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

2. The history of the common law adversarial criminal trial and the experiences and needs of victims of crime

Introduction

2.1 The form of the adversarial criminal trial has changed considerably over time. These changes have related to shifting ideas about the nature and meaning of crime and what it is that the criminal justice system should achieve for victims, offenders and society generally.^[1]

2.2 This chapter first outlines the development of the adversarial criminal trial process and the relationship between victims and the state in the common law system that developed in England after the Norman Conquest of 1066. It then provides an overview of the core elements of the modern adversarial criminal trial.

2.3 Finally, this chapter considers the justice needs of victims of crime and their experience of the modern adversarial trial process.

Understanding crime and public prosecutions

2.4 The way in which crime is understood is inextricably linked to who is responsible for prosecuting crime and the relative place of victims, offenders and society in the criminal justice system.^[2]

2.5 There are numerous theories about the meaning of crime, from multiple disciplines. Crime is variously described as:

• what the law deems as criminal^[3]

• the ‘legal response to deviance over which the state has the dominant if not exclusive right of action’^[4]

• conduct that ‘injures or threatens’ the common good^[5]

• conduct that society finds inherently immoral^[6]

• a reflection of societal values about appropriate behaviour^[7]

• a tool of governance^[8]

• a way to ensure public safety.^[9]

2.6 While there are important differences between these theories, a common theme is evident: crime is something more than a wrong done or a harm caused to an individual—it has a public or communal element. Crime profoundly affects individual victims, but also has broader adverse impacts for society generally. A crime committed against one individual can lead to fear, concern and apprehension in the general community.

2.7 Closely linked to the public nature of crime is the broadly accepted ‘general justifying aim’ of the modern criminal justice system as being to control crime by detecting, convicting and sentencing the guilty.^[10] To achieve that aim, the purpose of the criminal trial is understood as being to establish that the accused committed the crime charged so that punishment can be lawfully imposed.^[11] It has also been argued that the purposes of the criminal trial process, which encompass the imposition of punishment, are much broader than this, and include important expressive functions. Through public prosecutions, the state affirms the norms and values of society and facilitates the public denunciation and condemnation of conduct deemed criminal.^[12] In doing so, the public prosecutor, on behalf of the state, plays an important role in helping to bring closure and restoration to the lives of individual victims, and also contributes to the rehabilitation of society more generally.^[13]

2.8 This public aspect of crime is what justifies its prosecution by the state on behalf of the community, rather than on behalf of the victim.^[14] According to liberal political theory, the social contract between individuals and the state requires the state to protect society’s individual members.^[15]

2.9 This is the modern concept of the purpose of the common law adversarial trial. The state’s role in prosecuting crime, and the related purposes of the criminal trial, have not always been understood this way.

The historical development of the common law adversarial criminal trial

Common law jurisdictions

2.10 The ‘common law’ is a large body of judge-made rules,^[16] which include rules of evidence and definitions of criminal offences. The common law system of law making developed in England following the Norman Conquest (1066). The basis of this system is that court rulings developed in earlier cases, called precedents, must be applied by courts determining later disputes with similar facts.^[17]

2.11 Countries with legal systems based on the common law, also known as common law jurisdictions, are generally those countries which were colonised by the British, including Australia, Canada, New Zealand and the United States. Although legislation is replacing judge-made law as the primary source of legal rules in many common law countries, the use of precedent and the centrality of judge-made law remain core elements of common law systems today.^[18]

The history of the adversarial criminal trial

2.12 A key feature of contemporary common law systems is the adversarial criminal trial.^[19] This form of criminal trial has been through several different phases since 1066.

Vengeance and retribution

2.13 Historically, criminal disputes were considered private matters, and their resolution was driven by the need for vengeance or retribution.^[20] An accused proved their innocence by surviving a physical ordeal, or by producing ‘oath-helpers … to back his denial by their oaths’.^[21]

2.14 Private settlements, which could involve branding or maiming the offender, or the payment of land or money to the victims, were encouraged as the most appropriate form of dispute resolution.^[22]

2.15 The role of the state was very limited and ‘the choice to prosecute and the mode of punishment rested with the victim’.^[23]

Private prosecutions and the emergence of official institutions

2.16 From the mid-1100s onwards, the King’s interest in maintaining peace in England led to increased Crown involvement in the settlement of criminal disputes.^[24] Certain offences, including homicide, serious offences to the person, robbery, burglary, arson, and trespass, came to be known as breaches of the King’s peace.^[25]

2.17 The King established a series of official institutions, such as sheriffs and King’s courts.^[26] Early versions of the modern jury, parish constables and justices of the peace also emerged.^[27]

2.18 Notwithstanding these developments, the role of laying charges against accused persons and conducting the prosecution was almost exclusively undertaken by the victim or their family until as late as the start of the 1400s.^[28]

2.19 Between the 1400s and 1700s, royal courts and ‘officers of royal justice’, including justices of the peace, began to exercise increasing influence in conducting investigations and prosecutions. This has been described as one of the most significant developments in the history of the adversarial criminal trial.^[29]

2.20 Nonetheless, in many cases victims remained responsible for apprehending the offender, filing charges with the magistrate, collecting evidence, organising witnesses, and running the criminal trial, well into the 1700s.^[30]

2.21 The early criminal trial had a shape unfamiliar to modern common law courtrooms:

• For trials of more serious offences, the justice of the peace would examine the accused, the victim and witnesses before a grand jury of citizens, which would decide if the matter would proceed to a jury trial before the royal courts.^[31]

• The trial was often very short, sometimes only 15–20 minutes.

• The evidence previously heard by the grand jury was read at the trial, followed by the victim telling the jury his or her account of the alleged crime.^[32]

• The accused would often tell his or her own version of events, in response to the evidence.^[33]

• The accused was not informed of the charge before it was read to the court, to ‘prevent the fabrication of a defence’; was usually detained before trial; and had no means to compel the attendance of witnesses.^[34]

• The victim did not have to prove their case beyond reasonable doubt, there were few restrictions on what evidence and witness testimony could be admitted, and it is unlikely there was a presumption of innocence.^[35]

• Jurors questioned witnesses, the accused and the judge, and sometimes asked for witnesses to be called to give evidence. ^[36]

• Judges frequently questioned the accused and witnesses, intervened in the presentation of the evidence and were known to challenge the jury’s findings and verdict.^[37]

• At the conclusion of the trial, the jury was responsible for delivering a verdict.

2.22 A key feature of these trials was that the accused was forbidden from being represented by a lawyer. Rather, judges were expected to protect the interests of the accused by highlighting weaknesses in the prosecution case and ensuring questions remained relevant. However, judges often failed to perform this role.^[38] Victims, while permitted to engage a lawyer, rarely did so.^[39]

Transformation to the modern adversarial criminal trial

2.23 A series of developments linked generally to the need for greater crime control led to the modern form of public prosecutions, in which considerable emphasis is placed on the rights of the accused, and the victim is a witness not a prosecutor.

