The Role of Victims of Crime in the Criminal Trial Process: Consultation Paper

12. Victims’ rights in the criminal trial process

Introduction

12.1 The second half of last century saw both an increasing focus on the dissatisfaction of victims with the operation of criminal justice systems around the world and a realisation by the international community that key human rights instruments did not contain any reference to the rights of victims.^[1]

12.2 The international community responded with the adoption of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power ^[2] (UN Declaration) by the UN General Assembly in 1985. The UN Declaration contains non-binding minimum standards for the treatment of victims of crime within domestic criminal justice systems. More recent UN documents have emphasised the rights of victims to participate in, and to receive restorative outcomes from, domestic criminal systems.^[3]

12.3 The principles of the UN Declaration have since been incorporated into Australian domestic law through victims’ rights charters, policies and/or legislation in each state and territory.

12.4 The first section of this chapter compares victims’ rights found in Victorian legislation and policy and those that exist in other jurisdictions, both in Australia and overseas.

12.5 The second section examines mechanisms and procedures for the enforcement of victims’ rights and the investigation of breaches. Questions are posed at the end of this chapter. Whether and how rights to participate at various stages of the criminal trial process might be enforced have also been canvassed in previous chapters.

12.6 In May 2015 the Commission published The Role of Victims of Crime in the Criminal Trial Process Information Paper 4: Victims’ Rights and Human Rights: the International and Domestic Landscape. The Commission recommends reading Information Paper 4 as a companion publication to this chapter.

The breadth and scope of victims’ rights

The Victims’ Charter Act 2006 (Vic)

12.7 The Victims’ Charter Act 2006 (Vic) (the Charter) sets out non-enforceable principles governing the interaction of Victorian investigating agencies, prosecuting agencies and victims’ services with victims of crime.

12.8 Investigatory, prosecuting and victims’ service agencies ‘must have regard to the Charter principles when dealing with’ a victim of crime.^[4] Any person or body responsible for the development of policy or administration of criminal justice or victims’ services must have regard to the Charter principles where relevant.^[5]

12.9 The Charter principles cover the following:^[6]

• ensuring respectful, courteous and dignified treatment and the need to be responsive to the particular needs of different victims of crime ^[7]

• providing information about support services, possible entitlements, legal assistance, the progress of an investigation and prosecution, key prosecutorial decisions, and court processes

• minimising contact between victims and the accused, the accused’s family and supporters

• protecting a victim’s personal information from disclosure

• protecting and returning any property belonging to a victim that is in the possession of an investigatory or prosecutorial agency

• the right of a victim to provide a victim impact statement in sentencing hearings^[8]

• the right of victims to apply to the court for compensation directly from an offender, and for eligible victims to apply for state-funded financial assistance^[9]

• rights relating to bail and parole determinations and the Victims’ Register.^[10]

Victorian prosecutorial policy

12.10 The policies of the Victorian Director of Public Prosecutions (DPP), particularly Victims and Persons Adversely Affected by Crime^[11] (Victims Policy) reflect the practical application of Charter principles to the day-to-day interactions of Office of Public Prosecutions (OPP) staff with victims. The policy also builds on the statutory obligation on the DPP, Crown Prosecutors, Associate Crown Prosecutors and all OPP staff to ‘ensure that the prosecutorial system gives appropriate consideration to the concerns of the victims of crime’.^[12]

12.11 Some DPP policy obligations go further than the obligations imposed by the Charter:

• There is no obligation in the Charter on prosecutors to consult with victims, only an obligation to provide information. In contrast, the DPP’s Victims Policy requires prosecutors to ensure that a victim has been consulted before a decision is made to substantially alter charges, not proceed with some or all charges or accept a guilty plea to a lesser charge.^[13] While the victim must be consulted, and their views taken into account, their views are not determinative, thereby retaining the primacy of prosecutorial discretion.^[14]

• The Charter requires only that prosecutors provide victims with information about how to find out about details of a hearing, whereas the Victims Policy requires prosecutors to ensure that a victim is informed of the date, time and location of a contested committal, trial, plea and sentence.^[15]

• The Charter does not expressly impose an obligation on prosecutors to inform all victims of the right to make a victim impact statement at a sentencing hearing. In contrast, the DPP’s Victims Policy obliges the prosecutor with carriage of a matter to ensure that a victim has been informed of this right.^[16]

• The Victims Policy contains a clearer obligation on prosecutors to ensure that victims are ‘informed of their possible entitlement to restitution, compensation or financial assistance’.^[17] The OPP must refer a victim to an appropriate organisation for assistance with compensation or restitution orders or a VOCAT application.^[18] In contrast, the Charter obligation is a relatively opaque obligation to inform victims about ‘possible entitlements and legal assistance’ and to refer them where appropriate to ‘entities that may provide access to entitlements and legal assistance’.^[19] ‘Entitlements’ is not defined.

