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

8. Protection

Introduction

8.1 Chapter 7 discussed opportunities for victims to participate in the criminal trial process and the different forms that participation can take. By far the most challenging is to give evidence as a witness for the prosecution. Some victims are able to meet the challenge with relative ease. For others, the experience can be harrowing. Their private lives may

be exposed to public scrutiny. They may be traumatised by seeing the accused in court and may find the courtroom environment intimidating and stressful. Cross-examination

in particular can cause victims distress and further emotional harm.

8.2 Victims expect to be protected from further harm and trauma throughout the criminal trial process. Successive reforms over the past 30 years have focused on reducing the difficulties experienced when victims participate as witnesses. Protective measures have been introduced to reduce the distress of publicly responding to questions about the crime in an adversarial setting.

8.3 The first part of this chapter focuses on victims as witnesses. It examines whether reforms that protect certain victims from giving evidence multiple times, and that limit their exposure to the accused and the courtroom, should apply to other victims. It also reviews measures to protect victims’ safety in and around courthouses.

8.4 Victims expect their privacy not to be infringed without their consent or sound justification. It can be particularly distressing for victims of sexual offences when personal and sensitive information is made public during a criminal trial. Limits have been imposed on the accused’s access to a victim’s medical and counselling records, and these are considered in the second part of this chapter.

8.5 Of course, accused persons have a right to cross-examine witnesses and access relevant material in order to make a full and proper defence. These are significant elements of the fundamental right to a fair trial and should be protected.^[1] This does not mean that victims should not also be treated fairly and with appropriate respect for their dignity

and humanity.^[2]

Victims as witnesses: reducing trauma and intimidation

8.6 In the criminal trial process, some victims give evidence at least twice: once at the committal hearing and again at the trial. Sections 123 and 124 of the Criminal Procedure Act 2009 (Vic) restrict the cross-examination of witnesses, including victims, at committal hearings. Part 8.2 of the Act, which deals with witnesses, contains measures to reduce the likelihood of traumatisation, intimidation and distress when giving evidence.

8.7 These provisions establish protections for victims that are described in more detail below. Each measure applies to different victims, depending on certain characteristics and the crime committed. In broad terms, however, they fall into two categories:

• Special protections for child victims and victims with a cognitive impairment in sexual offence cases.^[3] Special protections involve using audiovisual recordings of the victim’s statement to police as evidence-in-chief, cross-examining the victim at a special hearing, and prohibiting the victim’s cross-examination at a committal hearing.

• Alternative arrangements for other victims who appear as witnesses in sexual offence cases and cases involving conduct that constitutes family violence. These include various physical interventions such as remote facilities, support people

and screens.

8.8 The Commission considers that these protections should be made available to a broader group of victims. The remainder of this section examines:

• which victims should be eligible and on what basis

• the implications for the accused’s fair trial

• how the purpose of the reforms can be achieved.

Special protections

8.9 In sexual offences cases, child victims and victims with a cognitive impairment are required to give evidence only once. This is achieved by separate provisions in the Criminal Procedure Act that allow the victim to have an audiovisual recording of their statement used as evidence-in-chief, to be cross-examined only at a special hearing, and prohibit their cross-examination at a committal hearing.

8.10 These measures were introduced as part of a suite of reforms in response to recommendations made in the Commission’s Sexual Offences: Law and Procedure report.^[4] They are designed to protect child victims and victims with a cognitive impairment in sexual offence cases from ‘unnecessary delays and further trauma in the prosecution of sexual offences against them’.^[5] In doing so, special protections can improve the reliability and accuracy of a victim’s evidence.^[6]

Audiovisual recorded statement as evidence-in-chief

8.11 An audiovisual recorded statement is an audiovisual recording of a victim’s interview with police.^[7] Typically the victim describes the offending and is asked questions by a police officer. In practice, such statements are made at a police station with a specially trained police officer soon after the alleged offending has occurred.

8.12 In sexual offence cases, child victims and victims with a cognitive impairment are permitted to have their audiovisual recorded statement admitted as their evidence-in-chief at the trial. This measure is also available to child victims and victims with a cognitive impairment in proceedings for:

• indictable offences involving an assault, injury or threat of injury

• certain offences involving child pornography.^[8]

8.13 The Royal Commission into Family Violence recommended that the Victorian Government consider introducing legislation allowing audiovisual recorded statements of adult and child victims of family violence to be admissible as their evidence-in-chief.^[9] The Victorian Government has accepted all of the Royal Commission’s recommendations.

8.14 The use of audiovisual recorded statements has certain benefits:

• It reduces the number of times the victim must give an account of the offending.^[10]

• It captures the victim’s account closer to the time of the alleged offending.^[11]

• The interview format means the victim’s description of the offending is likely to have a more logical and narrative sequence than the traditional form of giving evidence-in-chief.^[12] This can improve the accuracy and reliability of the victim’s evidence.^[13]

Special hearings

8.15 Special hearings take place in the Supreme Court or County Court. There is often an audiovisual recorded statement, which can be admitted as the victim’s evidence-in-chief.

If there is no audiovisual recorded statement, the victim gives their evidence-in-chief at the special hearing.^[14] After the evidence-in-chief has been either admitted in recorded form or given in person, the victim is cross-examined and re-examined.

8.16 During the special hearing, the victim is in a remote witness facility and the accused and their lawyer remain in the courtroom.^[15] The special hearing is video-recorded.^[16] The recording becomes the entirety of the evidence of the victim in the trial and in any subsequent retrial or civil proceeding.^[17]

8.17 Special hearings can occur either before the jury has been empanelled and the trial has commenced, or during the trial. If it is held before the trial, the recording of the special hearing is played to the jury as the evidence of the victim.^[18]

8.18 In deciding whether to hold the special hearing before or during the trial, the judge must have regard to:

• in the case of child victims, the victim’s age and maturity

• the severity of any cognitive impairment

• any preference expressed by the victim

• whether holding the special hearing during the trial is likely to intimidate or have

an adverse effect on the victim

• the need to complete the victim’s evidence expeditiously

• the likelihood that the victim’s evidence will include inadmissible evidence that may

result in the discharge of the jury

• any other relevant matter.^[19]

8.19 A special hearing must happen within three months of the accused’s committal from

the Magistrates’ Court or, if the special hearing occurs during the trial, on a date specified at the pre-trial directions hearing.^[20]

8.20 If a victim’s evidence has been taken by special hearing, the accused’s lawyer can

further cross-examine the victim only with the permission of the court in a narrow set

of circumstances.^[21]

8.21 Special hearings are mandatory in sexual offence matters where the victim is a child or has a cognitive impairment, although the prosecution may apply for the victim’s evidence to be given in court.^[22] The judge may grant this application if satisfied that the victim is aware of the right to have a special hearing, and is able and wishes to give evidence in court.^[23]

8.22 There can be significant benefits to victims who give evidence in a special hearing:

• It relieves them of the need to give evidence in the traditional courtroom environment, which many victims find stressful and foreign.^[24]

• Special hearings can occur separately from the trial and there is scope for them to be conducted earlier in the criminal trial process. This means that the victim is cross-examined closer in time to the offending, which can enhance the quality of a victim’s account when subject to cross-examination.

• The special hearing process allows for more judicial intervention. Improper questioning and the intervention of the judge can be edited out of the recording, which deals with concerns about judicial intervention prejudicing the jury against

the accused.^[25]

• The recording of the special hearing is admissible as the victim’s evidence in subsequent related proceedings, which avoids the victim giving evidence multiple times.^[26]

Prohibition on cross-examination at committal hearings

8.23 Section 123 of the Criminal Procedure Act prohibits magistrates from allowing child victims and victims with a cognitive impairment in sexual offence cases to be cross-examined at a committal hearing.^[27] The prohibition was introduced in response to recommendations made by the Victorian Law Reform Commission in its final report

on Sexual Offences.^[28]

Expanding eligibility for special protections

8.24 Broad support was expressed in submissions and consultations for expanding eligibility for some or all of the special protections to other victims.^[29] The Victorian Bar and Criminal Bar Association, the Law Institute of Victoria and some lawyers consulted by the Commission opposed expanding eligibility.^[30]

8.25 The Commission considers that special protections should be made available to a wider group of victims. The criteria for eligibility should be the same for each measure, so that eligibility for one means eligibility for all.

8.26 The combination of protections available to child victims and victims with a cognitive impairment in sexual offence cases is unique to Victoria. All Australian jurisdictions except Queensland allow certain victims to have an audiovisual recording of their interview with police admitted as their evidence-in-chief.^[31] Similarly, all Australian jurisdictions except New South Wales provide for certain victims to give their evidence at the equivalent of

a special hearing.^[32] Equivalent provisions exist in New Zealand and the United Kingdom.^[33]

8.27 While comparable laws in other jurisdictions contain features from which Victoria could draw, the strength of the Victorian special protections is that, combined, they allow the victim to give evidence only once and away from the accused and the courtroom. This result is lost if any one of the three elements is excluded.

Who should be eligible?

Victims of certain offences

8.28 It was suggested to the Commission that special protections could be expanded on the basis of the type of offending, specifically to:

• all victims of sexual offences^[34]

• victims of family violence, or where there is an ongoing relationship between the accused and the victim^[35]

• victims of offences where intimidation is a feature in the offending, such as hate crimes, kidnapping, false imprisonment and human trafficking^[36]

• victims of offences involving serious physical violence.^[37]

8.29 This approach provides a simple means of limiting access to special protections. Eligibility would be based on forms of offending that are most likely to cause the victim such severe emotional trauma, intimidation or distress that the quality of their evidence is likely to be diminished unless they have access to the special protections.

8.30 Adult victims of sexual offences can have an audiovisual recording of their statement admitted as their evidence-in-chief, and be cross-examined at a special hearing, in the Northern Territory^[38] and the United Kingdom.^[39] In the United Kingdom, there is a presumption in favour of this procedure being used for adult victims of sexual offences

on the basis that these victims are assumed to be fearful or distressed about testifying unless they inform the court otherwise.^[40]

8.31 In the Australian Capital Territory, victims of sexual offences are not required to give evidence at committal hearings.^[41] Special hearings are available for adult victims of

sexual offences who are likely to ‘suffer severe emotional trauma’, or ‘be intimidated

or distressed’.^[42] The Australian Capital Territory introduced these reforms as part of

a deliberate effort to reduce trauma and intimidation.^[43]

8.32 There will certainly be adult victims of sexual offences who can benefit from having their evidence-in-chief video-recorded, for the same reasons as do child victims and victims

of sexual offences who have cognitive impairments.^[44] Adult victims can also find retelling their story and being cross-examined particularly distressing, given the nature of the offending.^[45]

8.33 However, the Commission is not persuaded that special protections should automatically be available to all victims of sexual offences. Not all victims of sexual offences require

or seek special protection. Moreover, sexual offences constitute a sizeable portion of the Magistrates’ Court and County Court workloads: in 2015, just over 200 cases involving sexual offences had committal hearings with cross-examination.^[46] In a 12-month period, approximately 255 cases involving sexual offences proceeded to a trial in the County Court.^[47] Given this volume, extending special protections to all victims of sexual offences would have considerable resource implications for police, the prosecution and courts. These implications are discussed further at [8.50]–[8.53].

8.34 Making special protections available to all victims of family violence-related offending would be even more resource-intensive. Family violence encompasses a large number of offences, including sexual offences,^[48] serious assaults, homicide offences, and threats to kill or cause serious injury, as well as property offences involving theft, burglary and damage to property.^[49] The Office of Public Prosecutions (OPP) reportedly deals with 400 to 500 cases ‘nominated’ as family violence matters each year,^[50] although it is unclear how many of these cases involve cross-examination at a committal hearing (of the victim or other witnesses) or proceed to a trial.

Victims with certain characteristics

8.35 Extending special protections to victims of certain offences invariably leaves out victims

of other offences. The Victorian Equal Opportunity and Human Rights Commission noted, for example, that victims with disabilities experience ‘a range of serious crimes against the person, not just sexual offences’ and that these other victims should be eligible for special hearing procedures.^[51] It also observed that current special protections do not protect those with communication difficulties who do not also experience a cognitive impairment, despite these victims facing significant challenges giving evidence in sexual offence trials.^[52]

8.36 The Commission received a number of proposals to base eligibility for special protections on the individual victim’s characteristics, sometimes in combination with the type of offending. Suggested categories included:

• all child victims^[53]

• child victims and victims with a cognitive impairment in cases involving serious violence, such as homicides and serious assaults^[54]

• people with disabilities who are victims of indictable offences involving an assault, injury or threat of injury^[55]

• victims with communication difficulties.^[56]

8.37 Some other jurisdictions have taken an approach along these lines. In South Australia and New South Wales, all child victims can have an audiovisual recording of their police interview admitted as their evidence-in-chief.^[57] In New South Wales, this measure is also available to all victims with a cognitive impairment, regardless of offence type.^[58]

A case-by-case approach

8.38 Others who commented on this issue favoured a more discretionary approach.^[59]

This approach would see the court determine eligibility for special protections on

a case-by-case basis, with regard to the victim’s personal characteristics and the nature

of the offending.