Crime control, fair trials and public prosecutions

2.24 The industrial revolution and the corresponding growth in urban populations (particularly around London) led to a rise in crime during the 1700s.^[40]

2.25 Informal associations for the prosecution of criminals became common. Members paid to join, and then shared the costs of conducting investigations and prosecutions, frequently engaging lawyers to carry out these tasks.^[41] Victims, particularly institutional victims such as banks, the post office and state-run organisations, also began to use lawyers to conduct trials.^[42] In contrast, defence lawyers remained forbidden, apart from on behalf of individuals charged with treason.^[43]

2.26 From the mid-1700s, the government began to offer rewards and incentives for the apprehension and prosecution of criminals. The outcome was a sharp increase in ‘false witnessing and false prosecution’ and related miscarriages of justice.^[44]

2.27 The early 1800s saw the establishment of a police force organised and run by the state. The police force was more efficient than individual victims at gathering evidence against the accused, including forensic and expert witnesses. However, police often failed to assess the reliability or credibility of the evidence they gathered, which also led to miscarriages of justice.^[45]

2.28 Concurrently, accused persons were regularly imprisoned before trial with little opportunity or capacity to prepare a defence; they were not advised prior to trial of the evidence against them; they had no ability to subpoena witnesses; and in most cases were poor, illiterate and incapable of preparing a proper defence.^[46]

2.29 Consequently, the form and conduct of criminal trials changed to address the disadvantaged position of the accused. Most notably, from the 1730s onwards judges began to permit the accused to be represented by a lawyer.^[47] All restrictions on the presence of defence lawyers were formally lifted in 1836.^[48] This contributed to the development of evidentiary rules and the modern style of cross-examination. Judges became ‘neutral arbitrator[s]’ of an adversarial contest between the prosecution and the accused’s lawyer; juries become passive observers; and lawyers for accused persons advised their clients to remain silent at trial hearings, obliging the prosecution to prove its case.^[49]

2.30 Private prosecutions by victims gradually lost prominence. By the 1850s, most offences were prosecuted on behalf of victims by the police. The first Director of Public Prosecutions (DPP) for England and Wales was appointed in 1879, with a very limited role.^[50] It was not until 1985 that England established the Crown Prosecution Service, which together with the DPP, is now responsible for prosecuting criminal cases investigated by police in England and Wales on behalf of the state.^[51]

2.31 The role of the Victorian DPP and Office of Public Prosecutions in prosecuting criminal matters in Victoria is considered in Part Two.

The modern common law adversarial criminal trial process

2.32 While modern adversarial trial procedures are not uniform across the common law world, they share core elements:^[52]

• The trial is a contest between the prosecution, acting as the state’s representative, and the accused.

• The role of the victim is that of a witness for the prosecution.

• The trial must accord with the principles of a fair trial, which include:^[53]

– The accused has a presumption of innocence and the right to silence.

– The prosecution has the burden of proving guilt beyond reasonable doubt.

– The accused has the right to examine witnesses.

– The prosecution must disclose all evidence for and against the accused.

– The trial should be conducted without unreasonable delay.

– If an accused is charged with a serious offence and cannot afford a lawyer, the accused should be provided with one by the state.

• The prosecution and the defence decide how their respective cases will be conducted, and define the issues for the jury to consider.

• The judge plays a relatively passive role. The judge is not involved in investigating the alleged crime, deciding what charge(s) are filed against the accused, or how the prosecution or defence cases are conducted during the trial, except to ensure that the rules of evidence and procedure are followed.

• The case is presented primarily by witnesses giving live oral evidence in court and being subject to cross-examination.

• After the prosecution and the defence have presented their cases, the judge gives the jury instructions about the law to be applied to the evidence and their deliberations on the verdict.

• The jury, after hearing all the evidence and the judge’s instructions, determines whether the prosecution has proven beyond reasonable doubt that the accused committed the crime. In coming to a verdict of guilty or not guilty, the jury must rely only on the evidence presented in court.

2.33 The particular procedures adopted at each stage of the criminal trial process in Victoria are considered in detail in Part Two of this consultation paper.

The place of the victim

2.34 Ultimately, the victim in the modern adversarial criminal trial has been described as ‘evidentiary cannon fodder, of witness or claimant, not of citizen with participatory rights and obligations’.^[54]

2.35 Who then are victims of crime, what are their experiences, and what do victims need from the criminal justice system?

Victims and the criminal justice system

Victimisation—the data

2.36 During the 2014 calendar year, 205,913 people and 73,078 businesses or organisations in Victoria reported to the police that they had been the victim of one or more crimes.^[55] The age group most likely to report an experience of victimisation were those aged between 25 and 29.^[56]

2.37 There were 54,002 individuals who reported being the victim of a crime against the person, compared to 151,191 who reported being the victim of property crime.^[57]

2.38 Just over half of all victims of crime were male (55.4 per cent).^[58] However, there was a greater proportion of female victims of crimes against the person, and significantly more male victims of property and deception offences.^[59]

2.39 The most prevalent crime against the person was non-sexual assault. In Victoria, men were slightly more likely than women to be victims of such assaults.^[60]

2.40 Eighty per cent of Victorian sexual assault victims were female. Females were also more likely than males to be victims of abduction, stalking, harassment and intimidation offences.^[61]

2.41 Australian Bureau of Statistics data indicate that male victims of assault are less likely to know their assailant than are female assault victims. Eighty per cent of women physically assaulted in 2013–14 were assaulted by someone that they knew, most commonly an intimate partner or family member.^[62] Similar statistics exist in relation to face-to-face threatened assault,^[63] homicide^[64] and sexual offences.^[65] This is not surprising in light of the fact that women are disproportionately victims of family violence offences.^[66] The majority of sexual and family violence offenders are male.^[67]

2.42 Individuals from disadvantaged or marginalised communities may have an increased likelihood of being offended against, and may also be vulnerable to certain types of offending.^[68]

2.43 Disadvantaged and marginalised groups often also face greater barriers when seeking to access the criminal justice system. Research in relation to the victimisation of particular groups has been limited. Those studies that have been conducted show increased risk of criminal victimisation and/or greater barriers to justice for individuals who are homeless, of Aboriginal or Torres Strait Islander background, from a culturally or linguistically diverse background or who have a mental illness or disability.^[69]

2.44 Children and young people also experience special difficulties in the criminal justice system, by reason of their age and related vulnerability.