Victims’ rights in other Australian jurisdictions

12.12 The victims’ rights charters, declarations, principles and guidelines in each Australian jurisdiction are largely analogous with Victoria’s Charter.^[20]

12.13 The following paragraphs do not set out all of the provisions contained in these documents. Rather, they highlight and discuss differences in approach, rights or obligations which arguably extend beyond Victoria’s provisions.

Information and support

12.14 South Australia’s declaration of principles imports a timeliness requirement to the provision of information about a victim’s role as a witness, requiring that victims have ‘sufficient time to obtain independent advice, and arrange independent support’.^[21]

12.15 In Queensland, New South Wales and Western Australia the obligation to provide information about support services and entitlements is more comprehensively detailed to include health, welfare, counselling, medical and/or legal services, and entitlements to compensation and restitution.^[22] In Western Australia, victims are to be informed about ‘the availability of lawful protection against violence and intimidation by the offender’.^[23]

12.16 In addition to the obligation to inform victims of support services, the New South Wales Charter requires that victims have access to ‘welfare, health, counselling and legal assistance responsive to the victim’s needs’.^[24]

12.17 Investigatory and prosecutorial agencies are given more specific obligations in the Australian Capital Territory, South Australia and Queensland. In the Australian Capital Territory, victims should be updated about the police investigation at intervals of ‘generally not more than 1 month’.^[25] In Queensland, victims are to be told about diversionary programs by both police and prosecutors, if they request it.^[26] Victims in Queensland must also be given reasons for decisions by an investigatory agency not to proceed with a charge, to amend a charge or to accept a plea to a lesser charge, but only if they request it.^[27]

12.18 Victims in Queensland and South Australia have a right to request that they be provided with the name of an alleged offender.^[28]

12.19 South Australian victims are to be provided with reasons for specified prosecutorial decisions relating to charging and guilty pleas if they so request.^[29]

Participation through consultation

12.20 The New South Wales Charter places an obligation on the prosecution to consult with victims of serious crimes involving sexual violence or that caused bodily or psychological harm, before a decision is made to modify charges or to not proceed with charges, including the acceptance of a plea of guilty to a lesser offence.^[30] In addition, the Crimes (Sentencing Procedure) Act 1999 (NSW) requires prosecutors to provide certification to the court that the victim of any offence has been consulted in relation to ‘charge negotiations’, or reasons for a victim not being consulted.^[31]

12.21 Victims of serious offences in South Australia also have a right to be consulted before certain prosecutorial decisions are made, such as a decision to charge an offender with a particular offence, to amend a charge or not to proceed with a charge.^[32]

12.22 South Australian victims are also provided with the right to request, within 10 days, that the prosecution consider an appeal if the victim is dissatisfied with a determination made during criminal proceedings. The prosecution ‘must give due consideration’ to such a request.^[33]

Protection

12.23 Some jurisdictions provide that victims do not have to appear as witnesses at preliminary or committal hearings unless the court orders otherwise.^[34]

12.24 South Australia’s principles include a broad privacy protection, requiring that there be ‘no unnecessary intrusion on a victim’s privacy’.^[35]

Compensation and restitution

12.25 South Australia’s governing principles require that a victim have access to information about how to apply for compensation or restitution. Further, if a prosecutor ‘is empowered to make an application for restitution or compensation’, the prosecutor is required to inform the victim about this and make the application in court on the victim’s behalf if the victim so requests.^[36]

Victims’ rights in overseas jurisdictions

12.26 The following paragraphs highlight some provisions from victims’ rights instruments outside Australia that are more expansive than Victoria’s Charter. This section is not intended to provide a detailed analysis of the victims’ rights instruments in these countries.

Right to reasons and to have a decision to discontinue a prosecution reviewed

12.27 The European Union Directive 2012/29/EU ^[37] (EU Directive), which is binding on all EU member states, includes:

• a right to be provided with reasons for a decision not to prosecute^[38]

• a right to have a decision not to prosecute reviewed^[39]

• a right to be informed of the right to seek a review of such a decision.^[40]

12.28 The right to a review of a decision not to proceed with a prosecution or to discontinue a prosecution also exists in England and Wales. This right can be exercised internally, through the Crown Prosecution Service’s ‘Victims’ Right to Review Scheme’, or externally by way of application to the High Court for judicial review. See Chapter 5 for more detail.

