 (Vic) ss 45, 74, 81; Personal Safety Intervention Orders Act (Vic) 2010 (Vic) ss 15, 61, 67.

    ↑

84. Submission 27 (Victoria Legal Aid).

    ↑

85. Ibid.

    ↑

86. Ibid.

    ↑

87. Consultation 93 (Victoria Police (No 4)).

    ↑

88. Ibid.

    ↑

89. Submission 27 (Victoria Legal Aid).

    ↑

90. See also Consultations 31 (Geraldine, Deputy Chairperson of the Victim Survivors’ Advisory Council), 32 (Anonymous member, Victim Survivors’ Advisory Council); Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

    ↑

91. Submission 26 (Northern CASA).

    ↑

92. Ibid.

    ↑

93. Virginia Department of Criminal Justice Services, Sexual Assault Response Teams (SART): A Model Protocol for Virginia (Report, May 2011) Appendix E <https://www.communitysolutionsva.org//index.php/resources/item/sexual-assault-response-teams-sart-a-model-protocol-for-virginia>.

    ↑

94. Victims and Witnesses (Scotland) Act 2014 (Scot) s 8.

    ↑

95. See generally Commission for Children and Young People (Vic), Guide for Including Children and Young People in Reportable Conduct Investigations (Report, December 2019) <https://ccyp.vic.gov.au/assets/Uploads/Guide-Including-Children-and-Young-People-in-Reportable-Conduct-Investigations.pdf>.

    ↑

96. Ibid.

    ↑

97. See, eg, Martine Powell, Kim Roberts and Belinda Guadagno, ‘Particularisation of Child Abuse Offences: Common Problems When Questioning Child Witnesses’ (2007) 19(1) Current Issues in Criminal Justice 64; Martine Powell et al, An Evaluation of How Evidence Is Elicited from Complainants of Child Sexual Abuse (Report for the Royal Commission into Institutional Responses to Child Sexual Abuse, August 2016) <https://apo.org.au/node/67421>; Submission 43 (Ffyona Livingstone Clark, PhD researcher and barrister).

    ↑

98. Submission 14 (Gatehouse Centre, Royal Children’s Hospital). See also Consultations 23 (Sexual Assault Services Victoria Specialist Children’s Services), 35 (A victim survivor of sexual assault).

    ↑

99. Submission 14 (Gatehouse Centre, Royal Children’s Hospital).

    ↑

100. Submission 43 (Ffyona Livingstone Clark, PhD researcher and barrister). See also Royal Commission into Institutional Responses to Child Sexual Abuse: Criminal Justice Report (Executive Summary and Parts I-II, 2017) 446–83.

     ↑

101. For a useful summary of the relevant research findings, see Submission 43 (Ffyona Livingstone Clark, PhD researcher and barrister).

     ↑

102. See, eg, Belinda L Guadagno, Martine B Powell and Rebecca Wright, ‘Police Officers’ and Legal Professionals’ Perceptions Regarding How Children Are, and Should Be, Questioned about Repeated Abuse’ (2006) 13(2) Psychiatry, Psychology and Law 251.

     ↑

103. See, eg, Anne Sophie Pichler et al, ‘Discussions about Child Witness Interviews during Australian Trials of Child Sexual Abuse’ (2021) 22(1) Police Practice and Research 938, 939.

     ↑

104. Submission 43 (Ffyona Livingstone Clark, PhD researcher and barrister).

     ↑

105. Martine Powell et al, An Evaluation of How Evidence Is Elicited from Complainants of Child Sexual Abuse (Report for the Royal Commission into Institutional Responses to Child Sexual Abuse, August 2016) <https://apo.org.au/node/67421>.

     ↑

106. Ibid 159.

     ↑

107. Royal Commission into Institutional Responses to Child Sexual Abuse: Criminal Justice Report (Executive Summary and Parts I-II, 2017) Recommendation 9.

     ↑

108. Department of Justice and Regulation (Vic) and Victoria Police, Victorian Government Response to the Royal Commission: Current Approaches to Policing in Child Sexual Abuse Matters (Submission to the Royal Commission into Institutional Responses to Child Sexual Abuse, July 2015) 14, 16 <https://www.childabuseroyalcommission.gov.au/sites/default/files/VPOL.3038.001.0001.pdf>.

     ↑

109. Victorian Government, Annual Report 2020—Royal Commission into Institutional Responses to Child Sexual Abuse (Report, December 2020) 21 <https://content.vic.gov.au/sites/default/files/2020-12/RCIIR%20to%20Child%20Sexual%20Abuse%20Annual%20Report20.pdf>.

     ↑

110. Consultation 85 (Roundtable on the experience of children and young people).

     ↑

111. Ibid.

     ↑

112. Ibid.

     ↑

113. Martine B Powell and Becky Earhart, ‘Principles to Enhance Communication with Child Witnesses’ (2018) 30(9) Judicial Officers Bulletin 85, 85.

