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

7. The role of victims in pre-trial proceedings

Introduction

7.1 This chapter examines the next stage in the criminal trial process: pre-trial procedures. Matters determined during the pre-trial phase of the criminal trial process can have a substantial impact on the formal trial. Because of this, the pre-trial phase can also significantly impact on how victims experience the trial itself. In Victoria, recent reforms allow victims to play a limited role in some pre-trial proceedings, or aim to protect victims from cross-examination about their sexual history.

7.2 After reviewing Victoria’s system, this chapter turns to consider provisions from several other jurisdictions that involve victims in pre-trial proceedings in different, or broader, ways. The chapter concludes with a discussion of issues and reform proposals.

The current system in Victoria

7.3 Once an accused is committed by a magistrate to stand trial, the case will be transferred to either the Supreme Court or County Court. If the accused has entered a plea of guilty at the committal proceeding, the case will be listed for a plea and sentencing hearing in the appropriate superior jurisdiction. The role of the victim in sentencing is considered in Chapter 9.

7.4 If the matter is to proceed to trial, the court may conduct one or more directions hearings. Typically, two directions hearings are held: one immediately after an accused has been committed for trial and a second in the lead-up to the trial. Arguments about access to or the use of particular types of evidence are generally determined prior to the trial commencing before a jury, either in a separate pre-trial hearing, or more commonly at the commencement of the trial before the jury is empanelled.

7.5 The purposes of the directions hearings are to make any necessary orders for the fair and efficient conduct of the proceedings.^[1] These pre-trial procedures play an important role in shaping the future conduct of the trial by narrowing the issues and evidence in dispute and setting the limits on what evidence can be used.

7.6 There are differences in the practice rules relating to pre-trial matters in the Supreme Court and County Court, which complement the Criminal Procedure Act 2009 (Vic) and govern the procedures leading up to a criminal trial. These differences do not impact significantly on the role of victims in directions hearings. The following section sets out the key documentary and evidentiary matters that are commonly dealt with between the committal and the commencement of the trial.

Initial directions hearing

7.7 The purpose of the initial directions hearing is for the prosecution and the defence to answer a series of questions from the judge about the way the case is to be run, including:

• factual issues in dispute and not in dispute

• plea negotiations

• outstanding disclosure

• the number of witnesses to be called

• special arrangements or facilities for witnesses

• whether suppression orders or similar orders will be sought

• whether any subpoenas will be sought, including for confidential communications

• whether the defence will seek leave to cross-examine the victim in a sexual offence trial about the victim’s sexual history

• any defence objection to the prosecution’s evidence (for example, hearsay and tendency evidence).^[2]

7.8 If the matter is in the County Court and involves a sexual offence and the victim is a child or has a cognitive impairment, the prosecution must file additional materials, including a summary of the opening that the prosecution intends to make to the jury at the trial and the prosecution’s list of witnesses. The court will also address whether the prosecution intends to rely on recorded evidence and whether the victim will give evidence by way of the alternative arrangements set up for child and cognitively impaired victims in the Criminal Procedure Act.^[3]

7.9 Victims have no role in initial directions hearings.

Final directions hearing

7.10 The timing of the final directions hearing differs in the Supreme and County Court. The County Court’s practice note is more prescriptive in terms of setting out when documents must be filed and what matters are to be addressed at the final directions hearing. In general, however, the following documents need to be filed and provided to the other party before a final directions hearing:^[4]

• the signed indictment with the charges that the Director of Public Prosecutions (DPP)or Crown Prosecutor is proceeding with

• a summary of the prosecution opening^[5]

• the defence response to the summary of the prosecution opening^[6]

• the prosecution and defence lists of pre-trial issues

• matters admitted as evidence^[7]

• notice of the evidence the prosecution or defence wants to rely on, and for which the Evidence Act 2008 (Vic) sets out rules regarding admissibility (hearsay, tendency, previous representations, coincidence and opinion evidence)^[8]

• the statement of any expert witness the defence intends to call at trial.^[9]

7.11 The parties should inform the court of any matter that may affect whether the trial can start on time, including:^[10]

• ongoing plea discussions

• the fulfilment of requirements to disclose evidence

• any pre-trial applications yet to be made

• special arrangements for the trial (such as video links and interpreters)

• the length of any pre-trial hearing, such as a special hearing for a child victim in a sexual offence trial.^[11]

7.12 Victims have no role in final directions hearings.

The prosecution’s ongoing disclosure obligation

7.13 The right of the accused to know what evidence will be used by the prosecution in the proceedings, as well as material that is relevant but not being used, is a longstanding principle in adversarial criminal justice systems.^[12] It is linked to the accused’s right to a fair trial and the prosecution’s duty to act fairly.

7.14 The prosecution has an ongoing obligation to disclose to the accused any ‘information, document or thing’ that comes into its possession after an accused is committed for trial.^[13] The DPP’s disclosure policy requires timely disclosure of material which is relevant or possibly relevant to an issue in the case, raises a new issue or the possibility of a new issue, or has real prospects of leading to new evidence.^[14] Disclosure must be made as soon as practicable.