2.45 Crime occurs to and within communities. Risk of criminal victimisation is usually dependent upon a ‘confluence of several risk factors’.^[70] For example, in 2005 the Australian Institute of Criminology published a report analysing key results of the 2004 International Crime Victimisation Survey, which identified people with the following characteristics as being at higher risk of being a victim of personal crime:

• not being married

• relatively higher incomes

• residing at a postcode for less than one year

• unemployment, or

• an active lifestyle outside home in the evenings.^[71]

The diverse impacts of crime

2.46 The experiences and needs of victims will vary depending on personal factors such as age, gender, ethnicity, socio-economic status and health; the type of crime; the seriousness of the crime; the victim’s relationship with the offender; and the victim’s interactions with authorities. The Australian Institute of Criminology has noted:

the impact of crime victimisation varies with the individual. It can be short- or long-lasting; some may find the psychological impact hardest; for others it may be the physical injuries. Research continues to prove that each victim will react differently according to their life experience.^[72]

2.47 The most common effects of crime on victims include shock, a loss of trust in society, guilt, physical injury, financial loss, psychological injury, behavioural change and responses related to a perceived risk of future victimisation.^[73] There is little doubt that the ‘effects of crime are pervasive and deleterious to the victims’ emotional health’.^[74]

2.48 Research indicates that:

• An emotional reaction to being victimised occurs in the majority of victims.^[75]

• Longer-term impacts are experienced by victims of severe sexual assaults, and to a lesser extent, physical assaults.^[76]

• Sexual assault can lead to feelings of guilt, self-blame and unworthiness, as well as contributing to low reporting of sexual offences to police.^[77]

• More serious or violent offences are more likely to cause higher levels of emotional stress and long-lasting psychological, social and physical impacts, while financial and property loss are more typically short-term experiences.^[78]

• Victims of physical or threatened violence and/or attempted break-in tend to have poorer social wellbeing outcomes than people who have not experienced those crimes, for example feeling less safe at home.^[79]

• Although property crimes (particularly non-violent property crimes) typically result in less severe and long-term effects than violent personal crimes, victims of property crimes do suffer emotional, psychological and physical health impacts.^[80]

2.49 There is limited research comparing the experiences of victimisation across victims of different social categories, or across different types of crime. Nevertheless, research shows that the effects of crime may compound, and be compounded by, the vulnerability of individuals already experiencing disadvantage or marginalisation. For example, a ‘convergence of factors increases the risk of physical and sexual violence for women’ from culturally and linguistically diverse backgrounds, including recently arrived refugees.^[81] For refugee women in particular, the impact of crime may be more complex by reason of their earlier traumatic experiences.^[82] Family violence is one of the leading causes of homelessness for women, and once homeless, there is an increased risk of being a victim of crime.^[83]

Victims and the adversarial trial process

2.50 At its worst, the adversarial criminal trial process is experienced by victims as secondary victimisation,^[84] causing negative psychological consequences that can be distinguished from, and compound, the trauma of the original event.^[85] Judith Herman, an expert in traumatic stress, has observed that:

if one set out intentionally to design a system for provoking symptoms of traumatic stress, it might look very much like a court of law.^[86]

2.51 Some victims of crime do have positive experiences in their interaction with criminal justice system agencies and officials. However, research from around the world over the last three decades has consistently reported victim dissatisfaction with some or all of the processes, actors and institutions making up the criminal justice system.^[87]

2.52 Much of the research into the justice experiences and needs of victims has focused on victims of sexual offences. This may reflect the more severe and longer-term impact of these types of crimes on the victims. It may also reflect that sexual offence cases are more likely to go to trial than cases for other offences. Recent County Court statistics illustrate this point: there were 358 trials in the County Court of Victoria in 2013–14, and 40 per cent of those trials were for sexual offences. While overall 71 per cent of cases in the County Court resolved as a plea of guilty without a trial, only 44 per cent of sexual offence matters resolved as a plea of guilty.^[88]

2.53 There have been significant innovations and reforms to the criminal trial process in Victoria and other common law jurisdictions. These reforms have mostly focused on vulnerable victims, primarily children and victims with cognitive impairments, and victims of serious and sexual offences. They will be considered throughout Part Two of this consultation paper.

Victims’ experience and justice needs

2.54 The following section provides an outline of victims’ experience of the adversarial trial process and victims’ justice needs. The Commission encourages readers to refer to information paper 2, Who Are Victims of Crime and What Are Their Criminal Justice Needs and Experiences? published in May 2015, as a companion document to this section.

2.55 It is often said that victims want justice. But justice is a contested and contextual concept, shaped at a community level by culture, history, geography and resources, and at the individual level by the experiences, social situation and personalities of the people involved.^[89] Justice means different things to different people.

2.56 Understanding the justice needs of victims of crime is important. If victims’ needs can be better satisfied by the criminal justice system, confidence in the criminal justice system should improve, and this may encourage victims to report crime and cooperate with justice agencies in order to bring offenders to account.^[90]

2.57 Justice as a concept can be broken into two interrelated aspects:

• procedural justice (or procedural fairness)^[91]

• distributive justice (or substantive justice).

Procedural justice

2.58 Procedural justice is concerned with the quality of an individual’s experience of the processes that result in the ultimate outcome. Research indicates that victims of crime are more likely to consider an outcome fair and the system legitimate if the processes leading to that outcome are perceived to be fair.^[92]

2.59 While there is need for caution when generalising about victims, studies suggest that the central ideas of procedural justice can be seen across highly diverse social environments.^[93]

2.60 The procedural justice needs of victims which emerge from research are captured by the following three categories:

• participation and voice

• information and support

• trust, neutrality and respectful treatment.^[94]

Participation and voice

2.61 The passive role allocated to victims in adversarial trial processes can lead to feelings of frustration and alienation.^[95] This in turn can exacerbate the traumatic impact of the crime itself.

2.62 A particular focus of research has been victims’ exclusion from participating in, or contributing to, prosecutorial decisions, particularly in relation to decisions to discontinue a prosecution or to accept a plea of guilty to lesser charges. Studies have reported victim dissatisfaction with their inability to give directions to a prosecutor and with a perceived lack of transparency in the prosecutorial decision-making process.^[96]

2.63 While many victims want the opportunity to have input into the decision-making process, they do not necessarily want the burden of responsibility for making the ultimate decision.^[97] For example, a small study of sexual assault victims from Victoria found that these victims instead sought participation through strong representation of their interests throughout the stages of the criminal trial process.^[98]

2.64 Research also reveals that many victims feel that their role as a witness simultaneously requires them to re-live the trauma of the crime, while denying them the ability to voice the circumstances and impact of the crime in a way that is meaningful for them.^[99]

2.65 Just retelling a traumatic event can be a traumatising experience.^[100] Victims have described the process of giving evidence as humiliating, degrading and manipulative, and as adding to the trauma of the original crime.^[101] The public nature of a criminal trial; the focus on what happened instead of the impact; aggressive cross-examination techniques; and rules of evidence that restrict the way in which a victim can communicate have all been identified as contributing to victims’ distress and frustration.^[102]

2.66 It has therefore been argued that reforms to the criminal justice system should be aimed at providing options for victims to give a full account of what happened to them in a supportive environment.^[103]

Information and support

2.67 The provision of timely, accessible and accurate information to victims about criminal procedures, sources of support and the status of their case is consistently identified in the research as one means to remedy victim dissatisfaction.^[104]

