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

13. Support for victims

Introduction

13.1 The provision of support for victims during the criminal trial process is closely linked to victims’ perceptions of the criminal trial process as fair and to their confidence in the criminal justice system.^[1]

13.2 As outlined in Chapter 2, victims of crime are diverse, as are their experiences of crime. While crime impacts all victims differently, many victims of crime experience trauma, distress and adverse impacts on their health, finances and personal relationships.^[2] These impacts can persist and change over time.

13.3 The provision of support for victims is designed to respond to these impacts. Guided by the provisions of the Victims’ Charter Act 2006 (Vic), ‘victim support’ encompasses the respectful treatment of victims by all actors in the criminal justice system, the provision of information and the referral to and delivery of, therapeutic and psychological assistance, protection and practical help.

13.4 This chapter reviews the landscape of victim support in Victoria, before canvassing a number of issues related to the provision of victim support. The focus of this chapter is on victims’ need for legal information, advice and assistance. This chapter concludes with discussion of proposals for a victim representative or advocate scheme, and asks what role the Victorian Victims of Crime Commissioner might have regarding victim support.

The court precinct

13.5 In the court precinct itself, appropriate and respectful arrangements for victims are important. In particular, areas where victims and their families can wait, or withdraw to, separate from areas used by accused and their families, materially assist victims during the trial process. Waiting in public court corridors is neither respectful nor appropriate for victims. Courts are progressively addressing this matter.

The current system in Victoria

13.6 Victim support in Victoria is delivered predominantly through government and government-funded agencies, and supported by a range of non-government organisations. Victim support services in other jurisdictions are consistent with practice in Victoria.^[3]

The Victims Support Agency

13.7 The Victims Support Agency (VSA) sits within the Criminal Justice Division of the Department of Justice and Regulation (DJR). The VSA is ‘the official Victorian Government Agency helping people in Victoria manage the effects of violent crime’.^[4]

13.8 The VSA coordinates the delivery of services to victims of crime, including:

• the Victims of Crime Helpline

• Victims Assistance Program (VAP)

• Victims Register

• Prisoners Compensation Quarantine Fund.^[5]

13.9 The services provided by VSA are limited to victims of violent crime, including people injured in violent attacks, subject to assault or robbery, family violence, sexual assault, or who have lost a family member to violence or culpable driving.^[6]

13.10 Most victims gain access to the VAP through the Victims of Crime Helpline.^[7] At least 70 per cent of victim calls to the Helpline are as a result of a referral from Victoria Police. ^[8] Victoria Police’s e-referral service facilitates this referral process at the point of first contact between police and victims.^[9] The referral pathway from police also includes the co-location of VAP services at 15 police stations in metropolitan and regional Victoria.^[10]

13.11 The VAP funds and manages eight community-based services, delivered from over 40 locations. VAP services provide practical support, access to counselling, assistance with VOCAT applications, general information and support in relation to the criminal trial process and assistance with the preparation of victim impact statements. VAP services provide support from the time the crime occurs until the case is finalised by the justice system.

13.12 In 2013–14, the Victims of Crime Helpline responded to over 22,000 calls and referrals. The network of VAP services provided support and assistance to a total of 11,650 people.^[11]

The Child Witness Service

13.13 The Child Witness Service (CWS), established in 2006 in response to recommendations of the Victorian Law Reform Commission’s Sexual Offences Final Report,^[12] also sits within the Criminal Justice Division of the DJR.

13.14 The CWS employs psychologists and social workers. It supports children giving evidence, including child victims, in all Victorian criminal courts. The service aims to reduce the trauma and stress experienced by a child witness by:

• preparing them for the role of being a witness

• familiarising them with the court process and personnel

• supporting them and their family throughout the criminal proceedings

• providing debriefing and referral to community agencies.^[13]

Office of Public Prosecutions Witness Assistance Service

13.15 The Witness Assistance Service (WAS) is part of the Victims Strategy and Services Directorate of the Office of Public Prosecutions Victoria (OPP).