7.15 The prosecution must notify an accused of any additional evidence it intends to adduce from witnesses it intends to call at trial, including expert witnesses.^[15]

7.16 There is no equivalent obligation to disclose evidence to the victim.

Pre-trial applications

7.17 Matters identified at the directions hearings that require pre-trial resolution or rulings by the judge are generally addressed at the commencement of the trial, before the jury is empanelled. Such matters might include:

• arguments about whether multiple charges or charges against co-accused should be heard within the same trial or in separate trials

• general evidentiary applications

• evidence of the victim’s prior sexual history

• publication of the identity of the victim

• confidential communications

• special hearings.

7.18 Applications to have multiple charges or charges against co-accused heard in separate trials rather than in the one trial^[16] can have significant consequences for victims. This is particularly so if holding separate trials means that the victim has to give evidence more than once. In addition, some evidence will only be admissible in one of the trials. This means that when giving evidence victims may be required to avoid information about offences that are to be determined in a separate trial. This can make the elicitation of evidence from victims, and especially young victims, difficult and ultimately unpersuasive, because the victim must disrupt their account of the offending to avoid material ruled inadmissible in that trial.

7.19 There is no provision in the Criminal Procedure Act for the victim to have a role other than as a witness during any pre-trial application for separate trials.

Evidentiary applications

7.20 The evidence relied on by the prosecution and defence must comply with rules contained in the Evidence Act 2008 (Vic) and other relevant legislation. Common pre-trial evidentiary applications concern the use of the following types of evidence:

• tendency and coincidence^[17]

• hearsay^[18]

• opinion/expert^[19]

• credibility^[20]

• identification^[21]

• admissions.^[22]

7.21 Pre-trial matters may require witnesses to be called to give evidence.^[23] This most commonly occurs when:

• a witness was not available for cross-examination at the committal hearing^[24]

• a relevant witness has been identified or has made a statement since the committal hearing

• the accused challenges the admissibility of a piece of evidence (for example, the recording of his or her interview with the police) on the basis of some unfairness or impropriety

• evidence is required to support legal submissions.

7.22 Victims have no role in any of these pre-trial matters, apart from applications relating to confidential communications (discussed below), and if relevant, as a witness. If a victim is required to give evidence during a pre-trial hearing, there is no provision in the Criminal Procedure Act for the victim to object to having to do so, or to address the court in relation to any of the matters the evidence might relate to.

Evidence of sexual activities

7.23 Evidence of a victim’s sexual history has historically relied upon discriminatory gender stereotypes to undermine the credibility of the victim or suggest the accused was reasonable in believing the victim consented.^[25] As a result of relatively recent reforms, however, the accused’s lawyer now requires the judge’s leave to ask the victim questions during cross-examination or lead evidence about their sexual history.^[26]

7.24 The judge may only allow cross-examination or evidence about a victim’s sexual activities (other than those to which the charge relates) if it is substantially relevant to a fact in issue in the trial and is in the interests of justice.^[27] When considering whether it is in the interests of justice to allow cross-examination or admit evidence about sexual activities, the judge must have regard to:

• whether the probative value of the evidence outweighs the potential distress, humiliation and embarrassment of the victim (taking into account the victim’s age and the number and nature of the questions)

• the risk that it might arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility

• the need to respect the victim’s personal dignity and privacy, and

• the right of the accused to fully answer and defend the charge.^[28]

7.25 Applications to cross-examine or admit evidence about the victim’s sexual activities must be made at least 14 days before the trial.^[29] There is no obligation to serve the notice on the victim or for the victim to be informed that the application is being made.

7.26 The accused can request that the victim not be present in court when the application is heard. If this occurs, the judge must order that the victim not be present.^[30]

Confidential communications

7.27 Records of communications between sexual assault victims and the professionals counselling or treating them are referred to in Victorian law as ‘confidential communications’. Confidential communications may be sought by an accused in preparation for, and for use in, all stages of a criminal trial.^[31] The confidential communications provisions in Victorian law provide for some degree of victim participation and recognise the need to protect the privacy of victims from unjustified interference and thereby encourage the use of counselling and the reporting of sexual offences to police.^[32]

7.28 The Evidence (Miscellaneous Provisions) Act 1958 (Vic) (EMPA) restricts access to, and use of, records of communications made in confidence by a victim of a sexual offence to a registered medical practitioner or counsellor in the course of a professional relationship.^[33] Leave of the judge is required at three stages:

• before a party (typically the accused) seeks to compel (usually by subpoena) a medical practitioner or counsellor to produce documents containing confidential communications

• before a document is produced for inspection by a party

• before use at trial.^[34]

7.29 The judge must not grant leave unless satisfied of each of the following matters:

• The evidence will have substantial probative value to a fact in issue.

• Other evidence of similar or greater probative value relating to the matter contained in the confidential communication is not available.

• The public interest of preserving confidentiality and of protecting the victim from harm is substantially outweighed by the public interest in allowing evidence of substantial probative value to be introduced.^[35]

7.30 In balancing the public interests above, the judge must take into account:

• the likelihood, nature and extent of harm that may be caused to the victim

• the extent to which the evidence is necessary to allow the accused to make a full defence

• the need to encourage victims of sexual offences to seek counselling

• the extent to which victims may be discouraged from seeking counselling, or the effectiveness of counselling diminished, if the confidential communications were accessed or used

• whether a discriminatory belief or bias is behind the application

• whether the victim objects to the disclosure

• the nature and extent of the reasonable expectation of confidentiality and the potential prejudice to the privacy of any person.^[36]

7.31 Any party who seeks to subpoena, produce or use a confidential communication must give each party in the proceedings, the informant and the medical practitioner or counsellor, at least 14 days’ notice.^[37] The informant must give a copy of the notice to the victim (referred to as the ‘protected confider’) within a reasonable time.^[38] There is no requirement on the accused to give a copy of the application to the victim directly or to ensure the victim is informed.