8.39 This approach has been taken in New Zealand. There, the question of whether a victim should be entitled to give evidence using ‘alternative ways’, including audiovisual recorded evidence-in-chief and special hearings, is determined entirely on a case-by-case basis. Many factors are relevant to such a determination, including ‘age or maturity’ (no age is specified), ‘physical, intellectual, psychological, or psychiatric impairment’, ‘trauma suffered’ by the victim, ‘fear of intimidation’, ‘linguistic or cultural background or religious

beliefs’, relationship with another party to the proceeding, ‘nature of the evidence’, ‘nature of the proceeding’, and any other ground.^[60]

Conclusion

8.40 The comments received by the Commission were instructive but no clear consensus emerged. Similarly, a survey of other jurisdictions revealed that they take a variety of approaches, depending on features particular to that jurisdiction. None can be easily transposed to Victoria. The range of approaches proposed in submissions and consultations and taken in other jurisdictions illustrates how difficult it can be to be prescriptive about the circumstances in which protective measures should be taken while at the same time preserving a fair trial.

8.41 Ultimately, special protections are about protecting victims from unnecessary trauma, intimidation and distress, and ensuring they are able to give their best evidence. This rationale should form the basis of any expansion of existing special protections. Material gathered by the Commission shows that victims, other than child victims and victims with a cognitive impairment in sexual offence cases, can be unnecessarily traumatised, fearful and distressed by giving evidence in a courtroom and in the presence of the accused. This may unfairly undermine the accuracy and reliability of their evidence.

8.42 The Commission considers that where this is the case, victims should be eligible to benefit from special protections. That is, eligibility for special protections should be based on criteria relating to the victim’s likely experience of the criminal trial process, rather than

to the type of offending or the victim’s personal characteristics. This would be achieved

by making special protections available to:

• all child victims

• ‘protected victims’.

Child victims

8.43 All child victims should be able to use the special protections unless they do not wish to do so. The challenges faced by child victims giving evidence are well established.^[61] The child’s age alone is sufficient reason to protect them from the distress of giving oral evidence, and being cross-examined, in the courtroom in front of the accused.

8.44 This approach is consistent with protections available in most Australian jurisdictions, and in the United Kingdom, and is supported by contributors to this reference.^[62] It is also consistent with the Commission’s view that all child victims should be eligible to use alternative arrangements (discussed below) and intermediaries (discussed in Chapter 7).^[63]

Protected victims

8.45 The Commission considers that for all other victims eligibility for special protections should be determined on a case-by-case basis. Victims would be eligible if assessed as a ‘protected victim’ as defined in the Criminal Procedure Act. Protected victims should be defined as victims who are likely to experience unnecessary trauma, intimidation or distress as a result of giving evidence.^[64]

Factors relevant to assessment

8.46 The likelihood of trauma, intimidation or distress should be the principal issue when a court decides whether a victim is eligible for special protection. The most relevant factors should be those connected to the criminal trial process itself, in particular:

• the victim’s relationship with the accused

• the subject matter of the victim’s expected evidence

• the nature of the alleged offending perpetrated against the victim

• the victim’s preference.

8.47 Queensland, South Australia, Tasmania, New Zealand and the United Kingdom also list the victim’s age, any disability, and cultural or linguistic background as relevant factors.^[65] The presence of one or more of these factors does not automatically mean that a victim will be in need of special protections. However, material gathered by the Commission

and existing research demonstrate that such personal characteristics are often relevant

to whether a victim is likely to be traumatised, intimidated or distressed by giving evidence in court.^[66]

8.48 Recognising the significance of a victim’s personal characteristics is consistent with the Victims’ Charter Act 2006 (Vic). Section 6(2) requires that investigatory, prosecuting and victims’ services agencies take into account and be responsive to the diverse characteristics of victims.

8.49 In considering whether a victim’s disability should be a relevant factor, disability should be understood as defined in the Equal Opportunity Act 2010 (Vic).^[67] Existing provisions limiting special protections to victims with a cognitive impairment (as defined in the Criminal Procedure Act) are unduly restrictive. The Office of the Public Advocate, the Victorian Equal Opportunity and Human Rights Commission, Women with Disabilities Victoria and the Child Witness Service all observed that other types of disability, such

as blindness or mental illness, may make individuals vulnerable to trauma or more fearful or intimidated in the courtroom.^[68]

Practical implications

8.50 The Commission’s recommendations have implications for police and prosecution practices and the courts. The existing police practice of audiovisually recording the statement of child victims and victims with a cognitive impairment in sexual offence matters will have to be expanded.^[69] In addition, a case-by-case approach requires police to identify victims who fall within the definition of protected victim, so that an audiovisual recording of the victim’s evidence-in-chief can be taken. This may not always occur.

8.51 Until audiovisual recordings of interviews are made more widely available, not all victims will give their evidence-in-chief in this way. This should not entirely undermine the effect of the Commission’s recommendations. Protected victims will still benefit from giving their evidence-in-chief and being cross-examined at a special hearing.

8.52 Prosecution lawyers will also need to assess whether a victim may be eligible for special protections and discuss this with the victim. In addition, the prosecution should be responsible for applying to the court for the victim to be considered a protected victim. This accords with the Commission’s view of the relationship between the victim and the prosecution, and the OPP’s responsibilities to provide victims with information and consult with them throughout the criminal trial process.^[70]

8.53 There will also be some implications for the courts. Most notably, the reforms proposed will reduce the number of victims giving evidence at committal hearings and increase the use of special hearings. Some judges of the County Court, some magistrates and the Director of Public Prosecutions (DPP) recognised that this is likely to increase the workload of the higher courts.^[71] Changes in listing procedures will be required, although judges consulted by the Commission did not view these practical concerns as insurmountable.^[72]

Alternative arrangements

Law and procedure

8.54 Certain victims can also take advantage of modifications to normal arrangements during court proceedings. These measures also aim to reduce the trauma, intimidation and distress associated with giving evidence, although they are arguably less protective than special protections. They are described in the Criminal Procedure Act as alternative arrangements, and include:

• the use of remote witness facilities, whereby the victim gives evidence from a room separate from the courtroom and the evidence is transmitted to the courtroom via closed circuit television (‘remote witness facilities’)^[73]

• the placement of screens in the courtroom to remove the accused from the direct line of vision of the victim when giving evidence^[74]

• having a support person beside the victim when giving evidence, to provide emotional support^[75]

• allowing only specified people to be present in court^[76]

• requiring lawyers not wear robes, and to be seated rather than standing when questioning the victim.^[77]

8.55 In sexual offence cases, the judge must order that remote witness facilities be used and that a support person be present.^[78] If the victim elects not to use remote facilities, the judge must then direct that a screen be in place and a support person be available.^[79] If the victim does not want to use either the remote facility or a support person and a screen, the judge can permit this only if satisfied that the victim is aware that the alternative arrangement is available and is willing and able to give evidence without it.^[80]

8.56 In cases involving family violence, the court may order the use of alternative arrangements at its discretion.^[81] The Royal Commission into Family Violence recommended that it be mandatory that victims in family violence-related proceedings be able to give evidence remotely, unless they wish to give evidence in the courtroom.^[82]

Expanding alternative arrangements

8.57 A number of victims consulted by the Commission used alternative arrangements when giving evidence.^[83] Some found this experience positive.^[84]

8.58 Alternative arrangements are only expressly available for victims of sexual offences and offences involving family violence. There was broad support among victims, support workers, academics, police, some lawyers and a member of the judiciary for expanding the availability of alternative arrangements to a broader group of victims.^[85] Remote witness facilities were especially highlighted as a positive arrangement that should be readily available to more victims.^[86]

8.59 Similarly to proposals regarding special protections, contributors suggested that alternative arrangements should be made available:

• to victims of certain offence types or victims with certain characteristics^[87]

• on a case-by-case basis.^[88]

The Commission’s conclusion

8.60 As with special protections, proposals made by contributors and a survey of other jurisdictions were instructive, but did not reveal a clear consensus about the basis for expanding eligibility for alternative arrangements.

8.61 The Commission considers that an approach that avoids complexity and achieves consistency with its recommendations about special protections, and ensures victims who require alternative arrangements can use them, should be preferred.

8.62 Therefore, in accordance with the Commission’s recommendations regarding special protections, all child victims should be eligible to use alternative arrangements unless they do not wish to do so. This is consistent with protections available in most Australian jurisdictions, and in the United Kingdom, and is supported by contributors to this reference.^[89] Other victims should be eligible to use alternative arrangements if they fall within the definition of a ‘protected victim’ described at [8.45]–[8.49].

Limits on giving evidence at committal for other victims

8.63 Being cross-examined at committal can be distressing for all victims, not just victims

who need protection. The stress experienced by victims who are cross-examined at committal can limit their ability or willingness to give evidence at trial.^[90]

8.64 Cross-examination at a committal hearing is often described as worse than at the trial. Material gathered by the Commission suggests two reasons for this:

• Victims cannot tell their story through evidence-in-chief. Rather, their statement

is tendered to the magistrate and they are subject only to cross-examination.^[91]

• The manner of questioning by the defence is not constrained by the presence

of a jury. As a result it may be more oppressive or intimidating.^[92]

8.65 To address these problems, the Commission considered whether reforms were necessary to limit cross-examination at committal of victims who do not fall within the definition

of ‘protected victim’.

Law and policy

8.66 The accused is only allowed to cross-examine a witness at a committal hearing if the magistrate is satisfied that the accused has identified an issue to which the proposed cross-examination relates, and that cross-examination on that issue is ‘justified’.^[93] In making this determination, the magistrate must have regard to whether the informant consents to cross-examination being allowed,^[94] and the need to ensure that:

• the prosecution case is adequately disclosed.

• the issues are adequately defined.

• the evidence is of sufficient weight to support a conviction.

• a fair trial will take place (including that the accused is able to prepare and present

a defence).

• matters relevant to a potential plea of guilty, or a potential discontinuance,

are clarified.

• trivial, vexatious or oppressive cross-examination is not permitted.

• the interests of justice are otherwise served.^[95]

8.67 The restrictions on cross-examining witnesses described above were put in place

to reduce delays, identify guilty pleas earlier in the criminal trial process and encourage

a cooperative approach.^[96] They were not introduced for the benefit of victims.

The test for cross-examining victims at committal

8.68 Over the last three decades, all Australian jurisdictions have considered, and imposed, restrictions on the accused’s right to examine witnesses at committal. Western Australia and Tasmania have removed this right entirely.^[97] Committal hearings were abolished in the United Kingdom in 2001 and in New Zealand 2011.^[98] Although there was support for this reform among contributors, including some judges of the County Court,^[99] abolishing committals entirely involves considerations beyond the role of the victim and is outside the Commission’s terms of reference.

8.69 Members of the judiciary, victim support workers and former victim representatives on the Victims of Crime Consultative Committee also expressed support for expanding the prohibition on cross-examination at committal to all victims and allowing greater pre-trial management.^[100] However, as with expanding special protections to all sexual offence or family violence victims, removing all victims from committal hearings is likely

to have considerable resource implications and may reduce the fairness of the criminal trial process.^[101]

8.70 The Commission considers that a more balanced approach involves strengthening the test for cross-examining victims at committal hearings. The DPP, a number of magistrates and former Victims of Crime Consultative Committee victim representatives supported such an approach.^[102] The terms of this test are discussed below.

Substantial reasons in the interests of justice

8.71 The DPP proposed that the current committal test be amended to require the accused

to identify a ‘substantial issue’ to which the proposed questioning relates, rather than just an ‘issue’.^[103]

8.72 This would bring the test in Victoria closer to those that exist in Queensland and New South Wales, where the magistrate must be satisfied that there are ‘substantial reasons why, in the interests of justice’, the witness should be required to give oral evidence or

be cross-examined’ (‘substantial reasons test’).^[104]

8.73 In Queensland, the substantial reasons test applies to all witnesses, whereas in New South Wales it applies to witnesses other than victims of serious offences, for whom a stricter test applies (discussed below at [8.75]–[8.77]).

Central to whether the accused stands trial

8.74 The former victim representatives of the inaugural Victims of Crime Consultative Committee proposed a stricter test than the ‘substantial reasons’ tests in New South Wales and Queensland. They recommended that cross-examination only be permitted where the defence can demonstrate that the issue in question is central to whether the accused should stand trial.^[105]

8.75 This proposal mirrors elements of the committal hearing test in New South Wales for victims of ‘offences of violence’ which include sexual offences, attempted murder, grievous bodily harm, abduction, kidnapping and robbery.^[106] For these offences, cross-examination of the victim will only be permitted where there are ‘special reasons why the alleged victims should, in the interests of justice, attend to give oral evidence’.^[107] The New South Wales test was introduced with the express intention of reducing the trauma experienced by victims from being cross-examined multiple times.^[108]

8.76 Courts have interpreted the term ‘special reasons’ as including a real possibility that

if the victim is subject to cross-examination, the defendant will not be committed for trial.^[109] However, special reasons may arise in a broader set of circumstances. The New South Wales Court of Criminal Appeal has stated that what amounts to special reasons must be assessed on a case-by-case basis:

there must be some features of the particular case by reason of which [the case] is out of the ordinary and it is in the interests of justice that the alleged victim should be called to give oral evidence.^[110]

8.77 Special reasons do not justify cross-examination ‘in the hope that some issue of credibility or fact might arise’.^[111] Special reasons can be established in a range of circumstances, including:

• where a victim has given inconsistent accounts of the offending (although this is often insufficient on its own)

• where cross-examination will eliminate possible areas of dispute

• where it is necessary to establish important facts as the foundation of the defence

(or eliminate any possibility of a particular defence)

• in the context of scientific witnesses, where it is necessary to explore possible avenues of inquiry such as alternative hypotheses or the need for further forensic testing or analysis

• where cross-examination is the only way to obtain proper disclosure.^[112]

The Commission’s conclusion

8.78 When compared with other jurisdictions surveyed by the Commission, Victoria has the least restrictive threshold test to cross-examine witnesses at committal. In a 12-month period, there were 1309 applications to cross-examine witnesses at a committal hearing, out of a total 2830 committal hearings finalised. Of those applications, 1170 (approximately 89 per cent) were granted, although it is unknown what proportion of those were to cross-examine victim–witnesses.