13.16 The Director of Public Prosecutions’ (DPP) policy, Victims and Persons Adversely Affected By Crime, provides that if appropriate, the OPP must refer victims of crime to relevant support services, such as the Victims of Crime Helpline and WAS.^[14]

13.17 All victims should be informed by the OPP that they may contact WAS ‘to receive information, support and assistance’.^[15] However, WAS prioritises the provision of assistance and support to ‘families who have lost loved ones; victims and witnesses in sexual assault and family violence matters; and vulnerable victims’.^[16]

13.18 This prioritisation is mirrored in the DPP’s policy, which requires OPP lawyers to refer victims in such matters to WAS ‘[a]s early as possible in the prosecution process’.^[17]

13.19 WAS employs social workers whose role is to:

• provide information about the rights and entitlements of victims in relation to court processes

• provide information about the progress of a victim’s matter

• support victims during pre-court conferences with prosecutors

• assist victims to understand the legal process, including giving evidence and the process of making a victim impact statement

• assist with arrangements for attending court

• refer victims to other specialist support services.^[18]

13.20 There is a policy obligation on OPP lawyers to offer either pre-committal and pre-trial WAS conferences, or consult with WAS about the appropriateness of a conference, for certain vulnerable victims and in cases involving a death or family violence.^[19] All other cases must be assessed on a case-by-case basis by the OPP lawyer to consider whether referral to WAS is needed.^[20]

13.21 All witnesses who are required to give evidence for the prosecution should be offered a conference with WAS by the OPP lawyer, during which the court process and the witness’s role is explained.^[21]

13.22 In 2013–14, WAS assisted 4,377 victims and witnesses.^[22]

Court Network

13.23 Court Network is a state government-funded, volunteer-based service directed and managed by professional staff. Court Network operates in Victoria and Queensland. Court Network’s broad remit is to assist all court users by providing support, information and referral services. Court Network does not provide legal advice, assistance or representation.

13.24 Court Network services are offered in all Victorian metropolitan courts and courts in the regions of Bendigo/Castlemaine, Gippsland/Latrobe Valley, Mildura, Shepparton, Wodonga, Wangaratta, Ballarat, Geelong and Warrnambool.

13.25 Victims and their families and friends are a core group of court users whom Court Network volunteers support by:

• providing information about court processes

• being a support person at court

• familiarising them with the courthouse and courtroom before the hearing commences

• providing a safe place in the courthouse for the victim to use when not in the courtroom

• providing referrals to other community services.^[23]

13.26 The DPP’s policy stipulates that all victims should be offered the support of Court Network.^[24]

Court Network Victim Support Unit in Queensland

13.27 The Queensland arm of Court Network has established a dedicated Victim Support Unit, which:

supports adults impacted by indictable crimes such as those involving serious assaults, rape and other sexual assaults, domestic and family violence, attempted murder, murder, manslaughter, stalking, historical sexual abuse, torture, and dangerous driving causing death.^[25]

13.28 A qualified program manager works with an individual victim to develop a personalised court support plan.^[26] Trained volunteers provide support on the day of court. The support plan may include the provision of information, referrals and liaison with prosecution victim services. The support offered is for the duration of the criminal trial process and is cross-jurisdictional.

Non-government victim support and advocacy groups

13.29 Non-government victim support and advocacy groups provide important support to victims of crime in Victoria. These groups, particularly women’s groups supporting victims of sexual offences and family violence, and groups supporting the bereaved families of homicide victims, are credited as being the genesis for the broader victims’ movement in Australia.^[27]

13.30 Most operate almost entirely on a volunteer basis. As well as providing direct services to victims, such as advice and emotional support, these organisations conduct advocacy and research on behalf of victims of crime and training.

13.31 Community legal centres, both general and specialist, are another source of information, referral and support for victims of crime. They often provide legal advice and representation for victims who wish to apply to the Victims of Crime Assistance Tribunal, or for a family violence intervention order, or need assistance with other legal needs, which may be exacerbated by their criminal victimisation.

Resources, coordination and integration of service delivery

13.32 As with so many government services, adequate resourcing to ensure that all victims of crime are able to access support services is a challenge.

