Victims of Crime in the Criminal Trial Process: Report (html)

6. Information and support

Introduction

6.1 The criminal trial process can be daunting for victims, so it is essential that they receive appropriate information and support. Whether victims experience the process as fair will depend in part on how well they are prepared and supported.^[1] It matters what information they receive, who gives it to them, and under what circumstances. Their experience is affected by their capacity to process and respond to this information.

6.2 The Director of Public Prosecutions (DPP) and Office of Public Prosecutions (OPP) in Victoria bear most responsibility for ensuring that victims are informed and referred to support during the criminal trial process. This chapter examines the relationship between victims and the prosecution before turning to examine whether victims need access to legal advice and assistance that is independent of the prosecution.

6.3 In accordance with the Commission’s terms of reference, this chapter focuses on information and support provided in connection with the criminal trial process. The Commission appreciates that victims need to be informed of their options for practical and emotional support whether or not criminal proceedings are commenced. They should be referred early by police to the Victims of Crime Helpline or directly to a support service. From the Helpline, referrals can be made to a Victims Assistance Program provider or to specialist services such as Centres Against Sexual Assault or family violence services. Thus, by the time the DPP takes responsibility for a prosecution and court proceedings commence, victims should have been linked to the support they need. There are, however, some gaps which were brought to the Commission’s attention and they are discussed briefly at the end of this chapter.

Information and support throughout the criminal trial process

Law and policy framework

6.4 The Victims’ Charter Act 2006 (Vic) requires investigatory, prosecuting and victims’ services agencies to provide victims with information about support services, possible entitlements and legal assistance, and to make referrals where appropriate.^[2] It also requires prosecuting agencies to provide certain information about the prosecution

to victims.^[3]

Prosecutorial obligations towards victims

6.5 Victoria’s public prosecutions service comprises the DPP, who is the head of the service; the Chief Crown Prosecutor; Crown Prosecutors; Associate Crown Prosecutors; the Solicitor for Public Prosecutions; and the OPP.^[4] Each component has a statutory obligation to give ‘appropriate consideration to the concerns’ of victims.^[5]

6.6 Generally, the DPP has responsibility for instituting, preparing and conducting the prosecution of indictable offences in the Supreme and County Courts.^[6] The DPP must ensure that prosecutions are conducted in an ‘efficient, economic and effective manner’.^[7] Crown Prosecutors, Associate Crown Prosecutors and barristers from the Victorian Bar are briefed to appear in court for the prosecution and in doing so, they act on behalf of the DPP.^[8] They are typically instructed by an OPP solicitor, who has responsibility for managing the prosecution case. Together, they form the prosecution team.

6.7 The DPP is a ‘prosecuting agency’ for the purposes of the Victims’ Charter Act.^[9] The DPP’s obligations under this Act and other legislation are the basis of internal policies that guide day-to-day processes and decision making by the DPP and OPP. Principally, the Director’s Policy: Victims and Persons Adversely Affected by Crime (Victims Policy), outlines the vast majority of obligations that OPP staff and solicitors have towards victims.^[10]

6.8 The DPP’s Victims Policy is comprehensive. It identifies the information and referrals to support that OPP solicitors and staff are required to provide to victims at different stages of the criminal trial process. These obligations guide the DPP’s and OPP’s relationship with victims. The OPP’s booklet for victims, Pathways to Justice, includes options for support and information relevant to the criminal process.^[11]

6.9 When responsible for a prosecution, OPP solicitors have specific obligations towards the victims. These include:

• to refer victims to support services as early as possible, including the OPP’s Witness Assistance Service when a prosecution involves a death, a child victim, a victim with

a disability or cognitive impairment, a sexual offence, or family violence

• to inform victims about the progress and outcome of cases

• to inform victims about court processes and, where applicable, their role as a witness for the prosecution

• to inform and consult victims about decisions to accept a plea of guilty to lesser charges or to modify charges (plea resolution decisions) and decisions to discontinue

a prosecution (decisions to discontinue)

• to inform victims about their right to provide a victim impact statement and possible entitlements to compensation, restitution and financial assistance.^[12]

6.10 The prosecution team is the most authoritative source of information about the criminal trial process for victims. It is vital that prosecution lawyers understand and comply with their obligations.

Court support services

Witness assistance services

6.11 Two specialist services provide victims with direct support and information in connection with their involvement with the court process. The Witness Assistance Service sits within the OPP. The Child Witness Service sits within the Department of Justice and Regulation and provides a specialist service for child witnesses.

6.12 The OPP Witness Assistance Service prioritises support for those who have lost family members, victims and witnesses in sexual offence and family violence cases, and vulnerable victims.^[13] It is staffed by social workers who help OPP solicitors meet their information obligations. Support and assistance include:

• meetings before and after major court dates

• familiarisation tours of the court

• answering questions about court processes

• referral to other victim support services.^[14]

6.13 The Child Witness Service provides support and education to child witnesses, including victims, and prepares them for their role.^[15] The service is staffed by specialist caseworkers who assess each child’s needs, including their developmental stage and communication capacity. The independence of the Child Witness Service from the OPP means it can advocate for the child’s needs and provide a service to judges and defence lawyers, as well as the prosecution.^[16] Where the child is a witness for the prosecution, the assessment is conveyed to the OPP. In court, the Child Witness Service worker may inform both the prosecution and the court about the child’s physical or emotional needs while giving evidence. However, its role is not to advise the judge, prosecutor or defence about how

to communicate effectively with a particular child.^[17]

Other sources of support and information at court

6.14 The relationship built between the police informant and a victim does not end when

a prosecution is taken over by the DPP. Victoria Police told the Commission that it aims

to support victims from point of first contact until the finalisation of their matter.^[18] For some victims, the police informant remains their first and most trusted point of contact. Victims generally spoke positively about the consistency and accessibility of the services they received from the police informant.^[19]

6.15 Court Network Inc is an independent service that is available to victims, accused persons and their families on a non-partisan basis. Trained Court Network volunteers provide information, support and referral within court precincts across Melbourne and regional Victoria and also across Queensland.^[20] Court Network does not provide legal advice.

6.16 In addition to receiving court-focussed assistance from the above services, victims may also receive practical and emotional support from one of six community-based Victims Assistance Program providers funded by the Victims Support Agency, or from a Centre Against Sexual Assault, family violence service, or other service. The Victims Assistance Program and Centres Against Sexual Assault are key sources of assistance for victim impact statements, which are discussed in Chapter 7.^[21]

Expectation and experience

6.17 The timely provision of support and accurate and accessible information can improve victims’ experience of the court process, their perceptions of fairness and ultimately their confidence in the legal system.^[22] It helps to manage expectations about their role in the criminal trial process and allows them to engage in an informed manner. Victims of crime who spoke to the Commission emphasised the importance of information and support

to their journey through the criminal justice system. One victim described information

as ‘key’ and ‘crucial’ in terms of helping her and her child understand, and prepare for, being witnesses.^[23] Colleen Murphy (Kelly) stated that ‘Knowledge and being informed

is empowering.’^[24]

6.18 Consultations and submissions tended to discuss victims’ expectations and experiences

of information and support in the context of particular stages of the trial process.^[25]

This informs the structure of the discussion below.

Progress and outcomes

6.19 The DPP’s Victims Policy demonstrates a commitment to ensuring that victims are kept informed. Victims are to be kept updated about the progress of a prosecution, including guilty pleas, and the outcomes of committal mentions, contested committals, initial directions hearings, trials, pleas, sentencing and appeals.^[26] In addition, OPP solicitors should ensure that victims know the date, time and location of a contested committal, trial, plea hearing, sentencing hearing and appeal hearing.^[27]

6.20 Victims generally appear to be kept informed about the progress of prosecutions conducted in the Supreme and County Courts in Melbourne.^[28] The experience of victims in regional areas, and those living interstate, is more variable. The Commission was told, for example, by a parent whose child had been killed, that she was not informed of sentencing hearing dates and was therefore not able to attend.^[29] The challenges for regional prosecutions are discussed below.

Prosecutorial decisions about charges

6.21 Decisions to discontinue and plea resolution decisions can be made at any time except during a trial.^[30] The impact of these decisions is not only emotional. They can also affect whether a victim impact statement can be provided to the court and what that statement can contain, potential claims for compensation or financial assistance, and whether a victim will be required to give evidence at a committal hearing or trial.

6.22 The Victims’ Charter Act and the DPP’s policies require prosecution lawyers to ensure

that victims are informed about decisions to:

• file new charges

• substantially modify charges

• not proceed with some or all charges

• accept a plea of guilty to lesser charges.^[31]

6.23 A survey of victims in 2014 found that most were informed about plea resolution decisions and decisions to discontinue by the OPP.^[32] The Commission’s submissions and consultations suggest some inconsistency in practice.^[33] For example, one victim told the Commission that she was not directly contacted by the OPP about decisions to accept guilty pleas to lesser charges against a number of offenders in relation to the death of

her child.^[34]

6.24 Prosecution lawyers must be able to explain the considerations relevant to plea resolution decisions and decisions to discontinue effectively.^[35] As part of this, it is critical that victims understand that prosecution lawyers do not represent them and that the prosecution must act fairly, impartially and in the public interest. A few victims who spoke to the Commission did not appreciate this.^[36]

Pre-trial matters

6.25 In the lead-up to the trial, the parties identify matters about the conduct of the trial that require resolution or a decision by the judge before the trial starts.^[37] Matters that directly concern the entitlements of victims, and affect the victim’s subsequent experience of giving evidence, include:

• applications to subpoena, access or use confidential communications

• the use of special hearings and alternative arrangements for giving evidence.^[38]

Confidential communications

6.26 The defence will sometimes seek to access a victim’s personal records during criminal proceedings. In sexual offence cases, victims have a statutory right to seek leave to appear in court in response to an application to subpoena, access or use confidential medical or counselling records.^[39] The obligation to inform the victim that an application has been made lies with the police.^[40] An internal DPP policy states that prosecution lawyers should inform the victim that they are entitled to be represented by their own lawyer and seek leave to make submissions. They may also refer the victim to legal assistance.^[41]

6.27 It is important that victims are informed about this legal entitlement by the prosecution and can access legal assistance. The Commission was told by victims, Victoria Police and victim support specialists that this is not occurring regularly.^[42]

Alternative arrangements for giving evidence

6.28 Alternative arrangements can be made for victims of sexual offences and family violence who are required to give evidence. Where a victim of a sexual offence seeks to give evidence in the courtroom and without the use of a screen or a support person, their wishes must be considered by the court.^[43]

6.29 While comprehensive information for victims is provided in the OPP’s Pathways to Justice booklet, prosecution lawyers are not subject to any obligation to inform victims about alternative arrangements or that the court will consider the victim’s views.^[44] The County Court has forms that must be filed by the prosecution in sexual offence cases involving child victims and victims with a cognitive impairment and in family violence cases.^[45] These forms require the prosecution to address arrangements for evidence and indicate whether the victim has been referred to support.

6.30 During consultations, several participants expressed concern about the adequacy and timing of the information provided to victims about alternative arrangements for giving evidence, particularly in regional Victoria. This issue is discussed in Chapter 8.

Committal and trial

6.31 Many victims give evidence at a committal or trial. The prospect of appearing in court, giving evidence and being cross-examined can be terrifying. Disability, youth, and cultural and language issues can create additional challenges when giving evidence because of the justice system’s traditions, the adversarial approach and the emphasis on oral evidence.

6.32 Information and support can help victims give their best evidence and reduce the potential for trauma by:

• helping victims understand their role as a witness and prepare themselves emotionally

• ensuring that victims are able to give their evidence without preventable disadvantage^[46]

• addressing their wellbeing before, during and after giving evidence.