2.68 Ensuring victims are informed sends a message that their experience of victimisation has not been forgotten in the criminal trial process. Accurate information also helps manage victims’ expectations by setting out the reality of the victim’s role within the criminal trial process.^[105]

Trust, neutrality and respectful treatment

2.69 Individuals are likely to be more satisfied with the outcome of the court process if they are treated with respect and dignity, and if they see the actors in the system as carrying out their roles impartially and fairly.^[106] Fair dealings promote trust, address feelings of uncertainty and encourage positive perceptions of the system.^[107]

2.70 In contrast, insensitive, infrequent or dismissive interactions may leave victims feeling that they are of lesser value in the system, that they have not been believed or that their victimisation is of minimal concern.^[108]

2.71 The distress associated with giving evidence in court, particularly cross-examination, has been well documented. The experience can also undermine trust in the decision-making process by leaving victims feeling that the information on which a decision will be based has been rendered inaccurate by the questions used to obtain the evidence.^[109]

2.72 Research suggests that victims of sexual assault in particular are likely to place emphasis on respectful and dignified treatment by authorities as a way of counteracting negative stereotypes, which still influence society’s response to sexual assault victimisation.^[110]

Distributive justice

2.73 Distributive justice is concerned with the perception of justice arising from outcomes, such as a plea settlement, jury verdict, sentencing determination or award of compensation.

2.74 For some victims, the outcome of the trial process will be the major determinant of their satisfaction with the criminal justice system, even where procedures have been fair.^[111]

2.75 The research suggests that, broadly speaking, victims seek distributive justice in the form of:

• punishment and retribution

• deterrence, protection and community safety

• material and emotional restoration (including validation and denunciation).

Punishment and retribution

2.76 Retributive punishment refers to punishment as an end in itself. It is typically reflected in the imposition of a sentence that is proportionate to the gravity of the crime.

2.77 Retributive punishment is undoubtedly sought by some victims. However, for other victims, retribution is a lower priority than community acknowledgment and denunciation, public safety, emotional reparation and compensation.^[112]

2.78 The level of retribution sought may vary depending on factors such as severity of offence, perceptions of immorality and the relationship between the victim and the offender.^[113]

Deterrence, protection and community safety

2.79 Some victims want an offender to face a prison sentence as a way of making them understand the gravity of the wrong committed, thus deterring future crime and protecting others from harm. Other victims may seek such an outcome through offender rehabilitation in addition, or as an alternative, to prison.^[114]

2.80 Victims of violent offences (including family violence and sexual assault) have been reported as particularly concerned about their immediate personal safety and the protection of others. This is often a key motivation for these victims wanting an offender to serve a custodial sentence.^[115]

Material and emotional restoration

2.81 Restoration (or reparation) is a broad term that is generally understood to include any attempt, whether financial, practical or emotional, to make good a wrong.

2.82 Research indicates that some victims place value on what offenders can do by way of practical or emotional restoration, rather than the amount of money that offenders can afford to pay to them.^[116]

2.83 In relation to financial restoration, it has been suggested that victims may prefer compensation from an offender rather than state-funded compensation, even though it is likely to be limited, because it links offender recognition with the harm caused.^[117]

2.84 Emotional restoration may be facilitated by processes which:

• allow for the offender to make an apology^[118]

• require an offender to understand the harm caused to the victim

• facilitate the demonstration of remorse by an offender

• see an offender, family and/or community members validate a victim’s experience and denounce the offender’s actions

• allow an offender to demonstrate rehabilitation.^[119]

2.85 A guilty plea or verdict or an award of compensation may ultimately be necessary for some victims to feel that validation and denunciation have truly occurred, particularly in the context of sexual assault or family violence.^[120]

1. The Commission considered these issues in its information paper, The Role of Victims of Crime in the Criminal Trial Process Information
   Paper 1: History, Concepts and Theory (May 2015).

   ↑

2. See, eg, Matt Matravers, ‘The Victim, the State, and Civil Society’ in Anthony Bottoms and Julian V Roberts (eds), Hearing the Victim: Adversarial Justice, Crime Victims and the State (Willan Publishing, 2010) 6–7.

   ↑

3. See, eg, Glanville Williams, ‘The Definition of Crime’ (1955) 8(1) Current Legal Problems 107; Andrew Ashworth and Lucia Zedner, ‘Defending the Criminal Law: Reflections on the Changing Character of Crime, Procedure and Sanctions’ (2008) 2 Criminal Law and Philosophy 21, 22.

   ↑

4. Celia Wells and Oliver Quick, Lacey, Wells and Quick Reconstructing Criminal Law (Cambridge University Press, 2010) 7.

   ↑

5. S E Marshall and R A Duff, ‘Criminalization and Sharing Wrongs’ (1998) 11 Canadian Journal of Law and Jurisprudence 7, 11.

   ↑

6. Lucia Zedner, Criminal Justice (Oxford University Press, 2004) 47.

   ↑

7. Ibid 40.

   ↑

8. Jonathan Simon, Governing Through Crime: Criminal Law and the Reshaping of American Government 1965-2000 (Oxford University Press, 2006) cited in Lucia Zedner, Criminal Justice (Oxford University Press, 2004) 46–7.

   ↑

9. Celia Wells and Oliver Quick, Lacey, Wells and Quick Reconstructing Criminal Law (Cambridge University Press, 2010) 6.

   ↑

10. Andrew Ashworth, ‘Concepts of Criminal Justice’ (1979) Criminal Law Review 412, 412, cited with approval in Lord Justice Auld, Review of the Criminal Courts of England and Wales (Ministry of Justice, 2001) [8].

    ↑

11. R A Duff et al, The Trial on Trial: Volume 3: Towards a Normative Theory of the Criminal Trial (Hart Publishing, 2007) 4–5.

    ↑

12. Lucia Zedner, Criminal Justice (Oxford University Press, 2004) 109 citing generally R A Duff, Punishment, Communication and Community (Oxford University Press, 2001).

    ↑

13. R v Beckett [1998] VSC 219 [79]–[80].

    ↑

14. S E Marshall and R A Duff, ‘Criminalization and Sharing Wrongs’ (1998) 11 Canadian Journal of Law and Jurisprudence 7, 20.

    ↑

15. See, eg, Andrew Ashworth, Sentencing and Criminal Justice (Cambridge University Press, 5th ed, 2010) 74–5.

    ↑

16. Frank Maher and Louis Waller, An Introduction to Law (Law Book Company, 6th ed, 1991) 30–1.

    ↑

17. Joseph Dainow, ‘The Civil Law and the Common Law: Some Points of Comparison’ (1967) 15 American Journal of Comparative Law

    419, 425.

    ↑

18. Gary Slapper and David Kelly, The English Legal System (Routledge, 10th ed, 2010) 2–3, 5, 100.

    ↑

19. Marion E Brienen and Ernestine H Hoegen, Victims of Crime in 22 European Criminal Justice Systems (Wolf Legal Publishers, 2001) 39.