7.32 The victim may seek permission from the judge to appear in court and make submissions in relation to any confidential communications. As the recipient of the subpoena, the medical practitioner or counsellor may also appear and make submissions.^[39]

7.33 An important issue when considering this procedure is how often victims have used these provisions, and whether the Office of Public Prosecutions or police have processes in place to ensure that victims are aware that access to confidential communications has been sought and that they have a right to seek leave to appear.

7.34 While the victim is permitted to seek leave to appear, the victim is still not a party to the proceedings as a whole. This means that a victim cannot appeal the decision of a judge to allow an accused to access or use evidence from a confidential communication.^[40]

7.35 The EMPA provides some protection for victims where leave has been granted to the defence or prosecution to use their confidential communication during the trial process. The judge may order that evidence be heard in camera, that evidence be subject to a suppression order or make other orders necessary to protect the identity of a victim.^[41]

Alternative processes and procedures

7.36 Many common law jurisdictions have in place rules relating to confidential communications and evidence about a victim’s sexual history. The purpose of the following section is to outline provisions in other jurisdictions that are distinctly different from or broader in application than the measures in place in Victoria.

Confidential communications

New South Wales

7.37 The sexual assault communications privilege in the Criminal Procedure Act 1986 (NSW) is broader than Victoria’s confidential communications provisions. It also provides greater safeguards to ensure that victims are aware of, and can assert, their rights in respect of confidential communications.

7.38 A ‘protected confidence’ is defined as including any counselling communication made by, to or about a victim of a sexual offence.^[42] A counselling communication occurs in any situation where a person trained in, or with experience relevant to, counselling victims has listened to and given encouragement to a victim, or has advised, provided therapy or treated the victim.^[43] Thus, it may extend beyond medical practitioners and counsellors to include social workers’ records or school records.^[44]

7.39 The New South Wales legislation also contains a blanket prohibition on a protected confidence being sought or used for the purposes of preliminary proceedings, such as bail or committal proceedings.^[45]

7.40 In subsequent stages of the criminal trial process, the judge’s leave is required to issue a subpoena, produce a document to the court in response to a subpoena, or use evidence of a protected confidence.^[46]

7.41 Where leave of the judge is sought, section 299A grants a victim standing to appear.^[47] This means that a victim has a right to appear, and is not required to first seek leave of the judge, as is required in Victoria. Further, the judge has the duty to ensure that the victim is aware of his or her rights in relation to protected confidences and has had reasonable opportunity to obtain legal advice.^[48]

7.42 The party making the application must give notice to the other party and to the victim (or their nominee).^[49] If the accused is making the application, a copy of the notice—which must advise the victim that they may appear in the proceedings—may be given to the prosecutor to pass on to the victim.^[50]

7.43 In response to the application, the victim is permitted to provide a sworn confidential statement to the court which details the harm likely to be experienced if leave is granted.^[51] In PPC v Williams,^[52] the Court of Criminal Appeal noted that the victim, through her lawyer, was able to provide the trial judge with both confidential submissions (detailing objections to the disclosure of certain medical documents) and a confidential affidavit (setting out the harm the victim considered she would suffer if the accused was granted access to the documents).^[53] This was facilitated by the judge allowing the victim’s lawyer to access the documents in question prior to the hearing of the application, so as to formulate the victim’s response.^[54]

7.44 The legal test in New South Wales for whether a judge should grant leave to a party to access or use a protected confidence is similar to Victoria’s.^[55] However, the balancing the judge must engage in before granting leave is arguably weighted more towards protecting the victim, as the list of factors the judge must take into account does not specifically include the accused’s interests (such as the extent to which the evidence is necessary to allow the accused to make a full defence). ^[56]

7.45 Victims in Victoria do not have a right to appeal the interlocutory decision of a judge to allow the disclosure of confidential communications. In contrast, the Criminal Appeal Act 1912 (NSW) provides a right for a non-party, such as a victim to whom the protected confidence relates, to seek leave to appeal to the Court of Criminal Appeal. A victim may appeal against a decision to allow access to or use of a protected confidence, and against a ruling that a document or evidence does not contain a protected confidence. ^[57]

7.46 The above procedural rights for victims in New South Wales gave rise to the need for victims to have access to legal advice and representation. To facilitate this, Legal Aid New South Wales established the Sexual Assault Communications Privilege Service as part of its Civil Law Division. While the service provides legal advice and representation, most victims are referred to private lawyers who have received relevant training.^[58]

Tasmania

7.47 Tasmania’s Evidence Act 2001 arguably provides the greatest degree of empowerment to victims in relation to confidential communications. It prohibits a ‘counselling communication’ from being produced to court, disclosed in any criminal proceedings or admitted into evidence. The only exception is where the victim consents.^[59]

7.48 However, the definition of counselling communication is narrower than that of protected confidence in New South Wales and confidential communication in Victoria. It only covers communications during the course of counselling or treatment with a professional whose work includes the provision of psychiatric or psychological therapy to sexual assault victims.^[60]

Canada

7.49 Canada’s Criminal Code contains similar, although broader, provisions to Victoria.^[61]

7.50 The Canadian provisions capture any record that contains personal information ‘for which there is a reasonable expectation of privacy’.^[62] Examples provided in the legislation include education, employment, child welfare and social services records, personal diaries and journals.