6.33 Providing tailored information to victims who are witnesses can create challenges for prosecution lawyers for two main reasons. First, the prosecution has broad and ongoing disclosure obligations towards the defence throughout the trial process. All relevant,

and possibly relevant, material must be disclosed to ensure a fair and impartial trial

for the accused.^[47]

6.34 Secondly, like all lawyers, prosecution lawyers are prohibited from rehearsing or coaching a witness’s evidence.^[48] However, coaching refers to the provision of advice about what answers a witness should give. A lawyer will not breach the prohibition against coaching by ‘expressing a general admonition to tell the truth’, ‘questioning or testing

in conference the version of evidence to be given’ or drawing ‘attention to inconsistencies or other difficulties with the evidence’, so long as they do not encourage the witness to give evidence different to what the witness believes to be true.^[49] Prosecutors can assist witnesses to prepare for giving evidence ‘by providing the witness with information about the issues in the case and suggesting that the witness read their statement prior to giving evidence’.^[50]

6.35 Prosecution lawyers are required to inform victims about the trial process and their role as a witness for the prosecution.^[51] The DPP’s Victims Policy states that OPP solicitors must offer a pre-committal or pre-trial conference with the Witness Assistance Service to any person appearing as a witness, including victims, where that person:

• is a child under 16 years

• is a sexual offence victim

• has a disability or cognitive impairment.^[52]

6.36 A separate policy obligation states that OPP solicitors should ensure that a conference with the Witness Assistance Service is offered to ‘all victims who are to give evidence

for the prosecution’.^[53]

6.37 In cases involving death, OPP solicitors should offer family victims a pre-committal or pre-trial conference with the Witness Assistance Service, regardless of whether those victims are witnesses.^[54] Victims who are not witnesses can be provided with more information about the facts of the case which can help them prepare for what they will hear during court proceedings.^[55] In family violence cases, OPP solicitors should consult the Witness Assistance Service to determine whether a conference is appropriate.^[56]

6.38 The Commission was told that victims are not always given enough information or guidance, or time to ask questions about giving evidence.^[57] This appears to be a more acute problem for trials held in regional areas because prosecution lawyers have less time to meet with victims.

6.39 Victims also need an opportunity to meet with prosecution lawyers at the conclusion of a committal or trial or after giving evidence, to ask questions and gain a better understanding of what has taken place in court. There is no express requirement in law

or policy for prosecution lawyers to do this. Some victims leave court feeling shaken

and distressed after giving evidence.^[58]

Sentencing

6.40 A number of victims told the Commission that they found it difficult to understand why information about the offender dominates sentencing hearings, while the victim’s life and experience of the crime are barely mentioned.^[59] This can be addressed in part by preparing victims for the sentencing process. Based on comments during consultations and in submissions, the Commission identified that victims need to know:

• the purposes of, and factors relevant to, sentencing and how these relate to the offender’s circumstances and defence submissions

• the duties of the prosecutor at a sentencing hearing

• the purposes and use of maximum sentences, cumulative sentencing and concurrent sentencing

• the role of victim impact statements, what content is permitted and alternative arrangements for reading out a statement^[60]

• the option of applying for compensation or restitution as an additional order against the offender.^[61]

6.41 Pre-sentence conferences with the prosecution team, including a Witness Assistance Service representative or another support service worker, can be useful in preparing victims for the language of a sentencing hearing.^[62]

6.42 Post-sentence conferences can help victims understand sentencing outcomes. One victim told the Commission that having a conference with the prosecution team after the sentencing hearing helped her understand the outcome and allowed her to ask questions about the judge’s reception of her victim impact statement.^[63] Another said she would have liked time to sit with the prosecutor a few days after sentencing to discuss the outcome.^[64]

6.43 In Chapter 7, the Commission recommends establishing a statutory scheme that would allow for matters to be adjourned for pre-sentence restorative justice conferencing. If this recommendation is adopted, victims would need to be informed about this option and about where they can obtain legal advice.

Compensation, restitution and financial assistance

6.44 Victims may be entitled to apply for restitution or compensation orders under the Sentencing Act 1991 (Vic) if an offender is found guilty.^[65] They may also be eligible

for financial assistance from the Victims of Crime Assistance Tribunal (VOCAT).^[66]

6.45 In accordance with Victims’ Charter principles, victims should be informed about ‘possible entitlements’ and referred to legal assistance.^[67] The DPP’s Victims Policy requires OPP solicitors to inform victims that they may have an entitlement to apply for compensation or restitution orders or to seek financial assistance from VOCAT.^[68] The OPP’s Financial Assistance, Compensation and Restitution for Victims of Crime booklet explains the options and assistance available.^[69]

6.46 Some victims were not informed until some time into the criminal trial process, or not at all, about their right to seek an order for compensation or restitution as an additional order to sentencing.^[70] One victim told the Commission that by the time the police informant spoke to her, the offender had transferred assets that could have been used

to pay compensation.^[71]

Appeals

6.47 Victims who went through an appeal told the Commission that appeal proceedings were particularly alienating.^[72] Appeals often involve technical and complex considerations of law. Victims have no role, unless a conviction is being set aside by the Court of Appeal and a compensation or restitution order was made in connection with the conviction.

In such cases, victims may be heard by the court.^[73]

6.48 The Victims’ Charter Act entitles victims to be informed when an appeal is commenced, the grounds of the appeal and the outcome.^[74] The DPP’s Victims Policy further requires that victims are told:

• about the appeal process

• how to request a copy of the grounds of appeal

• the appeal hearing date

• that, if the appeal is against conviction, any restitution or compensation orders are suspended and will be ineffective if the conviction is set aside.^[75]

6.49 A 2014 report by Victoria Legal Aid noted the need for victims to be notified of appeals early and to be updated about the appeal’s progress.^[76] Victoria Legal Aid is currently working with the OPP and the Court of Appeal to develop a process that ensures victims are notified of an appeal before it is reported in the media.

Relationship between victims and the prosecution

6.50 The time spent by the prosecution team with a victim, together with the attitude and communication skills of the individuals involved, will have a significant impact on whether victims feel adequately informed and supported. This in turn affects their confidence in the criminal justice system.

6.51 The OPP solicitor and the prosecutor briefed to appear in court are central actors in the criminal trial process and are in a position of authority relative to victims. Understandably, difficulties communicating with the prosecutor or OPP solicitor can cause frustration or distress, even where the police or a support service are providing assistance.^[77]

6.52 Victims spoke about seeking honesty and empathy in their dealings with the OPP. They acknowledged that some conversations are hard, but stated that they still want to have them.^[78] Proactive efforts by the OPP to ensure that victims were informed and supported, and its openness to being contacted with questions or concerns, were viewed favourably by victims.^[79] Information needs to be reiterated throughout the course of a prosecution

as it becomes relevant to each stage of the trial process.^[80]

Information obligations and the Victims’ Charter Act

6.53 Most obligations to ensure victims are informed and supported fall on the DPP and OPP, particularly the solicitor in charge of a prosecution. These obligations inform the relationship between victims and the prosecution.

6.54 The DPP’s policies are fairly comprehensive. In contrast the Victims’ Charter principles

are broadly worded. For example:

• The DPP’s Victims Policy requires OPP solicitors to ensure that victims know the date, time and location of a contested committal, trial, plea hearing, sentencing hearing, and appeal hearing.^[81] The Victims’ Charter Act principle requires only that prosecuting agencies tell victims how they can find out these details.^[82]

• The Victims’ Charter Act states that the prosecution should advise victims of the outcome of criminal proceedings and appeals.^[83] The DPP’s Victims Policy goes further and states that OPP solicitors should update victims about the progress of the prosecution and the outcomes of a committal mention, contested committal, initial directions hearing, trial, plea, sentencing and appeal.^[84]

• A Victims’ Charter principle requires prosecuting agencies to refer victims to a victims’ services agency for help with a victim impact statement where a victim first expresses ‘a wish to make a victim impact statement’.^[85] The DPP’s Victims Policy also refers

to this but additionally requires OPP solicitors to inform victims that they have a right to make a victim impact statement at sentencing.^[86]

6.55 There is no suggestion that prosecution lawyers are failing to act compatibly with DPP policies simply because those policy obligations have not been directly transferred to the Victims’ Charter Act. However, the Victims’ Charter Act is the most visible reference point for the community in terms of what victims are entitled to in their dealings with investigatory, prosecuting and victims’ services agencies. It is also the instrument through which compliance with obligations to victims is monitored.

6.56 Victoria Police and the former victim representatives of the inaugural Victims of Crime Consultative Committee supported incorporating some aspects of DPP policies into the Victims’ Charter Act.^[87] The Law Institute of Victoria considered compatibility between

the Victims’ Charter Act and DPP policy to be important.^[88]

6.57 The Commission can see no reason why the above three DPP policy obligations should not be replicated in the Victims’ Charter Act. The DPP has considered them important enough to set down in policy, and they appear to be regularly complied with by OPP staff and solicitors.

6.58 OPP solicitors are required, by DPP policy, to inform victims that they can apply for compensation or restitution orders and for financial assistance, and can be referred

to legal assistance.^[89] In Chapter 9, the Commission recommends that this obligation

also be reflected in the Victims’ Charter.

6.59 Victims will need information about certain matters that are not contained in the Victims’ Charter or in the publicly available DPP policies. In Chapter 7, the Commission recommends that the prosecution have statutory responsibility for informing victims about confidential communications applications and their rights. The Commission also recommends that victims be informed of the availability of restorative justice options.

In Chapter 8, the Commission recommends that OPP solicitors inform victims of alternative arrangements for giving evidence, and that the Victims’ Charter Act be amended to include these information obligations.

Recommendation

20 The Victims’ Charter Act 2006 (Vic) should be amended to require prosecuting agencies to:

(a) ensure that victims know the date, time and location of a contested committal, trial, plea hearing, sentencing hearing, and appeal hearing

(b) advise victims about the progress of the prosecution and the outcome of committal proceedings, a trial, plea hearing, sentencing hearing and appeal hearing

(c) inform victims that they have a right to make a victim impact statement at sentencing.

Conferences and compliance with obligations

6.60 Having obligations in the Victims’ Charter Act does not automatically lead to compliance.^[90] Time, resources, attitude and communication skills are vital. Prosecution lawyers need to establish good relationships early and maintain them.^[91] Evidence suggests that obligations to inform, support and consult with victims, especially victims of sexual offences, are increasingly being taken more seriously by prosecution lawyers than they used to be.^[92]

6.61 The DPP informed the Commission that there is ‘a high degree of satisfaction experienced by victims in their interactions with the OPP’.^[93] Indeed, a number of victims told the Commission that they were adequately informed and updated, or felt able to approach the OPP solicitor or prosecutor when needed.^[94] However, the experience is not the same for everyone.^[95]

6.62 Overall, the evidence collected by the Commission indicated that prosecutors and OPP solicitors could do better, more consistently, especially for victims in regional Victoria, Aboriginal victims, victims with disabilities, victims facing barriers related to culture

or language and victims not able to access the Witness Assistance Service.

6.63 The DPP and OPP do not act legally on behalf of victims. However, as participants in the criminal trial process, victims must be understood as relevant to the DPP and OPP’s operations. The Commission considers that conferencing with victims before and after

key court dates should be an integral part of the prosecution process.

6.64 The Commission was told that conferencing enhances the risk of victims revealing information that the prosecution is obliged to disclose to the defence, which could damage the prosecution.^[96] While this is a legitimate concern, it can be managed, for example, by ensuring that victims understand the purpose and limits of the meeting before it starts, and reminding them about the prosecution’s disclosure obligations. It is also helpful for the prosecution to learn information that may assist or hinder the prosecution early, rather than having something arise for the first time in cross-examination. If information does come to light that is relevant, it is consistent with a central tenet of the criminal justice system that an accused know the case against them

to properly defend charges.^[97] Prosecution lawyers already manage such risks in the context of their obligations to offer pre-committal and pre-trial conferences to certain victims (see [6.35]).^[98]

6.65 Participation in conferences with the prosecution before and after important court dates, such as the committal, trial or sentencing hearing, is positive and useful for victims.^[99] Conferences at least a few days prior to court can help victims prepare themselves for

the language and process of the court and possible outcomes. Conferences on the day

or a few days after court provide a space for victims to ask questions and better understand what happened, have their contribution and experience acknowledged, and ensure that they have access to appropriate support. Regular conferences with prosecution lawyers convey to victims what they know to be true—that they have an interest and are integral to the prosecution process.