13.33 Victim support services tend to prioritise the delivery of services to victims of serious offences, including those that involve the death of a loved one or sexual violence, and other vulnerable victims. This is in part because of the more acute needs associated with violent crime victimisation. It has been emphasised throughout this consultation paper, and is consistent with evidence and victim experience, that the criminal trial process is often particularly difficult for such victims. It is clear however, that victims of other violent offences, as well as victims of non-violent offences, also suffer physical, financial, emotional and psychological injury. There is a risk that these victims will not be able to access the support they need.^[28]

13.34 Similar issues arise across regions and for particular victims. The support needs of victims in regional and remote areas may be more acute relative to the services available, when compared to metropolitan areas. Koori victims, victims from culturally and linguistically diverse communities and victims with physical or intellectual disabilities or mental illness, have complex needs and may experience a range of intersecting barriers to accessing the criminal justice system and support services.^[29]

13.35 Studies repeatedly acknowledge that victim support, and victims’ experiences of the criminal trial process, are enhanced when support services are coordinated and integrated.^[30] Proper coordination and integration optimises the likelihood that support services will be consistently offered to the full range of victims with needs.^[31]

13.36 A 2012 review of the literature on victims of crime in the adult criminal justice system described Victoria’s Witness Assistance Service as an example of a ‘single point of contact for victims in the court process’.^[32] An example of the coordinated provision of victim support services ‘before, during and after court appearances’ is the United Kingdom’s Independent Victim Advisors (IVA) scheme for victims of sexual assault and domestic violence.^[33] IVAs assist victim-witnesses ’from the point of crisis’. In particular, IVAs assist with victims’ interactions with other agencies in the criminal justice system.^[34]

13.37 One service not generally provided by victim support agencies and services is personalised legal advice, assistance or advocacy.

The need for personalised legal advice, assistance and advocacy

13.38 In addition to victims’ more general support needs, studies have shown that a lack of information can be a key contributing factor to victim dissatisfaction during the criminal trial process.^[35]

13.39 Victims entering the court system are confronted with complex laws defining the criminal offence, regulating the rules of evidence and establishing complicated court procedures. Victims may find it difficult to understand what is happening during the trial, such as why certain lines of questioning are being allowed or why certain decisions are made by the prosecutor, the judge or accused’s lawyer. This can contribute to a victim’s perception that the trial is unfair. Compounding this is the very restricted role that victims play in adversarial criminal trials, which can leave them feeling ‘discounted, silenced and disempowered’.^[36]

13.40 Providing timely, accessible and accurate information to victims about criminal procedures and the status of their case is consistently identified as one means to remedy some victim dissatisfaction and increase levels of confidence in the criminal trial process.^[37] Accurate, timely and personalised legal information can help ensure victims have realistic expectations about what the criminal justice system can deliver, and what their role in it is, thereby minimising the risk of unmet expectations contributing to dissatisfaction with the system.^[38]

13.41 The Victims’ Charter Act 2006 (Vic) obliges the DPP to provide victims with information about, and referral to, services that might assist with ‘possible entitlements and legal assistance’.^[39] Notably (and appropriately) absent is an obligation to provide victims with personalised legal advice or assistance.

13.42 Victims may feel the prosecutor should play this role. However, as detailed in Chapter 5, the prosecutor is not the victim’s lawyer, and is not necessarily well placed, nor ethically able, to provide victims with all of the information and legal advice they seek or need.

13.43 Victim support services tend to be provided by social workers or counsellors. This is critical because these professionals are trained in identifying the emotional, psychological and practical needs of victims and are therefore best placed to assist with addressing these. These professionals provide essential, but more generalised, information about the legal system and the victim’s role as part of their invaluable service. Their role is not to provide tailored legal advice or assistance. This should only be done by a lawyer. Arguably even personalised case-specific information (in contrast to legal advice) should be provided by someone with legal training and up-to-date knowledge of criminal laws and procedures.

Discussion and options for reform

13.44 Reform proposals focused on victims’ legal support needs revolve around the provision of a legal advisor or advocate to victims throughout the criminal trial process, or at critical stages of the criminal trial process.

