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

8. The role of victims in the trial

Introduction

8.1 For many victims, the trial is the focal point of their journey through the criminal justice system. Despite the implementation of a range of reforms over the last two or more decades, the trial process continues to be a source of dissatisfaction and distress for many victims.

8.2 This chapter starts by outlining the proceedings in a typical criminal trial, focusing on the ways in which victims are, or are not, involved in that process. This outline canvasses recent innovations applicable to victims, many of which have been directed towards reducing trauma and distress for vulnerable victims, children and victims of sexual assaults.

8.3 This chapter then turns to examine some examples of recent innovations and alternative procedural roles for victims from other jurisdictions. Finally, a range of reform proposals are canvassed and questions posed.

The current system in Victoria

8.4 The following sets out the procedures followed at each stage of a criminal trial in Victoria. As discussed in Chapter 2, the role of victims in Victoria’s common law adversarial trial process is that of witness for the prosecution.

Entering a plea

8.5 Once the pre-trial matters detailed in the preceding chapter are completed, the trial commences. The first step in the formal trial is when the charge(s) on the indictment are read out to the accused, who pleads not guilty^[1] in the presence of a panel of potential jurors.^[2]

Jury selection

8.6 A jury of 12 people is then selected from the panel of potential jurors.^[3] At this time, the accused and the lawyers for the prosecution and the accused are in the courtroom. The victim is not present.

8.7 The accused and the prosecution both play an active role in selecting the jury, with the right to exclude without cause six potential jurors each.^[4] Both parties can also challenge an unlimited number of potential jurors ‘for cause’.

8.8 Victims have no right to have input into the selection of the jury.

The jury trial

8.9 At the start of the trial before the jury the judge will often make an order that all witnesses are to remain outside the courtroom until they have given their evidence. This is to prevent witnesses from being influenced by what is said by the judge, prosecutor, accused’s lawyer or other witnesses.

8.10 This general order does not apply to victims. Rather, judges may only exclude victims at this stage if they consider it ‘appropriate to do so’.^[5] The judge can order the victim to leave the court at any time after he or she has given evidence.^[6]

8.11 The Victorian criminal trial is structured as follows:

• The judge gives preliminary instructions to the jury about the trial process and procedures.

• The prosecutor gives an opening address to the jury setting out the prosecution case against the accused.^[7]

• The accused’s lawyer presents to the jury a response to the prosecution’s opening.^[8]

• The prosecution case is presented to the jury, through the evidence of witnesses and exhibits.

• Each witness for the prosecution, including the victim, gives evidence in three stages:

– First, open-ended questions are asked by the prosecutor to elicit the witness’s account of the alleged offence. This is known as evidence-in-chief.

– Second, the accused’s lawyer can cross-examine the witness. Cross-examination usually (but not always) involves asking closed questions (‘leading questions’), designed to elicit short responses, such as ‘yes’ or ‘no’. The questions are usually directed to challenging the credibility or reliability of the witness, eliciting evidence favourable to the accused, and putting the accused’s case to the witness.

– Third, the prosecutor has the opportunity to re-examine a witness by asking open-ended questions about topics that arose during cross-examination.^[9]

• Any legal issues that arise during the trial are dealt with by the judge making a ruling after hearing submissions from the prosecutor and accused’s lawyer, usually in the absence of the jury. The prosecutor and the accused’s lawyer may appeal a ruling made by the trial judge to the Court of Appeal in certain circumstances.

• At the close of the prosecution case, the accused’s lawyer may make a submission that the evidence before the jury is flawed in some way and that, as a matter of law, there is no case for the accused to answer.^[10] If this submission is accepted, the judge will direct the jury that they do not need to reach a verdict.^[11] In such circumstances, the accused is found not guilty.

• If there is a case to answer, the accused may elect to give evidence and call other witnesses to give evidence. The accused is not required to give evidence or call witnesses.^[12]

• After the jury has heard all the evidence, the prosecutor and accused’s lawyer make submissions to the judge about what directions of law should be given to the jury.^[13]

• The prosecutor, followed by the accused’s lawyer, then make closing addresses to the jury ‘for the purpose of summing up the evidence’.^[14]

• The trial judge gives directions of law to the jury, ‘so as to enable the jury to properly consider its verdict’.^[15]

• Finally, the jury deliberates before deciding whether the verdict is guilty or not guilty.

8.12 There is no provision in the Criminal Procedure Act 2009 (Vic) or the Jury Directions Act 2015 (Vic) for the victim to have a role or input at any of these stages of the trial, other than as a witness for the prosecution.

Prosecutorial decisions and obligations

8.13 Prosecutors make numerous decisions in the lead-up to and throughout the trial. These decisions generally relate to what evidence to put before the jury, which witnesses to call and how to respond to defence cross-examination questions, legal applications and witnesses.^[16]

8.14 In making these decisions, the prosecutor has considerable discretion, which is limited by general principles of fairness. In Victoria, victims have no say in these decisions.

8.15 As discussed in Chapter 7, the prosecutor has an ethical obligation to act fairly and impartially. Flowing from this is the duty to disclose all relevant evidence held by the prosecution. 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.^[17] 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.^[18] In addition, 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.^[19]

8.16 As witnesses, victims have no disclosure obligations.

Powers of the judge and evidentiary protections relevant to the victim

8.17 There is no general obligation on the judge to treat the victim differently to any other witness during the trial. However, judges are obliged by the Criminal Procedure Act 2009 (Vic) to order that various protective procedures be put in place for victims of sexual offences and other vulnerable witnesses.

8.18 The judge also has the power to control the way the prosecutor and the accused’s lawyer question a victim while giving evidence.

Protective procedures for sexual assault victims when giving evidence

8.19 Where the trial is for a sexual offence, and the victim is an adult, the judge must order that the victim’s evidence be given by closed circuit television from a remote witness facility.^[20] This evidence must be recorded.^[21] The judge may however, make an order allowing the victim to give evidence in the courtroom on application of the prosecutor, but only if the judge is satisfied the victim is aware of the ability to give evidence by closed-circuit television and nonetheless is able and willing to give evidence in the courtroom.^[22]

8.20 If the victim is to give evidence in the courtroom, the judge must direct that a screen is used to remove the accused from the direct line of vision of the victim, unless satisfied that the victim is aware of this right and does not wish a screen to be used.^[23]

8.21 The judge must direct that the victim have a support person beside them while giving evidence, unless satisfied that the victim is aware of this right and does not wish to have a support person. This provision applies whether the victim is giving evidence in the courtroom or from a remote witness facility.^[24]

8.22 There is no legislated procedure in the Criminal Procedure Act for how the victim is to communicate his or her wishes directly to the judge.

Protective procedures for family violence victims when giving evidence

8.23 If the offence involves conduct that falls within the definition of family violence,^[25] the judge may order that the victim give evidence by closed-circuit television or behind a screen, and with a support person present.

8.24 Unlike trials for sexual offences, in trials that involve family violence, the judge has a discretion as to whether to make an order for protective measures for the victim.^[26]

Protective procedures for children and cognitively impaired victims in sexual offence trials

8.25 If the victim is a child^[27] or has a cognitive impairment^[28] and the trial is for a sexual offence, the entire evidence of the victim must be given at a ‘special hearing’.^[29]

8.26 During a special hearing, the accused and his or her lawyer are in the courtroom and the victim is in a remote facility, linked by closed-circuit television.^[30]

8.27 The victim’s evidence-in-chief takes the form of a previously recorded video of the victim recounting the allegations and being asked questions by a police officer.^[31] That video is played in the presence of the victim. The victim is then cross-examined by the accused’s lawyer and re-examined by the prosecutor over the closed-circuit television link.

8.28 The special hearing is video-recorded.^[32] The recording becomes the entirety of the evidence of the victim in the trial and in any subsequent retrial or civil proceeding.^[33]

8.29 The judge may direct that the special hearing be held before or after the jury has been empanelled. If it is held before, the recording of the special hearing is played to the jury as the evidence of the victim.^[34] In deciding whether to hold the special hearing before or during the trial, the judge must have regard to:

• the age and maturity, or the severity of the cognitive impairment of the victim

• any preference expressed by the victim

• whether holding the special hearing during the trial is likely to intimidate or have an adverse effect on the victim

• the need to complete the victim’s evidence expeditiously

• the likelihood that the evidence given by the witness will include inadmissible evidence that may result in the discharge of the jury

• any other matter that the court considers relevant.^[35]

8.30 There is no legislated procedure for the way in which the victim is to put their preference or any other relevant matter before the court.