6.66 The Commission considers that victims should be offered the opportunity to attend a conference with the prosecution before and after key court dates. Conferences should involve the OPP solicitor, an appropriate support person (based on a victim’s particular needs), the police informant and, if possible, the prosecutor. The OPP has limited resources and the Commission acknowledges that court timeframes and individual schedules will affect the length and timing of a conference and who can attend, particularly on regional circuits. The Commission’s recommendation prioritises victims

who face greater barriers to participation and victims who are more invested in the criminal justice system’s response to offending. This recommendation should be read

as a companion to recommendation 24 in Chapter 7.

Recommendation

21 The Victims’ Charter Act 2006 (Vic) should be amended to require prosecuting agencies to offer conferences before and after important court dates, including committal hearings, trials and retrials, sentencing hearings in the Supreme Court and County Court and appeals to the Court of Appeal, to the following:

(a) family members of deceased victims

(b) victims of sexual offences

(c) all victims of offences involving conduct that falls within the definition

of family violence in the Family Violence Protection Act 2008 (Vic)

(d) child victims

(e) victims with disabilities

(f) Aboriginal and Torres Strait Islander victims

(g) victims whose first language is not English

(h) on request to other victims of crime.

Regional circuit court challenges

6.67 Victims of crime in rural and regional Victoria face particular challenges related to geographical and social isolation and a lack of access to services. Some victims have to depend on the police informant for information that the OPP should normally provide because of difficulties communicating with the OPP solicitor.^[100] The Commission heard that greater reliance is also placed on local Victims Assistance Program providers, and sometimes Centres Against Sexual Assault, to provide support to victims when the OPP’s Witness Assistance Service does not have the capacity to travel.^[101]

6.68 This is in large part because of the nature of circuit courts in regional areas. The Supreme and County Courts sit in certain regional cities and towns at different times throughout each year. The Commission was told that the County Court regional circuit lists are now managed more effectively and take into account the interests of victims, and that matters progress much faster from committal through to trial and sentencing than they used to.^[102] However, a trial listed for a particular circuit will not always start before the circuit ends. This means adjourning the trial to the next circuit, which may be months away.

6.69 The OPP has offices in Melbourne and Geelong. The OPP established a regional office

in Geelong in 2009 to improve the delivery of prosecution services to western Victoria.^[103] An internal review resulted in services being strengthened in Geelong, including the appointment of a Geelong-based Crown Prosecutor in 2014.^[104] For all other regions,

the OPP travels to the location of the circuit court. This can mean preparing for a number of sentencing hearings and trials, all of which may occur over three or four weeks.

Meeting obligations to regional victims

6.70 Regional victims often meet the OPP solicitor or the prosecutor in person for the first time during a rushed meeting on the morning of a significant court date.^[105] For those stressed about giving evidence in particular, a short meeting in the court precinct before court starts is insufficient. Two judges of the County Court and a regional magistrate expressed concern about conferencing not occurring consistently and regional victims not being sufficiently supported or informed.^[106]

6.71 Victims living in regional areas also have less consistent access to the OPP Witness Assistance Service than those in metropolitan Melbourne. The Commission was told that workers from Victims Assistance Programs, and sometimes Centres Against Sexual Assault, provide court support where Witness Assistance Service staff are not available, and sometimes with limited notice.^[107] This highlights the importance of regional victims being linked to a Victims Assistance Program, Centre Against Sexual Assault or other support service, so that court support can be smoothly coordinated if necessary.^[108]

6.72 OPP Witness Assistance Service workers play a critical role in liaising with prosecutors and OPP solicitors, ensuring victims are provided with the information they need and coordinating support. Several consultation participants told the Commission that victim support services, including the Witness Assistance Service, are under-resourced.^[109] Resource constraints appear to be having a disproportionate impact on victims from regional Victoria.

Conclusion

6.73 The obligations to inform, refer, consult and conference with victims in regional Victoria pose challenges for the OPP in terms of timing, logistics and resources. These challenges are significant, but not insurmountable.

6.74 Greater resources may be required and circuit court listing practices may need to be adjusted to give OPP solicitors enough time to fulfil their obligations to victims. It may also be possible to reallocate existing resources within the OPP in a way that provides regional victims with greater access to the OPP’s prosecution and witness support services earlier in the prosecution process. For example, it may be feasible to have an ongoing OPP presence in regions with the busiest court lists. Data for matters finalised in 2015 in the County Court of Victoria reveals that in the Gippsland region (La Trobe Valley, Sale and Bairnsdale) there were 51 pleas and 20 trials, in the Loddon Mallee region (Bendigo and Mildura), there were 61 pleas and eight trials, and in Hume (Shepparton, Wangaratta and Wodonga) there were 47 pleas and 13 trials. In contrast, there were 46 pleas and seven trials over the same period in the Barwon South West region, which is a part of the area covered by the OPP’s Geelong office.^[110]

6.75 The Commission’s function is not to review the efficiency, effectiveness or allocation of resources within the OPP. However, the Commission considers that the OPP should have

a greater presence in regional Victoria so that it can meet the obligations it owes to victims, including offering consultations and conferences, and not just on the day of court. To that end, a review of the OPP’s delivery of both prosecution and witness assistance services in regional Victoria is warranted. Ideally this review would be undertaken by an independent entity or person.

Recommendation

22 The Director of Public Prosecutions should cause a review to be undertaken of the delivery of prosecution and witness assistance services across regional Victoria with the objective of:

(a) improving the Office of Public Prosecutions’ presence and delivery of services in regional Victoria

(b) ensuring that Office of Public Prosecutions solicitors are able to consistently meet obligations owed to victims under the Victims’ Charter Act 2006 (Vic) and the Director of Public Prosecutions’ policies.

Legal advice and assistance for victims

6.76 In addition to information about law, policy and procedure relevant to their case, victims will sometimes need legal advice and assistance. The ability of victims to access legal advice and assistance during the criminal trial process was a topic on which a wide variety of views were expressed during the Commission’s consultations and in submissions.

6.77 There is nothing in principle stopping a victim from seeking out legal advice about their role or rights in the criminal trial process. This section therefore considers the extent of the need for legal advice and assistance and whether there should be a specific legal service for victims.

6.78 The need for a legal service is a distinct, albeit related, matter to the question of whether victims should have a right to appear in court or have legal representation while giving evidence, both of which are canvassed in Chapter 7. In that chapter, the Commission concludes that victims should not be a party or have a general right to participate in court during the criminal trial process. However, there are particular aspects of the criminal trial process in which victims can or should be able to participate. Access to legal assistance in these circumstances is addressed below in the discussion regarding ‘substantive legal entitlements’. Substantive legal entitlements are those about which victims can decide whether to take a particular course of action, such as to provide a victim impact statement, independently of the prosecution.

6.79 It was suggested that victims need a service that can provide information and legal advice about criminal processes, such as giving evidence,^[111] or entitlements of a procedural nature, such as being consulted by the prosecution about decisions to discontinue or accept a guilty plea to lesser charges.^[112] The Commission addresses these matters separately as ‘procedural matters’.

Legal information, advice and assistance

6.80 Throughout this section, the terms legal information, legal advice and legal assistance are used. Legal information is used by the Commission to mean information about law and procedure, which does not involve providing legal advice and can be provided by a non-lawyer. There is already a range of sources and services from which victims can obtain legal information, as noted earlier in this chapter. Of course, those providing information about law and legal procedure need a good understanding of the boundaries between legal information and advice.^[113]

6.81 In contrast, legal advice and assistance require a lawyer. Legal advice involves the application of law to the person’s circumstances. Lawyers can provide legal advice without agreeing to represent the person in court, negotiations or otherwise. The Commission’s use of the term legal assistance refers to a lawyer agreeing to provide advice and representing the person, for example, in negotiations or in court, typically

with a letter of engagement, costs agreement and/or other agreement.

The perceived need for independent legal assistance for procedural matters

6.82 The question of whether there is a need for victims to access lawyers that are independent of the prosecution for assistance with procedural matters was often discussed in general terms. For example, the DPP’s submission stated that a legal advocate ‘would provide timely and accurate information about criminal procedures, which would help ensure that victims have realistic expectations about the criminal justice process’.^[114]

6.83 The Victims of Crime Commissioner, Victorian Legal Services Commissioner, Law Institute of Victoria and Northern Centre Against Sexual Assault supported a court-based service, primarily to provide guidance, referrals and legal information about court processes to victims.^[115]

6.84 Stakeholder perceptions about whether or not victims need access to an independent lawyer for procedural matters were generally influenced by consideration of the following needs:

• ensuring victims are informed and remedying shortcomings in communication between victims and prosecution lawyers or police^[116]

• including victims and empowering them to participate in the criminal process^[117]

• ensuring victims are linked to support services^[118]

• avoiding placing more obligations on prosecution lawyers^[119]

• ensuring that the interests of victims are appropriately considered by the prosecution.^[120]

6.85 These contributions reveal a perceived need for victims to be better included, informed and supported. However there was division as to whether another lawyer was required or whether prosecution lawyers and existing support services can meet these needs given adequate resourcing.

Limitations on what an independent lawyer can do

6.86 An independent lawyer would not be subject to the disclosure obligations imposed on the prosecution. This means that victims could speak more freely because the details of their discussions need not be disclosed to the defence.

6.87 There are, however, significant limits to the advice a lawyer independent of the prosecution can provide. In particular, as a non-party, the lawyer would not have possession of all relevant evidence, which would constrain their ability to provide comprehensive advice.^[121] Contributors to this reference most commonly cited giving evidence and plea negotiations as processes for which victims need access to an independent lawyer. These are discussed in more detail below.

Giving evidence

6.88 Uncertainty about the nature and content of cross-examination is a significant concern for victims. It is also an inherent aspect of cross-examination and there are limits on the extent to which this uncertainty can be addressed—all lawyers, prosecution or otherwise, are prohibited from coaching witnesses about their evidence.^[122]

6.89 While there will always be some uncertainty for those who have to give evidence, this does not mean a victim cannot be prepared for the experience. However, an independent lawyer is not necessarily in a better position to do this than a prosecution lawyer. An independent lawyer would be less informed than the prosecution about the issues in the case.^[123] Prosecution lawyers on the other hand can prepare victims for giving evidence with knowledge of the issues in the case and potentially with a support worker present.

Plea resolution and discontinuance decisions

6.90 Decisions to discontinue a prosecution or to accept a plea to lesser charges can have significant ramifications for victims. Although the making of these decisions may affect

a victim’s interests, the victim’s entitlement is procedural in nature—to be consulted by the prosecution.^[124] The DPP holds the decision-making power.

6.91 Victims can seek advice and assert their views through an independent lawyer. However, as the DPP observed:

it is self-evident that those representatives are not and cannot be apprised of all the circumstances of a case and therefore any opinion they may give to the victim or the

DPP on the appropriateness of decisions made is of limited value.^[125]

6.92 In addition, the DPP must act impartially. Prosecutions are only pursued if there is

a reasonable prospect of conviction and it is in the public interest.^[126] While obtaining independent legal advice may enable victims to participate in consultation in a more informed manner in terms of their personal interests,^[127] their views are but one of

many of factors that must be considered, alongside an assessment of the evidence.

The Commission considers that, in most cases, a victim’s legal advice before consultation is unlikely to have a significant bearing on the decision ultimately made.

6.93 The Commission acknowledges that there will be some cases in which legal advice or assistance might be required, although this need not always be through a lawyer. For example, if a victim has a cognitive impairment and the DPP is considering discontinuing a prosecution because of concerns about the victim’s ability to cope, a disability advocate with a relationship with the victim may be better placed to represent their interests.^[128] If legal advice is needed, the Commission’s recommendation below (to establish a legal service for substantive entitlements) contemplates legal assistance being provided in exceptional circumstances.

Conclusion

6.94 On balance, the Commission considers that it is not appropriate or necessary to fund another service to provide legal information, advice or assistance to victims about procedural matters for the following reasons:

• Much of the perceived need relates to victims feeling included, informed and supported. The police, DPP, OPP and victims’ services agencies already have obligations to address these issues. These obligations should be complied with

rather than placing the burden on victims to obtain legal assistance.^[129]

• If obligations were consistently met, and victims linked with the support they need, they would rarely need access to an additional lawyer.^[130]

• Establishing another service could remove the incentive for prosecution lawyers

to communicate regularly and effectively with victims.^[131]

• A range of agencies already provide general and tailored procedural information effectively.^[132] These services include the OPP Witness Assistance Service, Child Witness Service, Victims Assistance Program providers, Centres Against Sexual Assault and Victoria Police. It may be more effective to direct additional funding to these services.

