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

18. Specialisation and sexual offence trials

Overview

• Sexual offences are a complex area of legal work. To handle these matters well, everyone working in the criminal justice system needs to understand the nature of sexual offending and trauma, and the diverse contexts and experiences of sexual violence. They also need to understand complex laws and procedures.

• There has been progress in improving this understanding. But there is room to strengthen this further through a specialised approach to sexual offences in the criminal justice system.

• This specialised approach should build on the elements that have worked to improve responses in specialist sexual offence courts. It should include strengthened education and training.

• It should include specialist accreditation for lawyers appearing in courts. Fees also need to be increased so that this complex work attracts more skilled lawyers.

• It should include requiring specialist training for judicial officers.

Why specialisation?

18.1 Sexual violence is complex, and so are the ways the justice system responds to it. People who respond to sexual violence need to understand the nature and dynamics of sexual violence. They need to understand how to interact with people who have experienced trauma, and how to reduce the risk of traumatising them further.

18.2 Not everyone working in the criminal justice system knows how to do this kind of work well. The knowledge, skills and attitudes needed are not built into legal education and training.

18.3 This area of criminal law is complex. Some procedures, rules of evidence and jury directions are unique to sexual offence cases. They have changed over the years, which can make it difficult to keep up. Along with the risks that come with interacting with people who have experienced trauma, this makes sexual offences a complex and sensitive area of practice.

18.4 A key theme in reforms has therefore been to require people who respond to sexual offences to have some specialised knowledge.^[1] For example, our 2004 report on sexual offences led to a more specialised approach by police and in courts.^[2] Training and guidance were developed for police, lawyers and judicial officers to counter misconceptions about sexual harm.^[3] Our 2016 report on the role of victims of crime took this work further. In it we made recommendations to support cultural change in the treatment of victims.^[4]

18.5 A key benefit of specialisation is that the people who work regularly in an area will be more skilled in it. Specialisation can also support legal and practice reforms, such as training. The success of reforms hinges on putting what is on the books into practice by shifting attitudes and the understanding of people on the ground in the criminal justice system.^[5]

18.6 Past reforms, including education and training, have helped support cultural change—the process of changing attitudes and practices.^[6] Survey results have suggested victims are becoming more satisfied with their experience of the trial in recent years.^[7] Some specific examples of cultural change over the years include:

• a shared understanding that sexual offences is a specialised and complex area of law

• an acceptance of the ‘interventionist role’ of judicial officers in sexual offence cases

• an acceptance of alternative means of giving evidence, such as the use of remote witness facilities (see Chapter 21)

• some improvements in cross-examination practices

• better recognition of victim survivors in the process—for example, through routine use of victim impact statements

• understanding and acceptance of children as effective witnesses.^[8]

18.7 In this inquiry we heard that, following past reforms, there was more awareness of misconceptions about sexual violence and a shift in the style of cross-examination.^[9] Judges make efforts to create a respectful courtroom environment and intervene when there is improper questioning of complainants. People who work in the criminal justice system have also accepted the use of intermediaries for communication difficulties. We discuss these changes in Chapters 15 and 21.

18.8 While there has been a positive shift, it is not yet consistent across the criminal justice system. Good practice remains ‘hit or miss’.^[10] For example, problematic cross-examination still features in trials, and prosecution counsel or judicial officers do not intervene as much as they could (Chapter 21). Reforms such as the communicative model of consent do not feature much in sexual offence trials (Chapter 14). Many education and training initiatives introduced since our 2004 review have fallen away.

18.9 Changing culture is an ongoing process, and we should persist. In this chapter we put forward reforms that aim to create a highly specialised criminal justice workforce, made up of people who are skilled in sexual offence law and procedure and are trauma-informed.

Does Victoria need a specialist sex offences court?

What are specialist courts?

18.10 Specialist sexual offence courts exist elsewhere, for example South Africa and in New York. New Zealand piloted a specialist sexual violence court in 2016 (see box).^[11] A review in Scotland has recently recommended such a court.^[12]

18.11 A specialist court deals only with sexual offences and has its own rules and procedures. A specialist court could be staffed by trained judges, legal practitioners and others providing support.^[13]

18.12 In our 2004 inquiry, we considered but did not recommend a specialist sexual offence court. Instead, we recommended specialist lists within the Magistrates’ Court of Victoria and County Court of Victoria.^[14]

Specialist courts: support and concerns

18.13 In our issues paper, we asked about support for a specialist court for sexual offences and what features it should have. We noted the New Zealand model.^[21] More recently, the Australian Government has announced a national initiative, including states and territories, that will consider specialist sexual offence courts.^[22]

There was support for a specialist court

18.14 Most of the submissions which responded to this question supported a specialist sexual offence court.^[23]

18.15 The most important reason that people supported this model was the value of more specialised training about sexual violence.^[25] Other reasons included that it would improve:

• the way complainants were treated

• case management, reducing delay

• the timing of guilty pleas

• the design and facilities of courtrooms

• the consistency of decision making

• support for staff and complainants.^[26]

18.16 Victoria Legal Aid (VLA) supported piloting a specialist sexual offence court. It told us of the value it had seen in specialist and ‘problem-solving’ courts in the criminal justice system, such as the Drug Court and specialist family violence courts established following family violence reforms. These family violence courts are a Division of the Magistrates’ Court of Victoria.^[27]

18.17 Although VLA supported a specialist court, it also warned of the risk that a new specialist sexual offence court could cause ‘postcode inequalities’.^[28] VLA also supported introducing a sexual offence list within the specialist family violence courts to ensure that sexual offending could be responded to ‘through a family violence lens’.^[29]

Some preferred a specialised response rather than a court

18.18 Others, including the courts, the Office of Public Prosecutions (OPP) and the Criminal Bar Association, supported improving the specialisation within sexual offence lists in courts.^[30]

18.19 The OPP submitted that in any given week approximately 60 per cent of trials in the County Court of Victoria involve sexual offences.^[31] Data provided by the County Court of Victoria shows that sexual offence trials made up approximately half of the court’s criminal trial work.^[32] The County Court of Victoria told us it:

opposes the creation of a specialist sexual offence court per se. This is because the issue of judicial burnout looms large and it is important that the workload of sexual offence matters is shared amongst all judges. This is particularly important in a jurisdiction like the County Court, where sexual offence matters make up the bulk of trial work.^[33]

18.20 The court supported ‘continual and intensive’ training of judicial officers and recognised that ‘regular training of judges can assist in ensuring consistent and tailored support for complainants, while maintaining procedural fairness for accused’. The court told us that this training should include the judges of the Victorian Court of Appeal as those judges often sit on appeals of trials from the County Court of Victoria that involved the trial judge’s exercise of discretion in sexual offence trials.^[34]

18.21 The Magistrates’ Court of Victoria did not support a ‘stand-alone sexual offences court’. It expressed concern that:

creating a new court would require significant funding that may divert resources from the many other services that the Court provides. Establishing a stand-alone court that hears and determines all sexual offences could also result in complainants, witnesses and accused in regional areas being dislocated from their supports and services if their cases are not heard in their local region.^[35]

18.22 It pointed out that an accused person would often be charged with non-sexual offences as well. If there was a separate court, these offences may need to be severed from sexual offences, which would be inefficient and unfair to the accused.^[36]

18.23 Like the County Court of Victoria, the Magistrates’ Court of Victoria supported a specialised response. This included effective case management and ‘regular, comprehensive’ training.^[37]

18.24 The Magistrates’ Court of Victoria also did not support expanding the role of its Specialised Family Violence Division to include sexual offences. It told us that these courts already faced backlogs and any expansion would increase delays. It told us that in three out of five of the Division’s venues, cases involving indictable offences were not being heard and that ‘no committal proceedings could be heard if the [Division’s] remit was widened.’ Further, as many sexual offence cases do not involve family violence, including such cases would undermine the purpose and effectiveness of the Division.^[38]

18.25 The Magistrates’ Court of Victoria also observed that, where there is an overlap between family violence intervention orders and sexual offences:

• Its processes already link the two cases so that they are heard together, with the same magistrate hearing both criminal and civil matters when these are contested.

• Complainants in those cases have access to the same supports.