8.31 If a victim’s evidence has been taken by special hearing, the accused’s lawyer must apply to the judge for permission if the accused wishes to further cross-examine the victim at the trial. This application will only be granted if the judge is satisfied that:

• the accused became aware of a matter after the special hearing that they could not reasonably have been aware of at the time of the recording, or

• if the victim were giving evidence in court, the victim could be recalled in the interests of justice, or

• it is otherwise in the interests of justice to allow the victim to be cross-examined or re-examined.^[36]

8.32 The prosecutor may apply for the victim’s evidence to be given in court instead of in a special hearing. The judge may grant this application if satisfied that the victim is aware of the right to have a special hearing and is able to, and wishes to, give evidence in court.^[37]

8.33 There is no legislated procedure for the victim to make an application or to address the court on these matters.

Victim not to be cross-examined by accused

8.34 In a trial for a sexual offence or an offence involving family violence, the judge may declare the victim a protected witness.^[38] This applies to adult and child victims.

8.35 The accused is prohibited from personally cross-examining a protected witness.^[39] Cross-examination must be done by a lawyer. If the accused does not have a lawyer, the judge must order Victoria Legal Aid to represent the accused, but only for the purpose of cross-examining the protected witness.^[40]

Use of recorded trial evidence of a victim in other proceedings

8.36 If the victim is an adult in a sexual offence trial, the special hearing provisions of the Criminal Procedure Act do not apply. However, a recording of the victim’s trial evidence may be played instead of the victim having to give evidence again where:

• A retrial is required because the jury was discharged without verdict, or there was a successful appeal against conviction.

• There is another proceeding for a related offence.

• Civil proceedings are pursued.^[41]

8.37 The decision as to whether to apply to the court for permission to rely on a recording of the victim’s evidence is made by the prosecution.^[42] The judge has the discretion to allow the recording to be played if it is ‘in the interests of justice to do so’. The factors the judge must consider are:

• whether the recording contains evidence-in-chief, cross-examination and re-examination

• the effect of editing out any inadmissible evidence

• whether the accused would be unfairly disadvantaged by admitting the recording

• any other matter the court considers relevant.^[43]

8.38 If the recording is admitted in evidence, the victim only has to come to court if they are required to give further evidence.^[44] The prosecutor may apply to the judge for a direction that the victim give further evidence, which the judge can only grant if satisfied that the victim is able and wishes to do so, and that it is in the interests of justice.^[45]

8.39 The victim can only be cross-examined in addition to the recording with the permission of the court. The judge must not grant leave unless satisfied that:

• the accused has become aware of a matter that they could not reasonably have been aware of at the trial

• if the victim were giving evidence in court, they could be recalled in the interest of justice to give further evidence

• it is otherwise in the interest of justice to allow cross-examination or re-examination.^[46]

8.40 The Criminal Procedure Act does not provide a process for the victim to make submissions or have their views put before the judge on any of the above matters relating to using the victim’s recorded trial evidence in a subsequent criminal proceeding.

Questions and questioning of victims during the trial

8.41 The judge has the power to control the way witnesses, including the victim, are treated by the prosecutor and the accused’s lawyer when they are giving their evidence. In fact, the judge may make any order which the judge ‘considers just’ about the way a witness is questioned, and the presence and behaviour of any person in connection with the questioning of the witness.^[47]

8.42 The judge also has the power to prevent specific types of questioning and questions on specific topics.

Improper questions and questioning

8.43 The Evidence Act 2008 (Vic) gives the trial judge the power and the duty to ensure that questioning of all witnesses, including victims, during the trial is respectful and proper.^[48]

8.44 The judge may stop lawyers from asking an improper question or questioning the victim in an improper way during cross-examination.^[49]

8.45 Improper questions or improper questioning are questions or a series of questions which are:

• misleading or confusing

• unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive

• put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate

• based only on a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).^[50]

8.46 For vulnerable victims, the judge must stop lawyers from asking improper questions in cross-examination, unless the court is satisfied that, in all the relevant circumstances of the case, it is necessary for the question to be put.^[51]

8.47 Vulnerable victims are defined as persons:

• under 18 years of age, or

• with a cognitive impairment or an intellectual disability, or

• who the court considers to be vulnerable having regard to any personal conditions or characteristics, such as:

– age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding, and personality

– mental or physical disability

– the context in which the question is put, including the nature of the proceedings, the offence and the relationship between the victim and the accused.^[52]

8.48 Australian courts have emphasised the importance of taking into account the effect of cross-examination on a victim when deciding whether to prohibit a particular question or line of questioning.^[53]

Questions about reputation and sexual activities

8.49 In a trial for a sexual offence, the accused’s lawyer is prohibited from asking about ‘the general reputation of the victim with respect to chastity’.^[54]

8.50 In addition, cross-examination about a victim’s sexual activities (other than those to which the charge relates) is prohibited, unless the judge rules that the evidence is of substantial relevance to a fact in issue and is in the interests of justice.^[55] These rulings are generally made before the trial commences, and are discussed in more detail in Chapter 7.

Giving evidence: narrative form and leading questions

8.51 A concern often raised is that the rules of evidence guiding the adversarial trial considerably limit the way that victims can describe what happened to them. Victims have voiced frustration about being unable to tell the full story and being precluded from explaining what happened to them, in their own way.

8.52 In Victoria, some measures are available to address this issue. Specifically, the trial judge has the power to allow a victim to give evidence ‘wholly or partly in narrative form’.^[56] The judge can make such an order on the judge’s own initiative, or after receiving an application from the prosecutor.^[57] The order can also specify the ‘way in which evidence is to be given’ in narrative form.^[58]

8.53 There is also scope to limit the use of leading questions by the accused’s lawyer. Leading questions, as the name suggests, tend to suggest a particular answer, and are often designed to elicit short ‘yes’ or ‘no’ responses.^[59] Prosecutors are not permitted to ask leading questions of witnesses in examination-in-chief or re-examination.^[60] However, leading questions are commonly used in cross-examination.^[61] Asking children questions in this way has been criticised as confusing and potentially misleading.^[62]

8.54 The judge has the discretion to prevent leading questions being asked in cross-examination in circumstances where ‘the witness’s age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness’s answers’.^[63] The judge can also stop leading questions being used if satisfied that the evidence would be better ascertained without leading questions being used.^[64]

Alternative processes and procedures

Common law jurisdictions

8.55 Across common law jurisdictions, the role of the victim at trial is as a witness for the state’s prosecution.

8.56 All Australian jurisdictions have in place some measures to protect witnesses, including victims, who may find the experience of giving evidence during a trial particularly challenging or distressing.^[65] All Australian jurisdictions also have in place rules that prohibit questioning that might cause victims distress, embarrassment, humiliation or difficulty.

8.57 The purpose of this section is to consider procedural and evidentiary safeguards distinctly different to, or of broader application than, the protective measures in place in Victoria.

Video-recorded statements

8.58 On 1 June 2015, amendments to the Criminal Procedure Act 1986 (NSW), which set out the circumstances in which video-recorded interviews between police and victims of domestic violence offences are admissible as the victims’ evidence-in-chief, came into effect.^[66] A person is a domestic violence victim if the offence involves personal violence^[67] and the victim and the accused are in a domestic relationship.^[68]

8.59 A recorded statement from a domestic violence victim must be recorded with ‘the consent of the victim and as soon as practicable after the commission of the offence’.^[69]

8.60 In deciding whether to use the recorded statement as the victim’s evidence-in-chief, the prosecutor must take into account the wishes of the victim, any evidence of intimidation of the victim by the accused, and the objects of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).^[70]

8.61 If the recorded statement is used as the victim’s evidence-in-chief, the victim must then be available for cross-examination and re-examination.^[71]

8.62 In the Australian Capital Territory, audiovisual recordings of police interviews with child victims and intellectually impaired victims of sexual offences and offences involving violence are admissible as victims’ evidence-in-chief at trial.^[72]

Special arrangements generally

8.63 In South Australia, special arrangements such as the use of screens, closed-circuit television, and support people apply to a wider group of vulnerable victims than in Victoria.^[73] Vulnerable witnesses are defined as:

• witnesses under 16 years

• witnesses with a cognitive or mental impairment

• victims of ‘serious offences against the person’ (further defined as including attempted murder, attempted manslaughter, sexual offences, stalking and kidnapping)

• witnesses who experience a ‘special disadvantage’ because of personal circumstances or the circumstances of the case

• witnesses who have been threatened, subject to, or who have reasonable grounds to fear retaliation or retribution.^[74]

8.64 If the party calling the vulnerable witness (usually the prosecutor) makes an application for special measures, the judge must make the order, subject to a series of fair trial considerations.^[75]

8.65 Judges should also, on their own initiative and where it is desirable to protect any witness (including victims) from embarrassment, distress, intimidation by the atmosphere of the courtroom, or for any other reason, put in place special arrangements for taking evidence.^[76] This differs from Victoria, where the Criminal Procedure Act more generally provides that unless the context otherwise requires, a judge may exercise a power or discretion on their own initiative.^[77]

8.66 The Australian Capital Territory’s provisions regarding special arrangements also apply to a broader group of victims than Victoria’s. Specifically, these provisions apply to victims of sexual offences and offences involving violence, including grievous bodily harm, assault occasioning bodily harm, wounding, culpable driving, robbery and aggravated robbery.^[78]

Special hearings for taking trial evidence

8.67 The Victorian provisions for pre-recording the trial evidence of child and cognitively impaired victims in sexual offence trials (at special hearings) are substantially replicated in all other Australian jurisdictions.^[79] Notably, South Australia and the Australian Capital Territory apply this protective measure more broadly.