8.79 The Commission considers it appropriate to impose stricter limits on the accused’s right to cross-examine victims at the committal. Victims should only be cross-examined where cross-examination relates directly and substantially to the decision to commit for trial. This test draws on the interpretation of ‘special reasons’ in New South Wales and South Australia, and the proposal of the former Victims of Crime Consultative Committee victim representatives.

8.80 The Commission considers that this stronger test is in keeping with the original purpose of committals: to filter out weak or inappropriate cases. It limits cross-examination of victims to a narrow set of circumstances where the interests of justice require it. The Commission’s approach, in effect, sets out in legislation the definition of ‘special reasons’ already established by the New South Wales Court of Appeal. However, the Commission considers that the wholesale adoption of the New South Wales test in Victoria would not achieve the purposes of reform. Providing a clear legislative definition of the test eliminates the risk that the test might be expanded too widely, which would undermine the point of the reform.^[113]

Protection and a fair trial

8.81 The protective measures discussed above may have implications for the fairness of the criminal trial process. In particular:

• Special protections and the Commission’s proposed test for cross-examining victims

at a committal hearing may limit the accused’s opportunity to test the evidence at

the committal hearing stage of the criminal trial process.

• Special protections and the use of remote facilities and other alternative arrangements depart from traditional trial procedures and may impact on the jury’s assessment of the evidence.

8.82 These concerns are discussed in turn below.

Restricting cross-examination of victims at committal hearings

8.83 In most jurisdictions, reforms to the committal process have been implemented after careful consideration of their implications for a fair trial.^[114] The advantages and disadvantages associated with whether the accused should retain their right to examine witnesses at committal have been ably documented elsewhere.^[115] The Commission has found no evidence that these reforms have undermined a fair trial. Jonathan Doak noted that the legal profession has adapted effectively to the removal of oral committal hearings in the United Kingdom.^[116]

8.84 The primary objection to reform was that cross-examining the victim at a committal hearing provides the accused and the prosecution with an opportunity to assess the strength of the case. This promotes the early resolution of cases without the need for a trial.^[117] It was argued that there are advantages for both the accused and the victim—the accused gets a benefit at sentence for the early guilty plea and the victim benefits from faster disposition of the case.^[118]

8.85 The Commission heard that committal hearings with cross-examination lead to resolution ‘frequently’^[119] and for ‘numerous’^[120] and ‘many’ cases.^[121] This assessment is anecdotal and difficult to evaluate.

8.86 The Magistrates’ Court, the County Court and the Supreme Court do not have data that show whether committal hearings encourage early pleas of guilty. The available data shows the percentage of cases passing through a committal hearing which involve cross-examination of one or more witnesses. For example, over a 12-month period in the Magistrates’ Court, 46 per cent of matters that proceeded through a committal involved cross-examination of one or more witnesses.^[122] Data from the Supreme Court and County Court shows the percentage of cases that are finalised following a trial over a 12 month period: 22 per cent in the County Court; and 38 per cent in the Supreme Court.^[123]

8.87 The data does not show how many of these cases involved cross-examination of the victim. Nor does it show whether a decision to plead guilty is related to evidence gathered through cross-examination of the victim, or whether any decision is an early one. Moreover, it is not possible to link cases committed from the Magistrates’ Court to the corresponding proceedings in the Supreme or County Courts. Ultimately, determining whether cross-examination of the victim at a committal hearing encourages early pleas of guilty requires an examination of individual court files and interviews with practitioners and accused persons about decisions to plead guilty.

8.88 Moreover, some judges of the County Court and support workers expressed scepticism about whether committal hearings facilitate the early resolution of cases.^[124] It was suggested that committal hearings are instead used to generate inconsistencies in victims’ evidence.^[125] The Moynihan Review of the civil and criminal justice system in Queensland also concluded that the primary purpose of committal hearings is ‘exposing inconsistencies in [witness’s] testimony … a purpose which is quite different from the historical purpose of the committal’.^[126]

8.89 Committal hearings are not the only way to encourage early pleas. The special protection process also allows the accused to see the strength of the case against them. Viewing an audiovisual recording of the victim’s statement allows an early assessment of the victim’s evidence-in-chief.^[127] Special hearings can also be held before the trial, thereby allowing the victim to be cross-examined earlier in the criminal trial process.^[128]

8.90 The Commission considers that, in the absence of evidence to the contrary, reducing the risk of victims being unnecessarily intimidated and traumatised outweighs (potentially unfounded) concerns that fewer cases will be resolved early through cross-examination

at committal.^[129]

Prejudice against the accused

8.91 Remote facilities, special hearings and the use of screens are sometimes said to prejudice the jury against the accused.^[130] Such measures, it is suggested, may convey to the jury that the accused is so dangerous that the victim must be in a different room or hidden behind a screen.^[131] Protective procedures may also imbue the victim’s evidence with more credibility than it deserves.^[132]

8.92 However, consultation participants told the Commission that protective procedures can work in favour of the accused. A victim’s evidence may have less impact, or appear less realistic, when it is given from a remote facility.^[133] This perception was a focus of discussion in the 2011 Final Evaluation Report for the Sexual Assault Reform Strategy, and has been raised in evaluations of similar reforms introduced in the United Kingdom in 1999.^[134]

8.93 Research suggests that juries’ assessments of the accused’s or the victim’s evidence

are not significantly affected by the use of remote facilities, screens or support people.

A 2011 study examining mock juror perception of rape victims giving evidence using remote facilities, pre-recorded evidence or screens was ‘unable to identify any clear or consistent evidence of a detrimental impact on either party as a consequence of using divergent modes of giving evidence’.^[135] The authors noted that their findings:

should go some way towards assuaging the concerns of critics and—in the context in which previous research has strongly indicated that their use is welcomed by vulnerable witnesses themselves—they should give advocates greater confidence in encouraging complainants of sexual offence to make use of protective special measures.^[136]

8.94 Similarly, a 2005 Australian-based study of mock sexual assault jury trials concluded that there was ‘no consistent pattern’ to suggest that jurors were being ‘systematically affected’ by whether the victim gave evidence in court, through a remote witness facility, or using a pre-recorded tape.^[137]

8.95 Victim support specialists consulted by the Commission felt strongly that the potential for such measures to reduce the distress experienced by victims giving evidence outweighed the risk that the impact of the victim’s evidence would be diminished.^[138]

8.96 The Commission notes that any residual concern about the impact of special hearings and alternative arrangements on the fair trial of the accused can be remedied by an appropriate direction from the trial judge to the jury. The Criminal Procedure Act currently requires judges to warn juries that they are ‘not to draw any inference adverse to the accused or give the evidence greater or lesser weight because of the making of [alternative] arrangements’.^[139]

Recommendations

37 The Criminal Procedure Act 2009 (Vic) should be amended to include a definition of protected victim. A protected victim should be defined as

a victim who is likely to suffer severe emotional trauma or be so intimidated

or distressed as to be unable to give evidence or give evidence fairly.

Factors relevant to determining whether a victim is a protected victim should include:

(a) the nature of the offending perpetrated against the victim

(b) the victim’s relationship with the accused

(c) the subject matter of the evidence the victim is expected to give

(d) the victim’s views

(e) and any other factor the court considers relevant.

38 Eligibility for protective procedures under section 123 and Divisions 5 and 6 of Part 8.2 of the Criminal Procedure Act 2009 (Vic) should be extended to also apply to protected victims. All child victims other than child victims of sexual offences should be considered protected victims unless the court is satisfied that the child victim is aware that the protective procedures are available and does not wish to use them.

39 Section 124 of the Criminal Procedure Act 2009 (Vic) should be amended to provide that the Magistrates’ Court must not grant leave to cross-examine a victim at a committal hearing except on a matter that relates directly and substantially to the decision to commit for trial. The test for granting leave should include reference to whether the victim is able to and wishes to be cross-examined at a committal hearing.

40 The Criminal Procedure Act 2009 (Vic) should be amended so that the court must order the use of alternative arrangements set out in section 360 of the Act for:

(a) child victims and victims with a cognitive impairment

(b) victims determined to be protected victims in accordance with recommendation 37,

unless the court is satisfied that the victim is aware of their right to use those arrangements and is able and wishes to give evidence without them.

Achieving the purpose of reforms

A guiding principle

8.97 The Commission considers that a guiding principle should augment the above recommendations to ensure their consistent application by professionals in the criminal justice system and by the courts. Guiding principles assist courts in interpreting and giving meaning to statutory provisions.^[140]

8.98 In its report on sexual offences, the Commission recommended that a guiding principle be included in relevant legislation to ensure that laws related to sexual offences are interpreted in accordance with the ‘social problem that the legislation seeks to address and the principles the legislation endeavours to uphold’.^[141]

8.99 This recommendation is reflected in Part 8.2 of the Criminal Procedure Act, which contains principles about how to interpret provisions relating to witnesses in sexual offence proceedings. Part 8.2 now also applies to victims of family violence.^[142] The recommendations in this report see the application of Part 8.2 of the Criminal Procedure Act expanded to all victims in need of protection from unjustified trauma, intimidation and distress arising from giving evidence. This expanded application should be reflected

in the guiding principle in Part 8.2.

8.100 The new guiding principle should explicitly recognise that all victims are entitled to protection from the unnecessary trauma, intimidation and distress experienced when they give evidence in a criminal trial because of exposure to the accused, the formality and unfamiliarity of the courtroom environment, and the conduct of cross-examination.^[143]

8.101 The Commission considers that the guiding principle does not undermine the right of the accused to have the victim cross-examined. In addition, the Commission acknowledges that, while all victims respond differently to stress, even well-conducted criminal proceedings and proper cross-examination can be traumatic and challenging.

Recommendation

41 The Criminal Procedure Act 2009 (Vic) should be amended to include a guiding principle that, in interpreting and applying Part 8.2, courts are to have regard to the fact that measures should be taken that limit, to the fullest practical extent, the trauma, intimidation and distress suffered by victims when giving evidence.

Information for victims

8.102 Victims need to be informed about whether they may be eligible to use special protections and alternative arrangements. Those who are eligible must be equipped to make an informed decision about whether to use them. This point was repeatedly highlighted in consultations and submissions, and is supported by existing research.^[144] Several consultation participants suggested that victims are not receiving the information they need to make an informed decision about whether to use protective procedures.^[145]

8.103 This can be a complicated choice and not all victims will want to, or should, use protective procedures.^[146] One victim said that she wanted to give evidence in court so that she was standing up to the perpetrator as a grown woman—she said that there was something ‘raw and empowering about being in the same room’. At the same time, she knew that she may be more nervous, have more anxiety and find giving evidence much more difficult.^[147] Another victim described giving evidence in the remote facility as more intimidating than in the courtroom, and would have liked more information about which option to choose.^[148]

8.104 As the decision may not be easy, victims need time to make it. Support workers expressed concern that some victims are being asked on the day they are to give evidence whether they would like to use a remote facility.^[149] This was considered inadequate notice.^[150]

8.105 To ensure victims are consistently provided with adequate information about using special protections or alternative arrangements, the Commission recommends that the Victims’ Charter Act be amended so that prosecution lawyers are obliged to provide this information to victims.^[151] Prosecution lawyers should also be obliged to relay the victim’s views to the court. This accords with recommendations 37 and 38, which require the court to consider the victim’s views as part of deciding whether to order special protections or alternative arrangements.

Recommendation

42 The Victims’ Charter Act 2006 (Vic) should be amended to require prosecuting agencies to inform victims about special protections and alternative arrangements for giving evidence and to state the victim’s preferences about the use of such procedures to the court.

Protection measures addressed by the Victorian Royal Commission into Family Violence

Recording a victim’s evidence at the scene

8.106 The practice of recording evidence and a victim’s statement at the scene (scene-recorded evidence) is one way to reduce the number of times a victim must give evidence. Scene-recorded statements differ from audiovisual recorded statements that constitute a victim’s evidence-in-chief in special hearings. The latter are recorded in a police station shortly after the offence, usually with a specialised investigator present—see [8.11]–[8.14]. In contrast, scene-recorded statements are taken by front-line police officers at the scene

of the alleged offence.