Right to be heard and provide evidence

12.29 The EU Directive requires member states to ensure victims may be heard and give evidence during criminal proceedings.^[41] This broadly worded right is capable of diverse application:

this right may range from basic rights to communicate with and supply evidence to a competent authority to more extensive rights such as a right to have evidence taken into account, the right to ensure that certain evidence is recorded, or the right to give evidence during the trial.^[42]

12.30 The federal Canadian Victims Bill of Rights states that victims have a right to ‘convey their views about decisions to be made by appropriate authorities in the criminal justice system that affect the victim’s rights under this Act and to have those views considered’.^[43]

Right to protection from secondary victimisation and intimidation

12.31 The EU Directive also provides for a range of rights relating to preventing secondary victimisation, repeat victimisation, intimidation and retaliation, as follows:

• the provision of advice in relation to risks and prevention^[44]

• the provision of shelters or safe interim accommodation^[45]

• measures to safeguard victims during restorative justice processes^[46]

• measures to mitigate the risk of emotional harm, to protect the dignity of victims when giving evidence and to protect victims from physical harm^[47]

• the provision of timely assessments of individual protection needs, including alternative arrangements for giving evidence during criminal proceedings.^[48]

12.32 The Canadian Victims Bill of Rights provides for victims’ security and privacy to be ‘considered by the appropriate judicial authorities in the criminal justice system’.^[49]

Right to legal aid

12.33 Where a victim is a party to a proceeding, which more commonly occurs in inquisitorial trial systems in Europe, Article 13 of the EU Directive obliges the state to ensure that legal aid is available to victims.^[50]

Realising victims’ rights

General issues with making victims’ rights enforceable

12.34 Many victims’ rights are directed at changing the way actors in the criminal justice system understand, treat and interact with victims: that is, changing legal culture and practice. The literature suggests that effective oversight or enforcement mechanisms can drive desired changes, and that the threat of sanction encourages a culture of compliance.^[51] The absence of procedures for enforcement and remedies for non-compliance has been described as rendering victims’ rights ‘illusory’^[52] and unlikely to lead to change.^[53] Matthew Hall has suggested that the actors in the criminal justice system would be more likely to give legitimacy to victims’ rights and interests if these rights were enforced within the justice system.^[54]

12.35 Granting a right to pursue a legal cause of action for breach of victims’ rights has the potential to give victims greater leverage when first lodging a complaint and might provide a path for remedying breaches that are not satisfactorily resolved by way of complaint.^[55] The threat of legal action may act to deter criminal justice agencies from unjustifiably violating victims’ rights in the first place. Such a result would arguably create a greater culture of compliance.^[56] The Crime Victims’ Rights Act in the United States is one of the few victims’ rights instruments to provide for any form of legal recourse for breach.

12.36 Nonetheless, most common law adversarial criminal systems have hesitated to include enforcement mechanisms which would give victims a cause of action for a breach, or have consequences for the conduct of a criminal trial. In Australia, the United Kingdom and Canada, victims’ rights instruments typically contain a section stating that breach of a victims’ right or principle does not establish a legal right or provide grounds for a cause of action.^[57]

12.37 As has been highlighted throughout this consultation paper, making victims’ rights enforceable raises a number of issues:

• Victims’ rights relate to an individual’s private interest in the criminal proceedings, which can directly challenge the public interest underpinnings of the adversarial criminal justice process.

• Related to this, the two-party contest between the state prosecutor, representing the harmed society, and the accused, does not easily create space for a third party.

• Attempts to enforce rights through legal proceedings may disrupt and delay criminal proceedings.

• If new legal causes of action are created for victims whose rights are violated, legal aid funding may be needed to ensure equity in the realisation of victims’ rights.

• Different rights might apply differently at different stages of proceedings, requiring various approaches to enforcement.

12.38 Reflecting these issues, complaints resolution processes have emerged as the more common pathway given to victims to ventilate their grievances. Robust complaints processes, especially where a mechanism for independent review exists, have the potential to provide victims with fairness, transparency and accountability.

Enforcement and investigation in Victoria

12.39 A breach of the principles in Victoria’s Victims’ Charter Act does not create any legal right or give rise to a cause of action.^[58]

12.40 The Charter does not include a specific right to make a complaint, but it does require appropriate processes to be established for complaints and for victims to be informed of these processes.^[59] The Charter does not prescribe a specific complaints process or designate a body to complain to. This can be contrasted to New South Wales and South Australia, where an independent victims’ commissioner can receive and investigate complaints. This is discussed further below.