8.68 South Australia permits the evidence of all victims to be pre-recorded, where the judge considers it necessary to protect the victim from distress, embarrassment or intimidation by the courtroom.^[80] The order to have the evidence pre-recorded should be made on the judge’s own initiative. As noted above, if the prosecutor makes an application for an order for special arrangements for a vulnerable victim, the judge must make an order for one or more special arrangements, which includes the pre-recording of the victim’s evidence.^[81]

8.69 The Australian Capital Territory’s provisions for recording the victim’s evidence prior to trial extend to adult victims of a range of sexual offences, where the judge considers the victim should give evidence as soon as practicable because they are likely to suffer severe emotional trauma or be intimidated or distressed. ^[82]

Use of the recorded evidence of victim in other proceedings

8.70 New South Wales has a stricter regime protecting victims of sexual offences from having to give evidence at any retrial. Victims of certain sexual offences cannot be compelled to give evidence at the retrial, where that retrial follows a successful appeal against conviction by an accused. Instead, the recording of the evidence given by the victim in the original trial is used and edited if necessary.^[83]

8.71 The judge cannot order the victim to give evidence at the retrial, whereas in Victoria the judge can make such an order.

8.72 A victim in New South Wales may seek permission from the judge to give evidence again in the retrial. Before granting approval, the judge must be satisfied that further oral evidence by the victim is necessary to clarify something, to cover new matters or in the interests of justice.^[84] If the victim does then give further evidence, the victim can also be cross-examined.^[85]

Intermediaries

8.73 There is a wealth of evidence that the way that cross-examination has traditionally been conducted is particularly unfair to child victims and other vulnerable victims.^[86]

8.74 Some common law jurisdictions have introduced, or are considering introducing, intermediaries to assist with the process of questioning vulnerable witnesses during the trial.^[87] The intermediary’s role can take a number of forms, although the central function is to facilitate communication between the vulnerable victim and the prosecutor or the accused’s lawyer, so that questions are asked in a way that the victim can understand. Intermediaries are not victim–advocates or support people; their primary purpose is to ensure the court receives the best evidence from these victims.^[88]

United Kingdom

8.75 Intermediaries have been used in the United Kingdom since 2008, following the introduction of a pilot in 2004.^[89] They can be used in any criminal proceedings for witnesses, including victims, who:

• are under 18 at the time of the hearing

• have a ‘mental disorder’, which includes a learning difficulty

• have a ‘significant impairment of intelligence of social functioning’

• have a physical disability or other physical disorder.^[90]

8.76 The use of intermediaries is well established in England and Wales. As at January 2014, intermediaries had been used 6500 times since 2004.^[91] The scheme includes registering and training intermediaries drawn from a range of professions, including speech and language therapists, occupational therapists, psychologists, social workers, nurses and teachers.^[92]

8.77 The prosecutor or the accused’s lawyer can apply to the judge to use an intermediary, or the judge can order the use of an intermediary on his or her own initiative. The judge must assess whether the quality of the witness’s evidence would be improved by the use of an intermediary.^[93]

8.78 As part of an application, the intermediary will prepare a report for the court outlining how they would question the witness to obtain the best possible evidence. If the accused opposes the appointment of an intermediary, a hearing is held to determine the issue, during which the intermediary gives evidence.^[94] Notably, when making a decision to appoint an intermediary, the judge should take the views of the victim-witness into account. ^[95]

8.79 If the court allows the use of an intermediary, a ‘ground rules hearing’ occurs, during which ‘communication techniques will be discussed and rules established as to the form and type of questions to be asked’.^[96]

8.80 In the lead-up to and during the trial, intermediaries may assist the prosecution and the accused’s lawyer to:

• formulate questions to put to a victim-witness

• relay questions from the prosecutor and the accused to the victim-witness, and the victim’s response to the parties

• provide assistance with communication aids when necessary

• alert the court to issues such as fatigue.^[97]

Intermediaries in Australia

8.81 Western Australia and New South Wales both allow the use of intermediaries.

8.82 Western Australia’s scheme has been used several times since its first application in 2011.^[98] It is only available for child witnesses (including victims) and relies on the judge taking the initiative to appoint an intermediary.^[99] The intermediary’s role is to ‘communicate and explain’ the following:

• questions put to the child

• the evidence given by the child in response to the court.^[100]

8.83 There is no ‘ground rules hearing’ contemplated as part of the scheme, nor are intermediaries expected to play an advisory function.^[101]

8.84 The Criminal Procedure Act 1986 (NSW) provides that witnesses who have difficulty communicating can use a person for assistance while giving evidence, ‘but only if the witness ordinarily receives assistance to communicate from such a person or persons on a daily basis’.^[102]

8.85 It appears the provision has never been applied in practice, and there are no procedures or guidelines in place for its administration. It is not clear from the provision if parties are entitled to seek assistance on behalf of the witness, or if it is for the judge to invoke the provision.

8.86 There is also provision for vulnerable witnesses (defined as children or persons with a cognitive impairment)^[103] to have a support person present, who may be used as an interpreter ‘for the purpose of assisting the vulnerable person with any difficulty in giving evidence associated with an impairment or a disability’.^[104] However, it appears this provision is not interpreted as permitting the support person to act in an intermediary-type role.^[105] This provision also gives rise to concerns about the independence of a support person interpreting for a witness.

Inquisitorial criminal trials

8.87 In civil law inquisitorial criminal trials in Europe, victims tend to play a more active role than in common law adversarial trials. As outlined in Chapter 3, victims are generally involved in one of three main ways: as a civil party, auxiliary prosecutor or as a legally represented victim-witness.

8.88 The following section considers victims’ roles as auxiliary prosecutors and legally represented victim-witnesses. As the role of civil party is specifically directed towards the victim making a claim for compensation during the trial, civil party procedures are considered in Chapter 10.^[106]

The victim as an auxiliary prosecutor

8.89 In some inquisitorial criminal justice systems, including Germany, Austria, Norway and Sweden, victims can appear as auxiliary prosecutors during the criminal trial.^[107] Auxiliary prosecutors have been described as being in ‘a position comparable to that of the public prosecutor’,^[108] although they are independent from the public prosecutor.^[109]

8.90 Germany’s criminal justice system contains an archetype of the auxiliary prosecution model (Nebenkläger). The Commission has therefore decided to use Germany as a case study.

8.91 In German law, victims of serious crimes, including sexual offences, assaults, kidnapping, attempted murder, manslaughter and murder, are entitled to appear as auxiliary prosecutors.^[110]

8.92 To become an auxiliary prosecutor, a victim must submit a written request to the court.^[111] After receiving the victim’s written request, the court will seek the prosecutor’s views, before deciding whether the victim can be joined.^[112] Victims can join as auxiliary prosecutors at any stage of the proceedings.^[113]

8.93 Trials in Germany centre strongly on the judge, who directs and controls the proceedings. The trial starts with the judge examining the accused.^[114] Following the accused’s examination, witnesses are called and questioned by the judge. The prosecution and defence can also ask questions of these witnesses, with the judge’s permission.^[115] Questioning in the style of cross-examination is permitted, but occurs rarely in practice.^[116] Because the judge directs the evidence, little distinction is made between the prosecution and the defence case.^[117]

8.94 Within the German trial process, auxiliary prosecutors are entitled to:

• inspect the case file

• be legally represented throughout the criminal trial

• be present during the trial (regardless of whether or not the victim is appearing as a witness)

• challenge a judge, if partiality is suspected

• object to orders made by the judge

• question witnesses, including the accused and experts

• apply for evidence to be heard by the court

• make statements in court, including a closing statement.^[118]

8.95 For vulnerable victims, including victims of sexual offences, the court will order that they be provided with a government-funded lawyer. Other victims can apply for legal aid to cover the costs of their legal representation.^[119]

Independent lawyers for victims

8.96 In several European jurisdictions, including Sweden, Denmark, Iceland and Norway, victims are permitted to have lawyers to assist them throughout the criminal trial process.^[120]

8.97 Generally speaking, legal representation is available for victims of crimes involving sexual violence and other crimes against the person, such as assaults, murder, manslaughter and attempted murder.

8.98 The level of assistance provided by victims’ lawyers varies between jurisdictions, although two common functions are to provide support and to protect the victim’s interests.