13.45 A court-based legal advice service for victims, where victims can access a legal advisor while at court, is one option for reform. This advisor could provide detailed information and advice about a range of matters, including:

• the way the trial is being conducted and the victim’s role in it

• the decisions made by the prosecutor, the accused’s lawyer and the judge

• judicial decision-making in circumstances where the judge must take the victim’s view into account (for example, whether to give evidence in court or via closed-circuit television).

13.46 A legal advisor could also assist the victim to raise matters of concern with the prosecutor, and assist where the prosecutor seeks to consult a victim about a plea negotiation or decision to discontinue a prosecution.

13.47 An alternative proposal would be to establish a scheme for providing victims with individual representation by victims’ advocates^[40] (also called victims’ ‘liaisons’^[41]). In essence, victims’ advocates would take on a victim as their client from the start of that person’s journey through the criminal justice system. A legally qualified advocate could act as the victim’s lawyer, providing personalised and timely legal advice and assistance.^[42] The victim’s advocate could assist with the preparation of the victim impact statement, ensuring that victims have received legal advice about matters such as admissibility, format and delivery. Victims’ advocates could also provide referrals and assist with applications for compensation and financial assistance within and outside the criminal trial process.

13.48 If the advocate was allocated to the victim from their initial contact with the police, they could also perform an important case-management role, assisting in referring the victim to other services depending on their needs.^[43]

13.49 If victims’ advocates were practising lawyers, they might also represent the victim in court when required.^[44] In particular, it has been suggested that a victims’ advocate at the sentencing phase might resolve a number of issues identified with the victim impact statement scheme.^[45] As noted in Chapter 7–9, arguments against these proposals include the potential to add complexity, costs and delays to the trial process. They also risk undermining an accused’s fair trial rights and impacting on the structure of the two-party adversarial criminal justice system.

13.50 Consideration would need to be given to whether the delivery of a victims’ advocate scheme should be independent from, or connected to, the Office of Public Prosecutions. Research suggests that problems may arise when victims’ advocates are seen as aligned with the prosecution, particularly when the interests of victims and prosecutors diverge.^[46]

13.51 As noted in Chapter 12, the role of Victoria’s Victims of Crime Commissioner is still being finalised. One potential role for the Commissioner could be to oversee the provision or coordination of a victim advocate or liaison service. Alternatively, such a service could sit within the ambit of the Victims Support Agency, which currently coordinates the provision of support to victims.

The role of the Victims of Crime Commissioner

13.52 In Chapter 12, the complaints handling role of the different victims of crime commissioners and coordinators around Australia was explored. These commissioners and coordinators have additional legislative responsibilities that relate to the provision of support services to victims. These functions vary across each jurisdiction:

• In the Australian Capital Territory, the Victims of Crime Commissioner’s functions include: managing and determining eligibility for the victims services scheme; overseeing efficient and effective service delivery for victims; ensuring victims receive information and assistance; and facilitating cooperation between agencies.^[47]

• The New South Wales Commissioner of Victims Rights is required to provide information to victims of crime about support services and assistance, co-ordinate the delivery of support services for victims of crime and encourage effective and efficient delivery of services.^[48]

• The South Australian Commissioner for Victims’ Rights is mandated to ‘marshal available government resources’ to be applied efficiently and effectively for the benefit of victims, and monitor the impact of law and procedures on victims of crime. ^[49]

• The Queensland victim services coordinator is required to help victim service providers to coordinate effective and efficient services and assist victims to obtain information or assistance.^[50]

13.53 In addition to contemplating whether the Victorian Victims of Crime Commissioner should have a role in coordinating a legal advocates service for victims, consideration might be given to whether some of the following functions, which are variously vested in the Commissioners of South Australia, Australian Capital Territory and New South Wales, are appropriate for Victoria’s Commissioner:

• coordinating, and potentially administering support services for victims, including any legal advocates service

• developing and informing best-practice resources, policy and law reform relevant to victims of crime

• monitoring compliance with victims’ rights instruments and victim-focused policies and guidelines

• developing, coordinating and/or overseeing training and certification for those working with victims

• conducting research, public awareness and systemic advocacy on behalf of victims

• operating or overseeing a complaints resolution process for victims who feel that their rights have not been respected.^[51]