12.41 Similarly, compliance with the Charter must be monitored and reviewed, although the regularity and mechanism for this is not stated.^[60]

12.42 Victims who want to complain about a Charter right not being respected have the option of contacting the Victims’ Charter enquiries and complaints line. Information provided on the Victims Support Agency website states that an enquiries and complaints line officer can mediate between the victim and the agency or person complained about and discuss options for making a more formal complaint.^[61]

12.43 The OPP Complaints Policy states that complaints relating to the OPP can be made via telephone, post or email and will be dealt with ‘consistently, expeditiously and fairly’.^[62]

A complaint will be investigated thoroughly if it cannot be resolved immediately. A victim is to be kept informed and notified of an outcome, and can expect his or her privacy to be protected. No further process for handling the complaint is articulated in the policy.

12.44 In October 2014, Mr Greg Davies APM was appointed Victoria’s first Victims of Crime Commissioner. The Commissioner’s role has not yet been finalised.^[63] One function might be to conduct or coordinate complaint taking, investigation and resolution processes. The following overview of the way in which victims’ commissioners in other Australian states and territories are involved in complaints processes may inform consideration of this proposal.

Victims’ commissioners and complaints processes

New South Wales

12.45 The Charter of Victims Rights in New South Wales provides for a right to make a complaint.^[64]

12.46 The Victims Rights and Support Act 2013 (NSW) established the New South Wales Commissioner of Victims Rights as a member of the public service.^[65] The functions of the Commissioner include:

• receiving complaints from victims about alleged breaches of the Charter of Victims Rights, using ‘the Commissioner’s best endeavours to resolve the complaints’

• recommending that agencies apologise to victims of crime for breaches of the Charter of Victims Rights.^[66]

12.47 The Commissioner is empowered to undertake such inquiries and investigations as considered necessary to advance the exercise of any of their functions.^[67] The Commissioner can compel the provision of information to the Commissioner’s office, including documentary information, from a person or government agency within a specified timeframe if relevant to the exercise of the Commissioner’s functions.^[68]

12.48 The Commissioner can also provide a special report to the minister for presentation in Parliament on any matter relating to the Charter of Victims Rights or the Commissioner’s functions, including in relation to any breach of the Charter by an agency.^[69]

South Australia

12.49 The Victims of Crime Act 2001 (SA) provides for the appointment of an independent Commissioner for Victims’ Rights.^[70] One of the Commissioner’s functions is to assist victims in their dealings with prosecutors and other government agencies.^[71]

12.50 As noted in Chapter 5, the Commissioner has the power to compel a public agency or official to consult with the Commissioner ‘to further the interests of’ an individual victim, victims in general or a particular class of victims.^[72]

12.51 If the Commissioner is satisfied that a public agency or official has failed to comply with the declaration of principles governing the treatment of victims when it would have been practicable to comply, and no apology has been issued or the public agency or official has not dealt with the matter in a satisfactory way, then the Commissioner can recommend in writing that the public agency or official issue a written apology to the victim.^[73]

12.52 A copy of the Commissioner’s recommendation to the public agency or official must be given to the victim. In exercising these powers, the Commissioner must have regard to the wishes of the victim.^[74]

Australian Capital Territory (ACT)

12.53 The ACT Victims of Crime Commissioner is also a member of the ACT Victims Advisory Board.^[75] The ACT Commissioner’s functions include:

• monitoring and promoting compliance with the governing principles for the treatment of crime victims^[76]

• ensuring that concerns and formal complaints about non-compliance with the governing principles are responded to ‘promptly and effectively’.^[77]

12.54 The Victims of Crime Act 1994 (ACT) distinguishes between ‘concerns’ and ‘formal complaints’. If a victim raises a concern with the Commissioner about non-compliance with the governing principles, the Commissioner must try to resolve the concern. In doing so, the Commissioner can request any document or information reasonably required and which could be obtained by the victim, from an agency. The agency must provide the document or information, with the victim’s consent.^[78]

12.55 Alternatively, a victim may make a formal complaint to the Commissioner about non-compliance with the governing principles. If a formal complaint is made, the Commissioner is required to refer the complaint to a relevant complaints body, such as the human rights commission or the Ombudsman.^[79]

12.56 The Commissioner may be present at a public or private criminal court hearing in order to exercise the Commissioner’s functions, unless a court orders otherwise.^[80]

Queensland

12.57 The Queensland victim services coordinator is a member of the public service.^[81] The functions of the coordinator include:

• helping government agencies to develop processes for implementing, and complying with, the fundamental principles of justice for victims, and for resolving complaints

• referring complaints about conduct inconsistent with Queensland’s fundamental principles of justice for victims

• facilitating the resolution of complaints, but only if provided for under the complaint resolution processes of a government agency.^[82]

12.58 The coordinator is empowered to do ‘all things necessary or convenient’ in order to perform the above functions.^[83]

