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

4. What should be the role of victims in the criminal trial process?

4.1 Part Two of this consultation paper considers the role of the victim at each stage of the common law adversarial criminal trial process:

• the decision to prosecute

• committal proceedings

• pre-trial proceedings

• the trial

• sentencing

• compensation and restitution

• appeals.

4.2 Each chapter (Chapters 5–11) has the same structure:

• an outline of the current Victorian processes and procedures, with a particular focus on victims

• consideration of victim-related procedures in other jurisdictions which are distinctly different from Victoria

• discussion and options for reform

• questions designed to capture the issues and reform proposals identified, and guide the preparation of submissions.

4.3 Before turning to a detailed exploration of the individual stages of the criminal trial process, it is important to consider the fundamental, overarching question for this reference:

What should be the role of victims in the criminal trial process?

4.4 In order to make such a conceptually complex task more approachable, the Commission has identified three broad answers to the question:

• The role of the victim should be ‘protected witness’.

• The role of the victim should be ‘participating witness’.

• The role of the victim should be ‘prosecuting witness’.

4.5 Each of the above answers leads to different proposals for reform, some of which have overlapping features. The Commission also notes that victims can be, and have been, afforded different roles at different stages of criminal proceedings.

Protected witness

4.6 In general terms, the current role of victims throughout the criminal trial proceedings in Victoria is as a witness for the state. As will be seen in Chapter 8, victims of certain offences are afforded various protective measures throughout the criminal trial process in their role as witnesses. These protective measures have been progressively adopted to reduce the risks of secondary victimisation of vulnerable witnesses, such as children and victims with cognitive impairments, and to restrict reliance on wrongful gender stereotypes in sexual offence matters.^[1]

4.7 Reforms to better protect victims as witnesses do not fundamentally alter the relationship between victim, prosecutor, court, community and accused. Rather, they are designed to provide as much protection and support to victims in their role as a witness as possible, while also balancing the right of the accused to a fair trial. Measures to protect victim-witnesses are also reflected in policies and support services aimed at ensuring that victims are treated with fairness, respect and dignity.

4.8 The types of reforms (whether adopted or proposed) that fall into the ‘protected witness’ category include:

• restricting the number of times victims are required to give evidence during the stages of the criminal trial process

• expanding the use of alternative arrangements for giving evidence by victims

• strengthening obligations on prosecutors to keep victims informed of the progress and conduct of the trial

• enhancing victim support and advice services, including through the establishment of commissioners for victims of crime

• expanding evidentiary rules to prevent unjustified interference with victims’ privacy, and aggressive, harassing or otherwise traumatic questioning

• prohibiting the judge, prosecutor and accused’s lawyer from making statements to the jury about victims based on stereotypes and prejudice.

4.9 Despite recent reforms, victims may still experience the criminal trial as traumatic and alienating, particularly where legislated reforms are not accompanied by operational and cultural change within the legal profession and the judiciary.^[2] Dismissive or infrequent interactions with key criminal justice actors can undermine victims’ satisfaction with the criminal justice system and cause distress.^[3]

4.10 Operationally, reforms need to be accompanied by institutional structures and resources ‘to guarantee that services and facilities are offered consistently and automatically to all victims’.^[4] Effecting cultural change requires key actors to be aware of reforms, understand the purpose of the reforms, and accept the reforms and purposes for reform as legitimate.^[5] As part of such reforms, enforcement mechanisms, such as complaints or review procedures, can have a role in creating a culture of compliance within the legal profession.^[6]

Participating witness

4.11 The progressive introduction of protected-witness reforms was not directed towards addressing victims’ core procedural justice needs:

• to exercise agency

• to express the impact that victimisation has had on their life in their own terms

• to meaningfully participate in decision making throughout the different stages of the criminal trial process. ^[7]

4.12 These needs have been targeted through the adoption of a second category of reforms, which can be characterised as ‘participating-witness’ reforms.^[8] Participating-witness reforms have generally been of two types:

• legislative or policy obligations that provide for victims’ interests, views or concerns to be taken into account by the judge or the prosecutor when making rulings or exercising discretion

• procedures that allow victims to be heard, for example to make submissions opposing applications for access to their confidential records during pre-trial, or to present a victim impact statement during sentencing.

4.13 Proposals for further participating-witness reforms tend to either strengthen existing modes of victim participation, or call for the adoption of alternative procedures drawn from other legal systems and theory, including:

• strengthening and expanding prosecutorial obligations to consult with victims

• giving victims standing, generally to be exercised through legal representation, during some or all of the stages of the criminal trial process where certain rights or interests are affected

• giving victims the option of engaging in restorative justice procedures as an alternative or complementary pathway to existing trial, sentencing and reparation procedures.