8.99 Norway has a robust form of legal representation for victims, relative to other jurisdictions. In Norway, victims’ lawyers can be present in court throughout the trial. When the victim is being questioned, the victim’s lawyer can pose additional questions to clarify the victim’s evidence, and can object to questioning that is irrelevant or not appropriate.^[121] According to Hege Salomon, a Norwegian lawyer who represents victims, the victim’s lawyer might also call witnesses and submit evidence such as a doctor’s report, although they are not permitted to speak to the guilt or not of the accused.^[122] Victims’ lawyers are permitted to make submissions regarding procedural matters that concern the victim, including asking for the accused to leave the room during the victim’s evidence, and requesting that the court be closed to the public.^[123]

8.100 In Sweden, the role of the victim’s lawyer is more limited than in Norway. The Counsel for Injured Party Act provides that victims’ lawyers ‘shall look after the injured party’s interests in the case and also provide support and assistance to the injured party’.^[124] In practice, this involves preparing victims for the trial process, including canvassing the type of questioning that might take place. During the trial process, the victim’s lawyer can object to offensive or inappropriate questions.^[125]

8.101 In Denmark, victims’ lawyers are expected to support a victim throughout the trial process, including by providing information. Victims’ lawyers can also access case evidence before the trial.^[126] During the trial, the victim’s lawyer is technically only permitted to be present in court while the victim gives evidence, although practice suggests that lawyers are often present for most of the trial.^[127] The victim’s lawyer can object to questions put to the victim and can request that the victim give evidence in the absence of the accused or in a closed court.^[128] They are not permitted to call witnesses, question witnesses or the accused, or make submissions to the court on the law or the guilt of the accused.^[129]

Evidentiary principles relevant to questioning victims

General evidentiary principles

8.102 As outlined in Chapter 3, different rules of evidence apply to trials in inquisitorial systems. Victims are not subject to robust cross-examination and there are generally fewer constraints on the way victims are permitted to describe what happened to them. In some inquisitorial jurisdictions, judges ‘rarely condone inconsiderate examination of victim-witnesses, vulnerable or not’.^[130]

8.103 This approach to evidence is related to the fact that professional judges determine whether the accused is guilty or not guilty.^[131] In contrast, in adversarial criminal systems, a jury of lay people decides whether the accused is guilty or not. Cross-examination and rules limiting the evidence of witnesses in adversarial systems exist because juries are expected to make objective, and sometimes complicated, assessments of evidence, and the judge rules unreliable and irrelevant evidence inadmissible. This consideration does not arise in inquisitorial criminal systems, where judges are the primary adjudicators.^[132]

8.104 The structure of the inquisitorial trial is often said to reduce the likelihood that victims will have a negative experience giving evidence.^[133] However, commentators have urged caution in drawing conclusions about the advantages to victims of giving evidence in inquisitorial systems because studies have rarely been based on close comparative analysis.^[134]

The reduced need to give evidence at trial

8.105 In some inquisitorial jurisdictions, most notably Belgium, the Netherlands and Switzerland, victims are rarely required to give evidence during the trial at all.^[135] This is because these jurisdictions place considerable reliance on evidence gathered during the preliminary investigation, which is conducted by a judicial officer. Generally speaking, the prosecutor and the lawyer for the accused are also involved in the preliminary phase and have an opportunity to question the victim in the presence of the judicial officer.

8.106 The European Court of Human Rights has examined whether circumstances in which an accused is given no opportunity to question a witness during a trial infringe the accused’s right under the European Convention of Human Rights to ‘examine or have examined witnesses against him’.^[136] It has held that while using statements made by witnesses during the investigative stage of the proceedings does not violate the accused’s right to examine witnesses, the accused must have at least one opportunity to examine a witness, either at the investigation stage or at trial.^[137] In the absence of this opportunity, the accused’s fair trial rights will be infringed.^[138]

Protective measures and alternative arrangements

8.107 For those civil jurisdictions where victims do routinely give evidence during the trial phase, there are evidentiary rules and procedures designed to reduce the trauma, distress or upset caused by that experience.

8.108 Where these rules and procedures mirror rules already in place in Victoria and other Australian jurisdictions, they will not be repeated. The purpose of this section is to consider procedural and evidentiary safeguards distinctly different to, or of broader application than, the protective measures in place in Victoria.

Rules specific to child witnesses

8.109 In a number of inquisitorial jurisdictions, children can only be questioned by the judge overseeing the trial, and not by the prosecutor or the accused.^[139]

8.110 In the Swiss region of Zurich, children are not required to answer all questions asked by the accused’s lawyer.^[140]

Rules for vulnerable witnesses, including victims of sexual assault and/or family violence

8.111 In a number of jurisdictions, victims can request the accused leave the court while the victim is giving evidence, rather than the victim giving evidence from a remote location.^[141]

8.112 In Switzerland, victims of serious crimes (not limited to sexual offences) can give evidence by closed-circuit television.^[142]

8.113 Austria has a version of pre-recording evidence, in which victims of sexual offences (adults and children) may be questioned prior to the trial proceedings, by a judge alone.^[143] The accused’s lawyer and the prosecutor may be in separate rooms (this is mandatory for victims of sexual offences under the age of 14), but can see and hear the judge and the victim. First, the victim recounts his or her version of the offence in narrative form. The judge can then ask additional questions if necessary. Following this, the judge will ask the accused’s lawyer and the prosecutor what questions they want asked. Disputes about the appropriateness of questions are resolved at this stage, and the judge may elect not to ask inappropriate questions.^[144] This evidence is video-recorded and played at the trial.^[145]

8.114 In Norway, victims of sexual offences, and other offences ‘when the interests of the witness so indicate’, are questioned using an intermediary.^[146] Intermediaries either assist the vulnerable witness during the questioning, or conduct the questioning, subject to the guidance of a judicial officer.^[147] The victim and intermediary sit in a room separate to the prosecutor, accused’s lawyer and the judge.

8.115 The intermediary first elicits an account of events from the victim. The prosecutor, the accused’s lawyer and the judge can ask that certain lines of questioning be pursued by the intermediary on their behalf.^[148] This process is continued until the parties are satisfied adequate evidence has been gathered.^[149] A video of the intermediary’s questioning is then used in court as the victim’s evidence.^[150]

Victim participation at the International Criminal Court

8.116 In May 2015, the Commission published an information paper discussing the role of victims in proceedings before the International Criminal Court (ICC).^[151] The following section draws on the Commission’s earlier information paper, focusing on the practices of the ICC that are most relevant to the Victorian context. The Commission encourages readers to review the Commission’s information paper as a companion to this consultation paper.

Legal framework for participation in the trial

8.117 The Rome Statute and the Rules of Procedure set out the legal framework for victim participation in the Pre-trial, Trial and Appeals Chambers of the ICC.

8.118 Victims are not parties to proceedings in the ICC.^[152] Victims are permitted participatory status:

Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.^[153]

8.119 The ‘personal interests’ of victims flow from their interest in establishing the truth, and obtaining justice and reparations.^[154]

Manner and form of participation

8.120 Victims must apply to be granted participation.^[155] The Court has repeatedly emphasised that victims should only be permitted to participate if they can ‘make a relevant contribution to the determination of the truth’ and their participation ‘does not prejudice the principles of fairness and impartiality of the proceedings before the Court’.^[156]

8.121 If their application to participate is approved, victims are entitled to the appointment of a legal representative.^[157] In practice, nearly all victims have had legal representation (almost always on a group basis).

8.122 Victims’ legal representatives sit at a table next to the prosecutor and across from the accused. It has been suggested that the regular presence of victims’ legal representatives can impact on courtroom dialogue and ‘can continually exercise influence on the legal discourse’ such that ‘[v]ictims and their concerns become an integral part of the criminal justice process’.^[158]

8.123 Victims, through their legal representatives, can:

• access ‘the public record of the proceedings’, subject to confidentiality restrictions^[159]

• attend the trial

• participate in proceedings, except where in the Court’s view, ‘the representative’s intervention should be confined to written observations or submissions’^[160]

• make opening and closing statements^[161]

• question witnesses, experts and the accused.

8.124 To question witnesses, victims must apply in writing to the Court, and may have to specify the questions they seek to ask.^[162] If the Court decides to permit questioning,^[163] the judge may elect to ask the witness the question on behalf of the victims’ legal representative.^[164] Questions must be:

• expressed neutrally and not repetitively

• limited to issues affecting the victims^[165]

• aimed at clarifying or supplementing the evidence of other witnesses^[166]

• directed at establishing the truth.^[167]

8.125 The Court has said that questioning by victims, given their local knowledge and social and cultural background, can help the Court understand the evidence.^[168]

Tendering evidence and calling witnesses

8.126 Although not expressly provided for in the Rome Statute, victims have been allowed to tender evidence and call witnesses during trials. This flows from the Court’s power to request all evidence necessary to determine the truth,^[169] and the victims’ right to express their views and concerns.^[170]

8.127 Victims are only permitted to submit evidence or call witnesses after they have demonstrated, through a written application, the relevance of the evidence they plan to submit and how it will assist in determining the truth.^[171] Allowing victims to participate in this way has been contentious. The potential impact on the rights of the accused is explored below.