• Complainants in those cases can benefit from the improvements in safety in courtroom design.^[39]

18.26 The OPP did not support specialist courts. It told us the judicial officers in sexual offence lists were already specialised and that, given the volume of sexual offence cases in the County Court of Victoria, ‘in many respects it was already a specialist court’.^[40]

18.27 The OPP did, however, support regular and ongoing specialist training. It told us:

If there is a perception that outdated thinking still persists in this space, be they held by the judiciary, their support staff or legal practitioners more broadly, then in our view specialist training would be a more effective and efficient way to tackle this issue than specialist courts.^[41]

18.28 The Criminal Bar Association did not support a stand-alone court and told us that there was already a high degree of specialisation. It also expressed concern about separating other charges connected to the sexual offence matters.^[42]

Specialist courts have challenges

18.29 Some people we heard from, including those who supported specialised sexual offence courts, identified the risks of a specialised court, including the risk of ‘burn out’ or vicarious trauma.^[43] The Criminal Bar Association explained:

Sex offence work is confronting. Although specialisation does not need to be an ‘all in’ proposition, a specialist court may have issues both in attracting judges and advocates, as well as retaining them.^[44]

18.30 Judges from the New Zealand pilot court told us:

It’s important that any judicial officer have a variety of different types of work. There would be burn out if judges were required to do sexual assault cases day after day. This is why you should not have a stand alone sexual violence court.^[45]

18.31 We heard other concerns that there might be fewer judicial officers available to hear cases, and the risk of regional disadvantage.^[46]

What did people tell us about the Koori Court?

18.32 We received feedback on whether the Koori Court should hear sexual offences.^[47] The Koori Court is for Aboriginal and Torres Strait Islander people who have taken responsibility and pleaded guilty to a criminal offence. It is run more informally and reflects cultural issues. People can choose to have their case heard in the Koori Court.^[48]

18.33 Neither Djirra nor the Aboriginal Justice Caucus supported the Koori Court hearing sexual offences. They expressed concerns that this would risk the privacy of a complainant if Aboriginal community members were involved, and it could also place pressure on the complainant to accept a lesser outcome. Djirra also warned of the danger that ‘so called “cultural arguments” about violence may excuse violence against women’.^[49]

We should strengthen the specialised response—but we do not need a court

18.34 Many of the benefits of a specialised court can be achieved without the great disruption and costs that would be caused by creating a stand-alone court. We recognise that a stand-alone court would be especially disruptive for the County Court of Victoria, since it would need to carve out a sizeable portion of its criminal work into a separate court.^[50] It would also be less flexible than a specialist list, which can more readily deal with issues of burn-out.

18.35 It would be difficult to fund and roll out a specialist court in an accessible way across Victoria. This is already challenging enough for family violence courts. It would be even more challenging for sexual offence cases heard in the County Court of Victoria, which does not sit permanently in regional areas. This would lead to ‘postcode injustice’.

18.36 We are also persuaded by the reasons given by the Magistrates’ Court of Victoria that expanding specialist family violence courts to sexual offences would not be practical or needed.

18.37 The benefits of a specialist court do not come from its status as a separate court, as the New Zealand example shows. They come from improved case management and processes, and quality training. The benefits can be achieved by strengthening these elements, without a specialist court.

18.38 The Magistrates’ Court of Victoria explained that ‘rigorous case management’ allows cases to resolve earlier through guilty pleas.^[51] The County Court of Victoria operates an Emergency Case Management Model which reduces delays and increases efficiency.^[52] We made recommendations for improving case management in our recent report on committals.^[53]

18.39 The rest of this chapter discusses how to strengthen these elements within existing specialist lists. We discuss supports for complainants and courtroom design in Chapter 21 and reforms to address delay in Chapter 19.

We should strengthen specialisation through education and training

18.40 Law reform must be accompanied by cultural change. If not, there may be an ‘implementation gap’ between the reforms as they are written and what happens in practice.^[54] Cultural change requires education of everyone working in the criminal justice system.^[55]

18.41 We heard strong support in this inquiry for improving education and training throughout the criminal justice system for responding to sexual offences.^[56] For example, the County Court of Victoria submitted:

The criminal justice system has over recent decades matured in its understanding of sexual harm and attitudes towards complainants in sexual offending matters. There is of course always a need to continually improve the understanding of such matters. Continual and expanded training and education around sexual harm can assist with this, not only for those within the legal profession, but also the broader community.^[57]

18.42 We recommend strengthening training and education by:

• identifying the topics and key principles for a training program

• encouraging lawyers and requiring judicial officers to complete this program and other training.

What do people need more training about?

A trauma-informed approach should be embedded in the criminal justice system

18.43 There was strong support for everyone in the criminal justice system, including police (see Chapter 17), to be trained in trauma-informed practices.^[58] These approaches understand and respond to the psychological and social effects of trauma, including on memory and cognition.

18.44 Trauma-informed approaches in the criminal justice system have benefits such as:

• reducing further trauma for complainants

• building complainants’ trust in the system

• better awareness and responses among those dealing with complainants in the criminal justice system

• empowering complainants to participate in the system.^[59]

18.45 The Victims of Crime Commissioner told us:

Trauma-informed responses are key to reducing the risk of secondary victimisation by the criminal justice system … While there are some aspects of the adversarial criminal justice system that, by their very nature, will not be victim-centred, even laws and processes that advance the interests of the state and the rights of the accused should be reviewed with a trauma-informed lens.^[63]

18.46 The Victims of Crime Commissioner further submitted that trauma-informed law, policy and practice involve:

• realising the impact and recognising the signs of trauma

• actively seeking to reduce re-traumatisation

• emphasising physical, psychological and emotional safety for complainants

• providing complainants with voice and choice, including different ways to engage to minimise harm

• creating opportunities for complainants to rebuild a sense of control and empowerment

• recognising that trauma may impact complainants’ engagement with the process

• being responsive to complainants’ diversity

• promoting trust and transparency in process and decision making.^[64]

18.47 Specialist children’s services told us that there needed to be more training and education about children’s development and the impact of child sexual abuse.^[65]

18.48 Some people told us that there was a need to improve the understanding of the nature and prevalence of sexual violence. This includes within the context of family violence and intimate partner violence. It also includes the diverse experiences and contexts of sexual violence: among Aboriginal people, people from culturally and linguistically diverse backgrounds, people with disability, people who work in the sex industry, and LGBTIQA+ people among others (see box and Chapter 2).^[66]

18.49 We were told that there was a need to improve understanding about the communication needs of people with disability (see Chapter 15).^[68]

18.50 Other areas identified as topics for further training included:

• the types of people who commit sexual violence, and the dynamics of sexual offending^[69]

• barriers to disclosure, especially those faced by children and young people.^[70]

18.51 Education and training should be directed at these topics. Even though this chapter focuses on lawyers and judicial officers, police should also be trained in these topics (see Chapter 17).

The Multi-Agency Risk Assessment and Management (MARAM) framework should be built upon

18.52 The Multi-Agency Risk Assessment and Management (MARAM) Framework is a good starting point for embedding a trauma-informed approach for everyone working in the criminal justice system. This framework is used by organisations and services to assess the risk of and respond to family violence (see Chapter 1).

18.53 Many principles of the MARAM framework address the training needs identified in this inquiry, such as understanding family violence, trauma and the need for culturally responsive and safe responses (see above).

18.54 Sexual violence is recognised as a high-risk factor within the framework, and practice guidance provides context around this.^[71] Family Safety Victoria, which has responsibility for implementing MARAM, told us that there was:

significant opportunity to improve the identification of sexual assault as a risk factor through implementation strategies including training and practice guidance.^[72]  

18.55 The MARAM Framework requires prescribed organisations to complete training, including police, sexual assault services and court staff. Training is tailored to the organisation and covers cultural awareness, trauma-informed practice and family violence training.^[73]

18.56 The MARAM framework is being rolled out progressively across services. Phase 2 began in April 2021, and includes most health and human services, including Commonwealth-funded programs for refugees and migrants.^[74]

18.57 Organisations that are not prescribed can still benefit from MARAM-aligned training. For example, the Department of Education and Training has partnered with the Centre for Workforce Excellence to deliver training in identifying and responding to family violence risk.^[75]

18.58 Lawyers are not included within the MARAM framework. Domestic Violence Victoria submitted that MARAM-aligned training for legal practitioners ‘will assist in embedding a shared understanding of family violence—including sexual assault that occurs in the context of family violence—across the justice system’. ^[76]

18.59 In the latest rolling action plan on family violence, the Victorian Government has committed to working with legal services to deliver MARAM-aligned training. As well, all Australian Attorneys-General will embed family violence competency into Continuing Professional Development (CPD) frameworks for lawyers across Australia.^[77] CPD frameworks are discussed later in this chapter.