4.14 Proponents of greater victim participation argue that these types of reform do not fundamentally change the nature of the justice system, while critics argue that they invariably will. This might depend on the nature and extent of the particular reform being considered. At the very least, the traditional two-party adversarial criminal justice system is challenged by reforms which require that the views, interests and rights of a third actor be incorporated into that system.^[9]

4.15 As with protected-witness reforms, the successful introduction of participating-witness reforms requires cultural as well as legislative change. Reforms introduced to date have required prosecutors to engage victims in decision making,^[10] judges to consider the rights and interests of victims, and defence lawyers to deal with the presence of victims in court in ways not previously required. Nonetheless, research suggests that legal actors can be creative and flexible in the way they manage increased victim participation and such approaches can be effective in bridging the gap between victims’ needs and other institutional goals.^[11]

4.16 Research also suggests that the introduction of participatory reforms can create unrealistic expectations in victims as to what that participation will actually achieve, while potentially causing delay and complexity in the criminal process. Caution is therefore required, as unmet expectations and delay have the potential to cause distress and harm to victims.^[12]

Prosecuting witness

4.17 Some modes of increasing victim participation in the criminal trial process involve extending to victims some or all of the functions, rights and obligations that are traditionally associated with the role of the prosecutor. Reform proposals in this vein are based on the idea that permitting victims a role comparable to a prosecutor is the best way to empower victims, respect their agency and preclude them being sidelined as mere witnesses in the criminal trial process.^[13]

4.18 Reforms that require prosecutors to follow victims’ instructions or directions about the conduct of the trial make a victim a ‘prosecuting witness’. Such reforms change the role of the prosecutor from an impartial representative of the public interest to the victim’s lawyer.

4.19 Less radical prosecuting-witness reforms, which retain the core functions and status of the state as independent public prosecutor, include:

• making a range of participatory victim rights enforceable by the victim throughout the criminal trial process, with consequences for the conduct of the trial if they are infringed

• giving victims the autonomy to supplement the state-run prosecution in the role of subsidiary or auxiliary prosecutor.

4.20 An auxiliary prosecutorial role is available to victims in a number of inquisitorial justice systems in Europe, although the limitations and characterisation of the role differ.

4.21 The distinction between participating-witness and prosecuting-witness reforms may be difficult to discern in some circumstances. In essence, the Commission sees the distinction lying in the extent to which victims are able to independently take on functions traditionally within the sole purview of the public prosecutor, and therefore dictate rather than influence proceedings.

4.22 Further, at different stages of the trial process, victims may have different roles, such that the role of victims in the trial process changes between participating witness and prosecuting witness.^[14]

4.23 If victims were to take on the role of prosecuting witness, the issues relating to the need for attitudinal and behavioural change within institutions and stakeholders discussed in relation to participating-witness reforms would also arise. In addition when looking at transposing victim-centred aspects from foreign legal systems into Victoria’s, it is salient to note the following observation of the 2008 Moynihan Review in Queensland:

Simply because a reform has been effective elsewhere, does not mean, however, that it can be transplanted to a different cultural and social context and be assumed to have the same results. Local legal cultures must be considered and local refinements and adjustments will necessarily be required over time.^[15]

Questions

1 Should the role of victims in the criminal trial process be that of protected witnesses, participating witnesses or prosecuting witnesses?

2 Could victims have different roles at different stages of the trial?

3 If changes to attitudes and behaviour are needed to achieve the intent of legislative reform, how might those changes be achieved?

1. Victorian Law Reform Commission, Sexual Offences: Law and Procedure, Final Report (2004) chs 4–6.

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2. 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); Laura Hoyano ‘Reforming the Adversarial Trial for Vulnerable Witnesses and Defendants’ (2015) 2 Criminal Law Review 107, 109.

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3. Bluett-Boyd and Fileborn’s research participants identified change-resistant individuals and agencies as a key barrier to reform. The need for cultural change at each stage of the process was identified as a necessary prerequisite to entrenching reforms to criminal justice processes: 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) (xi). 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) [33]–[37].

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

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5. Ibid 197.

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6. Ibid 210; Douglas E Beloof, ‘The Third Wave of Crime Victims’ Rights: Standing, Remedy, and Review’ (2005) Brigham Young University Law Review 255; Simon Evans and Carolyn Evans, ‘Legal Redress under the Victorian Charter of Human Rights and Responsibilities’ (2006) 17 Public Law Review 264, 281.

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7. See discussion of victims’ procedural justice needs in 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) [10]–[38].

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8. For discussion of the shift from improving victim experience to increasing victim participation, see 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, 2011) 1, 1–2; Ian Edwards, ‘An Ambiguous Participant: The Crime Victim and Criminal Justice Decision-making’ (2004) 44 British Journal of Criminology 967.

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9. 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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10. 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, 146. See also Edna Erez et al, ‘Outsiders Inside: Victim Management in an Era of Participatory Reforms’ (2014) 20(1) International Review of Victimology 169, 171.

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11. Edna Erez et al, ‘Outsiders Inside: Victim Management in an Era of Participatory Reforms’ (2014) 20(1) International Review of Victimology 169, 184–5.

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12. Ibid.

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13. Douglas Beloof, ‘The Third Wave of Crime Victims’ Rights: Standing, Remedy, and Review’ (2005) Brigham University Law Review 256; Tyrone Kirchengast, ‘Victims Lawyer, Victim Advocates, and the Adversarial Criminal Trial’ (2013) 16(4) New Criminal Law Review:
    An International and Interdisciplinary Journal 568.

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14. For example, the International Criminal Court’s (ICC) victim participation regime arguably places victims in a participatory-witness and prosecuting-witness role. See discussion of ICC in Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process Information Paper 3: the International Criminal Court: a Case Study of Victim Participation in an Adversarial Trial Process (May 2015).

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15. The Hon. Martin Moynihan, Review of the Civil and Criminal Justice System in Queensland (Queensland Government, 2008) 166.

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