Criticism of ICC model of victim participation

8.128 As in Victorian criminal trials, accused persons before the ICC are entitled to a fair trial.^[172]

8.129 A principal criticism of victim participation at the ICC is that it may undermine the presumption of innocence.^[173] It has been argued that allowing victims to participate in proceedings presumes that a crime has occurred, when this is in fact something the prosecutor should prove beyond reasonable doubt.^[174]

8.130 The ability of victims to call and question witnesses and submit evidence has also been subject to criticism for being in conflict with principles underpinning adversarial criminal trials, in which only the parties to the proceedings are entitled to introduce evidence.^[175]

8.131 Some commentators argue that the ICC’s framework for victim participation allows victims to act as ‘secondary prosecutors’.^[176] This, it is argued, undermines the principle of equality of arms, because it is unfair if the defence has to respond to two sets of accusations: those made by the prosecutor and those by the victim’s legal representative.^[177] Others argue that even if victims cannot be characterised as secondary prosecutors, victim participation still risks generally undermining the right of the accused to a fair and impartial trial.^[178]

8.132 In addition, the Rome Statute does not impose any disclosure obligations on victims.^[179] Victims can tender evidence and call witnesses, but they are not required to disclose this evidence to the defence prior to the trial. The Court has held that its supervision of matters means that adequate safeguards exist to ensure the accused’s fair trial rights.^[180] There is still a risk, though, that the accused’s lawyer will not have adequate time to review the material and prepare or amend their defence accordingly.

8.133 Victims are also not obliged to disclose exculpatory evidence in their possession, although the Court can require victims to disclose evidence they have, particularly potentially exculpatory evidence.^[181] Nevertheless, unless the parties are aware victims possess such evidence, they are not able to request the Court make such an order, and so such evidence may never come to light.

Discussion and options for reform

Protected-witness reforms

8.134 The Commission encourages discussion of whether some or all of the protected-witness procedures in place in other jurisdictions should be adopted or expanded upon in Victoria—and whether there are further innovations that should be considered.

8.135 The possibility of using victims’ pre-recorded evidence-in-chief to minimise the number of times they need to give evidence was raised in Chapter 6 in relation to committal hearings. Pre-recording evidence-in-chief could be done as soon as possible by police after an offence has occurred or it could be done in the lead-up to the trial as part of the court’s procedures. The former has been adopted in New South Wales for domestic violence victims, and occurs in Victoria for child victims and victims with a cognitive impairment in sexual offence trials. Related options for reform might include:

• permitting video-recorded statements taken by police as soon as possible after the report of all or certain offences, to be used as evidence-in-chief

• extending the availability of special hearings to other vulnerable victims or to all victims who request a special hearing.

8.136 The use of video-recorded statements taken by police from adult victims requires careful consideration of a number of related issues, including:

• whether a video-recorded statement is made at the point of first contact with police or subsequently in a more controlled environment

• whether the special hearing provisions of the Criminal Procedure Act should extend to victims who make a video-recorded statement with police

• how such a procedure might impact on committal proceedings

• whether the fair trial rights of an accused would be unduly infringed

• whether there are resource implications for the police and the court system.

8.137 In relation to other existing protected-witness procedures, consideration could be given to whether:

• the use of protective measures, such as the use of closed-circuit television, has improved victims’ experiences of giving evidence and whether the use of these measures has had any unintended impacts on the conduct or outcome of trials

• current protective measures for vulnerable witnesses should be extended to apply to other categories of victims, or to victims of other types of offences

• existing evidentiary provisions are being used, and enforced by judges, to prevent inappropriate questioning or to allow victims to give evidence in narrative form

• any other evidentiary reforms are necessary to make the experience of giving evidence less stressful or traumatic for victims.

8.138 One protected-witness reform option not generally available in Australia is the use of intermediaries for vulnerable witnesses. Proponents of the use of intermediaries argue that they ‘improve the trial process for victims and preserve the defendant’s right to a fair trial by allowing the defence adequate opportunity to test the witness’s account’.^[182] Others view the use of intermediaries as irredeemably incompatible with the principle that a fair trial requires ‘oral testing of evidence during a trial’ without interpretation.^[183]

8.139 If an intermediaries scheme were to be introduced in Victoria, the scope of such a scheme could depend on whether:

• intermediaries are to be used only for the evidence of children and cognitively impaired witnesses in trials for sexual offences,^[184] or used more extensively

• intermediaries should construct and conduct the questioning of the victim,^[185] or simply communicate the questions the lawyers want to ask using appropriate language and pre-prepared questions.^[186]

Participating and prosecuting-witness reforms

8.140 Proposals for greater victim participation during the trial generally involve the exercise of victim participation through a legal representative or advocate. Proponents argue that legal representation for victims can be consistent with the structure of the adversarial criminal trial, provided their role is clearly expressed and they are properly integrated into the criminal justice process.^[187]

8.141 Legal representation for victims is not a new issue. Legal representation for victims was considered, but not adopted, by several inquiries into victims of crime in the 1980s and early 1990s.^[188] Since then, significant changes have occurred in the legal landscape, and in political and social attitudes about the way the criminal justice system can and should provide for victims.

8.142 A limited role for lawyers representing victims could involve facilitating victims’ participation outside the courtroom, through for example, providing legal advice, information and assistance, and consulting with the prosecutor.

8.143 A broader proposal might allow victims to be represented by a lawyer or a ‘victim advocate’ both outside and inside the courtroom, but only on matters that demonstrably affect their interests or rights. Proponents of this form of victim participation argue that victims should be entitled to intervene during the trial, including in front of the jury, to ensure that their interests and rights are enforced or protected.^[189] For example, the victim’s lawyer could object to improper questioning of the victim by the accused’s lawyer if the prosecutor or the judge have taken no action. Alternatively, a victim’s lawyers might be granted standing only to raise matters with the judge in the absence of the jury. This type of reform poses less of a challenge to the two-party contest that underpins criminal trials in Victoria.

8.144 Limiting the intervention of victims during the trial to matters where the victim has a demonstrable personal right or interest may mean that victims avoid exercising quintessentially prosecutorial functions, such as cross-examining witnesses or introducing evidence.

8.145 The role of the victim is then closely tied to how personal interests are defined. A wide definition of ‘personal interests’ allows victims to participate in more parts of the process, and could amount to more far-reaching reform. At the ICC, for example, the personal interests of victims extends to their interest in truth and justice. Relying on this, the Court’s chambers have held that victims, through their lawyers, can cross-examine witness and submit evidence.

8.146 Any reforms to the role of the victim that resemble the victim participation scheme at the ICC, or the role of auxiliary prosecutors in some European inquisitorial trials, would see victims taking on a role more akin to a prosecuting witness. Consideration should then be given to whether victim participation during the trial could involve the victim engaging in some or all of the following:

• selecting the jury

• challenging the admissibility of evidence

• cross-examining witnesses (including the accused)

• calling witnesses

• tendering evidence

• making legal submissions

• making opening and closing statements to the jury.

8.147 The victim participation scheme of the ICC provides one template for the integration of victims into the heart of Victoria’s adversarial trial process. As previously noted, the ICC has sought to retain fair trial rights for the accused and the adversarial roles of prosecution and defence lawyers. It has also aimed to provide some measure of restorative justice for victims through participation.

8.148 There are, however, key distinctions between the ICC and Victoria’s criminal jurisdiction which should be borne in mind, including:

• Crimes falling under the ICC’s jurisdiction are of a fundamentally different nature, as they are crimes of mass victimisation carried out by state actors.

• The ICC does not have a jury system; instead, a panel of judges presides over the trial and hands down the verdict.

• The ICC is a hybrid of procedures and values reflecting the justice systems of the countries involved in drafting the Rome Statute. The ICC is not therefore part of a culture and legal tradition in the same way as the criminal trial is in Victoria.

8.149 When examining such proposals, consideration might be given to:

• whether victims would need to apply to the court to be permitted to participate

• when such applications should be made

• whether the victims would need legal representation to effectively exercise such a participatory role, and how legal representation would be funded

• whether granting victims prosecutorial-style participatory rights may also require imposing prosecutorial obligations on victims.^[190]

8.150 In addition, a victim’s interests in participation are likely to depend on the victim’s circumstances and the nature of the crime. Participatory rights could reflect this, with different modes of participation for victims depending on the particular crime or the characteristics of the victim. For example, should the family of a deceased victim have the same participatory status as a primary victim of assault or sexual assault in a trial?

8.151 When considering any proposals for reform, and especially those that relate to the formal trial, it is important to bear in mind research that suggests that while most victims desire greater involvement in the criminal trial process, they do not necessarily want the responsibility of taking on prosecutorial decision-making functions.