• Many victims do not want another agency or lawyer to deal with.^[133] They want to be informed and supported, and they want the prosecution to communicate properly with them.

• It would be difficult to resource a service so that all victims who expect to access legal advice and assistance can do so.^[134] Resourcing equitable access is difficult to justify when victims are not a party to proceedings.^[135]

• A new legal service might inflate expectations about what independent lawyers

can achieve for victims in circumstances where they have no substantive right.^[136]

Legal assistance for substantive legal entitlements

6.95 At several points during the criminal trial process, victims have the power to make a decision about whether to exercise a legal entitlement independently of the prosecution.^[137] The Commission has referred to these as substantive legal entitlements and they include the following:

• A victim may be permitted to respond in court to an application to subpoena, access or use confidential medical or counselling records.^[138]

• A victim who is a spouse, de facto partner, parent or child of the accused person

can apply to the court not to give evidence if they believe doing so will cause harm.^[139]

• A victim can object to giving evidence if it may prove that they have committed

an offence or are liable to a civil penalty.^[140]

• A victim is entitled to provide a victim impact statement to the court at sentencing and to read it out.^[141]

• A victim is entitled to make a claim for compensation or restitution as an additional order to a sentencing order.^[142]

6.96 In Chapter 7, the Commission recommends that victims be entitled to request a restorative justice conference as part of the sentencing or compensation and restitution order process. If this recommendation is implemented, it would also give rise to a substantive legal entitlement.

6.97 Subject to certain eligibility criteria, victims may be entitled to financial assistance from VOCAT. The criminal trial and the financial assistance are not directly connected. However, victims may need advice about compensation orders during the trial. This is further considered in Chapter 9.

6.98 The above list of entitlements is not exhaustive. Victims may assert or be granted other participation rights in the future, for which legal assistance will be required.^[143]

In addition, the Commission considers that exceptional circumstances might justify legal intervention to assert a human right, or to protect particularly vulnerable victims, where the prosecution cannot or will not do so.^[144] This is discussed further in Chapter 7.

The need for a legal service

6.99 Victims must not only be aware of what they are entitled to do; they must also be able to assert their rights. Victims should have access to independent legal advice and, where appropriate, ongoing legal assistance to assert substantive rights connected with their involvement in the criminal trial process—a process over which they otherwise have little control.^[145] As the Supreme Court submitted, legal advice is desirable where victims have

a legal interest because it assists the court with decision making and ensures that

‘the rights of the victim can be served’.^[146]

6.100 Of course, not all substantive entitlements will require ongoing legal assistance. For example, victims might seek legal advice about their victim impact statement, especially

if considering a compensation claim. However, Victims Assistance Program workers receive training in assisting victims to draft these statements and may be the preferred source of support for this process.

6.101 There is no obvious service for victims to turn to for legal advice. It can be sought from a community legal centre, Victoria Legal Aid or a private lawyer.^[147] Victoria Legal Aid may provide ongoing legal assistance, primarily for compensation order and VOCAT applications, if the victim is eligible according to means and merits tests. Access to legal assistance from a community legal centre will also be subject to means and merits tests although this varies from centre to centre, and also depends on the centre’s capacity to help. Private lawyers will generally expect to be paid, either on an ongoing basis or at

the completion of a case.

6.102 Child witnesses, including victims, can object to giving evidence against a parent pursuant to section 18 of the Evidence Act 2008 (Vic). Where this is an issue, the Victorian Bar will arrange for a child to receive legal advice and representation upon referral from the prosecution.^[148] No similar arrangements are in place for other circumstances in which victims may assert a substantive right in court.

6.103 It is not appropriate to rely on or require the DPP to provide legal advice and assistance for victims about their substantive entitlements.^[149] Conflicts might arise between victims’ interests and the public interest, which the DPP must prioritise.^[150] There needs to be a visible service from which victims are able to seek independent legal advice and, where appropriate, ongoing legal assistance.

Locating a legal service for victims

6.104 A number of proposals were made to the Commission about where a legal service

for victims could be based:

• the court precinct

• Victims Assistance Program providers or Centres Against Sexual Assault

• the Victims of Crime Commissioner

• community legal centres

• Victoria Legal Aid.

6.105 A court-based service could provide legal information and advice as needed, and access to legal assistance where legal representation is required.^[151] This could be an appropriate means of providing information and referrals while a victim is at court, but would generally not be able to provide ongoing assistance for substantive entitlements. It would require the creation of a new legal service, rather than integration into an existing service. In addition, it is not desirable for victims to have to attend courts to access legal assistance.

6.106 Expanding the services provided under the Victims Assistance Program to include legal assistance was favoured by a number of contributors to the Commission’s review.^[152] This would allow victims to obtain practical support, therapeutic support and legal assistance from the one service throughout the criminal trial process. However, the option was not supported by the Victims Support Agency which funds and coordinates the Victims Assistance Program across Victoria.^[153] Six different community-based organisations are currently contracted to deliver the program, none of which is set up to deliver a legal service. Similarly, while Centres Against Sexual Assault are funded as independent services, and act as non-legal advocates, they are not set up to provide legal assistance. In addition, their services are restricted to individuals who have experienced sexual assault.

6.107 Victoria Police suggested that the Victorian Victims of Crime Commissioner could ‘provide or fund independent legal advice for victims’.^[154] The Victims of Crime Commissioner’s role is to advocate, investigate, report and advise in relation to systemic issues for victims of crime.^[155] If the Commissioner were to provide legal assistance, or determine eligibility for legal assistance, it might create a perception of conflict with the independence of the office, including any future complaints oversight role.^[156]

6.108 The most viable options harness the expertise and structures of services that already provide legal advice and assistance. The Commission considers that fair access to legal advice and assistance requires a government-funded service. Ongoing legal assistance should be restricted to matters with merit and where an individual cannot afford private legal representation. This is consistent with the service models of Victorian community legal centres and Victoria Legal Aid.

Community legal centres

6.109 Community legal centres provide free legal advice to disadvantaged and marginalised Victorians in a range of areas, including family violence intervention orders and applications to VOCAT.^[157] Some community legal centres also support victims in reporting crimes to police and provide information or advice about aspects of the criminal trial process. One centre told the Commission that it had assisted individuals with victim impact statements.^[158]

6.110 In 2007, the Federation of Community Legal Centres (Vic) proposed that specialist community legal services be funded to provide advice, assistance and referrals to victims of crime in relation to:

• the Victims’ Charter Act

• Sentencing Act compensation and restitution orders

• VOCAT applications

• other victim-related matters.^[159]

6.111 Community legal centres operate as independent services across Victoria, each with different priorities and varying capacities to represent victims. If they were given responsibility for providing legal assistance to victims it would spread victim legal services across different centres and make it more difficult to identify gaps in services or systemic issues for victims during the criminal trial process. Monitoring the matters for which victims seek assistance will be important in identifying and developing victims’ entitlements in the future. However, a unique strength of community legal centres is the strong connections formed with the communities in which they operate. They could enter into partnerships with their local Victims Assistance Program provider, Centre Against Sexual Assault or multidisciplinary centre, or other services, to ensure coordinated support tailored to their region.^[160]

6.112 Alternatively, a single community legal service similar to Knowmore’s model could be established. Knowmore is a specialist community legal centre established in 2013 to assist individuals engaging with the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse. While the focus of the service is on the Royal Commission, Knowmore has advised victims about criminal trial processes.^[161] Legal assistance is provided within a trauma-informed, multidisciplinary and culturally safe framework that utilises lawyers, counsellors, social workers and Aboriginal and Torres Strait Islander engagement advisors.^[162] Adopting this model in providing a legal service

for victims would provide a multidisciplinary and trauma-informed service for victims

of crime but, unless offices were located across Victoria, access would be more difficult for victims in regional areas.

Victoria Legal Aid

6.113 Victoria Legal Aid provides legal advice and assistance to individuals. Eligibility for ongoing legal assistance is determined in accordance with the Legal Aid Act 1978 (Vic). Those eligible for ongoing legal assistance are allocated an in-house lawyer or a private lawyer. Clients may have to make a contribution to their legal costs, depending on their income. Victoria Legal Aid already assists victims with VOCAT applications, Sentencing Act compensation claims and family violence intervention orders.

6.114 Locating a legal service for victims within Victoria Legal Aid would have the benefit

of being a single dedicated service within an organisation that has extensive experience within the criminal justice system and has offices around Victoria. It would create a focal point for legal assistance, make it easier to identify systemic issues, and provide consistency in service delivery. The service could draw from the strengths of

Knowmore’s service model, including ensuring trauma-informed and culturally safe

service delivery.

6.115 Legal Aid NSW has established a service for victims of crime within its civil division, which provides legal assistance about the sexual assault communications privilege in New South Wales. It is known as the Sexual Assault Communications Privilege Service. The Commission heard that this service is essential to victims accessing legal representation

to assert their legal entitlement during criminal proceedings.^[163] The Office of the Director of Public Prosecutions NSW described the ability to refer victims to a specialised legal service as positive.^[164]

6.116 The Legal Aid NSW model was viewed positively by the Victims of Crime Commissioner, former victim representatives of the inaugural Victims of Crime Consultative Committee, Court Network and OPP lawyers.^[165] The model could be adapted to the Victorian context, and used to provide assistance in relation to a broader range of substantive entitlements connected to the criminal trial process.

Conclusion

6.117 The Commission prefers Victoria Legal Aid as the site for a legal service for victims: Victoria Legal Aid is a statutory agency with offices around Victoria, it is deeply familiar with criminal trial processes, and it offers legal services in a range of other areas that victims may need assistance with. Information barriers would need to be put in place to manage conflicts of interest with Victoria Legal Aid’s criminal practice. In addition, consideration could be given to funding either the Victorian Aboriginal Legal Service or the Family Violence Prevention and Legal Service to deliver these services to Aboriginal victims.

6.118 It was suggested to the Commission that legal advice or assistance was needed for the families of homicide victims,^[166] sexual offence victims,^[167] child victims,^[168] family violence victims^[169] or to victims of the most serious cases.^[170] The Commission considers that the legal service for victims at Victoria Legal Aid should initially be available to victims of indictable crimes involving violence because of the more acute needs that victims of such crimes often have during the criminal trial process compared to victims of non-violent crimes.^[171] Consideration should be given to whether the service should be open to victims of crimes involving violence in cases that are prosecuted summarily in the Magistrates’ Court.

6.119 The legal service should be evaluated within three years to ensure that it is adequately addressing the legal needs of victims of violent indictable crimes and to determine whether other victims should be able to access the service.

Recommendation

23 Victoria Legal Aid should be funded to establish a service for victims of

violent indictable crimes, modelled on the Sexual Assault Communications Privilege Service at Legal Aid NSW. It should provide legal advice and assistance, in accordance with the Legal Aid Act 1978 (Vic), in relation to:

(a) substantive legal entitlements connected with the criminal trial process

(b) asserting a human right, or protecting vulnerable individuals,

in exceptional circumstances.

The legal service should be independently evaluated not more than three years after commencement.

Referral, coordination and accessibility

Early referral to support

6.120 Early referral of victims to services is a critical part of the community’s response to crime. Individuals may disclose offending behaviour to family, community members, support workers, health professionals and others. Not all victims seek a legal response. Those

who do will approach Victoria Police.^[172]

6.121 The Victoria Police e-referral system allows police, with a victim’s consent, to send an electronic referral to the Victims of Crime Helpline (Helpline).^[173] For family violence matters, women are referred to a family violence service, and children are referred either to the Department of Health and Human Service’s child protection service or a child and family information, referral and support team.^[174] The electronic referral system was designed to address a lack of funding to promote the Helpline.^[175]

6.122 The Helpline is run by the Victims Support Agency, Department of Justice and Regulation, and is the gateway through which most victims receive information and are linked to support.^[176] Generally, referrals to the Helpline are made by police, although victims and their families can call the Helpline direct. Once a police referral is received by the Helpline, a support officer contacts the victim to identify their needs and make referrals. Approximately 70 per cent of referrals made by the Helpline are to a Victims Assistance Program provider and 30 per cent to a specialist service such as a Centre Against Sexual Assault or family violence service.^[177] The Victims Support Agency funds and coordinates the Victims Assistance Program and, as stated in [2.35], also monitors compliance with the Victims’ Charter Act and provides secretariat assistance to the Victims of Crime Consultative Committee, among other activities that are outside the scope of the Commission’s review.