13.54 As noted above, the Victims Support Agency already coordinates the provision of services to victims in Victoria. Thus, it may not be necessary or appropriate in Victoria for the Commissioner to take on such a role, particularly in light of the likely costs and disruption to victim support service delivery that would ensue. In addition, if the Commissioner were to have a role in coordinating or administering services, this could undermine the independence of the Commissioner, especially if the Commissioner were to be mandated to receive and investigate complaints from victims.^[52]

Questions

60 Are there gaps in the provision of victim support services?

61 How should victim support services be prioritised?

62 How might the delivery of victim support services in Victoria be improved?

63 Do victims need personalised legal advice and assistance? If so, how should such support be delivered?

64 What role could the Victorian Victims of Crime Commissioner have in relation to victim support services?

1. Ben Bradford, ‘Voice, Neutrality and Respect: Use of Victim Support Services, Procedural Fairness and Confidence in the Criminal Justice System’ (2011) 11(4) Criminology and Criminal Justice 345, 362–3.

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2. The impacts of crime on victims are also discussed in more detail in Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process Information Paper 2: Who Are Victims of Crime and What Are Their Criminal Justice Needs and Experiences? (2015) 3–4.

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3. Victorian Auditor-General, Effectiveness of Victims of Crime Programs (Victorian Government Printer, 2011) 9.

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4. Department of Justice and Regulation, Victims Support Agency <http://www.victimsofcrime.vic.gov.au/utility/about+us/victims+support+agency/>.

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5. The Victims’ Register and Prisoner Compensation Quarantine Fund are outside the Commission’s terms of reference.

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6. Department of Justice and Regulation, Types of Crime <http://www.victimsofcrime.vic.gov.au/home/the+crime/types+of+crime/>.

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7. Information provided by Victims Support Agency (March 2015).

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8. Ibid.

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9. A 2010 pilot e-referral program ‘Supportlink’ was adopted statewide in 2013 and has been replaced in October 2014 with VPeR, a referral system developed by Victoria Police: information provided by Victims Support Agency (March 2015).

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10. Further co-locations are in progress: information provided by Victims Support Agency (March 2015).

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11. Information provided by Victims Support Agency (March 2015).

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

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13. Department of Justice and Regulation, Child witness service information <http://www.victimsofcrime.vic.gov.au/home/going+to+court/giving+evidence/child+witness+service/>.

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14. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (8 January 2014) [15].

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15. Ibid [14].

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

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17. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (8 January 2014) [16].

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18. Office of Public Prosecutions Victoria, Witness Assistance Service: We Can Help You <http://www.opp.vic.gov.au/Witnesses-and-Victims/Getting-Help-from-the-Witness-Assistsnce-Service>.

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19. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (8 January 2014) [17]–[19] sets out the different levels of obligation on OPP lawyers to offer a conference with WAS depending on the offence and the victim.

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20. Ibid [20].

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21. Ibid [28].

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22. Director of Public Prosecutions Victoria and Office of Public Prosecutions Victoria, Annual Report 2013–14 (2014) 24.

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23. Court Network, We Can Help (brochure) <http://www.courtnetwork.com.au/CNinformationsheetsBrochure.aspx>.

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24. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (8 January 2014) [37].

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25. Court Network Annual Report 2013–2014 (2014) <http://www.courtnetwork.com.au>.

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26. Court Network, Victim Support Unit, ‘Victims or Witnesses’ <http://victimsupportunit.org/support/>.

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27. Paul Rock, ‘Aspects of the Social Construction of Victims in Australia’ (2006) 1 Victims and Offenders 289, 293–4.

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28. Ibid 290.

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29. These barriers are discussed in detail in Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process Information Paper 2: Who Are Victims of Crime and What Are Their Criminal Justice Needs and Experiences? (May 2015) 6–11.

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30. See, eg, Elaine Mossman, Victims of Crime in the Adult Criminal Justice System: A Stocktake of the Literature (New Zealand Ministry of Justice, 2012) 87–91.

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31. Matthew Hall, Victims of Crime: Policy and Practice in Criminal Justice (Willan Publishing, 2009) 192.