7.51 The accused must apply to the trial judge, and is required to serve an application for the production of confidential records on the victim, the prosecutor and the person or organisation with possession of the documents.^[63]

7.52 A victim can appear in court and make submissions about the production of a document, but is not compellable as a witness to the hearing of the application.^[64] A recent legislative amendment requires the judge to inform a victim who participates in a hearing relating to a confidential record that they have a right to be represented by a lawyer.^[65]

7.53 The judge hearing the application must consider and balance a number of specified factors.^[66] While the Victorian provisions refer to the public interest in preserving the confidentiality of confidential records and in protecting a victim from harm, the Canadian provisions use the language of rights and direct a judge to balance the right of an accused to ‘make a full answer and defence’ against the victim’s rights to privacy, personal security and equality.^[67]

7.54 Any record that is disclosed cannot be used in any other proceeding,^[68] and publication of an application, evidence, information or submissions is prohibited.^[69] This is in contrast to Victoria, where suppression orders and orders in relation to the disclosure of identity information may be made but do not operate as a presumption.^[70]

Evidence of sexual history or activities

7.55 The United States Federal Rules of Evidence restrict the use of evidence about a victim’s sexual history. As in Victoria, evidence about sexual reputation is prohibited, and evidence about sexual history is permitted only in limited prescribed circumstances.^[71] However, the victim has a greater role in a defence application for leave to adduce such evidence.

7.56 The defence must notify the victim or the victim’s representative of a pre-trial application to have sexual evidence admitted at trial.^[72] The victim has a right to attend and be heard at the pre-trial hearing, which is held in in closed court.^[73] The right to be heard appears to extend to actively participating in the hearing.

7.57 An example of this is the case of United States of America v Stamper,^[74] where a pre-trial hearing was held to determine whether the defence could lead evidence of the victim making prior false claims of sexual abuse. The victim was able to participate in this hearing through her lawyer, who was permitted to cross-examine witnesses and make legal submissions.

7.58 There has been at least one case in the United States in which a victim was allowed to appeal against a pre-trial order permitting the use of evidence of sexual history.^[75]

International Criminal Court (ICC)

7.59 Victims can participate in pre-trial proceedings before the ICC. Specifically, they are permitted to ‘submit observations’ in proceedings about whether a case falls within the ICC’s jurisdiction (‘jurisdiction proceedings’).^[76] A recent review of victims’ participation in pre-trial jurisdiction proceedings noted that observations submitted by victims ‘had little impact’ and generally supported the prosecution’s position.^[77]

7.60 Victims also have a general right to ‘present’ their ‘views and concerns’ at any stage of ICC proceedings where their ‘personal interests’ are affected, including pre-trial hearings.^[78] The court has interpreted personal interests of victims broadly as flowing from their rights to truth, justice and reparation.^[79]

7.61 Although victims are permitted to raise their views and concerns, the court has repeatedly stated that victims are not parties to proceedings before the ICC.^[80]

7.62 Victims must apply to participate. If a victim is granted the right to participate, a lawyer is usually appointed.^[81] The participation of victims is subject to the court determining that it is appropriate and not prejudicial to the rights of the accused to a fair trial.

7.63 The way in which victims participate in the trial process, including their ability to introduce evidence and question witnesses, is canvassed in Chapter 8 of this consultation paper.

Discussion and options for reform

7.64 The Commission encourages consideration of whether and how any current Victorian pre-trial procedures should be amended to accommodate the justice needs of victims identified in Chapter 2. In doing so, the processes in other jurisdictions described above should be considered, together with proposals for reforms that do not currently exist in the jurisdictions identified.

Participating-witness reforms

Standing to appear when interests are affected

7.65 Victims in Victoria have a right to seek leave to appear in pre-trial applications relating to confidential communications only. In New South Wales, victims have standing, and can seek leave to appeal if dissatisfied with the ruling. The rationale underlying these provisions is the importance of personal privacy and the harm that access to confidential records could cause.

7.66 One reform option is to extend these provisions to grant victims standing to participate in all pre-trial applications where the victim has a demonstrable personal interest, such as privacy.^[82] For example, the privacy of a victim in a sexual offence trial is directly impacted by the outcome of an application for leave to cross-examine about, or use evidence relating to, the victim’s sexual history. Similarly, the privacy of a victim in an assault trial is impacted by the outcome of an application for access to their medical records.

7.67 A broader reform would be to grant victims standing based on a wider interpretation of ‘victims’ interests’. At the ICC, the personal interests of victims extend to their interest in ‘truth and justice’. Applied in Victoria, this could underpin victim participation in all or most pre-trial applications relating to the admissibility of evidence. Further, standing might be given where a victim has an interest in the outcome of a particular pre-trial application but is also in a position to provide information that is relevant to the determination of that application.

7.68 The Commission notes that if victims are given the right to participate in pre-trial evidentiary matters, the prosecutor could not be expected to represent victims or present their views to the court; such an expectation conflicts with the prosecutor’s role as an independent and impartial representative of the state. Victims may require their own legal representation to participate properly in pre-trial proceedings. This has the potential to increase the complexity of proceedings and may also increase the burden on both the prosecution and the accused.