    ↑

20. Tyrone Kirchengast, The Victim in Criminal Law and Justice (Palgrave MacMillan, 2006) 25–6.

    ↑

21. See generally Sanjeev Anand, ‘The Origins, Early History and Evolution of the English Criminal Trial Jury’ (2005) 43 Alberta Law Review

    407, 409.

    ↑

22. Yue Ma, ‘Exploring the Origins of Public Prosecution’ (2008) 18(2) International Criminal Justice Review 190, 192–3.

    ↑

23. Tyrone Kirchengast, The Victim in Criminal Law and Justice (Palgrave MacMillan, 2006) 29.

    ↑

24. Ibid 56.

    ↑

25. David Seipp, ‘The Distinction between Crime and Tort in the Early Common Law’ (1996) 76 Boston University Law Review 59; Frederick Pollock, ‘The King’s Peace in the Middle Ages’ (1899) 13(3) Harvard Law Review 177, 177–8.

    ↑

26. See, eg, Tyrone Kirchengast, The Victim in Criminal Law and Justice (Palgrave MacMillan, 2006) 19.

    ↑

27. Ibid 40–1, 48, 57–8.

    ↑

28. Ibid 30–9.

    ↑

29. R A Duff et al, The Trial on Trial: Volume 3: Towards a Normative Theory of the Criminal Trial (Hart Publishing, 2006) 29.

    ↑

30. Tyrone Kirchengast, The Victim in Criminal Law and Justice (Palgrave MacMillan, 2006) 58–9; Gregory Durston, ‘The Inquisitorial Ancestry of the Common Law Criminal Trial and the Consequences of its Transformation in the 18th Century’ (1996) 5 Griffith Law Review 177, 181.

    ↑

31. R A Duff et al, The Trial on Trial: Volume 3: Towards a Normative Theory of the Criminal Trial (Hart Publishing, 2006) 29–30. Following passing of Marion committal statutes in 1154 and 1555, the justice of the peace played a greater role in assembling the prosecution case, ensuring that the private prosecutor and witnesses were bound over for trial.

    ↑

32. Ibid 31.

    ↑

33. Gregory Durston, ‘The Inquisitorial Ancestry of the Common Law Criminal Trial and the Consequences of its Transformation in the 18th Century’ (1996) 5 Griffith Law Review 177, 184.

    ↑

34. R A Duff et al, The Trial on Trial: Volume 3: Towards a Normative Theory of the Criminal Trial (Hart Publishing, 2006) 32.

    ↑

35. Gregory Durston, ‘The Inquisitorial Ancestry of the Common Law Criminal Trial and the Consequences of its Transformation in the 18th Century’ (1996) 5 Griffith Law Review 177, 185–6.

    ↑

36. Ibid 183.

    ↑

37. R A Duff et al, The Trial on Trial: Volume 3: Towards a Normative Theory of the Criminal Trial (Hart Publishing, 2006) 35.

    ↑

38. Ibid 32.

    ↑

39. John Langbein, The Origins of the Adversary Criminal Trial (Oxford University Press, 2003) 253; Paul Rock, ‘Victims, Prosecutors and the State in Nineteenth Century England and Wales’ (2004) 4(4) Criminal Justice 331, 333.

    ↑

40. Tyrone Kirchengast, The Victim in Criminal Law and Justice (Palgrave MacMillan, 2006) 60.

    ↑

41. John Langbein, The Origins of the Adversary Criminal Trial (Oxford University Press, 2003) 135–6.

    ↑

42. Ibid 113–23.

    ↑

43. Ibid ch 2.

    ↑

44. Gregory Durston, ‘The Inquisitorial Ancestry of the Common Law Criminal Trial and the Consequences of its Transformation in the 18th Century’ (1996) 5 Griffith Law Review 177, 190–1.

    ↑

45. Yue Ma, ‘Exploring the Origins of Public Prosecution’ (2008) 18(2) International Criminal Justice Review 190, 195–6.

    ↑

46. R A Duff et al, The Trial on Trial: Volume 3: Towards a Normative Theory of the Criminal Trial (Hart Publishing, 2006) 42.

    ↑

47. John Langbein, The Origins of the Adversary Criminal Trial (Oxford University Press, 2003) 110.

    ↑

48. See generally J M Beattie, ‘Scales of Justice: Defence Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries’ (1991) 9(2) Law and History Review 221.

    ↑

49. R A Duff et al, The Trial on Trial: Volume 3: Towards a Normative Theory of the Criminal Trial (Hart Publishing, 2006) 43.

    ↑

50. The Director made the decision whether to prosecute in a small number of difficult or complex cases, and the Treasury Solicitor undertook the prosecution.

    ↑

51. Crown Prosecution Service <http://www.cps.gov.uk>. The CPS was established following the 1982 Philips Royal Commission on Criminal Procedure, which identified serious inconsistencies and failings in the legal capacity and decisions to prosecute of the police forces. See Paul Rock, ‘Victims, Prosecutors and the State in Nineteenth Century England and Wales’ (2004) 4(4) Criminal Justice 331, 343–4.

    ↑

52. The features of the modern adversarial criminal trial are discussed in more detail in The Role of Victims of Crime in the Criminal Trial Process Information Paper 1: History, Concepts and Theory (May 2015) 2–4.

    ↑

53. These principles are aimed at remedying the imbalance in resources between the prosecution and the accused. See, eg, Mark Findlay, Criminal Law: Problems in Context (Oxford University Press, 2nd ed, 2006) 54.

    ↑

54. Jonathan Braithwaite, ‘Juvenile Offending: New Theory and Practice’, in L Atkinson and S Gerull (eds) National Conference on Juvenile Justice (Australian Institute of Criminology, 1993) 36.

    ↑

55. Crime Statistics Agency (CSA), Crime Statistics Year Ending 31 December 2014, Victim Reports, Table 3, <http://www.crimestatistics.vic.gov.au/home/crime+statistics/year+ending+31+december+2014/victim+reports>.

    ↑

56. Ibid Table 4.

    ↑

57. Ibid Table 5. The CSA defines crimes against the person as homicide, assault, sexual offences, abduction, robbery, blackmail, extortion, stalking, harassment, threatening behaviour and dangerous and negligent acts endangering people. Property crime is defined as arson, burglary, break and enter, theft, deception, bribery and property damage.

    ↑

58. Ibid Table 3.

    ↑

59. Ibid Table 5. This was also reflected in the statistics for offences against children aged 0 to 14 years (see Table 6).

    ↑

60. Ibid Table 5.

    ↑

61. Ibid.

    ↑

62. Australian Bureau of Statistics (ABS) ‘Physical Assault’, 4530.0 – Crime Victimisation, Australia, 2013–14 (17 February 2015) <http://www.abs.gov.au/ausstats/>. Note that the Victorian CSA data tables include statistics on victim–offender relationship (including that 17,938 of the 54,002 offences against the person reported in Victoria in 2014 recorded a current or former partner or family member as the offender). However, this table does not disaggregate on the basis of sex (Table 7). Thus, ABS data for 2013–2014 are used.