6.123 When a crime occurs in Victoria but a victim lives interstate, counselling can be accessed through the victims assistance program in the state or territory in which the victim lives. This is funded by Victoria’s Victims Support Agency.^[178]

6.124 Victims Assistance Program providers, Centres Against Sexual Assault and specialist family violence services provide vital ongoing support, regardless of whether a criminal prosecution is commenced or whether an offender is found guilty. The support may

be practical or therapeutic.

6.125 As noted above, the OPP Witness Assistance Service and the Child Witness Service provide specialist court-related support for victims and witnesses. Generally, their involvement with a victim begins with the start of court proceedings.

6.126 The two sets of complementary services appear to be well coordinated, with some variation in regional areas, where victims are less aware of, or less able to access, the services of the Witness Assistance Service.^[179] The challenges for regional prosecutions

are addressed above at [6.67]–[6.75].

Multidisciplinary centres and co-locations

6.127 Significant steps have been taken to improve the coordination and integration of support to victims, especially victims of sexual offences, through the establishment of multidisciplinary centres and co-location of services. Multidisciplinary centres for victims

of sexual offences have been established in six locations around Victoria.^[180] They operate as ‘one-stop shops’, bringing together services involved in the response to sexual offending. Multidisciplinary centres have been evaluated positively and are viewed as particularly valuable.^[181]

6.128 Victims Assistance Program providers are co-located with Victoria Police in 19 locations.^[182] Further steps will be taken in response to recommendations by the Victorian Royal Commission into Family Violence.

Accessible and responsive services

6.129 Where victims are supported by the OPP Witness Assistance Service, Child Witness Service, a Victims Assistance Program or a Centre Against Sexual Assault, their experience of that service was described almost universally in positive terms.^[183] Certainly, a number of contributors to the Commission’s reference raised the need for more resources. However, other shortcomings were also identified, with individuals from certain marginalised or disadvantaged groups disproportionately affected.

6.130 The Commission’s role is not to investigate the allocation of resources to the victim support service system as a whole, nor the use of resources by those services. A number of parts of the system work well and efforts are being directed towards better integration and coordination, including through the recommendations of the Royal Commission into Family Violence. The Commission has highlighted matters concerning access to, or the responsiveness of, victim support services below. These are matters that the Victims of Crime Commissioner should monitor through the collection of data and should be included in a comprehensive review of the Victims’ Charter Act in five years, as recommended in Chapter 4.

Pathways to support

6.131 A particular concern is the reliance on police referrals to raise awareness of, and access

to, the Victims of Crime Helpline, the Victorian Government’s gateway to information

and assistance for victims. The Victoria Police e-referral system has increased early referrals to support by police.^[184] However, relying on victims to first make contact with the police renders these services less accessible to those less likely or less able to report offending

to police because they distrust or have difficulties communicating with police, in particular Aboriginal people, people from culturally or linguistically diverse communities and people with disabilities.^[185] For example, the Commission was told that Koori victims of crime are likely to first seek help from an Aboriginal Community Controlled Health Organisation.^[186]

There is scope for improving awareness and referral pathways for marginalised victims

of crime in Victoria.

6.132 In addition, where a police officer fails to refer a victim to the Helpline, and the victim

is not referred to the OPP Witness Assistance Service or Child Witness Service, that victim may never be aware of the services available to them. Two victims who spoke to the Commission arrived at court—one for a committal and one for a sentencing hearing—without any knowledge of the support services funded by the Victorian Government to assist them.^[187] One of those individuals told the Commission that throughout the criminal trial process, only the police informant kept in contact with her.

6.133 A particular issue for victims with disabilities was noted by the Office of the Public Advocate (OPA). The OPA runs a volunteer Independent Third Person Program. Independent third persons provide communication assistance, information and support during police interviews.^[188] The Victoria Police Manual requires police to use an independent third person in interviews with people with cognitive or mental health disabilities, including victims.^[189] The OPA told the Commission that the program cannot currently advocate on behalf of individuals or refer them to support services.^[190]

6.134 The Commission has recommended the establishment of an intermediary scheme in Victoria in Chapter 7 and an intermediary’s functions may include assistance during police interviews. Regardless of whether independent third persons or intermediaries support victims during police interviews, either the police or the person providing communication assistance should be in a position to refer victims with disabilities to the support and advocacy they need for the criminal trial process.

Court support

6.135 Another concern that emerged from the Commission’s consultations related to the capacity of the OPP to provide information and support responsive to the needs of Aboriginal people. The Commission was told that lawyers from the Aboriginal legal services have been approached on an ad hoc basis in court precincts by OPP solicitors

to provide information to Aboriginal witnesses.^[191] Aboriginal victims of crime should be able to receive culturally competent and consistent support from the OPP and victim support services.^[192]

6.136 A similar issue arises for victims from culturally and linguistically diverse communities,

with the DPP’s submission noting that the OPP Witness Assistance Service is unable to provide particular assistance to them without further funding.^[193] The DPP should ensure that funding is allocated in a way that ensures that the Witness Assistance Service is equally accessible to all victims of crimes that fall within its priority areas regardless of cultural or linguistic differences.

6.137 In contrast, the Victorian Equal Opportunity and Human Rights Commission’s report, Beyond Doubt, describes the OPP Witness Assistance Service as ‘a valuable model that assists people with disabilities to understand the court process’.^[194] The service conducts needs assessments and ‘assists the court identify relevant supports to facilitate their participation in the justice system’.^[195] The Commission’s recommendation in Chapter 7 to establish an intermediary scheme in Victoria may result in the Witness Assistance Service having increased capacity to provide culturally competent services to Aboriginal victims and victims from culturally and linguistically diverse communities.

6.138 The Commission notes that the Victims’ Charter Act requires police, the DPP and victim services to ‘take into account, and be responsive to’ the particular needs of victims relating to Indigenous background, and cultural and linguistic diversity.^[196]

Non-violent and property crimes

6.139 The services provided by Victims Assistance Program providers targets victims of violent crimes against the person, including violent attacks, assault, robbery, family violence, sexual assault and the families of those killed by violence or culpable driving.^[197] The Witness Assistance Service also prioritises its services to ‘victims of sexual offences, offences involving family violence and other violence offences’.^[198]

6.140 These key victim support services are largely unavailable to victims of non-violent crimes. In exceptional circumstances, such as where the impact of a crime has been particularly serious, Victims Assistance Program providers will provide assistance.^[199]

6.141 Data from the Crime Statistics Agency indicates that property and deception offences make up the majority of offending in Victoria.^[200] The criminal trial process can have a significant impact on victims of these offences.^[201] The DPP told the Commission that there is a need for support services for fraud victims.^[202]

6.142 The Commission did not otherwise receive any feedback in submissions or consultations, nor did it hear from victims of non-violent crimes. It is therefore not in a position to make any specific recommendations. As indicated above, this is a matter that the Victims of Crime Commissioner could explore further.

1. Ben Bradford, ‘Voice, Neutrality and Respect: Use of Victim Support Services, Procedural Fairness and Confidence in the Criminal Justice System’ (2011) 11(4) Criminology & Criminal Justice 345; Victims Support Agency, Building the Confidence of Victims in the Criminal Justice System: Final Report (August 2014) 46, 51–2, 63.

   ↑

2. Victims’ Charter Act 2006 (Vic) ss 7, 13(2).

   ↑

3. Ibid s 9.

   ↑

4. Public Prosecutions Act 1994 (Vic) s 3(1) (definition of ‘public prosecutions service’). The Solicitor for Public Prosecutions manages the OPP on behalf of the DPP: s 43(1)(a).

   ↑

5. Ibid ss 24(c), 36(3), 38(2), 41(2), 43(3).

   ↑

6. Public Prosecutions Act 1994 (Vic) s 22 sets out the various circumstances in which the DPP has the power to institute or takeover prosecutions on behalf of the state.

   ↑

7. Ibid (Vic) ss 23(a), (b).

   ↑

8. Crown Prosecutors and Associate Crown Prosecutors are managed by the Chief Crown Prosecutor, who is responsible to the DPP: ibid ss 14, 20.

   ↑

9. Victims’ Charter Act 2006 (Vic) s 3 (definition of ‘prosecuting agency’). A police officer or a person authorised to bring proceedings

   for a criminal offence against an enactment are also included in the definition of ‘prosecuting agency’.

   ↑

10. See Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015). Obligations towards victims can also be found in: Director’s Policy: Prosecutorial Discretion (24 November 2014) [12]; Director’s Policy: Resolution (24 November 2014) [7]–[9]; Director’s Policy 37: Retrials and Reinvestigations after Acquittals (29 November 2012) [68]; Director’s Policy: Family Violence (10 March 2015) [26]-[31].

    ↑

11. Office of Public Prosecutions Victoria, Pathways to Justice: A Guide to the Victorian Court System for Victims and Witnesses of Serious Crime (2013).

    ↑

12. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015).

    ↑

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

    ↑

14. Ibid.

    ↑

15. State Government of Victoria, Child Witness Service (11 August 2015) Victims of Crime <http://www.victimsofcrime.vic.gov.au/home/going+to+court/giving+evidence/child+witness+service/>.

    ↑

16. Consultation 18 (Child Witness Service, Department of Justice and Regulation).

    ↑

17. Ibid. The Child Witness Service told the Commission that 40 per cent of its work is in regional Victoria.

    ↑

18. Submission 26 (Victoria Police); Consultation 43 (Victoria Police SOCIT, Wodonga). See also Victoria Police, Future Directions for Victim-Centric Policing (August 2015) 4.

    ↑

19. Consultations 3 (Parent of a victim), 10 (A victim), 28 (Laurie Krause), 29 (Parent of victims), 53 (Parent of a victim), 56 (Colleen Murphy (Kelly)). Complaints about communication with police generally arose in the context of Magistrates’ Court prosecutions by a police prosecutor: Consultations 41 (A victim), 44 (Kristy McKellar).

    ↑

20. Court Network, We Can Help (July 2006); Consultation 23 (Court Network staff and a Court Networker—County Court).

    ↑

21. Information from Victims Support Agency, Department of Justice and Regulation, 24 June 2016.

    ↑

22. Victims Support Agency, Building the Confidence of Victims in the Criminal Justice System (2014) 62–3; Ben Bradford, ‘Voice, Neutrality and Respect: Use of Victim Support Services, Procedural Fairness and Confidence in the Criminal Justice System’ (2011) 11(4) Criminology and Criminal Justice 345.

    ↑

23. Consultation 11 (Parent of a victim).

    ↑

24. Submission 41 (Colleen Murphy (Kelly)).

    ↑

25. That victims evaluate the criminal justice system and their needs and expectations in terms of stages rather than as a whole is noted in Victims Support Agency, Building the Confidence of Victims in the Criminal Justice System (2014) 16; Stuart Ross et al, Fairness and Equity for Victims of Crime: What Do They Want and Why Don’t They Get It: Final Report (ARC Discovery Project DP066541, December 2009) 133.

    ↑

26. Director of Public Prosecutions Victoria, Director’s Policy: Resolution (24 November 2014) [9]; Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [30]–[31].

    ↑

27. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [29], [31].

    ↑

28. This is consistent with survey results about OPP prosecutions: Department of Justice and Regulation, A Survey About How Our Justice System Meets the Needs of the Community: 2014 Results (2015) 17–18.

    ↑

29. Consultation 53 (Parent of a victim).

    ↑

30. Criminal Procedure Act 2009 (Vic) s 177(2).

    ↑

31. Victims’ Charter Act 2006 (Vic) ss 9(a), (c); Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [18], [27]. Consultation as victim participation is discussed in Chapter 7.