18.60 The MARAM Framework provides a solid foundation for ensuring safe and consistent responses to sexual violence, as well as family violence. The framework already covers sexual violence, but we agree with Family Safety Victoria that there is a significant opportunity to strengthen training and guidance in relation to sexual violence. This will also lift the profile of sexual violence within family violence.

18.61 As we discuss in Chapter 2, some patterns of sexual violence are distinctive and will require separate treatment. Sexual violence does not always involve family violence and as such MARAM-aligned training alone will not be enough. We make recommendations later in this chapter for specialisation and training on sexual violence for everyone working in the criminal justice system. However, for sexual violence in a family violence context, we see no reason training on these dynamics cannot be delivered as part of, or alongside, MARAM-aligned training.

18.62 The move to include MARAM-aligned training within legal professional development frameworks makes this an ideal time to strengthen MARAM-aligned training and guidance for sexual violence. This will ensure appropriate and tailored training is delivered to all lawyers practising in areas of sexual offences and family violence. This extends to solicitors, not just counsel appearing in sexual offence cases.

18.63 We recommend that legal professional bodies should encourage and promote MARAM-aligned training for their members.

18.64 The MARAM framework could assist others outside the criminal justice system who come into contact with victim survivors—for example, disability workers—who do not always know how to identify sexual violence.^[78] In Chapter 3 we note opportunities for the MARAM framework to be used for health professionals. In Chapter 8 we suggest its use as part of the training and upskilling of community organisations in sexual violence. In Chapter 17 we discuss how the MARAM framework applies to police.

Getting the best evidence and respecting victim survivors should be a focus

18.65 While MARAM-aligned training should address some foundational knowledge, people also need training in knowledge and skills specific to the trial context.

18.66 There is a need for more training and education on how to communicate effectively with children and young people. The Child Witness Service explained that the language used by lawyers was often too difficult and needed to be explained by support workers.^[79]

18.67 We also heard there was a need for training and education about ‘victim-centric’ practices.^[80] These include the use of alternative arrangements for giving evidence (see below), how to cross-examine and use intermediaries, and how to intervene to protect complainants from improper questioning (see Chapter 21).^[81] As we discuss in Chapter 21, both judicial officers and prosecutors may need training to intervene in or object to questionable cross-examination.

18.68 Sexual Assault Services Victoria and experts also proposed training and education on how to identify and counter misconceptions about sexual violence that play out directly or indirectly in trials (see Chapter 20 and 21).^[82] The OPP suggested training on emerging issues and research related to sexual offences and the law.^[83]

18.69 These skills will assist in getting the best evidence from complainants and putting into practice the aims of the law, such as:

• protecting complainants from re-traumatisation

• stopping improper questioning

• countering misconceptions about sexual violence.^[84]

18.70 Other suggestions related to training for people involved in the Therapeutic Treatment Order (TTO) system. Training was suggested for lawyers, Child Protection and police prosecutors to ensure everyone understood its aims and operation.^[85] We discuss the TTO system in Chapter 8.

18.71 Throughout this report we have recommended a range of reforms to improve justice responses to sexual offences. If the government accepts our recommendations, there must also be education and training to accompany the reforms. For example, training on:

• having the ‘options talk’ (see Chapter 17) and referrals to other justice options like restorative justice (see Chapter 9)

• the role of victim advocates (see Chapter 12)

• the content and procedure for jury directions (see Chapter 20)

• greater use of integrated jury directions and other decision-making aids for jurors (see Chapter 20)

• the use of a panel to source experts who can give evidence, and the use of expert evidence (see Chapter 20)

• having a discussion about cross-examination and other measures to ensure complainants are respected (see Chapter 21).

Training should be collaborative and regular

18.72 Training in the criminal justice system is delivered within organisations and through a range of bodies, including through continuing professional development (see below). Legal professional bodies and the Judicial College of Victoria also play a role.

18.73 While we do not prescribe how such training should be delivered, we have identified some best practice principles for strengthening training and education. These include:

• the value of cross-agency and cross-jurisdictional training^[86]

• the value of including lived experience (see box)

• including the expertise of counsellor advocates and social workers^[87]

• the need for regular training that addresses emerging issues and captures new lessons.^[88]

18.74 An evaluation of New Zealand’s Sexual Violence Court Pilot observed that:

well-designed, motivational training, regular opportunities to re-energise (such as through refresher training and regular stakeholder meetings) and regular communications of performance statistics will be important to maintaining momentum.^[90]

18.75 We also support educational content designed in a way that is available on-demand and accessible through the use of technology.

18.76 These principles should apply to the recommendation at the end of this chapter.

How do we entrench education and training for lawyers and judicial officers?

We should learn from past reforms

18.77 Our 2004 inquiry into sexual offences also dealt with the need for strengthening education and training.^[91] While these recommendations led to several key reforms, these efforts have stalled.

18.78 For example, the Sexual Offences Interactive Legal Education Program was a pilot program of professional development and training for lawyers, led by the OPP and funded by the Legal Services Board. The Program was strongly supported and evaluated positively.^[92] It included:

• an online module covering sexual offences, evidence, procedural and sentencing perspectives, information about victim survivors, the accused and conferencing

• four interactive workshops on advocacy

• confidential peer review after a sexual offence trial.^[93]

18.79 When the program’s funding was exhausted it was stopped.^[94] The program is no longer active. A Charter of Advocacy for sexual assault cases was developed but is no longer in use.^[95] The Charter was a guide for prosecution and defence lawyers about good conduct in sexual offence proceedings, and it recognised the challenges faced by victim survivors when giving evidence in court.^[96] Training opportunities now seem to be based on demand or in response to reform.^[97]

18.80 In our recent inquiry about improving the treatment of victims of crime, we made several recommendations addressing education and training (see box).

18.81 The waning of these efforts confirms the need to entrench education and training:

There is no requirement for … legal actors to have up-to-date knowledge of the legislation or its interpretation, as incorrect understandings are corrected in the trial process. Indeed, there is no sanction for practitioners who display a lack of current knowledge. Inconsistent and ad hoc measures to educate legal practitioners about changes to legislation increase the likelihood that practitioners are not up-to-date with the legislation. In relation to education concerning specific reforms, current processes tend to be ‘one-off’ and largely informal.^[99]

18.82 We recommend therefore that funding for this training should be ongoing and the take-up of training should be reported annually by agencies involved.

Lawyers should have ongoing specialised training

Training lawyers has value

18.83 The New Zealand Law Commission explains the importance of training lawyers who appear in court (counsel) in cases involving sexual offences:

Non-specialist defence counsel are likely to be unaware of the best cross-examination techniques to thoroughly test the evidence, but in a way that is least likely to cause harm or distress to a complainant witness. Specialisation may also be beneficial on the prosecution side; for example, prosecutors in sexual violence cases may need to be particularly alive to the forms of cross-examination that are inappropriate …^[100]

18.84 Judges from New Zealand’s Sexual Violence Court Pilot explained that educating lawyers had been a key part of the pilot, and that even lawyers who resisted it found it helpful.^[101] In Scotland, a review has recommended trauma-informed training for lawyers appearing in cases involving children, and suggested training-based accreditation to work on cases funded by legal aid.^[102]

How are lawyers trained now?

18.85 The OPP’s Specialist Sex Offences Unit prosecutes sexual offences.^[108] The OPP told us that there are a number of specialist in-house lawyers ‘who routinely conduct this work and focus on the most complex sexual offence prosecutions’.^[109] Crown Prosecutors^[110] or external counsel (the ‘private bar’) appear in court as prosecution counsel. Office-wide training in understanding trauma and working with people experiencing sexual violence is often conducted by social workers from the Witness Assistance Service and Child Witness Service.^[111]

18.86 The OPP also told us that it ‘provides extensive training to staff in relation to criminal law and evidence generally. Sexual offences forms part of that training. There is also extensive training in relation to victim engagement.’ A Victims Training Committee identifies areas for skill development in victim engagement.^[112] (We discuss police prosecutors in Chapter 17.)