     ↑

114. Ibid 85–8.

     ↑

115. Ibid 85.

     ↑

116. Martine B Powell, ‘Specialist Training in Investigative and Evidential Interviewing: Is It Having Any Effect on the Behaviour of Professionals in the Field?’ (2002) 9(1) Psychiatry, Psychology and Law 44, 45–6.

     ↑

117. Belinda L Guadagno, Martine B Powell and Rebecca Wright, ‘Police Officers’ and Legal Professionals’ Perceptions Regarding How Children Are, and Should Be, Questioned about Repeated Abuse’ (2006) 13(2) Psychiatry, Psychology and Law 251.

     ↑

118. Consultation 85 (Roundtable on the experience of children and young people).

     ↑

119. Submissions 14 (Gatehouse Centre, Royal Children’s Hospital), 17 (Sexual Assault Services Victoria).

     ↑

120. Ibid.

     ↑

121. Submission 43 (Ffyona Livingstone Clark, PhD researcher and barrister).

     ↑

122. Submission 10 (Carolyn Worth AM and Mary Lancaster).

     ↑

123. New South Wales Ombudsman, The JIRT Partnership—20 Years On (Report, August 2017) 351 <https://www.ombo.nsw.gov.au/news-and-publications/publications/reports/child-protection/the-jirt-partnership-20-years-on>.

     ↑

124. Consultation 70 (Victoria Police (No 1)).

     ↑

125. Royal Commission into Institutional Responses to Child Sexual Abuse: Criminal Justice Report (Executive Summary and Parts I-II, 2017) 459.

     ↑

126. Victorian Government, Annual Report 2020—Royal Commission into Institutional Responses to Child Sexual Abuse (Report, December 2020) 21 <https://content.vic.gov.au/sites/default/files/2020-12/RCIIR%20to%20Child%20Sexual%20Abuse%20Annual%20Report20.pdf>.

     ↑

127. Ibid.

     ↑

128. Victorian Government, ‘Victoria Police Establish a Family Violence Centre of Learning’, VIC.GOV.AU (Web Page, 18 May 2020) <http://www.vic.gov.au/family-violence-recommendations/victoria-police-establish-family-violence-centre-learning>.

     ↑

129. Consultation 93 (Victoria Police (No 4)).

     ↑

130. Patrick Tidmarsh, ‘Training Sexual Crime Investigators to Get the “Whole Story”’ (PhD Thesis, Deakin University, 2016) chs 5–6 <http://dro.deakin.edu.au/eserv/DU:30102808/tidmarsh-training-2017.pdf>.

     ↑

131. Submission 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton); Consultation 70 (Victoria Police (No 1)). See also Patrick Tidmarsh, ‘Training Sexual Crime Investigators to Get the “Whole Story”’ (PhD Thesis, Deakin University, 2016) chs 10–11 <http://dro.deakin.edu.au/eserv/DU:30102808/tidmarsh-training-2017.pdf>.

     ↑

132. Submission 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton).

     ↑

133. Victorian Law Reform Commission, Committals (Report No 41, March 2020) Recommendation 19.

     ↑

134. Victoria Police, Policing Harm, Upholding the Right: Victoria Police Strategy for Family Violence, Sexual Offences and Child Abuse 2018-2023 (Policy, 2017) 24 <https://www.police.vic.gov.au/sites/default/files/2019-03/Policing-Harm-Upholding-The-Right.pdf>.

     ↑

135. Consultation 71 (Magistrates’ Court of Victoria (No 1)).

     ↑

136. Consultation 63 (A victim survivor of sexual assault, name withheld).

     ↑

137. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

     ↑

138. Submission 62 (Shine Lawyers (on behalf of Ms Kim Elzaibak)).

     ↑

139. Consultation 32 (Anonymous member, Victim Survivors’ Advisory Council).

     ↑

140. Submission 17 (Sexual Assault Services Victoria).

     ↑

141. Ibid.

     ↑

142. Ibid.

     ↑

143. See, eg, Submission 54 (Victorian Multicultural Commission).

     ↑

144. Submission 50 (Project Respect); Consultation 45 (Sex Work Law Reform Victoria).

     ↑

145. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

     ↑

146. Consultation 17 (Roundtable consultation focused on the experience of women with disability). See also Submission 41 (Office of the Public Advocate).