    ↑

63. ABS, ‘Threatened Assault’, 4530.0 – Crime Victimisation, Australia, 2013–14 (17 February 2015), <http://www.abs.gov.au/ausstats/>.

    ↑

64. Willow Bryant and Tracy Cussen, ‘Homicide in Australia: 2010–11 to 2011–12: National Homicide Monitoring Program Report’ (AIC Reports: Monitoring Reports 23, Australian Institute of Criminology 2015) 16.

    ↑

65. ABS, ‘Victoria’, 4510.0 – Recorded Crime – Victims, Australia, 2013 (26 June 2014) <http://www.abs.gov.au/ausstats>.

    ↑

66. National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children 2009–2021 (March 2009) 29.

    ↑

67. Ibid.

    ↑

68. Pascoe Pleasance and Hugh McDonald, ‘Crime in Context: Criminal Victimisation, Offending, Multiple Disadvantage and the Experience of Civil Legal Problems’ (Updating Justice No. 33, Law and Justice Foundation of New South Wales, November 2013); Lorana Bartels, ‘Crime Prevention Programs for CALD Communities in Australia’ (Research in Practice, Report No 18, Australian Institute of Criminology, 2011), 3; John McDonald et al, Mapping Access and Referral Pathways for Marginalised Victims of Violent Crime in Rural and Regional Victoria (University of Ballarat, 2010).

    ↑

69. John McDonald et al, Mapping Access and Referral Pathways for Marginalised Victims of Violent Crime in Rural and Regional Victoria (University of Ballarat, 2010) 14; Matthew Willis, ‘Non-disclosure of Violence in Australian Indigenous Communities’ (Trends & Issues in Crime and Criminal Justice No.405, Australian Institute of Criminology, 2011) 1; Australian Bureau of Statistics, ‘Aboriginal and Torres Strait Islander Peoples’, 1370.0 – Measures of Australia’s Progress, 2010 (15 September 2010) <http://www.abs.gov.au/ausstats>; Lorana Bartels, ‘Crime Prevention Programs for CALD Communities in Australia’ (Research in Practice, Report No. 18, Australian Institute of Criminology, June 2011) 3; A McFarlane et al, The Prevalence of Victimization and Violent Behaviour in the Seriously Mentally Ill (project funded by the Criminology Research Council, University of Adelaide 2004) 3; C Wilson et al, ‘Intellectual Disability and Criminal Victimisation’ (AIC Trends and Issues in Crime and Criminal Justice No.60, Australian Institute of Criminology, 1996).

    ↑

70. Colleen Bryant and Matthew Willis, ‘Risk Factors in Indigenous Violent Victimisation’ (AIC Reports: Technical and Background Paper 30, Australian Institute of Criminology, 2008), 27.

    ↑

71. Holly Johnson, ‘Crime Victimisation in Australia: Key Results of the 2004 International Crime Victimisation Survey’ (Research and Public Policy Series No. 64, Australian Institute of Criminology, 2005) x. Personal crime is defined in the report to include assault, threats, robbery and personal theft.

    ↑

72. Bree Cook et al, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia (Research and Public Policy Series No.19, Australian Institute of Criminology, 1999) x.

    ↑

73. Joanne Shapland and Matthew Hall, ‘What Do We Know About the Effects of Crime on Victims?’ (2007) 14 International Review of Victimology 175, 178; Diane Green and Naelys Diaz, ‘Predictors of Emotional Stress in Crime Victims: Implications for Treatment’ (2007) 7(3) Brief Treatment and Crisis Intervention 194.

    ↑

74. Diane Green and Naelys Diaz, ‘Predictors of Emotional Stress in Crime Victims: Implications for Treatment’ (2007) 7(3) Brief Treatment and Crisis Intervention 194, 194.

    ↑

75. Joanne Shapland and Matthew Hall, ‘What Do We Know About the Effects of Crime on Victims?’ (2007) 14 International Review of Victimology 175.

    ↑

76. Ibid, 196.

    ↑

77. Malini Laxminarayan, ‘Procedural Justice and Psychological Effects of Criminal Proceedings: The Moderating Effect of Offense Type’ (2012) 25 Social Justice Research 390, 393; Liz Wall, ‘The Many Facets of Shame in Intimate Partner Sexual Violence’ (ACSSA Research Summary, Australian Centre for the Study of Sexual Assault, January 2012) 2; Victorian Law Reform Commission, Sexual Offences: Law and Procedure Final Report (2004) 81.

    ↑

78. Joanne Shapland and Matthew Hall, ‘What Do We Know About the Effects of Crime on Victims?’ (2007) 14 International Review of Victimology 175, 196. Diane Green and Naelys Diaz, ‘Predictors of Emotional Stress in Crime Victims: Implications for Treatment’ (2007) 7(3) Brief Treatment and Crisis Intervention 194, 195.

    ↑

79. This study did not consider whether the poorer outcomes for victims were already present prior to their experience of victimisation. Australian Bureau of Statistics, Analysis of Crime Victimisation and Social Wellbeing, 4524.0 – In Focus: Crime and Justice Statistics, July 2012 (25 July 2012) <http://www.abs.gov.au/ausstats/>.

    ↑

80. Joanne Shapland and Matthew Hall, ‘What Do We Know About the Effects of Crime on Victims?’ (2007) 14 International Review of Victimology 175, 186; David Baker, ‘Feeling Safe Again: Recovering from Property Crime’ (Policy Brief No.66, The Australia Institute, September 2014); Cassandra Cross et al, ‘Challenges of Responding to Online Fraud Victimisation in Australia’ (Trends and Issues in Crime and Criminal Justice No. 474, Australian Institute of Criminology, May 2014) 3. Note that there is relatively little research on the experiences and needs of victims of property crime. Bree Cook et al, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia (Research and Public Policy Series No.19, Australian Institute of Criminology, 1999) x, noting the need for further research into ‘more common forms of victimisation’, such as burglary.

    ↑

81. See, eg, Annabelle Allimant and Beata Ostapiej-Piatkowski, ‘Supporting Women from CALD Backgrounds who are Victims/Survivors of Sexual Assault: Challenges and Opportunities for Practitioners’ (Report No 9 2011, Australian Centre for the Study of Sexual Assault, 2011) 5.

    ↑

82. Ibid 6.

    ↑

83. See generally Australian Institute of Health and Welfare, Homeless People in SAAP: SAAP National Data Collection Annual Report 2006–07 (2008) 33; Commonwealth of Australia, The Road Home: A National Approach to Reducing Homelessness (2008) 7; Human Rights and Equal Opportunity Commission, Homelessness is a Human Rights Issue (2008) 8.

    ↑

84. Secondary victimisation refers the impact of a negative societal or community reaction to the original victimisation experience, for example, blaming the victim for his/her conduct in relation to a criminal offence.