    ↑

32. Department of Justice and Regulation, A Survey About How Our Justice System Meets the Needs of the Community: 2014 Results (Victorian Government, 2015) 18.

    ↑

33. Consultations 40 (A victim), 53 (Parent of a victim), 56 (Colleen Murphy (Kelly)). Roundtable 15 (Magistrates of the Magistrates’ Court of Victoria) indicated a need for victims to be better informed about plea negotiations.

    ↑

34. Consultation 53 (Parent of a victim).

    ↑

35. Consultation 29 (Parent of victims).

    ↑

36. Consultations 20 (Parent of victims), 35 (Parent of a victim), 42 (Relative of a victim; a victim), 56 (Colleen Murphy (Kelly)). The OPP’s Pathways to Justice: A Guide to the Victorian Court System for Victims and Witnesses of Serious Crime, explains the DPP’s and OPP’s role.

    ↑

37. Such issues are dealt with at directions hearings in court: Criminal Procedure Act 2009 (Vic) s 181. The County Court and Supreme Court each have practice notes which set out the way in which the court will conduct direction hearings: County Court of Victoria, County Court Criminal Division Practice Note—PNCR 1–2015 (21 October 2015); Supreme Court of Victoria, Practice Note No 6 of 2014—Criminal Division: Case Management by Post-Committal Directions Hearings (26 September 2014).

    ↑

38. Other evidentiary matters are dealt with in the pre-trial phase but victims generally have little ability to influence these.

    ↑

39. Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32C(5)

    ↑

40. Ibid s 32C(4). In Chapter 7, the Commission recommends that this obligation lie with the prosecution.

    ↑

41. Director of Public Prosecutions Victoria, Director’s Policy: Evidence (Confidential Communications) Act 1998 (9 January 2015) [20] (provided to the Commission on 17 May 2016).

    ↑

42. Submission 34 (Northern Centre Against Sexual Assault); Consultations 10 (A victim), 11 (Parent of a victim), 12 (Parent of a victim),

    21 (Victoria Police), 27 (Loddon Campaspe Centre Against Sexual Assault); Roundtables 3 (Victim support specialists, Geelong),

    7 (Victim support specialists, Melbourne), 8 (Metropolitan Centres Against Sexual Assault), 9 (Victim support and therapeutic specialists, Shepparton), 12 (Victim support specialists, Wodonga). See further Chapter 7.

    ↑

43. Criminal Procedure Act 2009 (Vic) ss 363–365.

    ↑

44. See Chapter 8, in which the Commission recommends that an obligation be inserted into the Victims’ Charter Act to require prosecuting agencies to inform victims about special protections and alternative arrangements for giving evidence.

    ↑

45. These forms are ‘Prosecution Witness Information Sheet’ and ‘Family Violence Checklist’. See County Court of Victoria, County Court Criminal Division Practice Note—PNCR 1–2015 (21 October 2015), attachments 1, 4.

    ↑

46. This might include communication assistance through an interpreter or intermediary. See Chapter 7.

    ↑

47. See Director of Public Prosecutions Victoria, Director’s Policy: Disclosure (24 November 2014); Criminal Procedure Act 2009 (Vic) ss 110, 111, 185, 416.

    ↑

48. Director of Public Prosecutions Victoria, Director’s Policy: Prosecutorial Ethics (24 November 2014) [17]. See also Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic) r 24.1.2; Legal Profession Uniform Conduct (Barristers) Rules 2015 (Vic) r 69(b).

    ↑

49. Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic) r 24.1–24.2; Legal Profession Uniform Conduct (Barristers) Rules 2015 (Vic) r 69–70.

    ↑

50. Director of Public Prosecutions Victoria, Director’s Policy: Prosecutorial Ethics (24 November 2014) [17].

    ↑

51. Victims’ Charter Act 2006 (Vic) s 11(2); Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [23]. See also Office of Public Prosecutions Victoria, Pathways to Justice: A Guide to the Victorian Court System for Victims and Witnesses of Serious Crime (2013); Office of Public Prosecutions Victoria, Now You Are a Witness: Information for Witnesses Giving Evidence at a Criminal Trial (2014).

    ↑

52. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [13].

    ↑

53. Ibid [24].

    ↑

54. Ibid [14].

    ↑

55. Consultation 50 (Witness Assistance Service, OPP Victoria).

    ↑

56. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [15]. In all other cases, the OPP solicitor should consider whether a referral is appropriate.

    ↑

57. Submission 38 (Name withheld); Consultations 11 (Parent of a victim), 16 (Judges of the County Court of Victoria), 28 (Laurie Krause), 42 (Relative of a victim; a victim); Roundtables 7 (Victim support specialists, Melbourne), 9 (Victim support and therapeutic specialists, Shepparton), 12 (Victim support specialists, Wodonga). The parent of a child who chose to give evidence-in-chief in court, rather than through a pre-recorded statement, said that they were not informed of the importance of referring in evidence-in-chief to all incidents that charges related to (Consultation 11).

    ↑

58. Consultations 23 (Court Network staff and a Court Networker—County Court), 28 (Laurie Krause).

    ↑

59. Consultations 3 (Parent of a victim), 5 (Sue and Don Scales, Mildura), 20 (Parent of victims), 28 (Laurie Krause), 56 (Colleen Murphy (Kelly)).

    ↑

60. Prosecution lawyers should ensure that victims are informed of their entitlement to make a victim impact statement: Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [42]–[43], and refer them to a victim services agency for assistance: Victims’ Charter Act 2006 (Vic) s 13(2). See further Chapter 7.

    ↑

61. OPP solicitors are required to inform victims about possible entitlements to restitution or compensation orders: Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [61].

    ↑

62. Information about sentencing can also be found on the OPP’s website and in Pathways to Justice: A Guide to the Victorian Court System for Victims and Witnesses of Serious Crime (2013). More comprehensive information is provided in Sentencing Advisory Council, A Quick Guide to Sentencing (2016).

    ↑

63. Consultation 14 (A victim).

    ↑

64. Consultation 28 (Laurie Krause).

    ↑

65. Sentencing Act 1991 (Vic) pt 4 dv 1–2. The entitlement to claim compensation for injury is also a principle in the Victims’ Charter Act 2006 (Vic): s 16(1).

    ↑

66. Victims of Crime Assistance Act 1996 (Vic). This is also a principle in the Victims’ Charter Act 2006 (Vic): s 16(2).

    ↑

67. Victims’ Charter Act 2006 (Vic) s 7.

    ↑

68. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [61]. Financial reparation is the subject of Chapter 9 of this report.

    ↑

69. Office of Public Prosecutions Victoria, Financial Assistance: Financial Assistance, Compensation and Restitution for Victims of Crime (2013). Information is also provided in Pathways to Justice: A Guide to the Victorian Court System for Victims and Witnesses of Serious Crime (2013).

    ↑

70. Consultations 1 (A victim), 12 (Parent of a victim), 13 (Parents of a victim), 14 (A victim), 28 (Laurie Krause), 40 (A victim), 42 (Relative of a victim; a victim).

    ↑

71. Consultation 42 (Relative of a victim; a victim).

    ↑

72. Consultations 8 (Parent of a victim), 13 (Parents of a victim), 20 (Parent of victims), 29 (Parent of victims).

    ↑

73. Supreme Court (Criminal Procedure) Rules 2008 (Vic) r 2.47. See further Chapter 9.

    ↑

74. Victims’ Charter Act 2006 (Vic) s 9(f).

    ↑

75. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [31], [70]–[71].

    ↑

76. Victoria Legal Aid, Criminal Appeals Review (2014) 5; Submission 10 (Victoria Legal Aid). See also Submission 14 (Victims of Crime Commissioner, Victoria).

    ↑

77. Consultations 4 (Parent of victims), 10 (A victim), 20 (Parent of victims), 28 (Laurie Krause), 35 (Parent of a victim), 40 (A victim), 42 (Relative of a victim; a victim), 53 (Parent of a victim), 56 (Colleen Murphy (Kelly)).

    ↑

78. Consultations 11 (Parent of a victim), 13 (Parents of a victim), 20 (Parent of victims), 40 (A victim).

    ↑

79. Submission 3 (Melville Miranda); Consultations 11 (Parent of a victim), 13 (Parents of a victim), 14 (A victim), 20 (Parent of victims),

    40 (A victim), 44 (Kristy McKellar), 46 (A victim), 56 (Colleen Murphy (Kelly)).

    ↑

80. Consultations 29 (Parent of victims), 45 (Victims Support Agency, Department of Justice and Regulation); Rountable 17 (Criminal justice agencies and stakeholder organisations).

    ↑

81. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [29], [31].

    ↑

82. Victims’ Charter Act 2006 (Vic) s 9(d).

    ↑

83. Ibid s 9(e)–(f).

    ↑

84. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [30]–[31].

    ↑

85. Victims’ Charter Act 2006 (Vic) s 13(2).

    ↑

86. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [42]. This matter was raised at Roundtable 15 (Magistrates of the Magistrates’ Court of Victoria).

    ↑

87. Submissions 26 (Victoria Police), 40 (Former VOCCC victim representatives). See also Submission 21 (Dianne Hadden). The former VOCCC victim representatives submission noted that this would still not provide a remedy for violation of rights. Compliance and remedies are discussed in Chapter 4.

    ↑

88. Submission 25 (Law Institute of Victoria).

    ↑

89. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [61].

    ↑

90. The Victims’ Charter Act and compliance measures are addressed in Chapter 4.

    ↑

91. Consultation 50 (Witness Assistance Service, OPP Victoria).

    ↑

92. Department of Justice and Regulation, A Survey About How Our Justice System Meets the Needs of the Community: 2014 Results (2015) 27; Consultations 18 (Child Witness Service, Department of Justice and Regulation), 39 (OPP). See also Success Works, Sexual Assault Reform Strategy: Final Evaluation Report (2011) 64 (in relation to the OPP’s Specialist Sexual Offences Unit).

    ↑

93. Submission 23 (DPP).

    ↑

94. Consultations 1 (A victim), 8 (Parent of a victim), 12 (Parent of a victim), 20 (Parent of victims), 46 (A victim).

    ↑

95. Consultations 3 (Parent of a victim), 4 (Parent of victims), 10 (A victim), 20 (parent of victims), 28 (Laurie Krause), 35 (Parent of a victim),

    40 (A victim), 42 (Relative of a victim; a victim), 53 (Parent of a victim), 56 (Colleen Murphy (Kelly)). The Victims Support Agency reported that a survey of prosecutorial attitudes towards victims revealed that some prosecutors do not see victims as having a role (Consultation 45). See also Success Works, Sexual Assault Reform Strategy: Final Evaluation Report (2011) 65-8.

    ↑

96. Submission 29 (Victorian Bar and Criminal Bar Association).

    ↑

97. Director of Public Prosecutions Victoria, Director’s Policy: Disclosure (24 November 2014) [5].

    ↑

98. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [13]–[15], [24].

    ↑

99. Submissions 15 (Kristy McKellar), 37 (Dr Margaret Camilleri), 40 (Former VOCCC victim representatives); Consultations 3 (Parent of a victim), 14 (A victim), 18 (Child Witness Service, Department of Justice and Regulation), 29 (Parent of victims), 46 (A victim), 50 (Witness Assistance Service, OPP Victoria), 56 (Colleen Murphy (Kelly)); Roundtables 10 (Legal practitioners, Shepparton), 12 (Victim support specialists, Wodonga), 13 (Victim support specialists, Ballarat), 18 (Victims of crime). Some victims indicated that they would have liked to be offered a conference with the prosecution, or a conference earlier than on the day of court: Consultations 4 (Parent of victims),

    28 (Laurie Krause), 29 (Parent of victims), 40 (A victim), 53 (Parent of a victim).

    ↑

100. Consultations 28 (Laurie Krause), 35 (Parent of a victim), 40 (A victim), 53 (Parent of a victim). OPP staff also told the Commission that greater reliance is placed on police to inform and support victims in regional Victoria (Consultation 39).