18.87 However, external counsel do not receive training. Cecilia, a victim survivor, told us that her experience with prosecution counsel had been ‘very negative’, and that her prosecution counsel was not trained in sexual offences, but in gangland crime.^[113]

18.88 Lawyers (including defence and prosecution counsel) must complete 10 continuing professional development (CPD) activities annually to hold a certificate to practise law each year.^[114] Counsel must complete at least one CPD activity every year in each of the following areas:

• law, practice and procedure

• advocacy skills

• ethics and professional responsibility

• management and business skills.^[115]

18.89 The Victorian Bar accredits counsel specialising in criminal law through the Indictable Crime Certificate (ICC), which must be renewed every three years. The scheme was developed to ensure that cases which receive legal aid are run by appropriately skilled counsel, based on recommendations we made in 2009.^[116] Certification is based on education, professional experience and assessment components. It covers criminal law generally.

18.90 In most cases the, OPP hires (‘briefs’) external counsel to appear in court.^[117] This is also true of Victoria Legal Aid (VLA), which represents accused people who cannot afford a private lawyer.^[118]

18.91 The OPP matches counsel’s expertise to the complexity of cases. There is a pool of approximately 250 barristers.^[119]

18.92 Counsel who are briefed by VLA’s in-house practice or panel law firms to appear in legally aided cases must be on VLA’s Criminal Trial Preferred Barrister List.^[120] Counsel on this list have different levels of experience and expertise.^[121] There is an application process and requirements to be placed on this list, which includes holding an ICC.

18.93 VLA used to have a ‘specialist sex offences team’ but this has been absorbed into its general team for indictable crimes ‘because of the concern about staff wellbeing of undertaking only sexual offences work.’^[122]

18.94 Most lawyers who appear in sexual offence cases are from the private bar.

Should training be compulsory for lawyers?

18.95 We heard widespread support for strengthening training. The more difficult question was whether this should be required, rather than voluntary. We heard widespread support for requiring lawyers to be trained and accredited before appearing in court in a sexual offence case.^[123]

18.96 The County Court of Victoria suggested that it may be reasonable to expect accreditation because of the complexity of sexual offences.^[124] Requiring training through accreditation could help improve the quality of counsel.^[125]

18.97 However, there may be risks to this approach. For example, it could reduce the availability of counsel,^[126] which would especially affect regional areas.^[127] We also heard that many criminal barristers prefer not to work only on cases involving sexual offences because of the risks to their wellbeing. ^[128]

18.98 The Criminal Bar Association (CBA) observed that adding to existing requirements for education would affect junior counsel, who earned less while completing training, and it would be unfair if barristers in civil law were not subject to similar requirements.^[129]

18.99 The Magistrates’ Court of Victoria supported increased training for lawyers but expressed concerns about making it mandatory. It argued that mandatory training may result in only a select number of willing counsel doing sexual offence work, and that directing counsel to complete training is less likely to be effective.^[130]

18.100 The OPP stated that, if training was required, it would need to be accessible so that people remained willing to work in this area.^[131]

18.101 The County Court of Victoria suggested that accreditation for sexual offence work could be achieved for counsel by incorporating training on sexual violence in the Indictable Crime Certificate (ICC) scheme.^[132] It also stated that it would be preferable for counsel who do not undertake the ICC to also undergo accreditation.^[133] But VLA told us that adding requirements for accreditation could cause ‘certificate fatigue’.^[134]

18.102 We previously recommended victim-related professional development training through the CPD scheme for lawyers within the first three years of practice (see box). A similar approach has been suggested by the Victorian Legal Services Board.^[135]

18.103 The CBA stated that junior counsel are usually briefed in legally aided cases for sexual offences because VLA fees are not high enough to attract more senior counsel.^[136] The CBA explained that funding for preparation is low. It stated:

The fundamental issue is one of funding … [sexual offence matters] are often slim briefs, but very dense, and to do them properly requires preparation … For County Court trials, there is a flat fee structure. They don’t have senior counsel in those cases, yet these are cases where people are being sentenced for longer terms.^[137]

18.104 VLA fees could be increased. VLA told us that this would appropriately signal the importance and complexity of working in sexual offences.^[138] This concern has also been recognised in reviews.^[139] The OPP suggested that if defence counsel were to receive a fee loading to complete training then prosecution counsel should also have this fee loading to make it an even playing field.^[140]

We recommend encouraging training for lawyers and using fee incentives

18.105 We recognise that requiring training creates a risk of reducing the availability of counsel. However, if training is voluntary, there is a risk that only those already keen to adopt best practice will take part.

18.106 To balance these competing concerns, there should be an accreditation scheme for counsel appearing in sexual offence cases, with incentives to become accredited.

18.107 Accreditation should require completion of the training outlined earlier. It should be a separate specialist accreditation so that it is easily identifiable.

18.108 So that it does not limit the availability of counsel, especially in regional areas, there should be incentives for accreditation. This should involve:

• increasing fees for sexual offence cases for both prosecution and defence counsel

• only briefing prosecution and defence counsel (for legally aided matters) who hold this accreditation.

18.109 We made a similar recommendation in our report on jury directions in 2009 to increase fees for counsel because of the complexity of sexual offence trials.^[141] Increasing fees would promote higher quality work in sexual offence cases. In our Committals report we observed that briefing more experienced counsel would reduce delays and, therefore, reduce the costs of trials.^[142] Different fee structures already apply for legally aided work in the Supreme Court of Victoria to recognise the complexity of those matters.

18.110 As most counsel appearing in sexual offence matters are briefed by the OPP or are legally aided, limiting their briefs to accredited counsel will be a strong incentive. We recognise, however, that this will not be as strong an incentive for some counsel who work for clients privately.

18.111 For accreditation to achieve the objective of a highly skilled legal workforce, it is important that accreditation depends on counsel continuing to demonstrate their knowledge, skill and a trauma-informed approach.

18.112 We do not prescribe how to design or deliver this accreditation scheme. This will require further consultation with the legal profession, and should be decided by the OPP, VLA and relevant legal profession bodies.

Training judicial officers has value

How are judicial officers trained now?

18.113 In the County Court of Victoria, judges who sit in the Sexual Offences List are ‘necessarily experienced in sexual offence trials’ and become more effective and efficient as they engage with these issues.^[143] Internal education includes ‘Court of Appeal workshops’ and informal support from judicial colleagues on request. Newly appointed judges are also provided with training videos on ground rules hearings and special hearings developed by the Judicial College of Victoria.^[144] A Sexual Offences List User Group also meets to discuss relevant practices and procedures and reforms.^[145]

18.114 In the Magistrates’ Court of Victoria, magistrates build expertise by sitting in the Sexual Offences List. The court arranges regular in-house training on relevant laws, procedures, and court craft. It also arranges presentations from experts to improve understanding of the dynamics of sexual offending and risk.^[146] Recent training has covered topics such as ground rules hearings without an intermediary, and legislative reforms.^[147]

18.115 The Judicial College of Victoria is responsible for education and training of judicial officers, which it develops with judicial officers. Its publications and resources include content on sexual offences and guidance on the treatment of victims of crime in the courtroom.^[148] It offers programs on sexual offences based on need and demand, such as a recent webinar on intermediaries and a program on child sexual abuse.^[149]

Should training be compulsory for judicial officers?

18.116 The Magistrates’ Court of Victoria and some judges of the County Court of Victoria supported requiring specialised training for magistrates and judges.

18.117 The Magistrates’ Court of Victoria suggested a similar model to that used in the Specialist Family Violence Division of the Court. A magistrate must complete training before they can sit in that Division. This could apply to the Sexual Offences List, or to hear criminal proceedings involving a sexual offence.^[156]

18.118 Some judges of the County Court of Victoria favoured requiring ongoing training for all judges on criminal lists, so that the work could be shared.^[157] Both courts agreed, however, that some magistrates and judges might use any requirements for training as a reason to avoid this challenging work.^[158]

18.119 The County Court of Victoria also told us that judges sitting on appeals from County Court trials would also benefit from further education and training on sexual violence, procedures and trauma-informed practices.^[159] The OPP also supported training of ‘all levels’ of the judiciary.^[160] Judges sitting on appeals do not have the same specialised training as those running trials.