    ↑

85. Uli Orth, ‘Secondary Victimization of Crime Victims by Criminal Proceedings’ (2002) 15(4) Social Justice Research 313, 321; Judith Herman, ‘The Mental Health of Crime Victims: Impact of Legal Intervention’ (2003) 16(2) Journal of Traumatic Stress 159, 159.

    ↑

86. Judith Herman, ‘The Mental Health of Crime Victims: Impact of Legal Intervention’ (2003) 16(2) Journal of Traumatic Stress 159, 159. Note that most of the research exploring victim distress and secondary victimisation from the criminal trial process has focused on victims of sexual offences. There is a relative lack of data on whether secondary victimisation occurs in other cases, especially non-violent offences.

    ↑

87. Joanna Shapland et al, Victims in the Criminal Justice System (Gower Publishing, 1985); Jo-Anne Wemmers, Victims in the Criminal Justice System (Kugler, 1996); Heather Strang, Repair or Revenge: Victims and Restorative Justice (Clarendon Press, 2002).

    ↑

88. County Court of Victoria, Annual Report 2013–2014 (2015) 10–11.

    ↑

89. Michael King et al, Non-adversarial Justice (Federation Press, 2009) 46.

    ↑

90. Tom Tyler, Why People Obey the Law (Princeton University Press, 2006); Ben Bradford, ‘Voice, Neutrality and Respect: Use of Victim Support Services, Procedural Fairness and Confidence in the Criminal Justice System’ (2011) 11(4) Criminology & Criminal Justice 345, 350; Judith Herman, ‘The Mental Health of Crime Victims: Impact of Legal Intervention’ (2003) 16(2) Journal of Traumatic Stress 159.

    ↑

91. Some academics differentiate between procedural justice and the concept of ‘interactional justice’, which incorporates two aspects: informational justice and interpersonal justice. For the purposes of this paper, these aspects are incorporated into ‘procedural justice’. See Malini Laxminarayan et al, ‘Procedural and Interactional Justice: A Comparative Study of Victims in the Netherlands and New South Wales’ (2012) 9(3) European Journal of Criminology 260.

    ↑

92. Tom Tyler, ‘Social Justice: Outcome and Procedure’ (2000) 35(2) International Journal of Psychology 117; Stuart Ross et al, Fairness and Equity for Victims of Crime: What Do They Want and Why Don’t They Get It? Final Report (ARC Discovery Project DP0665417, December 2009) 144.

    ↑

93. Malini Laxminarayan et al, ‘Victim Satisfaction with Criminal Justice: A Systematic Review’ (2013) 8 Victims and Offenders 119, 141 (cautioning against generalisation of findings); Ben Bradford, ‘Voice, Neutrality and Respect: Use of Victim Support Services, Procedural Fairness and Confidence in the Criminal Justice System’ (2011) 11(4) Criminology & Criminal Justice 345, 350.

    ↑

94. See, eg, Joanna Shapland et al, Victims in the Criminal Justice System (Gower Publishing, 1985); Heather Strang, Repair or Revenge: Victims and Restorative Justice (Clarendon Press, 2002) 302; Malini Laxminarayan et al, ‘Victim Satisfaction with Criminal Justice: A Systematic Review’ (2013) 8 Victims and Offenders 119, 141.

    ↑

95. Judith Herman, ‘Justice from the Victim’s Perspective’ (2005) 11(5) Violence Against Women 571, 581; Bree Cook et al, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia (Research and Public Policy Series No. 19, Australian Institute of Criminology, 1999) 54.

    ↑

96. Stuart Ross et al, Fairness and Equity for Victims of Crime: What Do They Want and Why Don’t They Get It? Final Report (ARC Discovery Project DP0665417, December 2009) 144. Bree Cook et al, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia (Research and Public Policy Series No.19, Australian Institute of Criminology, 1999) 54; Haley Clark, ‘“What is the Justice System Willing to Offer?” Understanding Sexual Assault Victims/Survivors’ Criminal Justice Needs’ (Family Matters, No. 85, Australian Institute of Family Studies, 2010) 35; Justice Strategy Unit, South Australian Government, Victims of Crime Review: Report One (June 1999) 98.

    ↑

97. Joanna Shapland et al, Victims in the Criminal Justice System (Gower Publishing, 1985) 178; Jo-Anne Wemmers and Katie Cyr, ‘Victims’ Perspective on Restorative Justice: How Much Involvement are Victims Looking For?’ (2004) 11 International Review of Victimology 259, 270.

    ↑

98. Haley Clark, ‘“What is the Justice System Willing to Offer?” Understanding Sexual Assault Victims/Survivors’ Criminal Justice Needs’ (Family Matters, No. 85, Australian Institute of Family Studies, 2010).

    ↑

99. Ibid; Tinneke Van Camp and Jo-Anne Wemmers, ‘Victims’ Satisfaction with Restorative Justice: More Than Simply Procedural Justice’ (2013) 19(2) International Review of Victimology 117; Judith Herman, ‘The Mental Health of Crime Victims: Impact of Legal Intervention’ (2003) 16(2) Journal of Traumatic Stress 159.

    ↑

100. Bree Cook et al, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia (Research and Public Policy Series No.19, Australian Institute of Criminology, 1999) 57.

     ↑

101. Haley Clark, ‘“What is the Justice System Willing to Offer?” Understanding Sexual Assault Victims/Survivors’ Criminal Justice Needs’ (Family Matters, No. 85, Australian Institute of Family Studies, 2010) 34; See also Victorian Law Reform Commission, Sexual Offences: Interim Report (2003).

     ↑

102. Bree Cook et al, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia (Research and Public Policy Series
     No. 19, Australian Institute of Criminology, 1999); Heather Strang, Repair or Revenge: Victims and Restorative Justice (Clarendon Press, 2002); Haley Clark, ‘“What is the Justice System Willing to Offer?” Understanding Sexual Assault Victims/Survivors’ Criminal Justice Needs’ (Family Matters, No. 85, Australian Institute of Family Studies, 2010) 34.

     ↑

103. Jonathan Doak et al, ‘Victims and the Sentencing Process: Developing Participatory Rights?’ (2009) 29(4) Legal Studies 651, 667. Procedural fairness, including giving victims greater voice, has been linked in some studies to victim wellbeing: see Tinneke Van Camp and Jo-Anne Wemmers, ‘Victims’ Satisfaction with Restorative Justice: More Than Simply Procedural Justice’ (2013) 19(2) International Review of Victimology 117. However, research on the impact on victims’ mental health of their contact with the criminal justice system has also been described as ‘inconclusive’: Jo-Anne Wemmers, ‘Victims’ Experiences in the Criminal Justice System and Their Recovery from Crime’ (2013) 19(3) International Review of Victimology 221, 222; Jim Parsons and Tiffany Bergin, ‘The Impact of Criminal Justice Involvement on Victims’ Mental Health (2010) 23(2) Journal of Traumatic Stress 182, 183.