8.107 Scene-recorded evidence is an aspect of broader reforms aimed at improving police responses to family violence.^[152] This is beyond the Commission’s terms of reference. However, scene-recorded evidence and statements may have an impact on the criminal trial process. The New South Wales Office of the Director of Public Prosecutions told the Commission there is anecdotal evidence that the use of scene-recorded statements has led to an increase in early pleas of guilty.^[153]

8.108 Scene-recorded statements aim to increase reporting of family violence, guilty pleas

and conviction rates by reducing:

• the trauma associated with giving evidence in criminal proceedings

• the likelihood that the victim will be pressured into changing their evidence or not cooperating with the prosecution.^[154]

Royal Commission recommendation

8.109 The Victorian Royal Commission into Family Violence considered whether ‘body-worn cameras’ should be introduced more widely to improve police responses to family violence.^[155] Body-worn cameras can be used to collect evidence at the scene, including scene-recorded statements. The Royal Commission recommended that:

Victoria Police conduct a trial in two divisions of the use of body-worn cameras to collect statements and other evidence from family violence incident scenes [within 12 months]. The trial should be supported by any necessary legislative amendment to ensure the admissibility of evidence collected in criminal and civil proceedings. It should also be subject to a legislative sunset period, evaluation and the use of any evidence only with the victim’s consent.^[156]

8.110 The Commission notes that the Royal Commission expressed concern about the use

of scene-recorded evidence without the victim’s consent and welcomes the proposal

to conduct a small trial, subject to evaluation.^[157] This approach seems appropriate given the following problems associated with the use of scene-recorded statements:

• Police may inadvertently capture evidence or material that is harmful to the victim. Statements may be recorded in a victim’s home and may be ‘highly personal and extremely graphic’.^[158] This has implications for the victim’s privacy.

• Not all victims of family violence will conform to expectations about how they

are supposed to behave at the scene.^[159]

• The victim may be perceived as involved in the offending and there could be ‘unintended criminalisation of a victim if the video depicts injuries inflicted on

the perpetrator in self-defence’.^[160]

• In New South Wales, there have been circumstances in which adverse inferences

have been drawn from a victim’s refusal to consent to a scene-recorded statement.^[161]

• It is unclear whether the New South Wales legislation permits a scene-recorded statement to be edited, or whether a victim can view the statement before it is disclosed.^[162]

8.111 It is not clear whether the Royal Commission’s recommendation will encompass family violence offending that is dealt with in the Supreme Court or County Court, in particular sexual offending. In light of the concerns noted above, it may be appropriate to limit the pilot to summary criminal proceedings in the Magistrates’ Court at first.

Court architecture and facilities

8.112 The Victims’ Charter Act includes a principle that ‘a prosecuting agency and the courts should, during the course of a court proceeding and within a court building’ minimise the victim’s exposure to unnecessary contact with, or protect them from intimidation by, the accused, witnesses for the defence and the accused’s family or supporters.^[163]

8.113 The layout of courts and their infrastructure can make it very difficult to observe this requirement. The Royal Commission into Family Violence identified as a consistent theme the need for improvements to court infrastructure and technology.^[164] Similar themes were echoed during this reference. Victims should be able to feel safe, have private conversations and access facilities for this purpose throughout the criminal trial process.

Court architecture

8.114 Contributors told the Commission about deficiencies in court architecture which heighten the anxiety of attending court. These include:

• having to pass closely by the accused or their family inside the courtroom^[165]

• using the same entry and exit to the court precinct as the accused and their family and other members of the public^[166]

• having to wait in public areas with the accused and their family and other members

of the public.^[167]

8.115 The Royal Commission into Family Violence identified the lack of separate entry and exits and adequate waiting rooms as creating a risk for victims in court precincts. It concluded:

As a community we should not tolerate situations where emotionally stressed and fearful victims, who are often accompanied by young children, have to spend lengthy periods in court waiting areas in the vicinity of perpetrators and, sometimes, perpetrators’ supporters. Nor should we tolerate situations in which people with disabilities or people who are from culturally and linguistically diverse backgrounds and others are forced to attend court premises that do not meet their needs or which make them feel unsafe.^[168]

8.116 Remodelling court precincts to have more than one entry and sufficient private waiting areas will require significant investment by the Victorian Government, particularly in regional Victoria, where court buildings are often smaller, older and less well equipped.^[169] For example, the Shepparton courthouse is currently undergoing a $73 million redevelopment over three years, with security and safety for all court users a priority.^[170]

Facilities

8.117 Most remote witness facilities are located within court precincts. Numerous victims and victim support workers told the Commission that the value of giving evidence by way of a remote witness facility can be undermined by the prospect, and reality, of seeing the accused while entering the court precinct or waiting to give evidence.^[171]

8.118 This problem need not await major building works to be resolved. Remote witness facilities could be located away from the court precinct, or made accessible by a separate entrance. The OPP in Melbourne has remote witness facilities on the premises from which victims give evidence.^[172] In Wangaratta, the remote witness facility at the court has a separate entrance, which protects victims from encountering the accused and their supporters.^[173]

8.119 While the development of modern, safe, accessible court buildings should be a priority, the urgency can be reduced to some extent by investing in off-site or alternative entry remote witness facilities.^[174] Remote witness facilities are used frequently where they are available, with some variation between metropolitan and regional areas.^[175] In regional courts, facilities struggle to meet demand.^[176] The Wodonga court has only one remote facility and one court with a videolink facility, which is also used by people in custody.^[177] Victim support specialists in Shepparton and Ballarat identified the same problem.^[178]

8.120 The use of a screen in the courtroom to prevent the victim seeing the accused appears to be used relatively rarely.^[179] When a screen is used, it is often just a whiteboard.^[180] A victim may be required to enter the court in view of the accused, before the screen is placed in front of the accused.^[181] The Commission was told that more sophisticated screens should be available.^[182] Investing in more sophisticated screens will help address the demand for remote witness facilities and videolink technology in regional courts.

8.121 Comments to the Commission are consistent with the 2011 final evaluation report of the sexual assault reform strategy, which noted that access to remote facilities, screens and the use of support people was working well in Melbourne but less so in regional courts.^[183] Victims across Victoria should have equal access to protective procedures.

Royal Commission recommendation

8.122 Recommendation 70 of the Victorian Royal Commission into Family Violence, which has been accepted by the Victorian Government, should go some way towards addressing the concerns outlined above. Most relevantly to the problems identified by this Commission, the recommendation obliges the Victorian Government to fund and complete works

in all courts hearing family violence matters so that there are:

• safe waiting areas

• separate entry and exit points for applicants and respondents

• remote witness facilities to allow witnesses to give evidence off-site and from court-based interview rooms.^[184]

8.123 The recommendation is primarily directed towards applicants in family violence intervention order proceedings and victims of family violence-related offences, but will benefit those who are victims of other offences. However, the recommendation is limited to the headquarter courts for each of the 12 Magistrates’ Court regions.^[185]

Conclusion

8.124 The Commission considers that the substance of recommendation 70 should be extended to victims of crime who use courthouses in which the Supreme and County Courts sit.

In their submissions to the Royal Commission into Family Violence, the Supreme Court

and the County Court acknowledged the need for their court buildings and facilities

to be improved so that victims’ exposure to the accused is reduced or eliminated.^[186]

8.125 The submission of Court Services Victoria to the Royal Commission into Family Violence noted that it has been funded to conduct an audit of all Victorian courts ‘to upgrade existing court facilities to overcome safety shortcomings’.^[187] The results of this audit should inform the implementation of the Commission’s recommendation, made below.

Recommendation

43 Court Services Victoria, in consultation with investigatory, prosecuting and victims’ services agencies, should implement measures to protect victims attending court proceedings on indictable criminal matters, including by:

(a) ensuring that victims can enter and leave courthouses safely, including, where possible, allowing them to use a separate entrance and exit

(b) making available separate rooms for victims to wait in at court and ensuring victims know where they are

(c) establishing remote witness facilities that are off-site or accessed via

a separate entry to that used by other court users

(d) using more appropriate means to screen victims from the accused when giving evidence in the courtroom.

Victims’ privacy: protection from unjustified interference

8.126 The criminal trial process makes public the private lives of victims. The prosecution or the accused may seek access to the victim’s records on the basis that the accused is entitled to all relevant material in order to make a full defence.^[188] In addition, it is a tenet of the adversarial criminal justice system that justice is administered in open court.^[189] Generally speaking, evidence about the victim, including about their private life, can be seen or accessed by the public.

8.127 Victims expect that their privacy will not be interfered with unlawfully or arbitrarily and that measures will be taken to protect their privacy interests.^[190] This section focuses on two issues:

• restrictions on the right of the accused to access victims’ private information

• restrictions on criminal trial proceedings being public.

The meaning of privacy

8.128 Privacy ensures individuals are able to live dignified and autonomous lives, in which they are safe, and exercise control over the use and disclosure of their personal information.^[191]

8.129 In Victoria, the Charter of Human Rights and Responsibilities 2006 (Vic) protects a person’s right ‘not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’ and ‘not to have his or her reputation unlawfully attacked’.^[192] Legislation at a federal, state and territory level regulates how private information is handled by public and private entities.^[193] In Victoria, the way that criminal justice agencies handle victims’ personal information is regulated by the Privacy and Data Protection Act 2014 (Vic) and the Health Records Act 2001 (Vic).^[194] Victims’ privacy is also protected by certain provisions of the Open Courts Act 2015 (Vic), which regulates public access to court proceedings.

8.130 Privacy is a broad concept and has been described as notoriously difficult to define.^[195] What is regarded as private differs between people, and between contexts. It is not necessary to provide an exhaustive definition here. It is enough to recognise that privacy is premised on the autonomy and dignity of the individual. Dignity and autonomy are achieved by ensuring victims can exercise a measure of control over access to their personal information and the purposes for which it may be disclosed and used. This understanding informs the Commission’s discussion about the appropriate level of access to, and use of, a victim’s private information.

Access to the victim’s records

8.131 An accused is entitled to seek access to a victim’s records and to introduce those records into evidence, provided they are relevant to the facts in issue.^[196]

8.132 An accused can seek access to records by filing a subpoena with the court. Subpoenas are used to compel individuals or organisations to produce documents or to appear in court. In criminal proceedings, an accused may subpoena a range of the victim’s personal records, including:

• medical records

• psychological or psychiatric history

• dealings with government departments

• bank records.

8.133 Generally speaking, the documents sought under a subpoena must be provided if they have evidentiary value, also described as a legitimate forensic purpose.^[197] According to the High Court of Australia, this means that it must be ‘on the cards’ that the document would assist the accused in their defence.^[198]

Confidential communications

8.134 In recent years, Victoria and other Australian and overseas jurisdictions have introduced reforms that restrict the records the accused can obtain, by limiting access to the victim’s ‘confidential communications’.^[199] Confidential communications are communications made in confidence by a victim of a sexual offence to a medical practitioner or counsellor, either before or after the alleged sexual offending occurred.^[200]

8.135 Chapter 7 discusses reforms to victims’ participation in applications to access and use their confidential communications. The focus of this section is on what information personal

to the victim should fall within the definition of a confidential communications.

8.136 Part 2, division 2A of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) relates to confidential communications. The aims of the confidential communications provisions are:

• to promote the public interest in victims of sexual assault seeking counselling

• to protect victims from the harm that might be caused if their private information

is made public.^[201]

8.137 The court is required to grant leave before the accused (or any other party) can subpoena, access or use a victim’s confidential communications.^[202]

8.138 The judge must balance various factors when deciding whether to allow access to a victim’s confidential communications.^[203] The court grants leave only if it is satisfied that:

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

• other evidence relating to the matter contained in the confidential communication, and of similar or greater probative value, is not available

• the public interest in allowing the evidence to be introduced outweighs the public interest in confidentiality and protecting the victim from harm.^[204]

8.139 In balancing the public interest, the judge must take into account:

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

• the extent to which the evidence is necessary to allow the accused to make

a full defence

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

• the extent to which victims may be discouraged from seeking counselling

if the confidential communications are accessed

• the extent to which the effectiveness of counselling may be diminished,

if the confidential communications are accessed

• whether a discriminatory belief or bias is behind the application

• whether the victim objects to the disclosure

• the nature and extent of the reasonable expectation of confidentiality and

the potential prejudice to the privacy of the person.^[205]

Expanding the protection to a broader range of records

8.140 As noted above, protecting confidential communications is about ensuring victims of sexual offences are not discouraged from seeking counselling.^[206] This purpose is integral to the current definition of a confidential communication. All Australian jurisdictions require a counselling relationship to exist before a record can be protected.^[207]

8.141 Support was expressed in consultations and submissions for expanding the confidential communications provisions to a broader range of records, such as:^[208]

• medical records (other than records already falling within the definition of confidential communications), including psychiatric or psychological records^[209]

• records held by the Department of Health and Human Services^[210]

• records made by social workers^[211]

• school records^[212]

• records held by specialist family violence services (the nature of these records was not specified).^[213]

8.142 Most of this information, other than school records, would be health information for the purposes of the Health Records Act 2001 (Vic). As such, it is protected from being used or disclosed for any purpose other than the purpose for which it was collected, unless authorised or required by law or the person concerned.^[214]

8.143 The definition relevantly includes personal information or an opinion about a person’s physical, mental or psychological health or disability. It extends to all personal information collected in providing a health service. It also encompasses the dispensing of a prescription drug.^[215]

The role of privacy

8.144 Some contributors who told the Commission that the confidential communications provisions should be expanded suggested that certain types of personal information, such as contact with alcohol and drug rehabilitation services, records relating to psychiatric treatment, or records indicating contact with child safety workers, are being sought and used to undermine a victim’s credibility.^[216] This view was advanced by support specialists, counsellors and victims, who considered that personal information about the victim, created in a particular context for a particular purpose, should not be treated as relevant to the victim’s credibility, or lack of it, in a criminal trial.^[217]

8.145 On the other hand, lawyers argued that if a record is relevant to the criminal proceedings, including to the credibility of the victim, it should be admitted as evidence.^[218] According to the Law Institute of Victoria, ‘consistency is one of the hallmarks of truth and the issues communicated by complainants at different times can serve as an effective test

of credibility.’^[219]

8.146 The divergent views put to the Commission reflect different attitudes about the balance between the privacy interests of victims and the accused’s interest in having access to all relevant material.