18.120 The Victims of Crime Commissioner supported minimum training and experience requirements for judicial appointments.^[161] Domestic Violence and Rape Services Australia similarly suggested that in making judicial appointments, the government should consider relevant training and experience, as well as suitability as to character.^[162] Others suggested looking outside the traditional avenues of promotion to appoint more diverse judicial officers.^[163]

Training and the right qualifications should be required for judicial officers

18.121 We are persuaded by the County Court of Victoria and the experiences in other countries that training should be required for judicial officers. It is needed to bring about cultural change in courtroom practices and to ensure a respectful and safe environment for complainants.

18.122 This should apply to all judicial officers who hear criminal cases in the Magistrates’ Court of Victoria and the County Court of Victoria.

18.123 The head of each jurisdiction is able to direct all or some of its judicial officers to participate in a specified professional development or continuing education and training activities.^[164] This approach could be taken for judicial officers who sit on criminal cases, to ensure everyone is appropriately trained.

18.124 The availability of judicial officers would not be limited. By training all judicial officers who sit in crime, courts could still rotate judicial officers to reduce the risk of burn out.

18.125 We recognise that judges in the Victorian Court of Appeal do not have the same training needs as judges who run trials, as complainants are not usually present. However, appeal judges regularly review cases run by trial judges, and this creates risks of misconceptions that may then constrain specialised judges.

18.126 Appeal judges may not have run sexual offence trials before they were appointed. Those who have run sexual offence trials may have done so before many of the major reforms to sexual offence laws and procedures, including those aimed at recognising the impact of sexual violence on complainants. We consider it would be valuable for them to understand the complexities of these trials, such as directing juries or the use of trauma-informed practices. We recommend, therefore that appeal judges should be required to receive specialised training, although it does not need to be as extensive.

18.127 We also agree that the Attorney-General should be required to consider, when appointing new judicial officers, the suitability to hear sexual offence cases for the Magistrates’ Court of Victoria and especially the County Court of Victoria. A similar approach to appointments was recommended in the recent review of sexual harassment in courts.^[165]

1. See especially Patrick Parkinson, ‘Specialist Prosecution Units and Courts: A Review of the Literature’ (Research Paper No 16/26, The University of Sydney Law School, March 2016) 6–10 <https://papers.ssrn.com/abstract=2756305>.

   ↑

2. Victorian Law Reform Commission, Sexual Offences (Report No 5, July 2004) [2.95]–[2.96], [3.94]–[3.137], Recommendations 30, 50–58.

   ↑

3. See, eg, Legal Services Board and Office of Public Prosecutions (Victoria), A Guide to the Sexual Offences Interactive Legal Education Program: Professional Development Advancing Best Practice in Sexual Offence Cases (Report, 2012) <http://www.opp.vic.gov.au/getattachment/d4c4246a-56cf-44d7-9db6-0dfa085b8346/ilep-booklet-final.aspx>; 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>; Patrick Tidmarsh, Gemma Hamilton and Stefanie J Sharman, ‘Changing Police Officers’ Attitudes in Sexual Offense Cases: A 12-Month Follow-up Study’ (2020) 47(9) Criminal Justice and Behavior 1176, 1179.

   ↑

4. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) ch 4, Recommendations 3–14.

   ↑

5. Nicole Bluett-Boyd and Bianca Fileborn, Victim/Survivor-Focused Justice Responses and Reforms to Criminal Court Practice (Research Report No 27, Australian Institute of Family Studies (Cth), April 2014) 51 <https://aifs.gov.au/publications/victimsurvivor-focused-justice-responses-and-reforms-criminal-court-practice>.

   ↑

6. Success Works, Sexual Assault Reform Strategy (Final Evaluation Report, Department of Justice (Vic), January 2011) iii <https://trove.nla.gov.au/version/169811763>.

   ↑

7. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [4.2].

   ↑

8. Success Works, Sexual Assault Reform Strategy (Final Evaluation Report, Department of Justice (Vic), January 2011) iii <https://trove.nla.gov.au/version/169811763>.

   ↑

9. Submissions 1 (knowmore legal service), 47 (Criminal Bar Association). For a discussion of these misconceptions: see Australian Institute of Family Studies and Victoria Police, Challenging Misconceptions about Sexual Offending: Creating an Evidence‑based Resource for Police and Legal Practitioners (Report, 2017) <https://www.police.vic.gov.au/sites/default/files/2019-01/For-Internet–Challenging-Misconceptions-Report.pdf>.

   ↑

10. Submission 13 (Australian Association of Social Workers).

    ↑

11. Gravitas Research and Strategy Ltd, Evaluation of the Sexual Violence Court Pilot (Report, Ministry of Justice (NZ), June 2019) <https://www.districtcourts.govt.nz/reports-publications-and-statistics/publications/sexual-violence-court-pilot-evaluation-report/>.

    ↑

12. Lord Justice Clerk’s Review Group, Improving the Management of Sexual Offence Cases (Report, Scottish Courts and Tribunal Service, March 2021) 7 <https://www.scotcourts.gov.uk/docs/default-source/default-document-library/reports-and-data/Improving-the-management-of-Sexual-Offence-Cases.pdf?sfvrsn=6>.

    ↑

13. Law Commission (New Zealand), The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes (Report No 136, December 2015) [5.4]–[5.5] <https://www.lawcom.govt.nz/our-projects/alternative-models-prosecuting-and-trying-criminal-cases?id=1270>.

    ↑

14. Victorian Law Reform Commission, Sexual Offences (Report No 5, July 2004) Recommendations 50, 53–55.

    ↑

15. Gravitas Research and Strategy Ltd, Evaluation of the Sexual Violence Court Pilot (Report, Ministry of Justice (NZ), June 2019) <https://www.districtcourts.govt.nz/reports-publications-and-statistics/publications/sexual-violence-court-pilot-evaluation-report/>.

    ↑

16. Ibid 17.

    ↑

17. Ibid 20, 76.

    ↑

18. Ibid 3.

    ↑

19. Ibid 79–80.

    ↑

20. Consultation 37 (New Zealand District Court judges with experience on the sexual violence court pilot).

    ↑

21. Victorian Law Reform Commission, Improving the Response of the Justice System to Sexual Offences: Questions (Report, October 2020) 1 (Issues Paper B Questions 2–3) <https://lawreform.vic.gov.au/sites/default/files/2657-VLRC_Sexual%20Offences-Improving%20the%20Response%20Questions-web.pdf>.

    ↑

22. Attorney-General for Australia and Minister for Industrial Relations (Cth), ‘Leading a National Approach to Justice for Victims and Survivors of Sexual Assault, Harassment and Coercive Control’ (Media Release, 17 May 2021) <https://www.attorneygeneral.gov.au/media/media-releases/leading-national-approach-justice-17-may-2021>.

    ↑

23. Submissions 10 (Carolyn Worth AM and Mary Lancaster), 14 (Gatehouse Centre, Royal Children’s Hospital), 17 (Sexual Assault Services Victoria), 20 (Anonymous member of Aboriginal community), 27 (Victoria Legal Aid), 39 (Rape & Domestic Violence Services Australia), 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton), 45 (Victims of Crime Commissioner); Consultations 6 (Dr Emma Henderson and Dr Kirsty Duncanson), 10 (Professor Jane Goodman-Delahunty), 25 (CASA senior counsellor/advocates), 59 (Ashleigh Rae, Nicole Lee, Penny).

    ↑

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

    ↑

25. Submissions 10 (Carolyn Worth AM and Mary Lancaster), 14 (Gatehouse Centre, Royal Children’s Hospital), 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton), 45 (Victims of Crime Commissioner); Consultations 10 (Professor Jane Goodman-Delahunty), 59 (Ashleigh Rae, Nicole Lee, Penny).