     ↑

101. Consultations 28 (Laurie Krause), 50 (Witness Assistance Service, OPP Victoria); Roundtable 9 (Victim support and therapeutic specialists, Shepparton).

     ↑

102. Consultation 31 (Judge of the County Court of Victoria); County Court of Victoria, 2014–2015 Annual Report (2015) 4.

     ↑

103. Office of Public Prosecutions Victoria, The Prosecutor (July 2013) <http://www.opp.vic.gov.au/News-and-Media/Newsletters/5-July–2013/>.

     ↑

104. Office of Public Prosecutions Victoria, Geelong Crown Prosecutor Appointed (28 January 2014) <http://www.opp.vic.gov.au/News-and-Media/Media-release-archive/Geelong-Crown-Prosecutor-appointed>.

     ↑

105. Consultations 5 (Sue and Don Scales, Mildura), 27 (Loddon Campaspe Centre Against Sexual Assaualt), 28 (Laurie Krause), 35 (Parent

     of a victim), 40 (A victim), 42 (Relative of a victim; a victim); Roundtable 9 (Victim support and therapeutic specialists, Shepparton).

     ↑

106. Consultations 16 (Judges of the County Court of Victoria), 36 (Magistrate John Lesser). The OPP described face-to-face conferences between the prosecutor, instructing solicitor, Witness Assistance Service worker and victim as the biggest logistical challenge on regional circuits. Video-link conferencing is another option but is not preferred (Consultation 39).

     ↑

107. Consultations 28 (Laurie Krause), 37 (Centacare, Barwon South West Region); Roundtable 9 (Victim support and therapeutic specialists, Shepparton).

     ↑

108. Referrals by police to the Victims of Crime Helpline appear to have become more consistent but do not always occur: Consultations 35 (Parent of a victim), 53 (Parent of a victim). Early referral to support is a priority in Victoria Police, Future Directions for Victim-centric Policing (2015) 8–9. See also Submission 26 (Victoria Police).

     ↑

109. Submissions 29 (Victorian Bar and Criminal Bar Association), 38 (Name withheld); Consultations 13 (Parents of a victim), 19 (Victims of Crime Commissioner, Victoria), 45 (Victims Support Agency, Department of Justice and Regulation), 56 (Colleen Murphy (Kelly)); Roundtable 13, (Victim support specialists, Ballarat), 15 (Magistrates of the Magistrates’ Court of Victoria).

     ↑

110. Data provided by County Court of Victoria (18 February 2016). Data obtained from the Magistrates’ Court of Victoria on 11 February 2016 showed similar numbers of contested committals recorded for the Barwon South West (41), Gippsland (38), Grampians (38) and Loddon Mallee (35) regions in 2015. Bendigo, Ballarat, Shepparton and the La Trobe Valley-Gippsland region also have growing populations: Australian Bureau of Statistics, 3218.0—Regional Population Growth, Australia, 2014–15 (30 March 2016) <http://www.abs.gov.au/ausstats/>; Regional Development Victoria, Victorian Regions and Regional Cities (15 April 2016) <http://www.rdv.vic.gov.au/victorian-regions>.

     ↑

111. Consultations 25 (Aboriginal Family Violence Prevention & Legal Service Victoria), 28 (Laurie Krause), 29 (Parent of victims), 35 (Parent of a victim), 42 (Relative of a victim; a victim); Roundtable 14 (Legal practitioners, Ballarat). Victim support specialists in Geelong said victims need assistance before giving evidence, but this need not be legal: Roundtable 3. Victoria Legal Aid referred to a need for information and advice about alternative arrangements for giving evidence: Consultation 47.

     ↑

112. Submissions 2 (Seppy Pour), 7 (Youthlaw), 11 (Sandra Betts), 14 (Victims of Crime Commissioner, Victoria), 20 (Phil Cleary), 21 (Dianne Hadden), 25 (Law Institute of Victoria), 38 (Name withheld); Consultation 27 (Loddon Campaspe Centre Against Sexual Assault); Roundtable 5 (Victim support specialists, Morwell).

     ↑

113. Consultation 51, (Criminal Law Section, Law Institute of Victoria), 54 (Victorian Bar and Criminal Bar Association); Roundtable 10 (Legal practitioners, Shepparton). The Department of Justice and Regulation and the OPP have information for victims on their websites and

     in pamphlets.

     ↑

114. Submission 23 (DPP).

     ↑

115. Submissions 14 (Victims of Crime Commissioner, Victoria), 34 (Northern Centre Against Sexual Assault); Consultations 51 (Criminal Law Section, Law Institute of Victoria), 57 (Victorian Legal Services Commissioner and CEO Victorian Legal Service Board).

     ↑

116. Submissions 29 (Victorian Bar and Criminal Bar Association), 38 (Name withheld); Consultations 19 (Victims of Crime Commissioner, Victoria), 20 (Parent of victims), 25 (Aboriginal Family Violence Prevention & Legal Service Victoria), 28 (Laurie Krause), 29 (Parent of victims), 31 (Judge of the County Court of Victoria), 35 (Parent of a victim), 37 (Centacare, Barwon South West Region), 41 (A victim),

     42 (Relative of a victim; a victim), 44 (Kristy McKellar), 51 (Criminal Law Section, Law Institiute of Victoria), 53 (Parent of a victim),

     57 (Victorian Legal Services Commissioner and CEO Victorian Legal Services Board); Roundtables 7 (Victim support specialists, Melbourne), 8 (Metropolitan Centres Against Sexual Assault), 10 (Legal practitioners, Shepparton), 13 (Victim support specialists, Ballarat), 14 (Legal practitioners, Ballarat), 16 (Community legal centres), 17 (Criminal justice agencies and stakeholder organisations), 18 (Victims of crime).

     ↑

117. Submissions 7 (Youthlaw), 11 (Sandra Betts), 20 (Phil Cleary), 26 (Victoria Police), 39 (Safe Steps); Consultations 19 (Victims of Crime Commissioner, Victoria), 20 (Parent of victims), 21 (Victoria Police), 25 (Aboriginal Family Violence Prevention & Legal Service Victoria),

     28 (Laurie Krause), 37 (Centacare, Barwon South West Region); Roundtables 3 (Victim support specialists, Geelong), 8 (Metropolitan Centres Against Sexual Assault), 16 (Community legal centres), 18 (Victims of crime).

     ↑

118. Submission 14 (Victims of Crime Commissioner, Victoria); Consultation 25 (Aboriginal Family Violence Prevention & Legal Service Victoria).

     ↑

119. Submission 8 (Mary Iliadis).

     ↑

120. Submissions 5 (Centre for Rural Regional Law and Justice), 14 (Victims of Crime Commissioner, Victoria); Roundtable 18 (Victims of crime).

     ↑

121. Submission 23 (DPP); Consultation 57 (Victorian Legal Services Commissioner and CEO Victorian Legal Service Board).

     ↑

122. Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic) r 24.1.2; Legal Profession Uniform Conduct (Barristers) Rules 2015 (Vic) r 69(b).

     ↑

123. Submission 23 (DPP); Consultation 45 (Victims Support Agency, Department of Justice and Regulation).

     ↑

124. Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [25]. See further Chapter 7. The Commission does not recommend giving the views of victims any determinative influence over such decisions.

     ↑

125. Submission 23 (DPP). This point was also made in Consultation 34 (Office of the Director of Public Prosecutions, NSW).

     ↑

126. Director of Public Prosecutions Victoria, Director’s Policy: Prosecutorial Discretion (24 November 2014).

     ↑

127. Submission 5 (Centre for Rural Regional Law and Justice).

     ↑

128. The Child Witness Service and Office of the Director of Public Prosecutions NSW noted the potential need for child victims to have an independent advocate where their views differ from that of their parents, although both stated that they did not consider that this advocate need always be a lawyer: Consultations 18, 34 respectively.

     ↑

129. Consultations 43 (Victoria Police SOCIT, Wodonga), 45 (Victims Support Agency, Department of Justice and Regulation). See Chapter 4

     in relation to compliance with Victims’ Charter Act principles.

     ↑

130. Consultations 21 (Victoria Police), 45 (Victims Support Agency, Department of Justice and Regulation); Roundtable 10 (Legal practitioners, Shepparton).

     ↑

131. Submission 5 (Centre for Rural Regional Law and Justice); Consultation 45 (Victims Support Agency, Department of Justice and Regulation).

     ↑

132. Submissions 14 (Victims of Crime Commissioner, Victoria), 15 (Kristy McKellar), 29 (Victorian Bar and Criminal Bar Association), 38 (Name withheld), 40 (Former VOCCC victim representatives); Consultations 1 (A victim), 3 (Parent of a victim), 4 (Parent of victims), 5 (Sue and Don Scales, Mildura), 8 (Parent of a victim), 11 (Parent of a victim), 12 (Parent of a victim), 13 (Parents of a victim), 14 (A victim), 20 (Parent of victims), 23 (Court Network staff and a Court Networker—County Court), 29 (Parent of victims), 38 (Executive Officer, Barwon South West RAJAC), 43 (Victoria Police SOCIT, Wodonga), 45 (Victims Support Agency, Department of Justice and Regulation), 50 (Witness Assistance Service, OPP Victoria), 51 (Criminal Law Section, Law Institute of Victoria), 56 (Colleen Murphy (Kelly)); Roundtable 10 (Legal practitioners, Shepparton).

     ↑

133. Submission 5 (Centre for Rural Regional Law and Justice); Consultations 10 (A victim), 46 (A victim), 25 (Aboriginal Family Violence Prevention & Legal Service Victoria); Roundtable 3 (Victim support specialists, Geelong).

     ↑

134. Submission 27 (Supreme Court of Victoria).

     ↑

135. Consultations 23 (Court Network staff and a Court Networker—County Court), 37 (Centacare, Barwon South West Region).

     ↑

136. Consultations 45 (Victims Support Agency, Department of Justice and Regulation), 57 (Victorian Legal Services Commissiner and CEO Victorian Legal Services Board).

     ↑

137. Tyrone Kirchengast refers to ‘enforceable rights of a substantive character’ to describe some of the rights discussed below: Submission 19 (Dr Tyrone Kirchengast, University of New South Wales).

     ↑

138. Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32C. See Chapter 7.

     ↑

139. Ibid s 18. This applies to witnesses generally, not just victims.

     ↑

140. Ibid s 128. This section applies to witnesses generally, not just victims.

     ↑

141. Sentencing Act 1991 (Vic) s 8K.

     ↑

142. Sentencing Act 1991 (Vic) ss 84, 85B, 86. See further Chapter 9.

     ↑

143. The Supreme Court of Victoria noted that if victims are given more substantive entitlements, they will need access to legal assistance to realise those on an equitable basis: Submission 27 (Supreme Court of Victoria). See also Submissions 2 (Seppy Pour), 5 (Centre for Rural Regional Law and Justice).

     ↑

144. The disadvantage experienced by Aboriginal women was noted in Consultation 25 (Aboriginal Family Violence Prevention & Legal Service Victoria). The potential vulnerability of children justifying legal representation was noted by Consultations 20 (Parent of victims) and 34 (Office of the Director of Public Prosecutions, NSW). The Commissioner for Victims’ Rights in South Australia noted examples of his office funding legal assistance for victims in exceptional circumstances (Consultation 2). See also Michael O’Connell, Victims’ Rights: Integrating Victims in Criminal Proceedings (2011).

     ↑

145. Submissions 10 (Victoria Legal Aid), 11 (Sandra Betts), 14 (Victims of Crime Commissioner), 19 (Dr Tyrone Kirchengast, University of New South Wales), Submissions, 23 (DPP), 26 (Victoria Police), 27 (Supreme Court of Victoria), 31 (Professor Jonathan Doak, Nottingham Trent University), 33 (Professor Jo-Anne Wemmers), 39 (Safe Steps); Consultations 2 (Commissioner for Victims’ Rights, South Australia), 20 (Parent of victims), 21 (Victoria Police), 30 (Dr Tyrone Kirchengast, University of New South Wales), 46 (A victim); Roundtable 16 (Community legal centres). Some contributors only referred to privacy interests and/or confidential medical or counselling records when expressing support for legal assistance: Submissions 25 (Law Institute of Victoria), 34 (Northern Centre Against Sexual Assault), 40 (Former VOCCC victim representatives); Consultations 11 (Parent of a victim), 12 (Parent of victims), 18 (Child Witness Service, Department of Justice and Regulation), 23 (Court Network staff and a Court Networker—County Court), 50 (Witness Assistance Service, OPP Victoria); Roundtables 9 (Victim support and therapeutic specialists, Shepparton), 10 (Legal practitioners, Shepparton), 15 (Magistrates of the Magistrates’ Court of Victoria).