     ↑

147. Consultation 53 (Elizabeth Morgan House and a victim survivor of sexual assault).

     ↑

148. Consultation 65 (Commission for Children and Young People).

     ↑

149. Ibid. See also Consultation 85 (Roundtable on the experience of children and young people).

     ↑

150. Consultation 98 (Care Leavers Australasia Network).

     ↑

151. Submission 45 (Victims of Crime Commissioner).

     ↑

152. Submission 59 (County Court of Victoria).

     ↑

153. Submission 40 (Law Institute of Victoria).

     ↑

154. See generally Consultation 5 (Associate Professors Anastasia Powell and Asher Flynn).

     ↑

155. Consultation 7 (Associate Professor Nicola Henry).

     ↑

156. ‘Qualitative research has suggested that low awareness among police of the harms and illegality of IBSA [image-based sexual abuse] may contribute to “victim blaming and harm minimisation attitudes”’: Sentencing Advisory Council (Vic), Sentencing Image-Based Sexual Abuse Offences in Victoria (Report, 27 October 2020) 8 <https://www.sentencingcouncil.vic.gov.au/publications/sentencing-image-based-sexual-abuse-offences-in-victoria>.

     ↑

157. Consultation 70 (Victoria Police (No 1)).

     ↑

158. Consultation 71 (Magistrates’ Court of Victoria (No 1)).

     ↑

159. Ibid.

     ↑

160. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

     ↑

161. Submission 45 (Victims of Crime Commissioner).

     ↑

162. Consultation 80 (Victoria Police (No 2)).

     ↑

163. See the discussion in Submission 43 (Ffyona Livingstone Clark, PhD researcher and barrister).

     ↑

164. Victorian Law Reform Commission, Committals (Report No 41, March 2020) [8.6]–[8.10].

     ↑

165. Ibid [8.51]–[8.70], Recommendations 19–22.

     ↑

166. Rachel George and Sophie Ferguson, Review into the Criminal Justice System Response to Adult Rape and Serious Sexual Offences across England and Wales (Research Report, Home Office (UK).

     ↑

167. Ministry of Justice (UK), The End-to-End Rape Review Report on Findings and Actions (Consultation Paper No 437, June 2021) 43 <https://www.gov.uk/government/publications/end-to-end-rape-review-report-on-findings-and-actions>.

     ↑

168. Victorian Law Reform Commission, Sexual Offences: The Trial Process (Issues Paper E, October 2020) Question 1.

     ↑

169. Victorian Law Reform Commission, Committals (Report No 41, March 2020) Recommendations 19–23; Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) Recommendation 10.

     ↑

170. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [4.171], citing Submissions 8 (Mary Iliadis), 14 (Victims of Crime Commissioner, Victoria), 31 (Professor Jonathan Doak, Nottingham Trent University); Consultation 30 (Dr Tyrone Kirchengast, University of New South Wales).

     ↑

171. R v Killick [2011] EWCA Crim 1608. It also gave effect to a European Union directive requiring member states to have a mechanism in place that allows victims to seek review of a decision not to prosecute: Parliament and Council Directive EU/2012/29 of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision JHA/2001/220 [2012] OJ L 315/57, art 11.

     ↑

172. Ministry of Justice (UK), Code of Practice for Victims of Crime in England and Wales (Code of Practice, November 2020) [6.10]–[6.11] <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/974376/victims-code-2020.pdf>.

     ↑

173. Crown Prosecution Service (UK), Victims’ Right to Review (Legal Guidance, 27 May 2021) [18] <https://www.cps.gov.uk/legal-guidance/victims-right-review-scheme>.

     ↑

174. Ibid [26]–[30].

     ↑

175. Ibid [36]–[37].

     ↑

176. Association of Chief Police Officers, National Policing Guidelines on Police Victim Right to Review (Guidelines, February 2017) [4.2]–[4.3], [6.2]–[6.3] <http://www.operationresolve.co.uk/media/1370/np_guidance_on_police_victim_right_to_review_feb_2.pdf>.

     ↑

177. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [4.181], citing Submission 8 (Mary Iliadis).

     ↑

178. Mary Iliadis and Asher Flynn, ‘Providing a Check on Prosecutorial Decision-Making: An Analysis of the Victims’ Right to Review Reform’ (2018) 58(3) British Journal of Criminology 550.

     ↑

179. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 73–74 [4.182]–[4.189].

     ↑

180. Ibid Recommendation 10.

     ↑

181. Ibid 76 [4.201]–[4.205]. As we noted in that report, this is already within the Auditor-General’s mandate.

     ↑

182. Ibid 76 [4.207].

     ↑

183. Ibid 74–76 [4.191]–[4.200].

     ↑

184. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice—DPP Complaints and Oversight Mechanisms (Public Hearing, 29 April 2016) <https://www.childabuseroyalcommission.gov.au/sites/default/files/roundtable_transcript_cj_dpp_complaints_and_oversight_mechanisms.pdf>.

     ↑

185. Ibid 74–80, 89–94, 101, 116–17, 121.

     ↑

186. Royal Commission into Institutional Responses to Child Sexual Abuse: Criminal Justice Report (Parts III to VI, 2017) Recommendation 41.