7.69 A greater role for the victim in pre-trial proceedings also gives rise to the following considerations:

• whether a victim should automatically be permitted to participate, or whether the court’s permission should be required (and if so, based on what criteria)

• whether participation should extend to standing to appeal pre-trial rulings

• whether participatory rights should be accompanied by obligations such as disclosure.

7.70 If victims are allowed to appear or to have standing in all or some pre-trial applications, it may be necessary to ensure victims have access to legal advice and representation, including those who are not able to pay for private legal representation. Thus, consideration would also need to be given to funding a service similar to the Sexual Assault Communications Privilege Service that currently exists within Legal Aid NSW.

Increased obligations on judges and prosecutors

7.71 More modest reform proposals involve imposing a statutory obligation on the prosecutor and/or the judge to ensure victims are informed of and consulted about pre-trial applications in which they have an interest. One option is to require that, before hearing any pre-trial application in which a victim is likely to have an interest, the judge must be satisfied that the victim has been made aware of the application, received legal advice, and/or participated in consultation with the prosecution.^[83] This obligation would be in addition to any obligation on the judge to take into account the victim’s views, or any potential impact on the victim, when making a ruling.

7.72 Consideration should also be given to whether it would be ethically appropriate for the prosecution to be responsible for providing victims with legal advice about a pre-trial application and communicating victims’ views to the judge, in addition to simply notifying victims of the application. Issues are likely to arise if a victim’s position is in conflict with the prosecution. One of the functions of a Victims of Crime Commissioner might be to play an intermediary role between the prosecutor and the victim, and to provide or fund independent legal advice for victims for pre-trial procedures in appropriate circumstances. Such a function is currently performed by the South Australian Victims of Crime Commissioner.^[84]

Alternative dispute resolution and restorative justice pre-trial procedures

7.73 An arguably more significant change would involve giving victims the choice to participate in restorative justice processes in the pre-trial phase, with adequate safeguards. Pursuing restorative justice in the pre-trial phase need not preclude a matter proceeding to a criminal trial. Such processes might provide an innovative measure to address victims’ needs for agency and empowerment.

7.74 Alternative procedures, including restorative justice, are widely used in non-criminal jurisdictions. In contrast to criminal prosecutions, trials for non-criminal legal disputes are typically direct contests between the aggrieved party and the person or entity alleged to be responsible.^[85] Non-criminal legal conflicts can involve people who have been injured or traumatised and are seeking compensation or redress from those they hold responsible. As such, these people share many of the experiences and needs of victims of crime (and may in fact be victims of crime). In these types of legal disputes, pre-trial processes known as ‘alternative dispute resolution’ (ADR) aim to resolve the conflict between the parties without the need for a trial, thereby reducing the cost, time and stress often associated with legal proceedings. ADR procedures share some similarities with restorative justice.^[86] In particular, ADR commonly involves an independent third person mediating or facilitating discussions between the parties in an attempt to reach an agreed resolution of the case.^[87]

7.75 Pre-trial victim–offender engagement is available in New Zealand, where the Victims’ Rights Act 2002 (NZ) gives all victims the right, in principle, to request a restorative justice conference at any time during the criminal proceedings.^[88] In 2014, the Centre for Innovative Justice also proposed a model of restorative justice that included a pre-trial restorative justice option.

7.76 Proposals to incorporate restorative justice at the pre-trial stage can be controversial. As the Parliament of Victoria’s Law Reform Committee has noted:

[Restorative justice] raises complex legal and social issues about the aims of the criminal justice system, the rights of offenders, the rights and needs of victims and how to address causes of offending.^[89]

7.77 If a prosecution were to be diverted to a process which involves an agreed resolution between the accused and the victim, rather than continuing to trial and verdict, the public interest in seeing offenders dealt with in open criminal proceedings may be undermined. It may also conflict with some of the principles that underpin sentencing, such as proportionality, and the need for community denunciation to deter future offending.

7.78 Further, if a prosecution is ongoing, the accused may have limited incentive to properly engage in restorative justice processes by accepting responsibility or expressing remorse. This increases the likelihood that a victim will be dissatisfied or even further traumatised, particularly if the mediation fails.^[90]

7.79 The capacity of some victims to make truly independent and informed decisions may also be compromised, particularly when the offending involves family violence or sexual offending and the perpetrator is known to the victim. If restorative justice procedures were available as a pre-trial option, there are certain offences, victims and offenders for which such procedures may be assessed as unsuitable.

7.80 Some of these concerns might be resolved by requiring that any restorative justice conference involve the prosecutor as the representative of the public interest, as well as the victim and offender. This could ensure that public interest considerations are properly taken into account in any proposed outcome arising from a restorative justice conference. However, the presence of a prosecutor might also inhibit the involvement of the accused or the victim.

Prosecuting-witness reforms

7.81 Reforming the role of victims during the trial to allow victims to make essentially prosecutorial decisions, such as calling witnesses and leading evidence (see Chapter 8), would necessarily involve expanding the role for the victim during pre-trial proceedings.

7.82 The period leading up to a trial usually involves the prosecution and accused filing multiple documents with the court and providing each other with copies. If victims are given an expanded, more prosecutorial role, consideration should be given to the extent to which victims would also be required to engage in these pre-trial procedures.