8.152 There are various arguments against permitting victims a greater role in the criminal trial. Many criticisms focus, for good reason, on the consequences to the accused of adding a third party to the two-party contest of the adversarial criminal trial. Allowing victims to play a greater role in the trial is likely to impose additional burdens on the accused, and may lead to unfairness. The accused may have to respond to material placed before the court by the victim, which could include additional evidence and witnesses and legal submissions. Further, victim participation may undermine the jury’s ability to reach an objective verdict by creating the perception, which may be realistic, that the trial is a three-way contest with two parties—the victim and the prosecutor—both acting against the accused.

Questions

Protective measures

28 Are the protective procedures for the taking of evidence from vulnerable victims appropriate and effective?

29 Should the current protective measures for vulnerable witnesses be extended to other categories of victim, or to victims of other types of offence?

30 Are the existing evidentiary provisions being used, or enforced by judges, to prevent inappropriate questioning or to allow victims to give evidence in narrative form? Are there any further evidentiary reforms which might reduce victim re-traumatisation?

31 Should Victoria introduce an intermediary scheme? If so, for which victims? What functions should an intermediary perform?

Participatory and prosecutorial roles for victims

32 Should victims be able to participate during trial proceedings? If so, how and when might this participation be exercised? Who should provide representation?

33 Could victims be given a participatory or prosecuting role in Victoria similar to that provided for by the victim participation scheme of the International Criminal Court?

34 Are there aspects of inquisitorial trial procedures which could be adopted in Victoria?

1. This is called an arraignment: Criminal Procedure Act 2009 (Vic) s 215.

   ↑

2. Ibid s 217.

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3. Juries Act 2000 (Vic) ss 30, 36. The process for jury selection is set out in the Act.

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4. Ibid ss 38, 39. In the case of the prosecution, challenging a juror is described as ‘standing aside’.

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5. Criminal Procedure Act 2009 (Vic) s 336A(1). Section 336A is the only section of the Criminal Procedure Act which uses the word victim in the context of the trial proper. All other relevant provisions use the term ‘complainant’.

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6. Ibid s 336A(2).

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7. Ibid s 224.

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8. Ibid s 225.

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9. David Ross, Ross on Crime (Lawbook Co, 2nd ed, 2004) [18.900].

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10. Criminal Procedure Act 2009 (Vic) s 226.

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11. Ibid s 241.

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12. Ibid s 226.

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13. Jury Directions Act 2015 (Vic) ss 11, 12.

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14. Criminal Procedure Act 2009 (Vic) ss 234, 325.

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15. Ibid s 238.

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16. Richard Fox, Victorian Criminal Procedure: State and Federal Law (Federation Press, 2015) 69–70. See also Director of Public Prosecutions Victoria, Director’s Policy: Prosecutorial Ethics (24 November 2014) [13]: ‘The prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the prosecution.’

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

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18. 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.

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19. Criminal Procedure Act 2009 (Vic) s 188. A similar obligation is imposed on the accused: s 189.

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20. Ibid ss 359, 360(a), 363.

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21. Ibid s 362.

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22. Ibid ss 359, 360(a), 363.

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23. Ibid ss 360(b), 364.

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24. Ibid ss 360(c), 365.

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25. Contained in the Family Violence Protection Act 2008 (Vic) s 5.

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26. Criminal Procedure Act 2009 (Vic) s 360.

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27. Defined as under the age of 18 years at the commencement of the proceeding: ibid s 369(2)(a).

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28. Cognitive impairment includes impairment because of mental illness, intellectual disability, dementia or brain injury: ibid s 3.

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29. Criminal Procedure Act 2009 (Vic) ss 369–370.

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30. Ibid s 372.

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31. Ibid ss 367–368.

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32. Ibid s 370.

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33. Ibid s 374.

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34. Ibid ss 373–374.

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35. Ibid s 370(1B).

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36. Ibid s 376.

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37. Ibid s 370(2).

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38. Ibid ss 353–355. Other witnesses who may be declared protected witnesses are family members of the victim and the accused, and any other witness the judge declares to be protected: s 354. Family violence is defined in the Family Violence Protection Act 2008 (Vic) s 5.

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39. Criminal Procedure Act 2009 (Vic) s 356.

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40. Ibid s 357.

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41. Ibid ss 378-379.

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42. Ibid s 380.

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43. Ibid s 381.

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44. Ibid s 383.

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45. If the application is granted, the victim may be cross-examined in relation to any direct testimony: ibid s 384.

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46. Ibid s 385.

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47. Evidence Act 2008 (Vic) s 26.

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48. Ibid s 41. The duty imposed by section 41 applies whether or not an objection is raised to a particular question by the prosecutor: s 41(7).

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49. Ibid s 41(1). Section 41 applies to all witnesses, including victims.

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50. Ibid s 41(3).

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51. Ibid s 41(2).

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52. Ibid s 41(4).

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53. See, eg, R v TA (2003) 57 NSWLR 444, 445–447 (Spigelman CJ)

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54. Criminal Procedure Act 2009 (Vic) ss 339, 341.

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55. Ibid ss 342, 349.

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56. Evidence Act 2008 (Vic) s 29(2). Almost identical provisions exist in New South Wales: Evidence Act 1995 (NSW) s 29(2); Tasmania: Evidence Act 2011 (Tas) s 29(2); Australian Capital Territory: Evidence Act 2011 (ACT) s 29(2).

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57. Evidence Act 2008 (Vic) s 29(2).

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58. Ibid s 29(3).

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59. Ibid s 3, dictionary, pt 1. A ‘leading question’ asked of a witness is a question which directly or indirectly suggests a particular answer to the question; or assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked. ‘The car was red, wasn’t it?’ is a leading question. ‘What colour was the car?’ is not.

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60. Ibid s 37. Leading questions are permitted with the leave of the court and in limited other circumstances.

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61. Ibid s 42.

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62. Adrian Keane, ‘Cross-Examination of Vulnerable Witnesses: Towards a Blueprint for Re-Professionalism’ (2012) 16 International Journal of Evidence and Proof 175, 176–80.

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63. Evidence Act 2008 (Vic) s 42(2)(d).

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64. Ibid s 42(3).

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65. See generally Phoebe Bowden, Terese Henning and David Plater, ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539.

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66. See Criminal Procedure Act 1986 (NSW) s 76A, pt 4B. The NSW legislation uses the term ‘domestic violence complainants’.

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67. Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 4 lists the offences which are ‘personal violence offences’, which include serious assaults and murder, some sexual offences and certain public order and weapons offences.

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68. As defined by the Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 5.

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69. Criminal Procedure Act 1986 (NSW) s 289D. It must include the victim stating her or his age and that the statement is true: s 289F)

    ↑

70. Ibid s 289G. The objects of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) are set out in ss 9–10 and include: preventing domestic violence and ensuring the safety of all persons who experience or witness domestic violence, or who experience personal violence outside a domestic relationship.

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71. Criminal Procedure Act 1986 (NSW) s 289F(5).

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72. Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 37, 40A–40M.

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73. Evidence Act 1929 (SA) s 13–13A.

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74. Ibid s 4.

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75. Ibid s 13A(1), (4).

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76. Ibid s 13.

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77. Criminal Procedure Act 2008 (Vic) s 337.

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78. Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 38C–38E, 39, 43. See section 37 for the list of offences to which the protective measures apply.

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79. Phoebe Bowden, Terese Henning and David Plater, ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 567.

    ↑

80. Evidence Act 1929 (SA) ss 13–13A. The judge must be satisfied that the order can be made without prejudice to the parties: ss 13(1)(c),

    s 13A(1)(c).

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81. Ibid ss 13A(1), (2)(b).

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82. See Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 40N–40U.

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83. Criminal Procedure Act 1986 (NSW) ss 306B, 306C. Note that the prosecutor must give written notice to the accused and to the court of his or her intention to tender the record of the victim’s original evidence, at least 21 days before the new trial: s 306B(3). The best available record should be relied on, with preference being given to an audiovisual recording, then an audio-recording and finally, a written transcript: s 306E.

    ↑

84. Ibid s 306D(1)–(2).

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85. Ibid s 306D(4).

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86. The evidence applies to all child and cognitively impaired witnesses, although this reference is concerned with victim-witnesses. See Emily Henderson, ‘All the Proper Protections—the Court of Appeal Rewrites the Rules for the Cross-examination of Vulnerable Witnesses’ (2014) 2 Criminal Law Review 93, 93–94, citing Joyce Plotnikoff and Richard Woolfson, ‘Kicking and Screaming: The Slow Road to Best Evidence’ in J R Spencer and M E Lamb (eds), Children and Cross-Examination: Time to Change the Rules? (2012) 26–30.

    ↑

87. See Amy Watts, To Investigate Models of Intermediaries for Child Victims/Witnesses in the Criminal Justice System in England, Ireland, Austria and Norway (Report by 2013 Churchill Fellow, 2 January 2014) <https://www.churchilltrust.com.au/fellows/>.