12.59 A victim has a statutory right to make a complaint where the victim believes that a government agency or official has acted inconsistently with the fundamental principles.^[84] The coordinator appears only to be empowered to deal with a complaint where the government agency has a complaints handling process that includes the victim services coordinator. Otherwise the complaint must be referred by the coordinator to the government agency to deal with.^[85]

12.60 Where the victim services coordinator is involved in the complaint resolution process, the coordinator’s role is to assist the government agency to meet their responsibilities. It is not the coordinator’s role to oversee the resolution of complaints.^[86] The 2014 Review of the Victims of Crime Assistance Act 2009: Consultation Paper discussed the possibility of strengthening the Queensland coordinator’s role to permit intervention into complaints, independent investigation or an elevation of the role to that of a Commissioner.^[87]

Enforcement and complaints in other jurisdictions

12.61 In the United Kingdom, the Code of Practice for Victims of Crime is issued pursuant to the Domestic Violence, Crime and Victims Act 2004 (UK).^[88] Breaches of the Code do not create legal rights. However, the Code is admissible as evidence and a failure to comply with the Code may be taken into account by a court in criminal or civil proceedings.^[89] The Code also sets out a complaints process, specifying that complaints may be escalated to the Parliamentary and Health Service Ombudsman.^[90]

12.62 In the United States, the federal Crime Victims’ Rights Act (CVRA) provides that a victim, or victim’s representative, may assert the rights contained in the CVRA in court.^[91] If certain rights to be heard are denied, a victim may apply to a higher court for a plea or sentence to be re-opened.^[92] The CVRA does not confer party or intervener status on victims during the criminal trial process, which means that in practice victims are reliant on prosecutors and judges to uphold their obligations to inform and afford victims their rights.^[93] The enforceability of the CVRA stems from the right of a victim to seek an order from a district court requiring a CVRA right to be afforded, or to apply to the court of appeals by way of writ of mandamus where the district court is alleged to have denied a CVRA right. This appears to be similar to an application for judicial review in Australia. A practical example of this enforcement mechanism is Kenna v United States District Court,^[94] where the Court of Appeals upheld a victim’s complaint about not being permitted to speak at a sentencing hearing in a district court when he attempted to assert the CVRA right to be heard. It remitted the matter back to the district court but considered that the only way to give effect to the victim’s right to speak would be to conduct a new sentencing hearing, in which the victim would be provided with his right to be heard.^[95]

12.63 The recent Canadian Victims Bill of Rights establishes an interpretive obligation, requiring all laws, orders, rules or regulations of Parliament to be ‘construed and applied in a manner that is compatible’ with the rights in the Victims Bill of Rights, ‘[t]o the extent that it is possible to do so’.^[96] The Victims Bill of Rights prevails where there is inconsistency with most other laws.^[97]

12.64 The Canadian Victims Bill of Rights grants a right to victims to complain about breaches. It also requires all federal criminal justice agencies to have a ‘complaints mechanism’ for the review of alleged breaches of the Victims Bill of Rights. Such mechanisms must include the power to make recommendations and an obligation to notify victims of outcomes.^[98] Victims are not granted party or intervener status in criminal proceedings by the Victims Bill of Rights and are not afforded recourse to the courts for an alleged breach.^[99]

Questions

55 Could the obligations set out in the Director of Public Prosecutions Victoria’s Director’s Policy: Victims and Persons Adversely Affected by Crime, particularly obligations to consult, be strengthened by incorporating them into the Victims’ Charter Act 2006 (Vic) or other Victorian legislation?

56 Should the Victims’ Charter Act 2006 (Vic) be amended to include other rights, or broaden existing rights for victims?

57 Should victims have a legal right to enforce some or all of the rights contained in the Victims’ Charter Act 2006 (Vic)? If so, how might this be achieved, and in what circumstances?

58 Should there be a legislatively prescribed process for investigating and resolving complaints about breaches of victims’ rights? If so, what might this process look like? Should the Victims of Crime Commissioner in Victoria have a role in complaints resolution relating to breaches of the Victims’ Charter Act 2006 (Vic)?

59 What remedies should be available for breach of a victim’s rights?

1. For example, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The focus of these instruments was protecting an accused from the omnipotent power of the state rather than affording rights to victims. For discussion, see Jo-Anne Wemmers, ‘Victims’ Rights are Human Rights: The Importance of Recognizing Victims as Persons’ (June 2012) Temida 71, 74.

   ↑

2. United Nations General Assembly, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN Doc A/RES/40/34 (adopted 29 November 1985). See further Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process Information Paper 4: Victims’ Rights and Human Rights: the International and Domestic Landscape (2015) [12]–[14].