7.83 Consideration should also be given to whether victims should have obligations as prosecuting witnesses. A key prosecutorial duty is disclosure, which involves disclosing all relevant material to the accused.^[91] Disclosure is particularly important in adversarial criminal trials, where the parties decide what evidence is placed before the court. In the ICC, where victim participation in an essentially adversarial trial has extended to calling witnesses and submitting evidence, the absence of disclosure obligations for victims has been the subject of criticism.^[92]

Questions

Role of victims—confidential communications

21 Are victims exercising their right to appear in relation to confidential communications applications? If not, why not and how might that be addressed?

22 Having regard to the practices in other jurisdictions, should victims have a greater role in pre-trial proceedings regarding confidential communications? Should the types of communications and the offences these proceedings relate to be expanded?

Role of victims—pre-trial proceedings generally

23 Should victims have a role in other pre-trial proceedings in which they have an interest? If so, what should be the test for determining whether victims have an interest?

24 If victims are given a greater role in pre-trial proceedings, should disclosure obligations be imposed on victims? What other obligations might be imposed?

25 How might any role for victims in pre-trial proceedings impact on or relate to the role of victims during the jury trial?

26 If victims are to have a participating-witness or prosecuting-witness role, should the state provide legal representation for victims?

Pre-trial restorative justices procedures

27 Should restorative justice procedures be available in the pre-trial phase of proceedings? If so, should any limits be placed on the use of such procedures?

1. Criminal Procedure Act 2009 (Vic) s 181. Both the County Court and the Supreme Court have Practice Notes which set out the way in which the court will conduct direction hearings.

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2. County Court of Victoria, County Court Criminal Division Practice Note (PNCR 1-2015, 14 April 2015). The Supreme Court of Victoria Practice Note No. 6 of 2014 – Criminal Division: Case Management by Post-Committal Directions Hearings (26 September 2014) sets out 20 questions in addition to the matters contained in s 181(2) of the Criminal Procedure Act 2009 (Vic).

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3. County Court of Victoria, County Court Criminal Division Practice Note (PNCR 1-2015, 14 April 2015) [3.10].

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4. See County Court of Victoria, County Court Criminal Division Practice Note (PNCR 1-2015, 14 April 2015) [4.3]; Supreme Court of Victoria, Practice Note No. 4 of 2010 – Criminal Division: Case Management Procedure for Criminal Trials (21 December 2009), which states that ‘the court may make orders in respect of filing and serving documents including the summary of prosecution opening, defence response and evidentiary notices at the initial directions hearing’. At the final directions hearing, the trial judge will ‘ensure all orders regarding the filing of documentation are complied with and that the trial is ready to proceed on the trial date’.

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5. Criminal Procedure Act 2009 (Vic) s 182(2).

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6. Ibid s 183(2).

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7. Including a person’s age, the accuracy of a plan or that photographs were taken at a certain time: ibid s 182(3)(3).

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8. Evidence Act 2008 (Vic) ss 67, 97, 65, 98 and 177 respectively.

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9. Criminal Procedure Act 2009 (Vic) s 189.

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10. County Court of Victoria, County Court Criminal Division Practice Note (PNCR 1-2015, 14 April 2015) [4.5].

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11. See Chapter 8 for further discussion about special hearings for child victims in sexual offence trials.

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12. Christopher Corns, Public Prosecutions in Australia Law, Policy and Practice (Thomson Reuters, 2014) 129–30.

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13. Criminal Procedure Act 2009 (Vic) s 185. See also ss 110, 111, 416.

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14. Director of Public Prosecutions Victoria, Director’s Policy: Disclosure (24 November 2014) [7], citing R v Farquharson (2009) 26 VR 410; [2009] VSCA 307; R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321. See generally Christopher Corns, Public Prosecutions in Australia Law, Policy and Practice (Thomson Reuters, 2014), 129–137.

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15. Criminal Procedure Act 2009 (Vic) ss 188, 189.

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16. Ibid ss 193, 194, 195.

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17. Evidence Act 2008 (Vic) ss 94–101.

    ↑

18. Ibid ss 59, 60, 61, 62, 65, 66, 66A, 67, 69–75.

    ↑

19. Ibid ss 76–80.

    ↑

20. Ibid ss 101A–108B.

    ↑

21. Ibid ss 113–116.

    ↑

22. Ibid ss 81–90.

    ↑

23. A pre-trial hearing where evidence is called is called a ‘voir dire’. A voir dire may also occur during the trial, in the absence of the jury.

    ↑

24. This type of pre-trial hearing is referred to as a ‘Basha’ hearing, following the ruling in R v Basha (1989) 39 A Crim R 337.

    ↑

25. Victorian Law Reform Commission, Sexual Offences: Law and Procedure Final Report (2004) 198. Much of the early victimology literature focused on victim–offender relationships and the contributory role of victims in the commission of 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) 81–2.

    ↑

26. Criminal Procedure Act 2009 (Vic) s 341.

    ↑

27. Ibid ss 342, 349.

    ↑

28. Ibid s 349.

    ↑

29. Ibid s 344. An application for leave may be heard out of time if it is in the interests of justice to do so: s 345.

    ↑

30. Ibid s 348.

    ↑

31. Including the committal hearing.

    ↑

32. Victorian Law Reform Commission, Sexual Offences: Law and Procedure Final Report (2004) 211, [4.71]. Similar legal protections exist around Australia but use different terminology and safeguards.