8.147 The approach taken in Canada in reconciling these interests is instructive. Privacy is central to the Canadian provisions relating to confidential communications. They expressly protect records about which the victim has a ‘reasonable expectation of privacy’.^[220] Examples are provided in Canada’s Criminal Code and include:

medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social service records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature but does not include records made by persons responsible for the investigation or prosecution of the offence.^[221]

8.148 As is the case in Victoria, the Canadian law is aimed at encouraging victims to seek counselling and report sexual offences. However, the Canadian provisions place greater emphasis on promoting the equality, personal security and privacy rights of victims.^[222]

8.149 An evaluation of the operation of the Canadian provisions in 2012 concluded that the scheme was ‘for the most part, working well’ and that it ‘strikes an appropriate balance between the competing interests of complainants and defendants’.^[223]

8.150 The Supreme Court of Canada has found that the Canadian provisions do not violate the right of an accused to ‘make a full answer and defence’.^[224] In reaching its conclusion, the court noted that the right to make a full answer and defence does not include a right to records that are not relevant or ‘would serve to distort the search for truth’.^[225] The Court noted that a victim’s records, in particular therapeutic records, are made in a particular context and are unreliable as a factual account of an event.^[226] The Court cautioned against the use of records that challenge the credibility of the victim at large, on the basis that doing so operates unfairly against victims whose lives have been more heavily documented.^[227]

The Commission’s conclusion

8.151 The Commission has concerns about victims’ privacy similar to those stated by the Supreme Court of Canada. Victims and victim support specialists consulted by the Commission stressed that some victims have long-term contact with social services and there is a risk that records about regular contact with child safety, family violence or drug and alcohol support services will be used to undermine the victim’s reliability and inaccurately depict their life.^[228]

8.152 The right not to have privacy unlawfully or arbitrarily interfered with is protected in Victoria’s Human Rights Charter. As in Canada, a balancing exercise would need to occur where fair trial rights and the victim’s right to privacy compete. Where the accused can demonstrate that the records have a substantial probative value, and that their interest in accessing the records should prevail over the interests of preserving confidentiality and protecting the victim from harm, they will be permitted to subpoena, access and use the relevant records. The Commission does not propose to deny the accused access to evidence that is necessary to make an effective defence. Rather, the Commission seeks to limit access to the victim’s private records in the absence of a good reason for their disclosure or the victim’s consent.

8.153 The Commission considers that the current confidential communications provisions should be expanded to include records defined as health information and protected by the Health Records Act. These records contain personal information about the victim’s contact with social services and medical and psychiatric treatment. Victims are entitled to expect that these sensitive records will be private and protected against misuse in a criminal trial.

Practical concerns

8.154 Expanding the range of records to which the confidential communications provisions apply will make it more cumbersome for accused people to gain access to these documents. It is likely to impose a burden on judicial resources and lawyers. Improving the ability of victims to respond to applications to subpoena, access or use confidential communications, as recommended in Chapter 7, could also increase the burden on courts and lawyers.

8.155 Concerns about delays and the impact on judicial resources were raised by the Victorian Bar and Criminal Bar Association and some judges of the County Court.^[229] County Court judges are already spending considerable time reviewing the materials sought and redacting it where necessary.^[230]

8.156 As discussed in Chapter 7, delays have been a particular problem in New South Wales.^[231] However, in Victoria, practice notes issued by the Supreme Court and County Court set strict timeframes that require the defence to turn its mind early to whether confidential communications will be sought.^[232] Delays should be more manageable in Victoria if compliance with practice notes is enforced.

8.157 It is difficult to estimate the magnitude of any potential delay, cost or resourcing issues without data about the number of applications presently being made or the volume of the records being sought. Reforms to expand and improve the operation of the Victorian provisions will need to be monitored. Recommendations about data collection and monitoring reforms are made in Chapter 4.

8.158 Practical and resource-related concerns alone should not stand in the way of reforms. As part of the statutory responsibility of the office to report on systemic issues affecting victims, the Victims of Crime Commissioner should monitor the implementation of the expanded confidential communications provisions, and propose reforms if necessary.

Recommendation

44 Division 2A of Part 2 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) should apply to the victim’s health information as defined by the Health Records Act 2001 (Vic).

Publication of criminal proceedings

8.159 Privacy issues also arise in the context of victim impact statements. Concerns were raised in submissions and consultations about the media or public gaining access to the contents of victim impact statements.^[233] Victim impact statements often contain sensitive and personal information so it is understandable that some victims seek control over their publication.

8.160 The contents of victim impact statements become public when victims read them out in court, or the judge refers to them in sentencing remarks. Additionally, court proceedings are a matter of public record.

8.161 Criminal proceedings are public because a fundamental element of a fair trial is the principle of open justice.^[234] Criminal proceedings should take place in open court so that they can be subject to ‘public and professional scrutiny’.^[235] Courts will depart from this principle only in exceptional circumstances.^[236]

8.162 In Victoria, common law principles relating to open courts are consolidated in the Open Courts Act 2013 (Vic). The Open Courts Act contains a statutory presumption in favour

of proceedings being public. However, it also allows for suppression orders or closed court orders in a range of circumstances, including, most relevantly, where the order

is necessary to:

• ‘protect the safety of any person’.^[237]

• ‘avoid causing undue distress or embarrassment’ to a victim or witness in ‘any criminal proceeding involving a sexual offence or a family violence offence’.^[238]

• ‘avoid causing undue distress or embarrassment to a child who is a witness in any criminal proceeding’.^[239]

8.163 Suppression orders are orders that prohibit or restrict the publication or report of all or part of a proceeding or any information derived from it.^[240] A closed court order is an order that the court be closed to the public for some or all of a proceeding, or that only certain persons be allowed in.^[241] Given the fundamental importance of the open courts principle, the Commission does not propose that these categories be extended to a broader range of victims or other categories of offences.

8.164 More informal measures are also in place. The Supreme Court and the former victim representatives of the inaugural Victims of Crime Consultative Committee told the Commission that where a victim does not want certain parts of their victim impact statement referred to by the judge, this can be conveyed to the court.^[242] The Commission has not been told that this approach is not working in practice.

8.165 In addition, in practice the Supreme Court and the County Court files are not open for inspection by the public. Victim impact statements are made available only with the courts’ permission, and will not ordinarily be released.^[243] Similarly, the DPP’s media policy is that the OPP will not give victim impact statements to the media.^[244]

8.166 The Commission considers that for victims who seek to prevent the contents of their victim impact statements from being made public, the current mechanisms for ensuring non-disclosure are adequate.

1. Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24, 25; Re an Application Under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381, [38], [40].

   ↑

2. See Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, Report No 129 (2016) 240 [8.98].

   ↑

3. In this chapter, the Commission uses the term ‘special protections’ to refer to the suite of measures currently available in sexual offence cases for child victims and victims with a cognitive impairment. This term does not exist in legislation.

   ↑

4. Victorian Law Reform Commission, Sexual Offences: Law and Procedure, Final Report (2004) 164–166, 280–285, recommendations 42, 123–131; Victoria, Parliamentary Debates, Legislative Assembly, 16 November 2005, 2183–85 (Rob Hulls).

   ↑

5. Victoria, Parliamentary Debates, Legislative Assembly, 16 November 2005, 2184 (Rob Hulls).

   ↑

6. See, eg, Victorian Law Reform Commission, Sexual Offences: Law and Procedure, Final Report (2004) 164, 273; Law Reform Committee, Parliament of Victoria, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers—Final Report (2013) 273–6; Adrian Keane, ‘Cross-Examination of Vulnerable Witnesses: Towards a Blueprint for

   Re-professionalism’ (2012) 16 International Journal of Evidence and Proof 175, 175–80.

   ↑

7. Criminal Procedure Act 2009 (Vic) s 367.

   ↑

8. Ibid s 366. The child pornography offences are offences against sections 68, 69, 70AAAB, 70AAAC, 70AAAD, 70AC of the Crimes Act 1958 (Vic). Also covered are sections 23 (common assault) and 24 (aggravated assault) of the Summary Offences Act 1966 (Vic) where those offences are related to the other offences to which the provisions apply, namely a sexual offence, indictable offence involving an assault on, or injury or threat of injury to, a person, or an offence involving child pornography.

   ↑

9. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol III 173, recommendation 72.

   ↑

10. Victorian Law Reform Commission, Sexual Offences: Law and Procedure, Final Report (2004) 268–269 [5.25] (referring specifically to child victims).

    ↑

11. Phoebe Bowden, Terese Henning and David Plater, ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 567; Kimberlee S Burrows and Martine B Powell, ‘Prosecutor’s Perspectives on Using Recorded Child Witness Interviews about Abuse as Evidence-in-Chief (2014) 47(3) Australian & New Zealand Journal of Criminology 374, 375; Mark R Kebbell and Nina J Westera, ‘Promoting Pre-recorded Complainant Evidence in Rape Trials: Psychological and Practice Perspectives’ (2011) 35 Criminal Law Journal 376, 378–9.

    ↑

12. Submission 18 (Women with Disabilities Victoria); Consultation 18 (Child Witness Service, Department of Justice); Phoebe Bowden, Terese Henning and David Plater, ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 359, 370; Law Reform Committee, Parliament of Victoria, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers—Final Report (2013) 274–5; Australian Law Reform Commission, Family Violence–A National Legal Response, Report 114 (2010) 1128 [26.168].

    ↑

13. Phoebe Bowden, Terese Henning and David Plater, ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ (2014) 37 Melbourne University Law Review 539, 567; Australian Law Reform Commission, Family Violence–A National Legal Response, Report 114 (2010) 1128 [26.168]; Mark R Kebbell and Nina J Westera, ‘Promoting Pre-recorded Complainant Evidence in Rape Trials: Psychological and Practice Perspectives (2011) 35 Criminal Law Journal 376, 378–9.

    ↑

14. Criminal Procedure Act 2009 (Vic) ss 367–368.

    ↑

15. Ibid s 372.

    ↑

16. Ibid s 370.

    ↑

17. Ibid s 374.

    ↑

18. Ibid ss 373–374.

    ↑

19. Ibid s 370(1B).

    ↑

20. Ibid ss 181(2)(d)(iii), 371.

    ↑

21. Ibid s 376.

    ↑

22. Ibid ss 369, 370(2).

    ↑

23. Ibid s 370(2).

    ↑

24. Terese Henning, ‘Obtaining the Best Evidence from Children and Witnesses with Cognitive Impairments—‘Plus Ça Change’ or Prospects New?’ (2013) 37 Criminal Law Journal 155,159; Mark R Kebbell and Nina J Westera, ‘Promoting Pre-recorded Complainant Evidence in Rape Trials: Psychological and Practice Perspectives’ (2011) 35 Criminal Law Journal 376, 378–9; Law Reform Committee, Parliament of Victoria, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and Their Families and Carers—Final Report (2013) 292.

    ↑

25. Terese Henning, ‘Obtaining the Best Evidence from Children and Witnesses with Cognitive Impairments—‘Plus Ça Change’ or Prospects New?’ (2013) 37 Criminal Law Journal 155, 159.

    ↑

26. Ibid s 374.

    ↑

27. Ibid s 123. Note that the prohibition only applies if the child victim or the victim with a cognitive impairment has also gave a statement or had their statement recorded, and the statement or the recording of the statement (and its transcript) have been provided to the accused or their lawyer: s 123(c).

    ↑

28. Victorian Law Reform Commission, Sexual Offences: Law and Procedure, Final Report (2004) 164–5, recommendation 42.

    ↑

29. Submissions 14 (Victims of Crime Commissioner, Victoria), 18 (Women with Disabilities Victoria), 21 (Dianne Hadden), 23 (DPP),

    31 (Professor Jonathan Doak, Nottingham Trent University), 34 (Northern Centre Against Sexual Assault), 36 (Magistrate John Lesser), 37 (Dr Margaret Camilleri), 38 (Name withheld), 39 (Safe Steps), 39 (OPP), 40 (Former VOCCC victim representatives), 43 (Victoria Police SOCIT, Wodonga); Consultations

    9 (Magistrate Ron Saines), 18 (Child Witness Service, Department of Justice and Regulation), 22 (Professor Jonathan Doak, Nottingham Trent University), 34 (Office of the Director of Public Prosecutions, NSW), 40 (A victim), 50 (Witness Assistance Service, OPP Victoria); Roundtables 1 (Victim support specialists, Mildura), 5 (Victim support specialists, Morwell), 9 (Victim support and therapeutic specialists, Shepparton), 10 (Legal practitioners, Shepparton), 15 (Magistrates of the Magistrates’ Court of Victoria) (referring to summary proceedings).

    ↑

30. Submission 25 (Law Institute of Victoria), 29 (Victorian Bar and Criminal Bar Association); Roundtable 6 (Legal practitioners, Morwell).

    ↑

31. Evidence Act 1929 (SA) ss 12AB; Evidence Act (NT) ss 21A(1) (definitions), 21B; Evidence Act 1906 (WA) s 106HB; Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 40D, 40F; Criminal Procedure Act 1986 (NSW) ss 306S, 306U, 306V; Evidence (Children and Special Witnesses Act) 2001 (Tas) ss 5, 8.