   ↑

3. Jonathan Doak, Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties (Oxford, 2008) 1. See for example UN Economic and Social Council, UN Economic and Social Council Resolution 2002/12: Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, UN doc E/RES/2002/12 (24 July 2002).

   ↑

4. Victims’ Charter Act 2006 (Vic) s 18(1).

   ↑

5. Ibid s 18(2).

   ↑

6. Sections 6–17 of the Victims’ Charter Act 2006 (Vic) set out the ‘Charter principles governing response to victims’.

   ↑

7. Race or indigenous background, sex and gender identity, cultural or linguistic diversity, sexual orientation, disability, religion and age are identified as examples of differences which may affect the needs of victims of crime: ibid s 6(2).

   ↑

8. This right is recognised in the Sentencing Act 1991 (Vic) s 8K. See discussion about victim impact statements in Chapter 9 of this consultation paper.

   ↑

9. These rights are recognised in Sentencing Act 1991 (Vic) pt 4, and the Victims of Crime Assistance Act 1996 (Vic) respectively.

   ↑

10. The rights and role of victims in respect of bail and parole determinations and the Victims’ Register are outside the scope of the Commission’s terms of reference.

    ↑

11. Director of Public Prosecutions, Director’s Policy: Victims and Persons Adversely Affected by Crime (8 January 2014).

    ↑

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

    ↑

13. Director of Public Prosecutions, Director’s Policy: Victims and Persons Adversely Affected by Crime (8 January 2014) [29].

    ↑

14. Ibid [30].

    ↑

15. Ibid [33]; Victims’ Charter Act 2006 (Vic) s 9(d).

    ↑

16. Director of Public Prosecutions, Director’s Policy: Victims and Persons Adversely Affected by Crime (8 January 2014) [46]; Victims’ Charter Act 2006 (Vic) s 13. See Chapter 9 of this consultation paper for the role of victims in sentencing.

    ↑

17. Director of Public Prosecutions, Director’s Policy: Victims and Persons Adversely Affected by Crime (8 January 2014) [65]. See Chapters 9 and 10 of this consultation paper for the role of victims and the making of compensation, restitution and financial assistance orders.

    ↑

18. Ibid [68], [69].

    ↑

19. Victims’ Charter Act 2006 (Vic) ss 7(a)–(b).

    ↑

20. All states and territories have enshrined victims’ rights in legislation as principles or guidelines, except Tasmania and the Northern Territory, which have non-legislative charters.

    ↑

21. Victims of Crime Act 2001 (SA) s 9(2).

    ↑

22. In Queensland, government agencies must provide this information in a ‘timely’ manner, but only to the extent that giving the information is relevant to the agency’s functions and it is reasonable and practicable to give the information: Victims of Crime Assistance Act 2009 (Qld) s 10. In New South Wales, a victim is to be informed ‘at the earliest practical opportunity’ of services and remedies available: Victims Rights and Support Act 2013 (NSW) s 6.2. In Western Australia, a victim should be given ‘access to counselling about the availability’ of such services: Victims of Crime Act 1994 (WA) sch 1, [2].

    ↑

23. Victims of Crime Act 1994 (WA) sch 1, [3].

    ↑

24. Victims Rights and Support Act 2013 (NSW) s 6.3. The Victims’ Rights Act 2002 (NZ) also requires that victims have access to services that are responsive to the welfare, health, counselling, medical and legal needs of victims (s 8).

    ↑

25. Victims of Crime Act 1994 (ACT) s 4(b). Disclosures that might compromise a police investigation are excluded.

    ↑

26. Victims of Crime Assistance Act 2009 (Qld) ss 11(c), 12(b).

    ↑

27. Ibid s 11(f).

    ↑

28. Ibid s 11(e); Victims of Crime Act 2001 (SA) s 8(1)(c).

    ↑

29. Victims of Crime Act 2001 (SA) s 8(1)(e).

    ↑

30. Victims Rights and Support Act 2013 (NSW) s 6.5. This obligation does not apply if the victim has said that he or she does not want to be consulted or if the victim cannot be found.

    ↑

31. Crimes (Sentencing Procedure) Act 1999 (NSW) s 35A(2). See Chapter 5 of this consultation paper for more detailed discussion of s 35A.

    ↑

32. Victims of Crime Act 2001 (SA) s 9A. A victim of a serious offence should also be consulted in relation to a decision to investigate an offender’s ‘mental competence to commit an offence or mental fitness to stand trial’.