    ↑

26. Submissions 10 (Carolyn Worth AM and Mary Lancaster), 14 (Gatehouse Centre, Royal Children’s Hospital), 17 (Sexual Assault Services Victoria), 20 (Anonymous member of Aboriginal community), 27 (Victoria Legal Aid), 39 (Rape & Domestic Violence Services Australia), 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton), 45 (Victims of Crime Commissioner); Consultations 6 (Dr Emma Henderson and Dr Kirsty Duncanson), 10 (Professor Jane Goodman-Delahunty), 59 (Ashleigh Rae, Nicole Lee, Penny).

    ↑

27. Submission 27 (Victoria Legal Aid).

    ↑

28. Consultation 49 (Victoria Legal Aid).

    ↑

29. Submission 27 (Victoria Legal Aid).

    ↑

30. Submissions 59 (County Court of Victoria), 63 (Office of Public Prosecutions); Consultation 41 (Individual views of the Honourable Justice Chris Maxwell AC and Judicial Registrar Tim Freeman).

    ↑

31. Submission 63 (Office of Public Prosecutions).

    ↑

32. Provided to the Victorian Law Reform Commission, 20 January 2021. In the past five financial years the approximate percentages were: 48% in 2015–16; 47% in 2016–17; 54% in 2017–18; 46% in 2018–19; 51% in 2019–20.

    ↑

33. Submission 59 (County Court of Victoria).

    ↑

34. Ibid.

    ↑

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

    ↑

36. Ibid.

    ↑

37. Ibid.

    ↑

38. Ibid.

    ↑

39. Ibid.

    ↑

40. Submission 63 (Office of Public Prosecutions).

    ↑

41. Ibid.

    ↑

42. Submission 47 (Criminal Bar Association).

    ↑

43. Ibid; Submission 63 (Office of Public Prosecutions); Consultation 37 (New Zealand District Court judges with experience on the sexual violence court pilot). Those who supported a specialist court included: Consultation 6 (Dr Emma Henderson and Dr Kirsty Duncanson); Submission 14 (Gatehouse Centre, Royal Children’s Hospital).

    ↑

44. Submission 47 (Criminal Bar Association).

    ↑

45. Consultation 37 (New Zealand District Court judges with experience on the sexual violence court pilot).

    ↑

46. Submission 47 (Criminal Bar Association); Consultation 71 (Magistrates’ Court of Victoria (No 1)).

    ↑

47. Submissions 9 (Djirra), 21 (Victorian Aboriginal Child Care Agency), 59 (County Court of Victoria).

    ↑

48. ‘Koori Court’, Magistrates’ Court of Victoria (Web Page, 23 January 2020) <https://www.mcv.vic.gov.au/about/koori-court>.

    ↑

49. Submission 9 (Djirra).

    ↑

50. As noted above, data provided by the County Court of Victoria to the Victorian Law Reform Commission on 20 January 2021 shows that sexual offence trials make up approximately half of its criminal trial work.

    ↑

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

    ↑

52. Submission 59 (County Court of Victoria). This was introduced to address the backlog created by the coronavirus (COVID-19) pandemic and built on the Active Case Management System Reform pilot: County Court of Victoria, Annual Report 2019–20 (Report, 2020) 21 <https://www.countycourt.vic.gov.au/files/documents/2021-02/ccvannualreport2019-20.pdf>.

    ↑

53. Victorian Law Reform Commission, Committals (Report No 41, March 2020) Recommendations 2, 8–14.

    ↑

54. Nicole Bluett-Boyd and Bianca Fileborn, Victim/Survivor-Focused Justice Responses and Reforms to Criminal Court Practice (Research Report No 27, Australian Institute of Family Studies (Cth), April 2014) 57–8 <https://aifs.gov.au/publications/victimsurvivor-focused-justice-responses-and-reforms-criminal-court-practice>.

    ↑

55. Ibid 50–1; Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [4.9]–[4.75].

    ↑

56. Submissions 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes), 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton), 45 (Victims of Crime Commissioner), 59 (County Court of Victoria), 63 (Office of Public Prosecutions), 68 (Victoria Police); Consultations 25 (CASA senior counsellor/advocates), 32 (Anonymous member, Victim Survivors’ Advisory Council), 49 (Victoria Legal Aid), 71 (Magistrates’ Court of Victoria (No 1)).

    ↑

57. Submission 59 (County Court of Victoria).

    ↑

58. Submissions 13 (Australian Association of Social Workers), 14 (Gatehouse Centre, Royal Children’s Hospital), 17 (Sexual Assault Services Victoria), 22 (knowmore legal service), 39 (Rape & Domestic Violence Services Australia), 62 (Shine Lawyers (on behalf of Ms Kim Elzaibak)), 68 (Victoria Police); Consultations 13 (Intermediary Pilot Program, Department of Justice and Community Safety), 23 (Sexual Assault Services Victoria Specialist Children’s Services), 32 (Anonymous member, Victim Survivors’ Advisory Council ), 53 (Elizabeth Morgan House and 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).

    ↑

59. Submission 45 (Victims of Crime Commissioner). See especially Judicial College of Victoria, Victims of Crime in the Courtroom: A Guide for Judicial Officers (Guide, 2019) Note 2 <https://www.judicialcollege.vic.edu.au/resources/victims-crime-courtroom>; Blue Knot Foundation, Trauma and the Law: Applying Trauma-Informed Practice to Legal and Judicial Contexts (Background Paper, 2016) <https://www.blueknot.org.au/Resources/Publications/Trauma-law>.

    ↑

60. 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).

    ↑

61. Ibid.

    ↑

62. Ibid.

    ↑

63. Submission 45 (Victims of Crime Commissioner).

    ↑

64. Ibid.

    ↑

65. Submission 14 (Gatehouse Centre, Royal Children’s Hospital); Consultation 23 (Sexual Assault Services Victoria Specialist Children Services).

    ↑

66. Submission 39 (Rape & Domestic Violence Services Australia); Consultation 6 (Dr Emma Henderson and Dr Kirsty Duncanson); Consultation 45 (Sex Work Law Reform Victoria).

    ↑

67. Submission 20 (Anonymous member of Aboriginal community).

    ↑

68. Consultation 11 (Family violence and sexual assault practitioners focusing on disability inclusion).

    ↑

69. Submissions 14 (Gatehouse Centre, Royal Children’s Hospital), 17 (Sexual Assault Services Victoria), 39 (Rape & Domestic Violence Services Australia), 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton), 63 (Office of Public Prosecutions).

    ↑

70. Submission 17 (Sexual Assault Services Victoria).

    ↑

71. Consultation 75 (Family Safety Victoria (No 2)).

    ↑

72. Ibid.

    ↑

73. Family Safety Victoria, Family Violence Multi-Agency Risk Assessment and Management Framework a Shared Responsibility for Assessing and Managing Family Violence Risk (Framework, Victorian Government, 2018) <https://www.vic.gov.au/maram-practice-guides-and-resources>; Family Violence Protection Act 2008 (Vic) pt 11; Family Violence Protection (Information Sharing and Risk Management) Regulations 2018 (Vic) sch 3 (prescribing organisations that must comply).

    ↑

74. Victorian Government, ‘Appendix 2—Organisations Prescribed in Phase Two’, VIC.GOV.AU (Web Page, 27 February 2020) <http://www.vic.gov.au/report-on-implementation-of-the-family-violence-risk-assessment-and-management-framework-2018-19/appendix-2-organisations-prescribed-in-phase-two>.

    ↑

75. Department of Education and Training (Vic), 22510 VIC Course in Identifying and Responding to Family Violence Risk (Course Material, 2020) <https://www.education.vic.gov.au/Documents/training/providers/rto/curr22510VICidentifyingrespondingfamilyviolencerisk.pdf>; Department of Education and Training (Vic), 22561VIC Course in Intermediate Risk Assessment and Management of Family Violence Risk (Course Material, 2020) <https://www.education.vic.gov.au/Documents/training/providers/rto/curr22561riskfamviolence.pdf>.

    ↑

76. Submission 56 (Domestic Violence Victoria).

    ↑

77. Victorian Government, Family Violence Reform Rolling Action Plan 2020–2023: Activities Index (Combined Activity Summary) 10 <https://www.vic.gov.au/family-violence-reform-rolling-action-plan-2020-2023>.