    ↑

32. Evidence Act 1977 (Qld) s 21A(2); Evidence Act 1929 (SA) ss 4, 13, 13A; Evidence Act (NT) s 21B; Evidence Act 1906 (WA) ss 106I–106K (applies to children only); Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 40Q; Evidence (Children and Special Witnesses) Act 2001 (Tas) ss 6, 6B, 8.

    ↑

33. Evidence Act 2006 (NZ) ss 103, 105, 106; Youth Justice and Criminal Evidence Act 1999 (UK) ss 16, 17, 27, 28.

    ↑

34. Submissions 21 (Dianne Hadden), 23 (DPP), 31 (Professor Jonathan Doak, Nottingham Trent University), 34 (Northern Centre Against Sexual Assault); Consultations 9 (Magistrate Ron Saines); 22 (Professor Jonathan Doak, Nottingham Trent University), 34 (Office of the Director of Public Prosecutions, NSW), 43 (Victoria Police SOCIT, Wodonga); Roundtables 5 (Victim support specialists, Morwell).

    ↑

35. Submissions 10 (Victoria Legal Aid), 21 (Dianne Hadden), 23 (DPP); Consultations 50 (Witness Assistance Service, OPP Victoria); Roundtable 9 (Victim support and therapeutic specialists, Shepparton).

    ↑

36. Submission 37 (Dr Margaret Camilleri).

    ↑

37. Roundtable 10 (Legal practitioners, Shepparton).

    ↑

38. Evidence Act (NT) s 21B. In the Northern Territory, victims of sexual offences and ‘serious violent offences’ are eligible to have a video-recording of their police interview admitted as their evidence-in-chief and give their evidence by way of a special hearing. ‘Serious violent offences’ include offences involving the possession and publication of child abuse material, murder, manslaughter, offences involving causing serious harm to the person, assaults, threats, kidnapping and deprivation of liberty. See Evidence Act (NT) s 21A; Criminal Code Act (NT) sch 1.

    ↑

39. Youth Justice and Criminal Evidence Act 1999 (UK) ss 17(4), 19, 27–8.

    ↑

40. Ibid.

    ↑

41. Magistrates’ Court Act 1930 (ACT) s 90AB(1).

    ↑

42. Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 40P–40Q, 40S. Note that this has a more restrictive application, being only to ‘complainants’ who the court considers will suffer emotional trauma or be intimidated and distressed.

    ↑

43. Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 3 July 2008, 2669–2670 (Simon Corbell). See also Jessica Anderson, Kelly Richards and Katie Willis, Evaluation of the ACT Sexual Assault Reform Program, Technical and Background Paper 51, (Australian Institute of Criminology, 2012) 31; Jessica Kennedy and Patricia Easteal, ‘The Conception, Gestation and Birth of Legislation:

    The Sexual and Violent Offence Legislation Amendment Act 2008 (ACT) (2011) 10(2) Canberra Law Review 8, 23–6.

    ↑

44. Nina J Westera and Martine B Powell, ‘Prosecutors’ perceptions of the utility of video-evidence for adult complainants of sexual assault’ (2015) 39 Criminal Law Journal 198, 199; Mark R Kebbel and Nina J Westera, ‘Promoting pre-recorded complainant evidence in rape trials: Psychological and practice perspectives’ (2011) 35 Criminal Law Journal 376, 378–80; Nina J Westera, Mark R Kebbell and Becky Milne, ‘It Is Better, but Does It Look Better? Prosecutor Perceptions of Using Rape Complainant Investigative Interviews as Evidence’ (2013) 19(7) Psychology, Crime and Law 595, 595–607; Mark R Kebbell, Catriona M E O’Kelly and Elizabeth L Gilchrist, ‘Rape Victims’ Experiences of Giving Evidence in English Courts: A Survey’ (2007) 14 Psychiatry, Psychology and Law 111.

    ↑

45. The traumatising experience of sexual assault can cause victims giving evidence to experience confusion, flashbacks, panic attacks, dissociation and difficulties remembering, as well as physical responses such as nausea: Submission 30 (Loddon Campaspe Centre Against Sexual Assault). See also The Advocate’s Gateway, Working with Traumatised Witnesses, Defendants and Parties: Toolkit 18 (July 2015).

    ↑

46. Data provided by the Magistrates’ Court of Victoria (11 February 2016).

    ↑

47. County Court of Victoria, 2014–15 Annual Report (2015) 6, 22 (in the 2014–15 financial year, a total of 657 cases proceeded to trial and resolved either with an acquittal, a finding or guilt or a plea of guilty during the trial. Sexual offences account for 40 per cent of criminal trials in the County Court).

    ↑

48. See Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol II 214–15. The prevalence of sexual offending in the family violence context is difficult to estimate. The Royal Commission observed that the ‘vast majority of sexual assaults perpetrators are known to victims and a large portion are perpetrated by family members’.

    ↑

49. Section 5 of the Family Violence Protection Act 2008 (Vic) defines family violence as behaviour by a person towards a family member of that person if that behaviour is physically or sexually abusive, emotionally or psychologically abusive, or economically abusive, threatening, coercive or in any way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person, or behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of behaviour that constitutes family violence. See also Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol III 191.

    ↑

50. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol III 194. See also Director of Public Prosecutions and Office of Public Prosecutions, Annual Report 2014–15 (2015) 10.

    ↑

51. Victorian Equal Opportunity and Human Rights Commission, Beyond Doubt: The Experiences of People with Disabilities Reporting Crime—Research Findings (2014) 113.

    ↑

52. Ibid 114.

    ↑

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

    ↑

54. Submission 23 (DPP).

    ↑

55. Submission 4 (Victorian Equal Opportunity and Human Rights Commission).

    ↑

56. Ibid; Victorian Equal Opportunity and Human Rights Commission, Beyond Doubt: The Experiences of People with Disabilities Reporting Crime—Research Findings (2014) 114. This recommendation builds on a recommendation made by the Victorian Parliamentary Law Reform Committee’s 2013 report on access to justice for people with disabilities that consideration be given to expanding the availability of special hearings for people with an intellectual disability or cognitive impairment (and other ‘alternative arrangements for giving evidence’): Law Reform Committee, Parliament of Victoria, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and Their Families and Carers—Final Report (2013) 293.

    ↑

57. Evidence Act 1929 (SA) s 12BA; Criminal Procedure Act 1986 (NSW) ss306M, 306S, 306U, 306V .

    ↑

58. Criminal Procedure Act 1986 (NSW) ss 306S, 306U, 306V.

    ↑

59. Submissions 14 (Victims of Crime Commissioner, Victoria), 31 (Professor Jonathan Doak, Nottingham Trent University), 37 (Dr Margaret Camilleri), 40 (Former VOCCC victim representatives); Consultation 50 (Witness Assistance Service, OPP Victoria).

    ↑

60. Evidence Act 2006 (NZ) s 103(3).

    ↑

61. See, eg, Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Report No 84 (1997) ch 14; Victorian Law Reform Commission, Sexual Offences: Law and Procedure, Final Report (2004) [5.13]–[5.44]; Robyn Layton, ‘Our Best Investment: A State Plan to Protect and Advance the Interests of Children’ (Child Protection Review, Government of South Australia, 2003); Kirsten Hanna et al, ‘Questioning Child Witnesses in New Zealand’s Criminal Justice System: Is Cross-Examination Fair?’ (2012) 19(4) Psychiatry, Psychology and the Law, 530; Rachel Zajaz, Sarah O’Neill and Harlene Hayne, ‘Disorder in the Courtroom? Child Witnesses under Cross-Examination’ (2012) 32 Development Review 181.

    ↑

62. Submission 23 (DPP) (although limiting support to child victims of offences involving serious violence), 31 (Professor Jonathan Doak, Nottingham Trent University); Consultations 18 (Child Witness Service, Department of Justice and Regulation). See also Evidence Act 1977 (Qld) s 21A (definition of special witness); Evidence Act 1929 (SA) s 4 (definition of vulnerable witness); Criminal Procedure Act 1986 (NSW) ss 306M, 306ZA, 306ZB, 306ZH; Youth Justice and Criminal Evidence Act 1999 (UK) s 16 (witnesses eligible for assistance on the grounds of age or incapacity).

    ↑

63. Note that in Chapter 7, the Commission acknowledges that while all child victims should be able to access an intermediary, it may be necessary to limit the initial phase of the scheme to more serious offences, such as sexual offences and offences involving family violence.

    ↑

64. Evidence (Children and Special Witnesses) Act (2001) (Tas) s 8(1); Evidence Act 1906 (WA) s 106R; Evidence Act 1977 (Qld) s 21A.

    ↑

65. Evidence Act 1977 (Qld) s 21A; Evidence Act 1929 (SA) ss 4, 13, 13A; Evidence (Children and Special Witnesses) Act 2001 (Tas) s 8; Evidence Act 2006 (NZ) ss 103, 105; Youth Justice and Criminal Evidence Act (UK) s 17(2).

    ↑

66. Submissions 4 (Victorian Equal Opportunity and Human Rights Commission), 18 (Women with Disabilities Victoria); Victorian Equal Opportunity and Human Rights Commission, Beyond Doubt: The Experiences of People with Disabilities Reporting Crime (2014) 112–6; Australian Human Rights Commission, Equality Before the Law: Towards Disability Justice Strategies (2014) 16–7; Nina Westera and Martine Powell, ‘Prosecutors’ Perceptions of the Utility of Video-evidence for Adult Complainants of Sexual Assault’ (2015) 39 Criminal Law Journal 198, 203, noting that victims suffering from psychological distress, Indigenous victims, victims from different cultural backgrounds and victims who are intimidated or likely to retract their evidence because of family violence dynamics, especially benefit from audiovisually recorded evidence-in-chief. See also Victoria Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process: Who Are the Victims of Crime and What Are Their Criminal Justice Needs and Experiences? Information Paper 2 (2015) 3–11.

    ↑

67. Equal Opportunity Act 2010 (Vic) s 4 (definitions). Disability is defined as including ‘total or partial loss of bodily function’, or ‘the presence of organisms that may cause disease’ or ‘malfunction of a part of the body’, including a ‘mental or psychological disease or disorder’; ‘a condition or disorder that results in a person learning more slowly than people who do not have that condition or disorder’, or’malformation or disfigurement of part of the body’, and includes ‘a disability that may existing in the future and…behaviour that is a symptom or manifestation of a disability’.

    ↑

68. Submissions 4 (Victorian Equal Opportunity and Human Rights Commission), 17 (Office of the Public Advocate), 18 (Women with Disabilities Victoria); Consultation 18 (Child Witness Service, Department of Justice and Regulation).

    ↑

69. Police practices will also be affected by the recommendation of the Royal Commission into Family Violence that audiovisual recorded statements be admissible in proceedings regarding family violence-related offending. See Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol III 173, recommendation 72.

    ↑

70. The Commission discusses this relationship and makes recommendations about providing information to victims and conducting conferences with victims in Chapter 6.

    ↑

71. Submission 23 (DPP); Roundtables 11 (Judges of the County Court of Victoria), 15 (Magistrates of the Magistrates’ Court of Victoria). See also Success Works, Sexual Assault Reform Strategy: Final Evaluation Report (2011) 107. Judges interviewed as part of that evaluation observed that special hearings take more time than ordinary trial processes: the special hearing itself takes time, after which the defence, prosecution and the judge must watch the recording again during the trial. These concerns were not raised directly with the Commission.

    ↑

72. Consultation 31 (Judge of the County Court of Victoria); Roundtable 11 (Judges of the County Court of Victoria).

    ↑

73. Criminal Procedure Act 2009 (Vic) ss 360(a), 362.

    ↑

74. Ibid s 360(b).

    ↑

75. Ibid s 360(c).

    ↑

76. Ibid s 360(d).

    ↑

77. Ibid s 360(e)(f)

    ↑

78. Ibid s 363.

    ↑

79. Ibid ss 364–365.

    ↑

80. Ibid ss 363–365.

    ↑

81. Ibid ss 359–360.

    ↑

82. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol III 172–3, recommendation 72 (this recommendation also applies to family violence intervention order proceedings).The Royal Commission also recommended consideration be given to allowing family violence victims to give their evidence-in-chief through audiovisual recorded statements: Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol III 172–3, recommendation 71.

    ↑

83. Consultations 24 (A victim and relative), 28 (Laurie Krause), 29 (Parent of victims), 41 (A victim), 44 (Kristy McKellar), 46 (A victim).

    ↑

84. Consultations 28 (Laurie Krause), 29 (Parent of victims), 46 (A victim).

    ↑

85. Submissions 18 (Women with Disabilities Victoria), 26 (Victoria Police), 31 (Professor Jonathan Doak, Nottingham Trent University),

    40 (Former VOCCC victim representatives), 38 (Name withheld); Consultations 26 (Loddon Campaspe Centre Against Sexual Assault),

    36 (Magistrate John Lesser), 46 (A victim), 50 (Witness Assistance Service, OPP Victoria), Roundtable 4 (Legal practitioners, Geelong),

    10 (Legal practitioners, Shepparton).

    ↑

86. Submissions 23 (DPP), 31 (Professor Jonathan Doak, Nottingham Trent University), 39 (Safe Steps); Consultations 3 (Parent of a victim), 15 (DPP), 26 (Loddon Campaspe Centre Against Sexual Assault), 28 (Laurie Krause), 40 (A victim), 46 (A victim), 50 (Witness Assistance Service, OPP Victoria); Roundtables 5 (Victim support specialists, Morwell), 7 (Victim support specialists, Melbourne), 12 (Victim support specialists, Wodonga).