     ↑

187. Ibid 406.

     ↑

188. Ibid 406–7.

     ↑

189. Director of Public Prosecutions (Vic), Discontinuance Review Framework (Policy, Office of Public Prosecutions Victoria, September 2018) <https://www.opp.vic.gov.au/Home/Resources/Discontinuance-Review-Framework>. Decisions to discontinue all charges against an accused who has died are reviewed by the Director of Public Prosecutions, and complainants’ views must be sought unless the complainant has indicated that they do not want to be contacted or cannot be contacted after reasonable attempts.

     ↑

190. Ibid. Cases that involve a death are subject to a different review process.

     ↑

191. Consultation 94 (Office of Public Prosecutions (No 2)).

     ↑

192. Aneeka Simonis, ‘Sexual Assault Perpetrators Put on Notice with Dramatic Police Reforms’, Herald Sun (online, 12 June 2021) <https://www.heraldsun.com.au/news/victoria/sexual-assault-perpetrators-put-on-notice-with-dramatic-police-reforms/news-story/0384f092dc2ff83a9d10fe3239114e2a>.

     ↑

193. Ibid.

     ↑

194. Submission 26 (Northern CASA).

     ↑

195. Submission 32 (A victim survivor of sexual assault (name withheld)).

     ↑

196. Consultation 59 (Ashleigh Rae, Nicole Lee, Penny).

     ↑

197. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Summary of Responses to Online Feedback Form from People with Experience of Sexual Assault (Report, April 2021).

     ↑

198. Consultation 99 (Alison, the mother of a rape survivor).

     ↑

199. Consultation 93 (Victoria Police (No 4)).

     ↑

200. Ibid.

     ↑

201. Consultation 94 (Office of Public Prosecutions (No 2)).

     ↑

202. Ibid.

     ↑

203. Submission 45 (Victims of Crime Commissioner).

     ↑

204. Ibid.

     ↑

205. Submission 2 (Dr Kerstin Braun).

     ↑

206. HM Crown Prosecution Service Inspectorate (UK), 2019 Rape Inspection: A Thematic Review of Rape Cases (HCMPSI Publication No CP001:1627, 17 December 2019) <https://www.justiceinspectorates.gov.uk/hmcpsi/inspections/rape-inspection-on-report-december-2019/>.

     ↑

207. ‘Who Do We Audit?’, Victorian Auditor-General’s Office (Web Page, 2021) <https://www.audit.vic.gov.au/who-do-we-audit>. For examples of its audits on police and prosecution processes, see, eg, Victorian Auditor-General’s Office, Managing Registered Sex Offenders (Independent Assurance Report No 1, 28 August 2019) <https://audit.vic.gov.au/report/managing-registered-sex-offenders>; Victorian Auditor-General’s Office, Crime Data (Independent Assurance Report No 6, 5 September 2018) <https://www.audit.vic.gov.au/report/crime-data>; Victorian Auditor-General’s Office, Asset Confiscation Scheme (Report, September 2013) <https://www.audit.vic.gov.au/report/asset-confiscation-scheme>.

     ↑

208. Mary Iliadis and Asher Flynn, ‘Providing a Check on Prosecutorial Decision-Making: An Analysis of the Victims’ Right to Review Reform’ (2018) 58(3) British Journal of Criminology 550.

     ↑

209. Ibid.

     ↑

210. Women’s Law Project, Advocacy to Improve Police Response to Sex Crimes (Policy Brief, February 2013) 8–9
     
     <https://womenslawproject.org/wp-content/uploads/2017/02/Policy_Brief_Improving_Police_Response_to_Sexual_Assault.pdf>.

     ↑

211. Tina Rosenberg, ‘Rape Victim Advocates Get a Role Alongside the Police’, The New York Times (online, 27 June 2018) <https://www.nytimes.com/2018/06/27/opinion/rape-victim-advocates.html>.

     ↑

212. Gary Ennett, ‘London Police to Pilot “Philadelphia Model” for Reviewing Sexual Assault Investigations’, CBC News (online, 12 December 2017) <https://www.cbc.ca/news/canada/london/london-police-pilot-philadelphia-model-sexual-assault-cases-1.4442900>; Joe Pavia, ‘What Is the “Philadelphia Model” Used to Review Sex Assaults?’, CBC (online, 23 April 2017) <https://www.cbc.ca/news/canada/kitchener-waterloo/unfounded-sex-assaults-waterloo-task-force-carol-tracy-philadelphia-1.4080309>; Women and Gender Equality Canada, ‘New Funding Aims to Improve Tracking and Reporting of Sexual Assaults in Ontario’ (Media Release, 5 December 2017) <https://www.canada.ca/en/women-gender-equality/news/2017/12/new_funding_aimstoimprovetrackingandreportingofsexualassaultsino.html>.

     ↑