    ↑

78. Consultation 11 (Family violence and sexual assault practitioners focusing on disability inclusion). While training programs have been delivered for Victorian disability workers, the Victorian Government reports that progress with the National Disability Insurance Scheme has been affected by COVID-19 and that lessons and improvements, as well as further training, will be shared with the Commonwealth Government and the National Disability Insurance Agency: Victorian Government, ‘All Disability Services Workers Complete Certified Training in Identifying Family Violence’, VIC.GOV.AU (Web Page, 8 January 2021) <http://www.vic.gov.au/family-violence-recommendations/all-disability-services-workers-complete-certified-training>.

    ↑

79. Consultation 15 (Child Witness Service). See also Submission 14 (Gatehouse Centre, Royal Children’s Hospital).

    ↑

80. Submission 63 (Office of Public Prosecutions).

    ↑

81. Submission 45 (Victims of Crime Commissioner); Consultations 13 (Intermediary Pilot Program, Department of Justice and Community Safety), 23 (Sexual Assault Services Victoria Specialist Children Services).

    ↑

82. Submissions 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes), 17 (Sexual Assault Services Victoria). These were also observed in Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming).

    ↑

83. Submission 63 (Office of Public Prosecutions).

    ↑

84. Jury Directions Act 2015 (Vic) pt 5; Evidence Act 2008 (Vic) s 41; Victims’ Charter Act 2006 (Vic) s 4.

    ↑

85. Submissions 17 (Sexual Assault Services Victoria), 21 (Victorian Aboriginal Child Care Agency), 47 (Criminal Bar Association).

    ↑

86. Submissions 17 (Sexual Assault Services Victoria), 45 (Victims of Crime Commissioner); Legal Services Board and Office of Public Prosecutions (Victoria), A Guide to the Sexual Offences Interactive Legal Education Program: Professional Development Advancing Best Practice in Sexual Offence Cases (Report, 2012) <http://www.opp.vic.gov.au/getattachment/d4c4246a-56cf-44d7-9db6-0dfa085b8346/ilep-booklet-final.aspx>. See also Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) Recommendation 6.

    ↑

87. Submission 45 (Victims of Crime Commissioner); Consultation 32 (Anonymous member, Victim Survivors’ Advisory Council).

    ↑

88. Submission 63 (Office of Public Prosecutions); Gravitas Research and Strategy Ltd, Evaluation of the Sexual Violence Court Pilot (Report, Ministry of Justice (NZ), June 2019) 85–7 <https://www.districtcourts.govt.nz/reports-publications-and-statistics/publications/sexual-violence-court-pilot-evaluation-report/>.

    ↑

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

    ↑

90. Gravitas Research and Strategy Ltd, Evaluation of the Sexual Violence Court Pilot (Report, Ministry of Justice (NZ), June 2019) 4 <https://www.districtcourts.govt.nz/reports-publications-and-statistics/publications/sexual-violence-court-pilot-evaluation-report/>.

    ↑

91. Victorian Law Reform Commission, Sexual Offences (Report No 5, July 2004) Recommendations 35–41, 171.

    ↑

92. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [4.72].

    ↑

93. Legal Services Board and Office of Public Prosecutions (Victoria), A Guide to the Sexual Offences Interactive Legal Education Program: Professional Development Advancing Best Practice in Sexual Offence Cases (Report, 2012) <http://www.opp.vic.gov.au/getattachment/d4c4246a-56cf-44d7-9db6-0dfa085b8346/ilep-booklet-final.aspx>.

    ↑

94. Email from the Office of Public Prosecutions (Vic) to the Victorian Law Reform Commission, 23 April 2021.

    ↑

95. The Charter of Advocacy was developed by the Department of Justice Sexual Assault Advisory Committee with input from the Supreme Court of Victoria, the County Court of Victoria, the Magistrates’ Court of Victoria, the Office of Public Prosecutions, Victoria Police, the Victorian Bar Council, the Criminal Bar Association, the Law Institute of Victoria, Victoria Legal Aid and the Judicial College of Victoria: Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) [5.47].

    ↑

96. Department of Justice (Vic), The Charter of Advocacy: Prosecuting or Defending Sexual Assault Cases (Charter, 2010) <https://webarchive.nla.gov.au/awa/20110324001434/http://www.justice.vic.gov.au/wps/wcm/connect/justlib/DOJ+Internet/resources/4/e/4e3d168043b4ae59b916f9e640f93f6b/Charter_of_Advocacy_prosecuting_or_defending_sexual_offence_cases.pdf>.

    ↑

97. Consultation 4 (Judicial College of Victoria).

    ↑

98. Judicial College of Victoria, Victims of Crime in the Courtroom: A Guide for Judicial Officers (Guide, 2019) <https://www.judicialcollege.vic.edu.au/resources/victims-crime-courtroom>.

    ↑

99. Nicole Bluett-Boyd and Bianca Fileborn, Victim/Survivor-Focused Justice Responses and Reforms to Criminal Court Practice (Research Report No 27, Australian Institute of Family Studies (Cth), April 2014) 58 <https://aifs.gov.au/publications/victimsurvivor-focused-justice-responses-and-reforms-criminal-court-practice>.

    ↑

100. Law Commission (New Zealand), The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes (Report No 136, December 2015) [5.54] <https://www.lawcom.govt.nz/our-projects/alternative-models-prosecuting-and-trying-criminal-cases?id=1270>.

     ↑

101. Consultation 37 (New Zealand District Court judges with experience on the sexual violence court pilot).

     ↑

102. Lord Justice Clerk’s Review Group, Improving the Management of Sexual Offence Cases (Report, Scottish Courts and Tribunal Service, March 2021) [6.12] <https://www.scotcourts.gov.uk/docs/default-source/default-document-library/reports-and-data/Improving-the-management-of-Sexual-Offence-Cases.pdf?sfvrsn=6>.

     ↑

103. Consultation 37 (New Zealand District Court judges with experience on the sexual violence court pilot). See Advocate’s Gateway (Web Page) <https://www.theadvocatesgateway.org>.

     ↑

104. ‘Advocacy & The Vulnerable (Crime)’, The Inns of Court College of Advocacy (Web Page) <https://www.icca.ac.uk/advocacy-the-vulnerable-crime/>.

     ↑

105. JUSTICE (UK), Prosecuting Sexual Offences (Report, 2019) 62–3 <https://justice.org.uk/our-work/criminal-justice-system/prosecuting-sexual-offences/>.

     ↑

106. Joyce Plotnikoff and Richard Woolfson, Falling Short? A Snapshot of Young Witness Policy and Practice (Report, NSPCC, February 2019) 117–18 <https://learning.nspcc.org.uk/media/1672/falling-short-snapshot-young-witness-policy-practice-full-report.pdf>.

     ↑

107. Ibid 116.

     ↑

108. This was established following our previous inquiry into sexual offences: Success Works, Sexual Assault Reform Strategy (Final Evaluation Report, Department of Justice (Vic), January 2011) 64 <https://trove.nla.gov.au/version/169811763>.

     ↑

109. Submission 63 (Office of Public Prosecutions).

     ↑

110. Crown Prosecutors are appointed by the Governor in Council: Public Prosecutions Act 1994 (Vic) pt 5. Crown Prosecutors appeared in the most high profile and complex matters: Office of Public Prosecutions (Vic), Annual Report 2019–20 (Report, 2020) 13 <https://www.opp.vic.gov.au/getattachment/e11ee2b9-9d3e-4555-88fc-50c7003ea091/15322-OPP-Annual-Report-2019-2020-Full-web.aspx>.

     ↑

111. Submission 63 (Office of Public Prosecutions).

     ↑

112. Information provided by the Office of Public Prosecutions (Vic) to Victorian Law Reform Commission, 12 July 2021. Training provided to staff is also informed by the following report: Centre for Innovative Justice (RMIT University), Communicating with Victims about Resolution Decisions: A Study of Victims’ Experiences and Communication Needs (Report to the Office of Public Prosecutions (Vic), April 2019) <https://cij.org.au/cms/wp-content/uploads/2018/08/communicating-with-victims-about-resolution-decisions–a-study-of-victims-experiences-and-communication-needs-1.pdf>.

     ↑

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

     ↑

114. Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 r 8; Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 r 6.

     ↑

115. ‘Barrister Professional Development’, Victorian Bar (Web Page) <https://www.vicbar.com.au/public/barrister-professional-development>.