    ↑

87. Submissions 18 (Women with Disabilities Victoria) (victims with disabilities), 38 (Name withheld) (‘vulnerable victims’), 40 (Former VOCCC victim representatives); Consultation 36 (Magistrate John Lesser); Roundtables 4 (Geelong legal practitioners) (assault victims),

    10 (Shepparton legal practitioners) (victims of serious offences or victims for whom there are safety issues or where there is a real fear

    of the accused).

    ↑

88. Submissions 14 (Victims of Crime Commissioner, Victoria), 31 (Professor Jonathan Doak, Nottingham Trent University); Consultation

    19 (Victims of Crime Commissioner, Victoria).

    ↑

89. Submission 23 (DPP) (although limiting support to child victims of offences involving serious violence), 31 (Professor Jonathan Doak, Nottingham Trent University); Consultations 18 (Child Witness Service, Department of Justice and Regulation), 22 (Professor Jonathan Doak, Nottingham Trent University). See also Evidence Act 1977 (Qld) s 21A (definition of special witness); Evidence Act 1929 (SA) s 4 (definition of vulnerable witness); Criminal Procedure Act 1986 (NSW) ss 306M, 306ZA, 306ZB, 306ZH; Youth Justice and Criminal Evidence Act 1999 (UK) s 16 (witnesses eligible for assistance on the grounds of age or incapacity). It is also consistent with the Commission’s view that all child victims should be eligible to use intermediaries, discussed in Chapter 7, and special protections, discussed above at [8.43].

    ↑

90. Submission 40 (Former VOCCC victim representatives); Consultations 45 (Victims Support Agency, Department of Justice and Regulation), 50 (Witness Assistance Service, OPP Victoria). Similar findings were also reported in Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response, Report 114 (2010) 1215 [26.114].

    ↑

91. Consultations 1 (A victim), 50 (Witness Assistance Service, OPP Victoria).

    ↑

92. Consultation 50 (Witness Assistance Service, OPP Victoria); Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response, Report 114 (2010) 1215 [26.114].

    ↑

93. Criminal Procedure Act 2009 (Vic) s 124(3).

    ↑

94. Ibid s 124(2).

    ↑

95. Ibid s 124(4).

    ↑

96. Victoria, Parliamentary Debates, Legislative Assembly, 4 December 2008, 4978 (Rob Hulls).

    ↑

97. Justices Act 1959 (Tas) ss 55–60 (note that ss 56A and 57A have been repealed. These sections provided for the examination of witnesses as part of committal proceedings); Criminal Procedure Act 2004 (WA) ss 41, 43, 44.

    ↑

98. Crime and Disorder Act 1998 (UK) s 51 (abolishing committal hearings for indictable offences). In New Zealand, committal proceedings have been replaced bv a process of pre-trial case management. To cross-examine witnesses before a trial, an application must be made for an oral evidence order: Criminal Procedure Act 2011 (NZ), ss 54–59 (pre-trial case management process), ss 90–100 (oral evidence order process).

    ↑

99. Submissions 14 (Victims of Crime Commissioner, Victoria), 31 (Professor Jonathan Doak, Nottingham Trent University); Consultations 22 (Professor Jonathan Doak, Nottingham Trent University), 31 (Judge of the County Court of Victoria); Roundtable 11 (Judges of the County Court of Victoria).

    ↑

100. Submissions 34 (Northern Centre Against Sexual Assault) (referring only to removing victims from committal hearings), 40 (Former VOCCC victim representatives); Consultations 1 (A victim), 31 (Judge of the County Court of Victoria), 36 (Magistrate John Lesser); Roundtable 11 (Judges of the County Court of Victoria);

     ↑

101. The implications of removing the right of the accused to cross-examine victims at a committal hearing are discussed in detail below at [8.83–8.90].

     ↑

102. Submissions 23 (DPP), 40 (Former VOCCC victim representatives); Consultations 9 (Magistrate Ron Saines), 26 (Magistrate Stella Stuthridge).

     ↑

103. Submission 23 (DPP).

     ↑

104. Criminal Procedure Act 1986 (NSW) s 91(3); Justices Act 1886 (Qld) s 110B(1). It is notable that in both New South Wales and Queensland, there is no need for either party to seek leave if the prosecution consents to the witness being called. See Criminal Procedure Act 1986 (NSW) s 91(2); Justices Act 1886 (Qld) s 110A(5).

     ↑

105. Submission 40 (Former VOCCC victim representatives).

     ↑

106. Criminal Procedure Act 1986 (NSW) ss 93(1), 94 (defining offences of violence).

     ↑

107. Ibid s 93(1).

     ↑

108. New South Wales, Parliamentary Debates, Legislative Assembly, 20 November 1987, 16745f, cited in Kant v Director of Public Prosecutions (1994) 34 NSWLR 216, 225, regarding Justices Act 1902 (NSW) s 43EA(2), which is the predecessor provision to section 93.

     ↑

109. B v Gould (1993) 67 A Crim R 297, 303. See also KT v DPP (NSW) [2009] NSWSC 1126 [54]–[58]; O’Hare v DPP [2000] NSWSC 430 [51]; Murphy v DPP [2006] NSWSC 965 [44].

     ↑

110. B v Gould (1993) 67 A Crim R 297, 303.

     ↑

111. Campbell v Richardson [2008] NSWSC 122 (22 February 2008) [72]. See also B v Gould (1993) 67 A Crim R 297, 303–4; R v Kennedy (1997) A Crim R 341, 352.

     ↑

112. Goldsmith v Newman and the State of South Australia (1992) 59 SASR 404, 411 discussing the equivalent provision in the South Australian legislation.

     ↑

113. Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response, Report No 114 (2010) [23.124], citing concerns raised by Women’s Legal Service New South Wales.

     ↑

114. See, eg, the Hon. Martin Moynihan, Review of the Civil and Criminal Justice System of Queensland (Queensland Government, 2008) 161–219; Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System: Final Report (1999) 239–246. See also, Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response, Report 114 (2010) 1214–1218.

     ↑

115. See, eg, Asher Flynn, ‘A Committal Waste of Time? Reforming Victoria’s Pre-trial Process: Lessons from Other Jurisdictions’ (2013) 27 Criminal Law Journal 175; The Hon. Martin Moynihan, Review of the Civil and Criminal Justice System of Queensland (Queensland Government, 2008) 161–219.

     ↑

116. Consultation 22 (Professor Jonathan Doak, Nottingham Trent University).

     ↑

117. Submissions 10 (Victoria Legal Aid), 25 (Law Institute of Victoria), 29 (Victorian Bar and Criminal Bar Association); Consultations 15 (DPP), 47 (Victoria Legal Aid); Roundtables 4 (Legal practitioners, Geelong), 6 (Legal practitioners, Morwell), 10 (Legal practitioners, Shepparton), 14 (Legal practitioners, Ballarat), 15 (Magistrates of the Magistrates’ Court of Victoria).

     ↑

118. Consultation 47 (Victoria Legal Aid); Roundtable 6 (Legal practitioners, Morwell).

     ↑

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

     ↑

120. Submission 25 (Law Institute of Victoria).

     ↑

121. Consultation 15 (DPP).

     ↑

122. Data provided by the Magistratres’ Court of Victoria (11 February 2016). This 12-month period corresponds with the 2015 calendar year.

     ↑

123. County Court of Victoria, 2014–2015 Annual Report (2015) 21; Supreme Court of Victoria, 2013–14 Annual Report (2015) 45.

     ↑

124. Roundtables 9 (Victim support and therapeutic specialists, Shepparton), 11 (Judges of the County Court of Victoria).

     ↑

125. Consultation 43 (Victoria Police SOCIT, Wodonga); Roundtable 11 (Judges of the County Court of Victoria).

     ↑

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

     ↑

127. Victorian Law Reform Commission, Sexual Offences: Law and Procedure, Final Report (2004) 269 [5.25]; Mark R Kebbell and Nina J Westera, ‘Promoting Pre-recorded Complainant Evidence in Rape Trials: Psychological and Practice Perspectives’ (2011) 35 Criminal Law Journal 376, 378–9; Australian Law Reform Commission, Family Violence–A National Legal Response, Report 114 (2010) 1128 [26.168].

     ↑

128. Whether a special hearing is held before or during the trial, it must occur within three months of the accused being committed for trial: Criminal Procedure Act 2009 (Vic) s 371. Note that the court may extend this time more than once at or before the time expires: s 371(2). As a result of concerns raised by the Child Witness Service, the Commission considered whether the Criminal Procedure Act should require special hearings to occur before the criminal trial, as was the case when the process was introduced. However, an evaluation of the reforms found that this requirement was contributing to delay and imposing a considerable burden on court resources. Although the Child Witness Service suggested that the current arrangement creates uncertainty for victims, it has been welcomed by the courts for allowing more flexibility. Ultimately, the Commission does not intend to be prescriptive about the timing of the special hearing process. It considers courts better placed to manage operational issues associated with the timetabling of cases. See generally Consultation 18 (Child Witness Service, Department of Justice and Regulation); Victoria, Parliamentary Debates, Legislative Assembly, 21 June 2012, 2945 (Robert Clark); Success Works, Sexual Assault Reform Strategy, Final Evaluation Report (2011) 107; Criminal Procedure Amendment Bill 2012 (Vic) cl 24–26; County Court of Victoria, 2011–2012 Annual Report (2012) 12.

     ↑

129. Submissions 14 (Former VOCCC victim representatives), 23 (DPP), 31 (Professor Jonathan Doak, Nottingham Trent University); Consultations 9 (Magistrate Ron Saines), 22 (Professor Jonathan Doak, Nottingham Trent University); Roundtable 15 (Magistrates’ Court

     of Victoria).

     ↑

130. Roundtables 6 (Legal practitioners, Geelong), 10 (Legal practitioners, Shepparton).

     ↑

131. Roundtable 6 (Legal practitioners, Geelong).

     ↑

132. Louise Ellison and Vanessa E Munro, ‘A ‘Special’ Delivery? Exploring the Impact of Screens, Live-Links and Video-Recorded Evidence on Mock Juror Deliberation in Rape Trials’ (2014) 23(1) Social & Legal Studies 3, 5.

     ↑

133. Consultations 15 (DPP), 31 (Judge of the County Court of Victoria); Roundtables 10 (Legal practitioners, Shepparton), 11 (Judges of the County Court of Victoria), 14 (Legal practitioners, Ballarat).

     ↑

134. Success Works, Sexual Assault Reform Strategy: Final Evaluation Report (2011) 111; Mandy Burton, Roger Evans and Andrew Sanders, Are Special Measures for Vulnerable and Intimidated Witnesses Working? Evidence from the Criminal Justice Agencies (2006) (Home Office, London UK) 55–7; The Stern Review: A Report by Baroness Vivien Stern CBE of an Independent Review into How Rape Complaints are Handled by Public Authorities in England and Wales (Government Equalities Office, 2010) 90.

     ↑

135. Louise Ellison and Vanessa Munro, ‘A “Special” Delivery? Exploring the Impact of Screens, Live-Links and Video-Recorded Evidence

     on Mock Juror Deliberation in Rape Trials’ (2013)? Social & Legal Studies 23.

     ↑

136. Ibid 25.

     ↑

137. Natalie Taylor and Jacqueline Joudo, ‘The Impact of Pre-recorded Video and Closed Circuit Television Testimony by Adult Sexual Assault Complainants on Jury Decision-Making: An Experimental Study’ (Research and Public Policy Series No 68, Australian Institute of Criminology, January 2005) x, 66.

     ↑

138. Consultation 27 (Loddon Campaspe Centre Against Sexual Assault).

     ↑

139. Criminal Procedure Act 2009 (Vic) s 361.

     ↑

140. Victorian Law Reform Commission, Sexual Offences, Interim Report (2003) 390 [8.87]–[8.89]; Sexual Offences: Law and Procedure, Final Report (2004) 459 [9.48].

     ↑

141. Victorian Law Reform Commission, Sexual Offences, Interim Report (2003) [8.87]. See also Sexual Offences: Law and Procedure, Final Report (2004) 459 [9.48].

     ↑

142. Recommendations 71 and 72 of the Royal Commission into Family Violence, once implemented, will further expand this application.

     ↑

143. Victims’ experiences of cross-examination in particular are discussed in more detail in Chapter 5.

     ↑

144. Consultations 27 (Loddon Campaspe Centre Against Sexual Assault), 31 (Judge of the County Court of Victoria), 41 (A victim), 47 (Victoria Legal Aid); Roundtable 12 (Victim support specialists, Wodonga); Matthew Hall, ‘The Use and Abuse of Special Measures: Giving Victims the Choice?’ (2007) 8 Journal of Scandinavian Studies in Criminology and Crime Prevention 33.

     ↑

145. Consultations 41 (A victim), 44 (Kristy McKellar), 47 (Victoria Legal Aid); Roundtables 9 (Victim support and therapeutic specialists, Shepparton), 12 (Victim support specialists, Wodonga).

     ↑

146. Consultation 47 (Victoria Legal Aid); Roundtable 11 (Judges of the County Court of Victoria).

     ↑

147. Consultation 40 (A victim).

     ↑

148. Consultation 41 (A victim).

     ↑

149. Consultation 12 (Victim support specialists, Wodonga).

     ↑

150. Ibid.

     ↑

151. The Commission makes recommendations about the provision of information to victims throughout the criminal trial process in Chapter 6.