    ↑

33. Evidence (Miscellaneous Provisions) Act 1958 (Vic) pt II, div 2A. The question of whether a broader range of documents should be covered was considered by the Victorian Law Reform Commission in Sexual Offences: Law and Procedure Final Report (2004) at [4.93] and is a question below.

    ↑

34. Evidence (Miscellaneous Provisions) Act 1958 (Vic) ss 32C, 32D.

    ↑

35. Ibid s 32D(1).

    ↑

36. Ibid s 32D(2). Reasons must be given for any determination to grant or refuse leave: s 32D(4).

    ↑

37. Ibid s 32C(2). A judge may waive the requirement to give notice or shorten the 14-day timeframe: s 32C(3).

    ↑

38. Ibid s 32C(4).

    ↑

39. Ibid s 32C(5).

    ↑

40. Criminal Procedure Act 2009 (Vic) s 295 details when an interlocutory decision may be appealed and refers specifically to ‘a party to a proceeding’.

    ↑

41. Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32F.

    ↑

42. Criminal Procedure Act 1986 (NSW) s 296(1). A counselling communication is protected even if it was made before the sexual offence was alleged to have occurred or if it has no connection to the sexual offence or a condition arising from the sexual offence: s 296(2).

    ↑

43. Criminal Procedure Act 1986 (NSW) ss 296(4)–(5).

    ↑

44. New South Wales, Parliamentary Debates, Legislative Council, 24 November 2010, 6 (John Hatzistergos).

    ↑

45. Criminal Procedure Act 1986 (NSW) s 297. Confidential communications are also prohibited in preliminary proceedings in South Australia: Evidence Act 1929 (SA) s 67F(1)(a); the Australian Capital Territory: Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 57; and in the Northern Territory: Evidence Act 1939 (NT) s 56B.

    ↑

46. KS v Veitch (No 2) [2012] NSWCCA 266 [23] (Basten JA); PPC v Williams [2013] NSWCCA 286 [24] (Gleeson JA); Criminal Procedure Act 1986 (NSW) s 298.

    ↑

47. This right extends to preliminary proceedings, for example where a protected confidence is inadvertently returned in response to a subpoena issued as part of preparation for a committal.

    ↑

48. Criminal Procedure Act 1986 (NSW) s 299. In Western Australia, the court is required to provide the victim with a copy of an application for leave to disclose a protected communication, together with information about the hearing and the right to appear in the hearing of the application, either in person or with representation: see Evidence Act 1906 (WA) ss 19C(4), 19D(1).

    ↑

49. Criminal Procedure Act 1986 (NSW) s 299C.

    ↑

50. Ibid. Note that the requirement to provide notice may be waived in certain circumstances, such as when a victim provides written consent: see ss 299C(5), 300.

    ↑

51. Ibid s 299D(3). This statement is not available to the defence or the prosecution: s 299D(4).

    ↑

52. [2013] NSWCCA 286.

    ↑

53. Two sets of confidential submissions were provided: see PPC v Williams [2013] NSWCCA 286 [13], [15].

    ↑

54. Ibid [12].

    ↑

55. Criminal Procedure Act 1986 (NSW) s 299D.

    ↑

56. Ibid s 299D(2). If a judge grants leave, the judge may seek to limit the potential harm to the victim by ordering evidence be heard in camera or produced in camera, or make any other order relating to the production and inspection of the document that is ‘necessary to protect the safety and welfare’ of a victim: s 302(1).

    ↑

57. Criminal Appeal Act 1912 (NSW) ss 5F(3AA), (3AB). An appeal can only be made if the Court of Criminal Appeal gives leave or if the trial judge certifies that the decision is a proper one for determination on appeal. For cases involving an appeal by a victim as a protected confider, see KS v Veitch [2012] NSWCCA 186; KS v Veitch (No 2) [2012] NSWCCA 266; PCC v Williams [2013] NSWCCA 286. An agency or organisation in possession of documents containing a protected confidence can also seek leave to appeal.

    ↑

58. Legal Aid NSW, Sexual Assault Communications Privilege Service <http://www.legalaid.nsw.gov.au/what-we-do/civil-law/sexual-assault-communications-privilege-service>.

    ↑

59. Evidence Act 2001 (Tas) ss 127B(3)–(4).

    ↑

60. Ibid s 127B(1). Section 126 sets out the circumstances in which other types of protected confidence may be used in court proceedings.

    ↑

61. Criminal Code, RSC 1985 C-46, ss 278.1–278.91. The Canadian provisions involve two stages of judicial decision-making: first, whether confidential records should be produced to the court for the judge to review in response to an accused’s application; and second, whether the records should then be produced to the accused.

    ↑

62. Ibid s 278.1.

    ↑

63. Ibid s 278.3(5). The accused must also serve any other person to whom the accused is aware the records relate.

    ↑

64. Ibid ss 278.4(2), 278.6(3). The victim’s right to appear and participate occurs at the application stage and when the judge is considering whether to allow the accused access to the records.

    ↑

65. See An Act to Enact the Canadian Victims Bill of Rights and to Amend Certain Acts, C-32 (assented to 23 April 2015) 10 [7] (comes into force 90 days after the date of assent).