     ↑

116. Geoffrey M Eames, ‘Indictable Crime Certificate Committee Launch’ (Summer 2014) (156) Victorian Bar News 14; Victorian Law Reform Commission, Jury Directions (Report No 17, July 2009) ch 7.

     ↑

117. In 2019–20, external counsel for the prosecution appeared in 88.2% of all committals, County and Supreme Court trials and appeals: Office of Public Prosecutions (Vic), Annual Report 2019–20 (Report, 2020) 13 <https://www.opp.vic.gov.au/getattachment/e11ee2b9-9d3e-4555-88fc-50c7003ea091/15322-OPP-Annual-Report-2019-2020-Full-web.aspx>.

     ↑

118. Submission 27 (Victoria Legal Aid).

     ↑

119. ‘Our Briefing Practices’, Office of Public Prosecutions Victoria (Web Page) <https://www.opp.vic.gov.au/Our-Work/Advocacy-and-Briefing/Our-Briefing-Practices>.

     ↑

120. ‘Criminal Trial Preferred Barrister List’, Victoria Legal Aid (Web Page, 17 December 2018) <https://www.legalaid.vic.gov.au/information-for-lawyers/doing-legal-aid-work/criminal-trial-preferred-barrister-list>. There are exceptions for trials of 15 days or less: Victoria Legal Aid, Annual Report 2019–20 (Report, 2020) 53 <https://www.legalaid.vic.gov.au/about-us/our-organisation/annual-report>. VLA’s practitioner panels include the Indictable Crime Panel and a Sexual Offences and Major Crimes subset. Private law firms must register and individual lawyers must apply to be on practitioner panels. Eligibility criteria for panels are set by Victoria Legal Aid: ‘Practitioner panels’, Victoria Legal Aid (Web Page, 8 September 2020) <https://www.legalaid.vic.gov.au/information-for-lawyers/practitioner-panels>.

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121. In 2019–20, there were 233 counsel on the Criminal Trial Preferred Barrister List. Of these 217 were members of the Victorian Bar; 16 were Senior Counsel of the Victorian Bar and 16 were employed by VLA Chambers: Victoria Legal Aid, Annual Report 2019–20 (2020) 53 <https://www.legalaid.vic.gov.au/about-us/our-organisation/annual-report>.

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122. Submission 27 (Victoria Legal Aid).

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123. Submissions 45 (Victims of Crime Commissioner), 55 (Springvale Monash Legal Service), 59 (County Court of Victoria).

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124. Submission 59 (County Court of Victoria).

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125. Consultation 49 (Victoria Legal Aid).

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126. Submission 59 (County Court of Victoria).

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127. Consultation 95 (Victoria Legal Aid (No 2)).

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128. Submission 27 (Victoria Legal Aid); Consultation 36 (Criminal Bar Association).

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129. Consultation 36 (Criminal Bar Association).

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130. Consultation 86 (Magistrates’ Court of Victoria (No 2)).

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

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132. Submission 59 (County Court of Victoria).

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133. Ibid.

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134. Consultation 49 (Victoria Legal Aid).

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135. It recommended that they undertake CPD within the first three years to ‘develop values and behaviours that will sustain their career, including in the areas of ethics, diversity and inclusion, sexual harassment, family violence, and health and wellbeing’: Chris Humphreys and Victorian Legal Services Board and Commissioner, Getting the Point? Review of Continuing Professional Development for Victorian Lawyers (Report, Victorian Legal Services Board and Commissioner, November 2020) Recommendation 8 <https://lsbc.vic.gov.au/sites/default/files/2020-11/CPD_Report_Final_0.pdf>.

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136. Consultation 36 (Criminal Bar Association).

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137. Ibid.

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138. Consultation 95 (Victoria Legal Aid (No 2)).

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139. See, eg, PricewaterhouseCoopers, Criminal and Family Law Private Practitioner Service Delivery Model (Report for the Law Institute of Victoria, October 2015) 24 <https://www.liv.asn.au/PDF/Practice-Resources/LIV-Service-Delivery-Model_FINAL-REPORT.aspx>; Productivity Commission (Cth), Access to Justice Arrangements (Inquiry Report, 2014) vol 2, 726–8 <https://www.pc.gov.au/inquiries/completed/access-justice/report>.

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

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141. Victorian Law Reform Commission, Jury Directions (Report No 17, July 2009) Recommendation 49.

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142. Victorian Law Reform Commission, Committals (Report No 41, March 2020) [7.25]–[7.30], Recommendations 15–18.

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143. Submission 59 (County Court of Victoria).

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144. Email from the County Court of Victoria to the Victorian Law Reform Commission, 30 July 2021.

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145. The group includes representatives from the County Court, prosecutors and defence lawyers, legal professional bodies, and support services: County Court of Victoria, Annual Report 2019–20 (Report, 2020) 30 <https://www.countycourt.vic.gov.au/files/documents/2021-02/ccvannualreport2019-20.pdf>.

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

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147. These took place in 2019–20: ibid.

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148. Judicial College of Victoria, Victims of Crime in the Courtroom: A Guide for Judicial Officers (Guide, 2019) <https://www.judicialcollege.vic.edu.au/resources/victims-crime-courtroom>: implementing Recommendation 17 of Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016).

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149. Consultation 4 (Judicial College of Victoria).

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150. JUSTICE (UK), Prosecuting Sexual Offences (Report, 2019) 60 <https://justice.org.uk/our-work/criminal-justice-system/prosecuting-sexual-offences/>.

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151. Judicial College (England and Wales)), Prospectus for Courts Judiciary April 2019–March 2020 (Report, 22 April 2021) 30 <https://www.judiciary.uk/announcements/judicial-college-prospectus-2021-2022/>.

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152. Joyce Plotnikoff and Richard Woolfson, Falling Short? A Snapshot of Young Witness Policy and Practice (Report, NSPCC, February 2019) 121 <https://learning.nspcc.org.uk/media/1672/falling-short-snapshot-young-witness-policy-practice-full-report.pdf>.

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153. Law Commission (New Zealand), The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes (Report No 136, December 2015) [5.75]–[5.79], Recommendations 22–23 <https://www.lawcom.govt.nz/our-projects/alternative-models-prosecuting-and-trying-criminal-cases?id=1270>.

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154. Office of the Under-Secretary to the Minister for Justice (Domestic and Sexual Violence Issues) (NZ), Improving the Justice Response to Victims of Sexual Violence (Cabinet Paper, 2 July 2019) [19] <https://www.justice.govt.nz/assets/Documents/Publications/7236-Proactive-release-SV-response-final.pdf>.

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155. Department of Justice (Canada), Judicial Continuing Education in Sexual Assault Law and Social Context (Web Page, 4 February 2020) <https://www.justice.gc.ca/eng/csj-sjc/pl/jt-fj/index.html>.

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

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157. Consultation 87 (County Court of Victoria (No 2)).

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158. Consultation 86 (Magistrates’ Court of Victoria (No 2)); Consultation 87 (County Court of Victoria (No 2)).

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159. Submission 59 (County Court of Victoria).

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160. Submission 63 (Office of Public Prosecutions).

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161. Submission 45 (Victims of Crime Commissioner).

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162. Submission 39 (Rape & Domestic Violence Services Australia).

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163. Consultation 6 (Dr Emma Henderson and Dr Kirsty Duncanson).

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164. Magistrates’ Court Act 1989 (Vic) s 13B; Supreme Court Act 1986 (Vic) s 28A; County Court Act 1958 (Vic) s 17AAA; Helen Szoke, Preventing and Addressing Sexual Harassment in Victorian Courts and VCAT (Appendix 3, February 2021) 12 <https://www.shreview.courts.vic.gov.au/wp-content/uploads/2021/04/Appendix-3-Judicial-independence-accountability-and-the-role-of-the-Heads-of-Jurisdictions.pdf>.

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165. Helen Szoke, Preventing and Addressing Sexual Harrassment in Victorian Courts and VCAT (Report and Recommendations, March 2021) Recommendation 5 <https://www.shreview.courts.vic.gov.au/wp-content/uploads/2021/04/Report-and-Recommendations-Preventing-and-Addressing-Sexual-Harassment-in-Vic-Courts.pdf>.

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