     ↑

104. See, eg, Law Reform Commission of Victoria, Rape: Reform of Law and Procedure, Interim Report, Report No. 42; (1991); Justice Strategy Unit, South Australian Government, Victims of Crime Review: Report One (June 1999); Annemarie ten Boom & Karlijn Kuijpers, ‘Victims’ Needs as Basic Human Needs’ (2012) 18(2) International Review of Victimology 155,163; Malini Laxminarayan et al, ‘Victim Satisfaction with Criminal Justice: A Systematic Review’ (2013) 8 Victims and Offenders 119, 141.

     ↑

105. Victims Support Agency (VSA) A Victim’s Voice: Victim Impact Statements in Victoria (Department of Justice, State of Victoria, 2009) 42.

     ↑

106. Tom Tyler, ‘Social Justice: Outcome and Procedure’ (2000) 35(2) International Journal of Psychology 117; Jo-Anne Wemmers et al, ‘What is Procedural Justice: Criteria used by Dutch Victims to Assess the Fairness of Criminal Justice Procedures’ (1995) 8(4) Social Justice Research 329; Jo-Anne Wemmers, Victims and the Criminal Justice System (Kugler, 1996).

     ↑

107. Ben Bradford, ‘Voice, Neutrality and Respect: Use of Victim Support Services, Procedural Fairness and Confidence in the Criminal Justice System’ (2011) 11(4) Criminology & Criminal Justice 345, 345; Jo-Anne Wemmers, ‘Victims’ Experiences in the Criminal Justice System and Their Recovery from Crime’ (2013) 19(3) International Review of Victimology 221, 223.

     ↑

108. Judith Herman, ‘Justice from the Victim’s Perspective’ (2005) 11(5) Violence Against Women 571, 585; Victims Support Agency, Information and Support Needs of Victims and Witnesses in the Magistrates’ Court of Victoria (Department of Justice, State of Victoria, 2013) 17–18; Edna Erez et al, ‘Outsiders Inside: Victim Management in an Era of Participatory Reforms’ (2014) 20(1) International Review of Victimology 169, 185.

     ↑

109. Malini Laxminarayan et al, ‘Victim Satisfaction with Criminal Justice: A Systematic Review’ (2013) 8 Victims and Offenders 119, citing G M Matoesian, Reproducing Rape: Domination Through Talk in the Courtroom (Polity Press, 1993).

     ↑

110. Malini Laxminarayan, ‘Interactional Justice, Coping and the Legal System: Needs of Vulnerable Victims’ (2013) 19(2) International Review of Victimology 145; Victorian Law Reform Commission, Sexual Offences: Interim Report (2003) 345–6.

     ↑

111. Tom Tyler, Why People Obey the Law (Yale University Press, 1990) 122.

     ↑

112. See, eg, Edna Erez and Pamela Tontodonato ‘The Effect of Victim Participation in Sentencing on Sentence Outcome’ (1990) 28 Criminology 451, 467; Joanna Shapland et al, Restorative Justice in Practice: The Second Report from the Evaluation of Three Schemes (Centre for Criminological Research, University of Sheffield, 2006) 72; Heather Strang, Repair or Revenge: Victims and Restorative Justice (Clarendon Press, 2002) 302; Judith Herman, ‘Justice from the Victim’s Perspective’ (2005) 11(5) Violence Against Women 571, 585.

     ↑

113. Malini Laxminarayan et al, ‘Victim Satisfaction with Criminal Justice: A Systematic Review’ (2013) 8 Victims and Offenders 119, 124.

     ↑

114. Joanna Shapland et al, Restorative Justice in Practice: The Second Report from the Evaluation of Three Schemes (Centre for Criminological Research, University of Sheffield, 2006); Haley Clark, ‘“What is the Justice System Willing to Offer?” Understanding Sexual Assault Victims/Survivors’ Criminal Justice Needs’ (Family Matters, No. 85, Australian Institute of Family Studies, 2010) 30.

     ↑

115. Annemarie ten Boom and Karlijn Kuijpers, ‘Victims’ Needs as Basic Human Needs’ (2012) 18(2) International Review of Victimology 155, 161; Haley Clark, ‘“What is the Justice System Willing to Offer?” Understanding Sexual Assault Victims/Survivors’ Criminal Justice Needs’ (Family Matters, No. 85, Australian Institute of Family Studies, 2010) 30; Judith Herman, ‘Justice from the Victim’s Perspective’ (2005) 11(5) Violence Against Women 571, 595.

     ↑

116. Heather Strang, Repair or Revenge: Victims and Restorative Justice (Clarendon Press, 2002) 8–24; Joanna Shapland et al, Restorative Justice in Practice: The Second Report from the Evaluation of Three Schemes (Centre for Criminological Research, University of Sheffield, 2006) 72.

     ↑

117. David Miers, ‘Offender and State Compensation for Victims of Crime: Two Decades of Development and Change (2014) 20(1) International Review of Victimology 145, 148.

     ↑

118. For contrasting opinions on the relative importance of an apology see Judith Herman, ‘Justice from the Victim’s Perspective’ (2005) 11(5) Violence Against Women 571, 587; Heather Strang et al, ‘Victims Evaluations of Face-to-Face Restorative Justice Conferences: A Quasi-Experimental Analysis’ (2006) 62(2) Journal of Social Issues 281.

     ↑

119. See generally Haley Clark, ‘“What is the Justice System Willing to Offer?” Understanding Sexual Assault Victims/Survivors’ Criminal Justice Needs’ (Family Matters, No. 85, Australian Institute of Family Studies, 2010); Joanna Shapland et al, Restorative Justice in Practice: The Second Report from the Evaluation of Three Schemes (Centre for Criminological Research, University of Sheffield, 2006); Heather Strang et al, ‘Victims Evaluations of Face-to-Face Restorative Justice Conferences: A Quasi-Experimental Analysis’ (2006) 62(2) Journal of Social Issues 281; Judith Herman, ‘Justice from the Victim’s Perspective’ (2005) 11(5) Violence Against Women 571; Shirley Julich, ‘Views of Justice Among Survivors of Historical Child Sexual Abuse: Implications for Restorative Justice in New Zealand’ (2006) 10(1) Theoretical Criminology 125; Heather Strang, Repair or Revenge: Victims and Restorative Justice (Clarendon Press, 2002); Bruce Feldthusen et al, ‘Therapeutic Consequences of Civil Actions for Damages and Compensation Claims by Victims of Sexual Abuse’ (2000) 12 Canadian Journal of Women and the Law 66.

     ↑

120. Shirley Julich, ‘Views of Justice Among Survivors of Historical Child Sexual Abuse: Implications for Restorative Justice in New Zealand’ (2006) 10(1) Theoretical Criminology 125, 129; Judith Herman, ‘Justice from the Victim’s Perspective’ (2005) 11(5) Violence Against Women 571, 585; Bruce Feldthusen et al, ‘Therapeutic Consequences of Civil Actions for Damages and Compensation Claims by Victims of Sexual Abuse’ (2000) 12 Canadian Journal of Women and the Law 66, 97–8.

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