    ↑

33. Victims of Crime Act 2001 (SA) s 10A.

    ↑

34. See for example Victims Rights and Support Act 2013 (NSW) s 6.9; Victims of Crime Act 1994 (ACT) s 4(j).

    ↑

35. Victims of Crime Act 2001 (SA) s 14(1).

    ↑

36. Ibid s 12.

    ↑

37. Official Journal of the European Union, Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, and Replacing Council Framework Decision 2001/220/JHA (EU Directive).

    ↑

38. EU Directive art 6(3).

    ↑

39. Ibid art 11(1).

    ↑

40. Ibid art 11(3).

    ↑

41. Ibid art 10.

    ↑

42. European Commission, DG Justice Guidance Document Related to the Transposition and Implementation of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, and Replacing Council Framework Decision 2001/220/JHA (December 2013) 29 (EU Directive Guidance).

    ↑

43. An Act to Enact the Canadian Victims Bill of Rights and to Amend Certain Acts, C-32 (assented to 23 April 2015) s 14 (comes into force 90 days after the date of assent).

    ↑

44. EU Directive art 9(1)(e).

    ↑

45. Ibid art 9(3)(a).

    ↑

46. Ibid art 12. Guidance on this article explains that ‘the interests and needs of the victim, repairing harm to the victim and avoiding further harm’ should be the primary considerations. Victim participation should be with voluntary and informed consent and proceedings should generally be confidential unless agreed otherwise by the parties involved (EU Directive Guidance, 30).

    ↑

47. Ibid art 18.

    ↑

48. Ibid art 22.

    ↑

49. An Act to Enact the Canadian Victims Bill of Rights and to Amend Certain Acts, C-32 (assented to 23 April 2015) ss 9, 11 (comes into force 90 days after the date of assent).

    ↑

50. EU Directive art 13.

    ↑

51. Matthew Hall, Victims of Crime: Policy and Practice in Criminal Justice (Willan Publishing, 2009) 210; Simon Evans and Carolyn Evans, ‘Legal Redress under the Victorian Charter of Human Rights and Responsibilities’ (2006) 17 Public Law Review 264, 281.

    ↑

52. Douglas E Beloof, ‘The Third Wave of Crime Victims’ Rights: Standing, Remedy, and Review’ (2005) Brigham Young University Law Review 255, 257.

    ↑

53. Matthew Hall, Victims of Crime: Policy and Practice in Criminal Justice (Willan Publishing, 2009) 41, 210; Marc Groenhuijsen, ‘The Development of International Policy in Relation to Victims of Crime’ (2014) 20(1) International Review of Victimology 31, 41.

    ↑

54. Matthew Hall, Victims of Crime: Policy and Practice in Criminal Justice (Willan Publishing, 2009) 210. Hall’s view is that effective enforcement mechanisms should exist during the trial and not through a subsequent complaints procedure.

    ↑

55. Simon Evans and Carolyn Evans, ‘Legal Redress under the Victorian Charter of Human Rights and Responsibilities’ (2006) 17 Public Law Review 264, 281.

    ↑

56. Ibid.

    ↑

57. Some victims’ rights are given greater force by being more comprehensively set down in legislation outside a victims’ rights instrument, such as the right to provide a victim impact statement, to seek compensation orders at sentencing and to apply for state-funded financial assistance.

    ↑

58. Victims’ Charter Act 2006 (Vic) s 22(1)(a). The Victims Charter is not intended to affect the interpretation of any Victorian law or the validity of any judicial or administrative act or omission, or provide grounds for review: ss 22(1)(b)–(c).

    ↑

59. Ibid ss 19, 20(c).

    ↑

60. Ibid s 20.

    ↑

61. Department of Justice, A Victim’s Guide to Support Services and the Criminal Justice System (Victorian Government, May 2014) 37.

    ↑

62. Office of Public Prosecutions Victoria, OPP Complaints Policy (April 2015) 1.

    ↑

63. The Victorian Victims of Crime Commissioner’s mandate, as described by the then Attorney-General, the Hon. Robert Clark, is ‘to ensure that the rights and needs of victims are recognised and respected across all government agencies, support services are well-coordinated and effectively directed, and victims are readily able to find or be put in touch with the most appropriate support and advice … The Commissioner will also be an advocate for the interests of victims of crime in their dealings with government agencies, and provide advice on how the justice system can be further improved to meet the needs of victims.’ See Victims of Crime Commissioner, About Victoria’s First Victims of Crime Commissioner <http://www.victimsofcrimecommissioner.vic.gov.au/>.

    ↑

64. Victims Rights and Support Act 2013 (NSW) s 6.18.

    ↑

65. Ibid s 8.

    ↑

66. Ibid ss 10(e)–(f).

    ↑

67. Ibid s 11.

    ↑

68. Ibid s 12. Section 12(5) states that a government agency is not compelled to comply with the disclosure request if there is an overriding public interest against disclosure or if access would otherwise be denied under the Government Information (Public Access) Act 2009.