     ↑

146. Submission 27 (Supreme Court of Victoria). A similar point was made in Roundtable 15 (Magistrates of the Magistrates’ Court of Victoria).

     ↑

147. Submission 10 (Victoria Legal Aid); Roundtable 16 (Community legal centres). Some victims sought advice from a private lawyer: Consultations 10 (A victim), 13 (Parents of a victim), 35 (Parent of a victim). See also Department of Justice and Regulation, A Survey About How Our Justice System Meets the Needs of the Community: 2014 Results (Victorian Government, 2015) 29.

     ↑

148. See Department of Justice, Providing Advice to Child Witnesses under Section 18 Evidence Act (2008): Guidance for Legal Practitioners Providing Pro Bono Advice to Children (2013).

     ↑

149. Sometimes the DPP does this, for example in the limited circumstances in which the DPP will make an application for a compensation order on behalf of a victim: Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015) [63].

     ↑

150. Submission 23 (DPP).

     ↑

151. Submission 14 and Consultation 19 (Victims of Crime Commissioner, Victoria).

     ↑

152. Submissions 7 (Youthlaw), 23 (DPP), 33 (Professor Jo-Anne Wemmers); Consultations, 36 (Magistrate John Lesser), 46 (A victim); Roundtables 7 (Victim support specialists, Melbourne), 13 (Victim support specialists, Ballarat), 14 (Legal practitioners, Ballarat),

     16 (Community legal centres).

     ↑

153. Consultation 45 (Victims Support Agency, Department of Justice and Regulation).

     ↑

154. Submission 26 (Victoria Police). This comment was made with reference to pre-trial procedures. See also the suggestion put forward

     in Submission 19 (Dr Tyrone Kirchengast, University of New South Wales).

     ↑

155. Victims of Crime Commissioner Act 2015 (Vic) s 13(1).

     ↑

156. Roundtable 13 (Victim support specialists, Ballarat). See further paragraphs [4.145]–[4.147] in Chapter 4.

     ↑

157. Community legal centres also provide legal education to communities and assist in and advocate for law reform.

     ↑

158. Roundtable 16 (Community legal centres). See also Federation of Community Legal Centres (Vic), Improving Access to Justice for Victims
     of Crime (3 October 2007).

     ↑

159. Federation of Community Legal Centres (Vic), Improving Access to Justice for Victims of Crime (3 October 2007). The proposal included funding for community legal education and law reform activities on legal issues relevant to victims.

     ↑

160. See, eg, the Making Rights Reality project between Springvale Monash Legal Service and the South Eastern Centre Against Sexual Assault: Patsie Frawley, Making Rights Reality. Final Evaluation Report: A Pilot Project for Sexual Assault Survivors with a Cognitive Impairment (La Trobe University, 2014).

     ↑

161. Roundtable 16 (Community legal centres)

     ↑

162. Knowmore, Our Second Year: 1 July 2014–30 June 2015 (2015) 4.

     ↑

163. Consultations 33 (Women’s Legal Service NSW), 34 (Office of the Director of Public Prosecutions, NSW).

     ↑

164. Consultation 34 (Office of the Director of Public Prosecutions, NSW).

     ↑

165. Submissions 14 (Victims of Crime Commissioner, Victoria), 40 (Former VOCCC victim representatives); Consultations 23 (Court Network staff and a Court Networker—County Court), 39 (OPP). Support for a legal aid model was also expressed in Submission 19 (Dr Tyrone Kirchengast, University of New South Wales); Consultation 2 (Commissioner for Victims’ Rights, South Australia); Roundtables 10 (Legal practitioners, Shepparton), 14 (Legal practitioners, Ballarat). The Victims of Crime Commissioner proposed embedding the service in courts or working closely with a victims’ liaison office (Consultation 19).

     ↑

166. Submission 20 (Phil Cleary); Consultation 31 (Judge of the County Court of Victoria).

     ↑

167. Roundtable 5 (Victim support specialists, Morwell), 8 (Metropolitan Centres Against Sexual Assault).

     ↑

168. Consultations 20 (Parent of victims), 34 (Office of the Director of Public Prosecutions, NSW).

     ↑

169. Submission 39 (Safe Steps), although their preference is for legal advice and advocacy roles to be integrated into the family violence system rather than the criminal justice system. See also Submission 1 (Australian Law Reform Commission).

     ↑

170. Consultation 21 (Victoria Police).

     ↑

171. While the needs of victims of all crimes will vary depending on personal factors, the nature of the crime, a victim’s relationship with the offender and their interaction with authorities, more serious and violent offences typically result in higher levels of emotional stress and longer lasting psychological, social and physical impacts. See, eg, Joanna Shapland and Matthew Hall, ‘What Do We Know About the Effects of Crime on Victims?’ (2007) 14 International Review of Victimology 175, 196; Diane Green and Naelys Diaz, ‘Predictors of Emotional Stress in Crime Victims: Implications for Treatment’ (2007) 7(3) Brief Treatment and Crisis Intervention 194, 195.

     ↑

172. Sections 6–8 of the Victims’ Charter Act 2006 (Vic) outline treatment, information and referral obligations for Victoria Police in their interaction with victims of crime as an investigatory agency.

     ↑

173. Consultation 45 (Victims Support Agency, Department of Justice and Regulation). See also Victoria Police, Future Directions for Victim-centric Policing (2015) 8–9.

     ↑

174. There are currently 19 specialist family violence services that receive referrals for adult women. Male adult victims are referred to the Helpline. The establishment of 17 family violence hubs across Victoria was recommended by the Royal Commission into Family Violence. These hubs will be the entry point to the support system for women and children who have experienced family violence: Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol II 285, recommendation 37.

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175. Consultation 45 (Victims Support Agency, Department of Justice and Regulation).

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176. State Government of Victoria, Support Services for Victims of Crime (21 January 2016) Victims of Crime, <http://www.victimsofcrime.vic.gov.au>.

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177. Consultation 45 (Victims Support Agency, Department of Justice and Regulation).

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178. Victims who live interstate are also eligible for assistance from the OPP Witness Assistance Service in accordance with Director of Public Prosecutions Victoria, Director’s Policy: Victims and Persons Adversely Affected by Crime (11 August 2015).

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179. Submission 21 (Dianne Hadden); Consultations 28 (Laurie Krause), 35 (Parent of a victim), 41 (A victim). One victim from metropolitan Melbourne described trying to find the right service as ‘like dealing with Telstra’ (Consultation 20).

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180. These are Dandenong, Geelong, Mildura, Seaford, Bendigo and Morwell. See Minister for Families and Children, ‘One-stop Support Centre for Sexual Assault Victims in Gippsland’ (Media Release, 18 February 2016) <http://www.premier.vic.gov.au/one-stop-support-centre-for-sexual-assault-victims-in-gippsland/>.

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181. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol II 225, 259-60. The services involved include Victoria Police Sexual Offence and Child Abuse Investigation Teams (SOCITs), child protection workers, community health nurses and Centre Against Sexual Assault counsellors and advocates.

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182. Consultation 21 (Victoria Police). Victoria Police stated that MDCs and co-locations have been positive for victims.

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183. Submissions 15 (Kristy McKellar), 38 (Name withheld); Consultations 1 (A victim), 3 (Parent of a victim), 4 (Parent of victims), 5 (Sue and Don Scales, Mildura), 8 (Parent of a victim), 11 (Parent of a victim), 12 (Parent of a victim), 13 (Parents of a victim), 14 (A victim), 20 (Parent of victims), 29 (Parent of victims), 56 (Colleen Murphy (Kelly)).

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184. Consultations 21 (Victoria Police), 45 (Victims Support Agency, Department of Justice and Regulation).

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185. Matthew Willis, ‘Non-disclosure of Violence in Australian Indigenous Communities’ (Trends and Issues in Crime and Criminal Justice

     No 405, Australian Institute of Criminology, 2011); Department of Justice, Victorian Aboriginal Justice Agreement Phase 2 (AJA2) (2006) 13; Lorana Bartels, ‘Crime Prevention Programs for Culturally and Linguistically Diverse Communities in Australia’ (Research in Practice No 18, Australian Institute of Criminology, 2011) 3; Annabelle Allimant and Beata Ostapiej-Piatkowski, ‘Supporting Women from CALD Backgrounds Who Are Victims/Survivors of Sexual Violence: Challenges and Opportunities for Practitioners’ (ACSSA Wrap No 9, Australian Centre for the Study of Sexual Assault/Australian Institute for Family Studies, 2011); John McDonald et al, Mapping Access and Referral Pathways for Marginalised Victims of Violent Crime in Rural and Regional Victoria (University of Ballarat, 2010).

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186. Consultation 38 (Executive Officer, Barwon South West RAJAC).

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187. Consultations 35 (Parent of a victim), 53 (Parent of a victim). Submission 38 (Name withheld) indicated a lack of awareness of the Victims Support Agency generally. The lack of visibility of family violence services was an issue addressed in: Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol II 246-7.

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188. Submission 17 (Office of the Public Advocate). This includes with video-recorded police interviews that will be used as a victim’s evidence-in-chief (see Chapter 8 in relation to video-recorded evidence). Independent third persons are available to offenders, witnesses and victims.

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189. Submission 17 (Office of the Public Advocate).

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190. Ibid. The Office of Public Advocate’s report, Breaking the Cycle: Using Advocacy-Based Referrals to Assist People with Disabilities in the Criminal Justice System (2012), recommends an advocacy and referral scheme within the Independent Third Person Program for clients who have had, or who are clearly at risk of, repeat contact with crime: 7.

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191. Consultation 25 (Aboriginal Family Violence Prevention & Legal Service Victoria).

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192. The OPP has a Koori Inclusion Action Plan, which includes Koori cultural awareness training as a priority, especially for Witness Assistance Service staff, and data collection to provide an evidence base for creating culturally responsive services: Office of Public Prosecutions Victoria, Koori Inclusion Action Plan (2014).

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193. Submission 23 (DPP). A brochure about the Witness Assistance Service and an information booklet, Now You Are a Witness, are available on the OPP’s website in six languages: <http://www.opp.vic.gov.au/Witnesses-and-Victims> .

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194. Victorian Equal Opportunity and Human Rights Commission, Beyond Doubt: The Experiences of People with Disabilities Reporting Crime—Summary Report (2014) 39.

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195. Ibid 11 fn 26 The services of the OPP Witness Assistance Service are not generally available for matters that are prosecuted by police in the Magistrates’ Court of Victoria.

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196. Victims’ Charter Act 2006 (Vic) ss 6(2)(a), (c).

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197. Information provided by the Victims Support Agency, Department of Justice and Regulation, 22 July 2016. See also State Government of Victoria, Types of Crime, Victims of Crime (23 December 2013) <http://www.victimsofcrime.vic.gov.au/home/the+crime/types+of+crime/>.

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198. Submission 23 (DPP).

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199. Email from Victims Support Agency, Department of Justice, 24 June 2016.

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200. In 2015, 59.5% of offences were recorded as property and deception offences and 14.3% were recorded as crimes against the person: Crime Statistics Agency, Crime Statistics Victoria: Year Ending 31 December 2015 (2016) <http://www.crimestatistics.vic.gov.au/crime-statistics/historical-crime-data/year-ending–31-december–2015/recorded-offences>.

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201. Submissions 23 (DPP), 26 (Victoria Police); Consultation 21 (Victoria Police).

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202. Submission 23 (DPP). See also Cassandra Cross et al ‘Challenges of Responding to Online Fraud Victimisation in Australia’ (Trends and Issues in Crime and Criminal Justice No 474, Australian Institute of Criminology, 2014) 3.

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