    ↑

66. See Criminal Code, RSC 1985 C-46, s 278.5(2). A list of assertions that are insufficient on their own to justify access is listed at s 278.3(4) and includes assertions that the record relates to: treatment a victim has received; the incident in question; the presence or absence of a recent complaint; the sexual activity of the victim; past sexual abuse; the victim’s sexual reputation; the reliability of the victim in light of psychological treatment.

    ↑

67. Ibid ss 278.5(2), 278.7(1), 278.7(3). The requirement to consider the victim’s (or witness’s) right to personal security was added by amendment in 2015. See An Act to Enact the Canadian Victims Bill of Rights and to Amend Certain Acts, C-32 (assented to 23 April 2015) 11 [8], [10] (comes into force 90 days after assent). For practical application prior to the 2015 amendment, see R v Mills [1999] 3 SCR 668.

    ↑

68. Criminal Code, RSC 1985 C-46, s 278.7(5).

    ↑

69. Ibid s 278.9(1)(a)–(b). The determination of the judge in relation to a confidential record is also prohibited from publication, unless the judge orders that publication is permitted: s 278.9(1)(c).

    ↑

70. Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32F (ancillary orders).

    ↑

71. Federal Rules of Evidence 28 USC § 412(a)–(b). These provisions apply beyond criminal trials and encompass ‘civil or criminal proceeding involving alleged sexual misconduct’.

    ↑

72. Federal Rules of Evidence 28 USC § 412(c).

    ↑

73. Ibid.

    ↑

74. 766 F Supp 1396 (US Dist, 1991).

    ↑

75. Doe v United States 666 F 2d 43, 45 (4th Cir, 1981).

    ↑

76. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) art 19(3) (Rome Statute).

    ↑

77. Benjamin Perrin, ‘Victim Participation at the International Criminal Court: Examining the First Decade of Investigative and Pre-Trial Proceedings’ (2015) 15 International Criminal Law Review 298, 332.

    ↑

78. Rome Statute art 68(3). See also 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).

    ↑

79. Prosecutor v. Bahr Idriss Abu Garda (Decision on the 34 Applications for Participation at the Pre-Trial Stage of the Case, Pre-Trial Chamber I, Doc No ICC-02/05-02/09) [3].

    ↑

80. See, eg, Prosecutor v Katanga and Chui (Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 22 January 2010 entitled ‘Decision on the Modalities of Victim Participation at Trial’) (International Criminal Court, Appeals Chamber, Doc No ICC-01/04-01/07 OA 11, 16 July 2010) [39].

    ↑

81. International Criminal Court, Rules of Evidence and Procedure, Doc No ICC-ASP/1/3 (adopted 9 September 2002) rr 89, 90.

    ↑

82. The South Australian Commissioner for Victims’ Rights has been able to fund legal advice and representation for victims in pre-trial evidence applications. One example cited by the Commissioner involved an application by an accused for a copy of all data on a victim’s computer hard drive. The lawyer funded by the Commissioner provided advice to the victim, made representations to the prosecutor and appeared on behalf of the victim in court. See Michael O’Connell, Victims’ Rights: Integrating Victims in Criminal Proceedings
    
    <www.aija.org.au>.

    ↑

83. The proposal is similar to the obligation that exists in New South Wales in the context of protected confidences in sexual offence matters.

    ↑

84. Michael O’Connell, Victims’ Rights: Integrating Victims in Criminal Proceedings <www.aija.org.au>. Section 16(3)(b) of the Victims of Crime Act 2001 (SA) states that one of the Commissioner’s functions is to ‘assist victims in their dealings with prosecuting authorities and other government agencies’.

    ↑

85. These disputes are dealt with in the civil jurisdiction of Victoria’s justice system (not to be confused with the civil law legal systems of many of the countries in Europe).

    ↑

86. For discussion of the use of ADR and restorative justice in Victoria, see Parliament of Victoria Law Reform Committee, Inquiry into Alternative Dispute Resolution and Restorative Justice: Final Report of the Victorian Parliament Law Reform Committee (May 2009).

    ↑

87. See Supreme Court Act 1986 (Vic) s 24A; Supreme Court (General Civil Procedure) Rules 2005 (Vic) Order 50.07; County Court Act 1958 (Vic) s 47A; County Court Civil Procedure Rules 2008 (Vic) Order 50.07.

    ↑

88. Victims’ Rights Act 2002 (NZ) s 9.

    ↑

89. Parliament of Victoria Law Reform Committee, Inquiry into Alternative Dispute Resolution and Restorative Justice: Final Report of the Victorian Parliament Law Reform Committee (May 2009) xlvi.

    ↑

90. Heather Strang, Repair or Revenge: Victims and Restorative Justice (Clarendon Press, 2002); Centre for Innovative Justice, Innovative Justice Responses to Sexual Offending—Pathways to Better Outcomes for Victims, Offenders and the Community (May 2014) 58–9.

    ↑

91. See Criminal Procedure Act 2009 (Vic) and Director of Public Prosecutions Victoria, Director’s Policy: Disclosure (24 November 2014).

    ↑

92. Prosecutor v Katanga and Chui (Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 22 January 2010 entitled ‘Decision on the Modalities of Victim Participation at Trial’) (International Criminal Court, Appeals Chamber, Doc No ICC-01/04-01/07 OA 11, 16 July 2010) [72], [85]–[86]; Bridie McAsey, ‘Victim Participation at the International Criminal Court and its Impact on Procedural Fairness’ (2011) 18 Australian International Law Journal 105, 115.

    ↑