    ↑

88. Ibid 19.

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89. Ibid 15; Phoebe Bowden, Terese Henning and David Plater, ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 571.

    ↑

90. Youth Justice and Criminal Evidence Act 1999 (UK) s 16(1)–(2).

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91. Amy Watts, To Investigate Models of Intermediaries for Child Victims/Witnesses in the Criminal Justice System in England, Ireland, Austria and Norway: Report by 2013 Churchill Fellow (2 January 2014) 15, 20 <https://www.churchilltrust.com.au/fellows>.

    ↑

92. Ibid 16.

    ↑

93. Youth Justice and Criminal Evidence Act 1999 (UK) s 19(1)–(2).

    ↑

94. Amy Watts, To Investigate Models of Intermediaries for Child Victims/Witnesses in the Criminal Justice System in England, Ireland, Austria and Norway (Report by 2013 Churchill Fellow, 2 January 2014) <https://www.churchilltrust.com.au/fellows/>.

    ↑

95. Youth Justice and Criminal Evidence Act 1999 (UK) s 19(3)(a).

    ↑

96. Amy Watts, To Investigate Models of Intermediaries for Child Victims/Witnesses in the Criminal Justice System in England, Ireland, Austria and Norway (Report by 2013 Churchill Fellow, 2 January 2014) <https://www.churchilltrust.com.au/fellows/>.

    ↑

97. Ibid 19; J Plotnikoff and R Woolfson, ‘Kicking and Screaming: The Slow Road to Best Evidence’ in J R Spencer and M E Lamb (eds), Children and Cross-Examination: Time to Change the Rules? (2012).

    ↑

98. Harriet Ketley, ‘A Witness Intermediary Scheme in NSW—Issues and Challenges’ (Paper presented at Intermediary Programs and Communication Models Symposium, Melbourne, 18 February 2015) 22–3. The scheme was introduced in 1992.

    ↑

99. Evidence Act 1906 (WA) s 106F: ‘the court may appoint’; Harriet Ketley, ‘A Witness Intermediary Scheme in NSW—Issues and Challenges’ (Paper presented at Intermediary Programs and Communication Models Symposium, Melbourne, 18 February 2015) 22–3.

    ↑

100. Evidence Act 1906 (WA) s 106F.

     ↑

101. Harriet Ketley, ‘A Witness Intermediary Scheme in NSW—Issues and Challenges’ (Paper presented at Intermediary Programs and Communication Models Symposium, Melbourne, 18 February 2015) 22–3.

     ↑

102. Criminal Procedure Act 1986 (NSW) s 275B.

     ↑

103. Ibid s 306M(1). Cognitive impairment is defined as including an intellectual disability, a developmental disorder, a neurological disorder, dementia, a severe mental illness or a brain injury: s 306(2).

     ↑

104. Ibid s 306ZK(3)(b).

     ↑

105. Phoebe Bowden, Terese Henning and David Plater, ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 574.

     ↑

106. Jo-Anne Wemmers, ‘Victim Policy Transfer: Learning From Each Other’ (2005) 11(1) European Journal on Criminal Policy and Research 121, 125.

     ↑

107. Jonathan Doak, ‘Victims’ Rights in the Criminal Justice System’ in in G Bruinsma and D Wesiburd (eds), Encyclopedia of Criminology and Criminal Justice (Springer, 2014) 5497, 5504.

     ↑

108. Marion E Brienen and Ernestine H Hoegen, Victims of Crime in 22 European Criminal Justice Systems (Wolf Legal Publishers, 2001) 28.

     ↑

109. Kerstin Braun, ‘Giving Victims a Voice: On the Problems of Introducing Victim Impact Statements in German Criminal Procedure’ (2013) 14 German Law Journal 1889, 1896; Helmut Kury and Michael Kichling, ‘Accessory Prosecution in Germany: Legislation and Implementation’ in Edna Erez, Michael Kilchling and Jo-Anne Wemmers (eds) Therapeutic Jurisprudence and Victim Participation in Justice (Carolina Academic Press, 2011) 41, 44.

     ↑

110. Marion E Brienen and Ernestine H Hoegen, Victims of Crime in 22 European Criminal Justice Systems (Wolf Legal Publishers, 2001) 363-64; Christoph Safferling, ‘The Role of the Victim in the Criminal Process – A Paradigm Shift in National German and International Law?’ (2011) 11 International Criminal Law Review 183, 192.

     ↑

111. Strafprozeßordnung [German Code of Criminal Procedure] (Germany) s 396(1).

     ↑

112. Ibid s 396(2).

     ↑

113. Ibid s 395(4).

     ↑

114. Renata Lawson Mack, Comparative Criminal Procedure: History, Processes and Case Studies (William S Hein & Co, 2008) 425, citing Strafprozeßordnung [German Code of Criminal Procedure] (Germany) s 243.

     ↑

115. Ibid citing Strafprozeßordnung [German Code of Criminal Procedure] (Germany) s 240.

     ↑

116. Lorraine Wolhuter, ‘German and Swedish Procedures as Models for the Empowerment of Racial Minority Women in Rape Trials’ (2010) 38 International Journal of Law, Crime and Justice 1, 9.

     ↑

117. Ibid.

     ↑

118. Kerstin Braun, ‘Giving Victims a Voice: On the Problems of Introducing Victim Impact Statements in German Criminal Procedure’ (2013) 14 German Law Journal 1889, 1896; Susanne Walther, ‘Reparation in the German Criminal Justice System: What Is, and What Remains to be Done’ (2000) 7 International Review of Victimology 265, 267. See also Strafprozeßordnung [German Code of Criminal Procedure] (Germany) s 397.

     ↑

119. Kerstin Braun, ‘Legal Representation for Sexual Assault Victims—Possibilities for Law Reform’ (2014) 25(2) Current Issues in Criminal Justice 819, 826.

     ↑

120. See generally Marion E Brienen and Ernestine H Hoegen, Victims of Crime in 22 European Criminal Justice Systems (Wolf Legal Publishers, 2001) 218–20 (Denmark), 441–2 (Iceland), 738–40 (Norway), 891–2 (Sweden).

     ↑

121. Hege Salomon, ‘Victim Lawyers in Norway’ in Holly Johnson, Bonnie Fisher and Véronique Jacquier (eds), Critical Issues on Violence Against Women: International Perspectives and Promising Strategies (Routledge, 2015) 118, 121.

     ↑

122. Ibid.

     ↑

123. Ibid.

     ↑

124. Maria Scheffer Lindgren, Barbro Renck and Christian Diesen, ‘Criminal Justice for Assaulted Women in Sweden—Law Versus Practice’ (2012) 4(1) Review of European Studies 167, 168.

     ↑

125. A 2012 study of women in the Swedish criminal justice system who report ‘intimate partner violence’ found that ‘in many cases, the victims made it clear that they did not wish to have an injured party counsel’: ibid 172.

     ↑

126. Dublin Rape Crisis Centre, The Legal Process and Victims of Rape (Dublin Rape Crisis Centre, 1998) 199.

     ↑

127. Ibid 199–200.

     ↑

128. Marion E Brienen and Ernestine H Hoegen, Victims of Crime in 22 European Criminal Justice Systems (Wolf Legal Publishers, 2001) 219–20. See also Law Commission, Alternative Pre-Trial and Trial Processes: Possible Reforms (New Zealand Law Commission, 2012) 92.

     ↑

129. Dublin Rape Crisis Centre, The Legal Process and Victims of Rape (Dublin Rape Crisis Centre, 1998) 199–200.

     ↑

130. Marion E Brienen and Ernestine H Hoegen, Victims of Crime in 22 European Criminal Justice Systems (Wolf Legal Publishers, 2001) 1118, citing Belgium, Luxembourg, Dutch, Norwegian, Swedish and Swiss judges; Law Commission, Alternative Pre-trial and Trial Processes: Possible Reforms (New Zealand Law Commission, 2012) 55.

     ↑

131. Louise Ellison, The Adversarial Process and the Vulnerable Witness (Oxford University Press, 2002) 147.

     ↑

132. Ibid.

     ↑

133. Ibid 141.

     ↑

134. Ibid.

     ↑

135. Ibid (referring to the Netherlands); Marion E Brienen and Ernestine H Hoegen, Victims of Crime in 22 European Criminal Justice Systems (Wolf Legal Publishers, 2001) 95 (Austria, regarding witnesses under the age of 14 or related to the accused); 156 (Belgium); 700–1 (the Netherlands); 945 (Switzerland).

     ↑

136. Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 6(3)(d). See, eg, S N v Sweden (ECHR, First Section, Application No. 34209/96, 2 July 2002) [43]–[54].

     ↑

137. See, eg, S N v Sweden (ECHR, First Section, Application No. 34209/96, 2 July 2002) [50]–[52].

     ↑

138. Bocos Cuesta v the Netherlands (ECHR, Third Section, Application No. 54789/00, 10 November 2005) [68]–[71]; PS v Germany (ECHR, Third Section, Application No. 33900/96, 20 December 2001) [21]–[31].