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32. Elaine Mossman, Victims of Crime in the Adult Criminal Justice System: A Stocktake of the Literature (New Zealand Ministry of Justice, 2012) 78 (fn 77).

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33. Ibid 77–8. See also Amanda Robinson, Independent Sexual Violence Advisors: A Process Evaluation (Home Office, 2009); Amanda L Robinson, Independent Domestic Violence Advisors (Home Office, 2009).

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34. Elaine Mossman, Victims of Crime in the Adult Criminal Justice System: A Stocktake of the Literature (New Zealand Ministry of Justice, 2012) 78; Amanda Robinson, Independent Sexual Violence Advisors: A Process Evaluation (Home Office, 2009) 28; Amanda L Robinson, Independent Domestic Violence Advisors (Home Office, 2009) 15–16.

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35. Shapland et al, Victims in the Criminal Justice Process (1985). For further discussion see Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process Information Paper 2: Who Are Victims and What Are Their Criminal Justice Needs and Experiences? (May 2015).

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36. Elaine Mossman, Victims of Crime in the Adult Criminal Justice System: A Stocktake of the Literature (New Zealand Ministry of Justice, 2012) 76.

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37. Joanna Shapland et al, Victims in the Criminal Justice Process (Gower Publishing 1985); Malini Laxminarayan et al, ‘Victim Satisfaction with Criminal Justice: A Systematic Review’ (2013) 8 Victims and Offenders 119, 141; Annemarie ten Boom and Karlijn Kuijpers, ‘Victims’ Needs as Basic Human Needs’ (2012) 18(2) International Review of Victimology 155, 163.

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38. Edna Erez et al, ‘Outsiders Inside: Victim Management in an Era of Participatory Reforms’ (2014) 20(1) International Review of Victimology 169.

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

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40. Edna Erez et al, ‘Outsiders Inside: Victim Management in an Era of Participatory Reforms’ (2014) 20(1) International Review of Victimology 169, 184. The value of victim advocates is also discussed in Christine Englebrecht, ‘The Struggle for “Ownership of Conflict”: An Exploration of Victim Participation and Voice in the Criminal Justice System’ (2011) 36(2) Criminal Justice Review 129, 132, 147.

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41. Nicole Bluett-Boyd and Bianca Fileborn, Victim/Survivor-Focused Justice Responses and Reforms to Criminal Court Practice: Implementation, Current Practice and Future Directions (Research Report No. 27, Australian Institute for Family Studies, 2014) xii.

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42. For example, many victims of crime are not aware that the Confiscation Act 1997 (Vic) may be used by the police to freeze an accused’s assets, preserving them in the event that the accused is convicted and the victim makes an application for compensation. A victims’ advocate could provide this information and act to ensure the victim’s interests are protected.

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43. Nicole Bluett-Boyd and Bianca Fileborn, Victim/Survivor-Focused Justice Responses and Reforms to Criminal Court Practice: Implementation, Current Practice and Future Directions (Research Report No. 27, Australian Institute for Family Studies, 2014) xii.

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44. Ibid; Department of Justice, Victim Impact Statement Reforms in Victoria: Interim Implementation Report (Victorian Government, 2014) 71–2.

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45. Ibid 72; see further discussion at Chapter 9 of this consultation paper.

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46. Christine Englebrecht, ‘The Struggle for “Ownership of Conflict”: An Exploration of Victim Participation and Voice in the Criminal Justice System’ (2011) 36(2) Criminal Justice Review 129, 132.

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47. Victims of Crime Act 1994 (ACT) s 11; the Commissioner’s functions in respect of the ACT victims services scheme are listed the Victims of Crime Regulations 2000 (ACT) reg 22.

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48. Victims Rights and Support Act 2013 (NSW) s 10.

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49. Victims of Crime Act 2001 (SA) s 16(3).

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50. Victims of Crime Assistance Act 2009 (Qld) s 139.

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51. See also Elaine Mossman, Victims of Crime in the Adult Criminal Justice System: A Stocktake of the Literature (New Zealand Ministry of Justice, 2012) 45, appendix B.

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52. See Chapter 12 of this consultation paper for discussion of the role of the different victims’ commissioners around Australia in respect of complaint handling.

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