    ↑

69. Victims Rights and Support Act 2013 (NSW) s 13.

    ↑

70. Victims of Crime Act 2001 (SA) ss 16(1)–(2), 16E.

    ↑

71. Ibid s 16(3)(b).

    ↑

72. Ibid s 16A(1).

    ↑

73. Ibid s 16A(2). The Commissioner must specify in the Commissioner’s annual report how many notices were issued under s 16A(2): s 16F.

    ↑

74. Victims of Crime Act 2001 (SA) ss 16A(3), 16A(5).

    ↑

75. Victims of Crime Act 1994 (ACT) s 22C. The Victims of Crime Commissioner is appointed pursuant to s 7.

    ↑

76. Victims of Crime Act 1994 (ACT) s 11(c). The ACT’s governing principles for the treatment of crime victims are contained in s 4.

    ↑

77. Ibid s 11(d).

    ↑

78. Ibid ss 12(1)–(2).

    ↑

79. Ibid ss 12(4)–(6).

    ↑

80. Ibid s 13.

    ↑

81. Victims of Crime Assistance Act 2009 (Qld) s 138.

    ↑

82. Ibid ss 139(e)–(g).

    ↑

83. Ibid s 138(5).

    ↑

84. Ibid ss 19(1)–(2).

    ↑

85. Ibid s 20.

    ↑

86. State of Queensland, Review of the Victims of Crime Assistance Act 2009: Consultation Paper (Department of Justice and Attorney-General, October 2014) 22.

    ↑

87. Ibid 22–3. Note that Western Australia has a Commissioner for Victims of Crime within the Department of the Attorney-General. The Commissioner’s functions do not appear to be set out in law. One of the Commissioner’s functions is to provide ‘a mechanism for victims to lodge complaints regarding Government services’: Government of Western Australia, Department of the Attorney-General, Annual Report 2013/14 (2014) 23.

    ↑

88. Ministry of Justice, Code of Practice for Victims of Crime (United Kingdom, October 2013), issued pursuant to s 32 of the Domestic Violence, Crime and Victims Act 2004 (UK). EU Directive provisions incorporated into the Code of Practice for Victims of Crime include information rights, entitlement to a needs assessment, referral to support services, and a right to review of a decision not to prosecute.

    ↑

89. Domestic Violence, Crime and Victims Act 2004 (UK) s 34.

    ↑

90. Ministry of Justice, Code of Practice for Victims of Crime (United Kingdom, October 2013), 31, 58.

    ↑

91. Crime Victims’ Rights Act, 18 USC § 3771(d)(1), (d)(3) (2004).

    ↑

92. Ibid §§ 3771 (d)(5). Note § 3771(d)(5) requires that a victim has asserted the right to be heard and was denied; applied to the Court of Appeals by way of writ of mandamus within 10 days; and, in the context of a plea, that the accused did not plead guilty to the highest charge.

    ↑

93. Erin Blondel, ‘Victims’ Rights in an Adversary System’ (2009) 58 Duke Law Journal 237, 259–260, arguing that because the CVRA does not confer party status on victims, it places obligations on prosecutors and trial courts to vindicate victims’ rights, often in ways which sit uncomfortably with the obligations of the parties and the court in an adversarial trial; and it does not give victims full exercise of their purported rights or any real influence on the trial.

    ↑

94. 435 F.3d 1011 (9th Cir, 2006).

    ↑

95. Kenna v United States District Court 435 F.3d 1011 (9th Cir, 2006) 1017–18. For commentary see Douglas E Beloof, ‘Judicial Leadership at Sentencing under the Crime Victims’ Rights Act: Judge Kozinski in Kenna and Judge Cassell in Degenhardt’ (2006) 19(1) Federal Sentencing Reporter 36.

    ↑

96. An Act to Enact the Canadian Victims Bill of Rights and to Amend Certain Acts, C-32 (assented to 23 April 2015) s 21 (comes into force 90 days after the date of assent). Note that the application and interpretation of the Canadian Victims Bill of Rights is qualified to ensure non-interference with a number of matters, including police or prosecutorial discretion and the administration of justice: s 20.

    ↑

97. Ibid s 22(1). Section 22(1) does not apply to ‘the Canadian Bill of Rights, the Canadian Human Rights Act, the Official Languages Act, the Access to Information Act and the Privacy Act and orders, rules and regulations made under any of those Acts’: s 22(2).

    ↑

98. Ibid s 25.

    ↑

99. Ibid ss 27, 28.

    ↑