     ↑

139. Marion E Brienen and Ernestine H Hoegen, Victims of Crime in 22 European Criminal Justice Systems (Wolf Legal Publishers, 2001) 1111, referring to Belgium, French, German, Italian, Luxembourg and Turkish courts; Law Commission, Alternative Pre-trial and Trial Processes: Possible Reforms (New Zealand Law Commission, 2012) 67, regarding Germany.

     ↑

140. Marion E Brienen and Ernestine H Hoegen, Victims of Crime in 22 European Criminal Justice Systems (Wolf Legal Publishers, 2001) 1112.

     ↑

141. Ibid 1118.

     ↑

142. Ibid 1119.

     ↑

143. Law Commission, Alternative Pre-trial and Trial Processes: Possible Reforms (New Zealand Law Commission, 2012) 81.

     ↑

144. Ibid.

     ↑

145. Ibid 83.

     ↑

146. Phoebe Bowden, Terese Henning and David Plater, ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 578.

     ↑

147. Ibid.

     ↑

148. Ibid.

     ↑

149. Ibid.

     ↑

150. Ibid 578–9.

     ↑

151. 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)

     ↑

152. 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] (Katanga and Chui Appeal Decision).

     ↑

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

     art 68(3) (Rome Statute).

     ↑

154. See, eg, Prosecutor v. Bahr Idriss Abu Garda (Decision on the 34 Applications for Participation at the Pre-Trial Stage of the Case) (International Criminal Court, Pre-Trial Chamber I, Doc No ICC-02/05-02/09, 25 September 2009) [3].

     ↑

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

     ↑

156. See, eg, Prosecutor v Katanga and Chui (Decision on the Modalities of Victim Participation at Trial) (International Criminal Court, Trial Chamber II, Doc No ICC-01/04-01/07, 22 January 2010) [65] (Katanga and Chui Decision).

     ↑

157. ICC Rules r 90.

     ↑

158. Jo-Anne Wemmers, ‘Where Do They Belong? Giving Victims A Place in the Criminal Justice Process’ (2009) 20 Criminal Law Forum 395, 411.

     ↑

159. ICC Rules r 131(2); Prosecutor v Ruto and Sang (Decision on victims’ representation and participation) (International Criminal Court, Trial Chamber V, Doc No ICC-01/09-01/11, 3 October 2012) [64]–[69], including a discussion of when access to confidential material should be permitted (Ruto and Sang Decision).

     ↑

160. ICC Rules r 91(2). See also Katanga and Chui Decision (International Criminal Court, Trial Chamber II, Doc No ICC-01/04-01/07, 22 January 2010) [69]–[71].

     ↑

161. Ruto and Sang Decision (International Criminal Court, Trial Chamber V, Doc No ICC-01/09-01/11, 3 October 2012) [73], affirming the practice of Trial Chambers I, II and III.

     ↑

162. ICC Rules r 91(3)(a). See also Katanga and Chui Decision (International Criminal Court, Trial Chamber II, Doc No ICC-01/04-01/07, 22 January 2010) [72]; Ruto and Sang Decision (International Criminal Court, Trial Chamber V, Doc No ICC-01/09-01/11, 3 October 2012) [74].

     ↑

163. ICC Rules r 91(3)(a): ‘taking into account the stage of the proceedings, the rights of the accused, the interests of witnesses, the need for a fair, impartial and expeditious trial’.

     ↑

164. ICC Rules r 91(3)(b). See also Katanga and Chui Decision (International Criminal Court, Trial Chamber II, Doc No ICC-01/04-01/07, 22 January 2010) [73].

     ↑

165. Ruto and Sang Decision (International Criminal Court, Trial Chamber V, Doc No ICC-01/09-01/11, 3 October 2012) [75]–[76].

     ↑

166. Katanga and Chui Decision (International Criminal Court, Trial Chamber II, Doc No ICC-01/04-01/07, 22 January 2010) [78].

     ↑

167. Ibid.

     ↑

168. Ibid.

     ↑

169. Rome Statute, art 69(3).

     ↑

170. See, eg, Katanga and Chui Appeal Decision (International Criminal Court, Appeals Chamber, Doc No ICC-01/04-01/07 OA 11, 16 July 2010) [37]–[40], also ruling on whether evidence presented by victims needs to be disclosed to the accused prior to the trial; Prosecutor v Lubanga (Judgment on the appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008) (International Criminal Court, Appeals Chamber, Case No ICC-01/04-01/06, 11 July 2008) [86]–[105] (affirming the Trial Chamber’s decision) (Lubanga Appeal).

     ↑

171. See, eg, Lubanga Appeal (International Criminal Court, Appeals Chamber, Case No ICC-01/04-01/06, 11 July 2008) [98]-[100].

     ↑

172. For a more detailed explanation of fair trial rights, particularly as they exist in Victoria, see Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process Information Paper 1: History, Concepts and Theory (May 2015).

     ↑

173. See, eg, Salvatore Zappala, ‘The Rights of Victims v. the Rights of the Accused’ (2010) 8 Journal of International Criminal Justice 137, 146–7.

     ↑

174. See, eg, Bridie McAsey, ‘Victim Participation at the International Criminal Court and its Impact on Procedural Fairness’ (2011) 18 Australian International Law Journal 105, 118–19.

     ↑

175. Håkan Friman, ‘The International Criminal Court and the Participation of Victims: A Third Party to the Proceedings’ (2009) 22 Leiden Journal of International Law 485, 492.

     ↑

176. Bridie McAsey, ‘Victim Participation at the International Criminal Court and its Impact on Procedural Fairness’ (2011) 18 Australian International Law Journal 105, 114–15, 119.

     ↑

177. See, eg, Christine Wyngaert, ‘Victims before International Criminal Courts: Some Views and Concerns of an ICC Trial Judge’ (2011) 44

     Case Western Reserve Journal of International Law 475, 488.

     ↑

178. Bridie McAsey, ‘Victim Participation at the International Criminal Court and its Impact on Procedural Fairness’ (2011) 18 Australian International Law Journal 105, 115.

     ↑

179. Katanga and Chui Appeal (International Criminal Court, Appeals Chamber, Doc No ICC-01/04-01/07 OA 11, 16 July 2010) [72].

     ↑

180. Ibid [52]–[53].

     ↑

181. Ibid [85]–[86].

     ↑

182. Phoebe Bowden, Terese Henning and David Plater, ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 545. See also Emily Henderson ‘All the Proper Protections—the Court of Appeal Rewrites the Rules for the Cross-Examination of Vulnerable Witnesses’ (2014) 2 Criminal Law Review, 93, 93–94, citing Joyce Plotnikoff and Richard Woolfson, ‘Kicking and Screaming: The Slow Road to Best Evidence’ in J R Spencer and M E Lamb (eds), Children and Cross-Examination: Time to Change the Rules? (2012) 26–30.

     ↑

183. See the dissenting views of Helen O’Sullivan (former Judge of the Queensland District Court) and Nick Cowdery (then Director of the NSW DPP) to Recommendations 4.5 and 6.2 in Annie Cossins, Alternative Models for Prosecuting Child Sex Offences in Australia (National Child Sexual Assault Reform Committee 2010) 36.

     ↑

184. Proposed by Annie Cossins, Alternative Models for Prosecuting Child Sex Offences in Australia (National Child Sexual Assault Reform Committee, 2010) [4.129]–[4.130].

     ↑

185. Proposed by Phoebe Bowden, Terese Henning and David Plater, ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 582–583.

     ↑

186. For a proposal regarding the use of intermediaries, see Annie Cossins, Alternative Models for Prosecuting Child Sex Offences in Australia (National Child Sexual Assault Reform Committee, March 2010) rec 4.5.

     ↑

187. See, eg Tyrone Kirchengast, ‘Victim Lawyers, Victim Advocates, and the Adversarial Criminal Trial’ (2012) 16(4) New Criminal Law Review: An International and Interdisciplinary Journal 568, 593; Kirsten Braun, ‘Legal Representation for Sexual Assault Victims—Possibilities for Law Reform’ (2014) 25(2) Current Issues in Criminal Justice 819, 829–830; Jonathan Doak, Victims Rights, Human Rights and Criminal Justice (Hart Publications, 2008) 135, 137.

     ↑

188. See, eg, Law Reform Commission of Victoria, Rape: Reform of Law and Procedure: Interim Report, Report No 42 (1991) 32–5. See also Sam Garkawe, ‘The Role of Victims During Criminal Court Proceedings’ (1994) 17 University of New South Wales Law Journal 595, 607.

     ↑

189. Issues relating to the enforcement of victims’ rights are considered in Chapter 12.

     ↑

190. For further discussion see Chapter 4 of this paper.

     ↑