     ↑

152. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol III 80–2.

     ↑

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

     ↑

154. New South Wales, Parliamentary Debates, Legislative Assembly, 21 October 2014 (Brad Hazzard) 1486; New South Wales, Parliamentary Debates, Legislative Assembly, 12 November 2014, 2571 (Paul Lynch), 2572 (Geoff Provest).

     ↑

155. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol III 80–2, 106–7.

     ↑

156. Ibid 107, recommendation 58.

     ↑

157. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol III 107. In New South Wales, the victim’s consent is not required, although their wishes are a relevant consideration for the prosecutor when deciding whether to use a scene-recorded statement as evidence: See Criminal Procedure Act 1986 (NSW) ss 289D, 289G.

     ↑

158. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol III 82. See also Women’s Legal Service NSW, Submission to Department of Justice New South Wales, Review of Domestic Violence Evidence in Chief (DVEC) Reforms, 30 June 2016,

     [18]–[19].

     ↑

159. Heather Douglas and Leigh Goodmark, ‘Beware the Unintended Consequences of Police-worn Body Cameras’, The Conversation
     
     (29 September 2015) <http://theconversation.com>. See also Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol III 81.

     ↑

160. Heather Douglas and Leigh Goodmark, ‘Beware the Unintended Consequences of Police-worn Body Cameras’ The Conversation

     (29 September 2015) <http://theconversation.com>. See also Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol III 81.

     ↑

161. Consultation 33 (Women’s Legal Service NSW). See also Women’s Legal Service NSW, Submission to New South Wales Department

     of Justice, Review of Domestic Violence Evidence in Chief (DVEC) Reforms, 30 June 2016, [15]–[17].

     ↑

162. Consultation 32 (Legal Aid NSW).

     ↑

163. Victims’ Charter Act 2006 (Vic) s 12.

     ↑

164. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol III 152.

     ↑

165. Consultations 1 (A victim); 13 (Parents of a victim).

     ↑

166. Consultations 28 (Laurie Krause), 42 (Relative of a victim; a victim), 43 (Victoria Police SOCIT, Wodonga); Roundtables 9 (Victim support specialists, Shepparton), 12 (Victim support specialists, Wodonga).

     ↑

167. Consultations 28 (Laurie Krause), 43 (Victoria Police SOCIT, Wodonga); Roundtables 9 (Victim support and therapeutic specialists, Shepparton), 10 (Legal practitioners, Shepparton), 12 (Victim support specialists, Wodonga).

     ↑

168. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol III 170.

     ↑

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

     ↑

170. Court Services Victoria, Shepparton Law Courts Project (updated 16 October 2015) <https://www.courts.vic.gov.au/projects-resources/shepparton-law-courts-project>.

     ↑

171. Consultations 23 (Court Network staff and a Court Networker—County Court), 28 (Laurie Krause), 50 (Witness Assistance Service, OPP Victoria); Roundtables 5 (Victim support specialists, Morwell), 7 (Victim support specialists, Melbourne), 9 (Victim support specialists, Shepparton), 12 (Victim support specialists, Wodonga).

     ↑

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

     ↑

173. Roundtable 12 (Victim support specialists, Wodonga).

     ↑

174. A similar observation was made by the Victorian Royal Commission into Family Violence: Report and Recommendations (2016) vol III 170.

     ↑

175. Submission 5 (Centre for Rural Regional Law and Justice); Roundtables 1 (Victim support specialists, Mildura), 5 (Victim support workers, Morwell), 10 (Legal practitioners, Shepparton), 12 (Victim support specialists, Wodonga).

     ↑

176. Consultation 43 (Victoria Police SOCIT, Wodonga); Roundtable 13 (Victim support specialists, Ballarat).

     ↑

177. Consultation 43 (Victoria Police SOCIT, Wodonga).

     ↑

178. Roundtables 9 (Victim support and therapeutic specialists, Shepparton), 13 (Victim support specialists, Ballarat).

     ↑

179. Consultations 44 (Kristy McKellar); Roundtable 4 (Legal practitioners, Geelong).

     ↑

180. Consultation 50 (Witness Assistance Service, OPP Victoria); Roundtable 4 (Legal practitioners, Geelong).

     ↑

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

     ↑

182. Consultations 23 (Court Network staff and a Court Networker—County Court), 50 (Witness Assistance Service, OPP Victoria).

     ↑

183. Success Works, Sexual Assault Reform Strategy: Final Evaluation Report (2011) 111.

     ↑

184. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol III 172, recommendation 70.

     ↑

185. Ibid.

     ↑

186. Supreme Court of Victoria, Submission No 705 to the Royal Commission into Family Violence, 29 May 2015, 10–11; County Court of Victoria, Submission 835 to the Royal Commission into Family Violence, 29 May 2016, 6.

     ↑

187. Court Services Victoria, Submission No 646 to the Royal Commission into Family Violence, 29 May 2016, 12.

     ↑

188. Alister v R (1984) 154 CLR 404, 450–51.

     ↑

189. See Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46, 60 [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ). See also Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, Report 129 (2016) [8.53]–[8.56].

     ↑

190. See, eg, United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res 40/34, 96th plen mtg,

     A/RES/40/34 (29 November 1985), annex [6(b)] measures to minimise inconvenience to victims, protect their privacy and ensure their safety from intimidation and retaliation.

     ↑

191. Victorian Law Reform Commission, Defining Privacy, Occasional Paper (2002) 1–4; Victorian Law Reform Commission, Privacy Law: Options for Reform, Information Paper (2001) 3–4; Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Report 123 (2014) 30–2.

     ↑

192. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13.

     ↑

193. See Privacy Act 1988 (Cth) s 2A; Privacy and Data Protection Act 2014 (Vic); Health Records Act 2001 (Vic); Privacy and Personal Information Protection Act 1998 (NSW); Information Privacy Act 2009 (Qld); Premier and Cabinet Circular No 12 (SA); Personal Information Protection Act 2004 (Tas); Information Privacy Act 2014 (ACT); Information Act (NT). See also Australian Law Reform Commission, Serious Invasions
     of Privacy in the Digital Era, Report 123 (2014) 43–4.

     ↑

194. In general terms, investigatory and prosecuting agencies are exempt from restrictions on the collection, use and disclosure of personal information and personal health information when performing law enforcement functions: Privacy and Data Protection Act 2014 (Vic)

     s 3(1) (definition of ‘law enforcement agency), s 15; Health Records Act 2001 (Vic) s 3(1) (definitions of ‘law enforcement agency’ and ‘law enforcement function’); Health Privacy Principles 1.1(g), 2.2(j).

     ↑

195. See, eg, Victorian Law Reform Commission, Defining Privacy, Occasional Paper (2002) 1. See also the discussion regarding the definition of privacy as a legal right in Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) 141–7.

     ↑

196. Alister v R (1984) 154 CLR 404, 450–51 (Brennan J).

     ↑

197. See Alister v R (1984) 154 CLR 404, 450–51; Carter v Hayes (1994) 61 SASR 451 (in which ‘evidentiary value’ was described as being synonymous with ‘legitimate forensic purpose’).

     ↑

198. Alister v R (1984) 154 CLR 404, 414 (Gibbs CJ). See also David Ross, Ross on Crime (Thomson Lawbook, 2nd ed, 2004) 906–7.

     ↑

199. Known as protected confidences in New South Wales and protected communications in South Australia and Western Australia.

     ↑

200. Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32B.

     ↑

201. See Victorian Law Reform Commission, Sexual Offences: Law and Procedure, Final Report (2004) 212; Victoria, Parliamentary Debates, Legislative Assembly, 16 November 2005, 2184 (Rob Hulls). See also Roundtable 9 (Victim support and therapeutic specialists, Shepparton).

     ↑

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

     ↑

203. Ibid s 32C(1).

     ↑

204. Ibid s 32D(1).

     ↑

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

     ↑

206. Victorian Law Reform Commission, Sexual Offences: Law and Procedure, Final Report (2004) [4.71]; Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response, Report 114 (2010) [27.100]; Alicia Jillard, Janet Loughman and Edwina MacDonald, ‘From Pilot Project to Systemic Reform’ (2012) 37(4) Alternative Law Journal 254, 254.

     ↑

207. See, eg, ER v Kahn [2015] NSWCCA 230, [73], per Hall J: ‘Central to the sexual assault communications privilege are the concepts of “confidence” and “counselling”. They arise and apply where a victim or alleged victim of a sexual assault offence has participated in “counselling” provided or conducted by a “counsellor”.’ This judgment affirmed that Family and Community Services documents do not fall within the privilege unless they are specifically counselling records.

     ↑

208. Consultation 27 (Loddon Campaspe Centre Against Sexual Assault).

     ↑

209. Consultation 33 (Women’s Legal Service NSW); Roundtables 3 (Victim support specialists, Geelong), 8 (Metropolitan Centres Against Sexual Assault).

     ↑

210. Consultation 12 (Parent of victims), 19 (Victims of Crime Commissioner, Victoria); 46 (A victim), 47 (Victoria Legal Aid); Roundtable 3 (Victim support specialists, Geelong).

     ↑

211. Submission 14 (Victims of Crime Commissioner, Victoria); Consultation 19 (Victims of Crime Commissioner, Victoria); Roundtable 9 (Victim support and therapeutic specialists, Shepparton).

     ↑

212. Submission 14 (Victims of Crime Commissioner, Victoria); Consultation 19 (Victims of Crime Commissioner, Victoria); Roundtable 9 (Victim support and therapeutic specialists, Shepparton).

     ↑

213. Submission 39 (Safe Steps).

     ↑

214. Health Records Act 2001 (Vic); Health Privacy Principle 1, Health Privacy Principle 2.

     ↑

215. Health Records Act 2001 (Vic) s 3(1) (definitions of ‘health information’, ‘personal information’ and ‘health service’).

     ↑

216. Roundtables 3 (Victim support specialist, Geelong), 8 (Metropolitan Centres Against Sexual Assault), 9 (Victim support and therapeutic specialists, Shepparton).

     ↑

217. Consultation 12 (Parent of a victim); Roundtables 3 (Victim support specialist, Geelong), 8 (Metropolitan Centres Against Sexual Assault), 9 (Victim support and therapeutic specialists, Shepparton). See also Roundtable 11 (Judges of the County Court of Victoria) (expressing concerns about the potential for such records to be misused).

     ↑

218. Submissions 23 (DPP), 25 (Law Institute of Victoria).

     ↑

219. Submission 25 (Law Institute of Victoria).

     ↑

220. Criminal Code, RSC 1985 C–46, s 278.1.

     ↑

221. Ibid ss 278.5(2), 278.7(2)–(3).

     ↑

222. Standing Senate Committee on Legal and Constitutional Affairs, Statutory Review on the Provisions and Operation of the Act to the Criminal Code (Production of Records in Sexual Offence Proceedings): Final Report (December 2012) 13.

     ↑

223. Ibid.

     ↑

224. See generally R v Mills [1999] 3 RCS 668.

     ↑

225. Ibid [89].

     ↑

226. Ibid.

     ↑

227. Ibid [92], citing with approval K Busby, ‘Discriminatory Use of Personal Records in Sexual Violence Cases’ (1997) 9 Canadian Journal of Women and the Law 148, 161–2.

     ↑

228. Consultation 12 (Parent of a victim); Roundtables 8 (Metropolitan Centres Against Sexual Assault), 9 (Victim support and therapeutic specialists, Shepparton).

     ↑

229. Submission 29 (Victorian Bar and Criminal Bar Association); Roundtable 11 (Judges of the County Court of Victoria).

     ↑

230. County Court of Victoria, 2014–15 Annual Report (2015) 23.

     ↑

231. Consultations 32 (Legal Aid NSW), 33 (Women’s Legal Service NSW).

     ↑

232. See Supreme Court of Victoria, Practice Note No 6 of 2014—Criminal Division: Case Management by Post-Committal Directions Hearings (26 September 2014): the court is to be advised within 48 hours of the committal hearing whether there are ‘any subpoena issues’; County Court of Victoria, County Court Criminal Division Practice Note—PNCR 1–2015 (21 October 2015) [2.10], [4.10], [6.5], [21.1–[21.7]. According to the County Court’s Annual Report for 2014–15, the judge administering the list at the Initial Directions Hearing requires applications for confidential communications to be filed within 8 weeks of the committal: 23.

     ↑

233. Submissions 21 (Dianne Hadden), 23 (DPP), 24 (Fiona Tait); Roundtable 3 (Victim support specialists, Geelong).

     ↑

234. Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, Report No 129 (2016) [8.53].

     ↑

235. Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46, [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ).

     ↑

236. Ibid.

     ↑

237. Open Courts Act 2013 (Vic) 18(1)(c) (suppression orders), 30(2)(c) (closed court orders).

     ↑

238. Ibid ss 18(1)(d) (suppression orders), 30(2)(d) (closed court orders).

     ↑

239. Ibid ss 18(1)(e) (suppression orders), 30(2)(e) (closed court orders).

     ↑

240. Ibid s 17.

     ↑

241. Ibid s 30(1).

     ↑

242. Submissions 27 (Supreme Court of Victoria), 40 (Former VOCCC victim representatives).

     ↑

243. Supreme Court of Victoria, Media Policies and Practices (2015) 14; County Court of Victoria, Media Guidelines (March 2015) [22].

     ↑

244. Director of Public Prosecutions Victoria, Director’s Policy: Media (16 November 2015) 4 and [11].

     ↑