12. Victims’ rights in the criminal trial process

Introduction

  1. 12.1 The second half of last century saw both an increasing focus on the dissatisfaction of victims with the operation of criminal justice systems around the world and a realisation by the international community that key human rights instruments did not contain any reference to the rights of victims.1
  2. 12.2 The international community responded with the adoption of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power2 (UN Declaration) by the UN General Assembly in 1985. The UN Declaration contains non-binding minimum standards for the treatment of victims of crime within domestic criminal justice systems. More recent UN documents have emphasised the rights of victims to participate in, and to receive restorative outcomes from, domestic criminal systems.3
  3. 12.3 The principles of the UN Declaration have since been incorporated into Australian domestic law through victims’ rights charters, policies and/or legislation in each state and territory.
  4. 12.4 The first section of this chapter compares victims’ rights found in Victorian legislation and policy and those that exist in other jurisdictions, both in Australia and overseas.
  5. 12.5 The second section examines mechanisms and procedures for the enforcement of victims’ rights and the investigation of breaches. Questions are posed at the end of this chapter. Whether and how rights to participate at various stages of the criminal trial process might be enforced have also been canvassed in previous chapters.
  6. 12.6 In May 2015 the Commission published The Role of Victims of Crime in the Criminal Trial Process Information Paper 4: Victims’ Rights and Human Rights: the International and Domestic Landscape. The Commission recommends reading Information Paper 4 as a companion publication to this chapter.

The breadth and scope of victims’ rights

The <strong_em>Victims’ Charter Act 2006 (Vic)

  1. 12.7 The Victims’ Charter Act 2006 (Vic) (the Charter) sets out non-enforceable principles governing the interaction of Victorian investigating agencies, prosecuting agencies and victims’ services with victims of crime.
  2. 12.8 Investigatory, prosecuting and victims’ service agencies ‘must have regard to the Charter principles when dealing with’ a victim of crime.4 Any person or body responsible for the development of policy or administration of criminal justice or victims’ services must have regard to the Charter principles where relevant.5
  3. 12.9 The Charter principles cover the following:6
  • ensuring respectful, courteous and dignified treatment and the need to be responsive to the particular needs of different victims of crime 7
  • providing information about support services, possible entitlements, legal assistance, the progress of an investigation and prosecution, key prosecutorial decisions, and court processes
  • minimising contact between victims and the accused, the accused’s family and supporters
  • protecting a victim’s personal information from disclosure
  • protecting and returning any property belonging to a victim that is in the possession of an investigatory or prosecutorial agency
  • the right of a victim to provide a victim impact statement in sentencing hearings8
  • the right of victims to apply to the court for compensation directly from an offender, and for eligible victims to apply for state-funded financial assistance9
  • rights relating to bail and parole determinations and the Victims’ Register.10

Victorian prosecutorial policy

  1. 12.10 The policies of the Victorian Director of Public Prosecutions (DPP), particularly Victims and Persons Adversely Affected by Crime11(Victims Policy) reflect the practical application of Charter principles to the day-to-day interactions of Office of Public Prosecutions (OPP) staff with victims. The policy also builds on the statutory obligation on the DPP, Crown Prosecutors, Associate Crown Prosecutors and all OPP staff to ‘ensure that the prosecutorial system gives appropriate consideration to the concerns of the victims of crime’.12
  2. 12.11 Some DPP policy obligations go further than the obligations imposed by the Charter:
  • There is no obligation in the Charter on prosecutors to consult with victims, only an obligation to provide information. In contrast, the DPP’s Victims Policy requires prosecutors to ensure that a victim has been consulted before a decision is made to substantially alter charges, not proceed with some or all charges or accept a guilty plea to a lesser charge.13 While the victim must be consulted, and their views taken into account, their views are not determinative, thereby retaining the primacy of prosecutorial discretion.14
  • The Charter requires only that prosecutors provide victims with information about how to find out about details of a hearing, whereas the Victims Policy requires prosecutors to ensure that a victim is informed of the date, time and location of a contested committal, trial, plea and sentence.15
  • The Charter does not expressly impose an obligation on prosecutors to inform all victims of the right to make a victim impact statement at a sentencing hearing. In contrast, the DPP’s Victims Policy obliges the prosecutor with carriage of a matter to ensure that a victim has been informed of this right.16
  • The Victims Policy contains a clearer obligation on prosecutors to ensure that victims are ‘informed of their possible entitlement to restitution, compensation or financial assistance’.17 The OPP must refer a victim to an appropriate organisation for assistance with compensation or restitution orders or a VOCAT application.18 In contrast, the Charter obligation is a relatively opaque obligation to inform victims about ‘possible entitlements and legal assistance’ and to refer them where appropriate to ‘entities that may provide access to entitlements and legal assistance’.19 ‘Entitlements’ is not defined.

Victims’ rights in other Australian jurisdictions

  1. 12.12 The victims’ rights charters, declarations, principles and guidelines in each Australian jurisdiction are largely analogous with Victoria’s Charter.20
  2. 12.13 The following paragraphs do not set out all of the provisions contained in these documents. Rather, they highlight and discuss differences in approach, rights or obligations which arguably extend beyond Victoria’s provisions.

Information and support

  1. 12.14 South Australia’s declaration of principles imports a timeliness requirement to the provision of information about a victim’s role as a witness, requiring that victims have ‘sufficient time to obtain independent advice, and arrange independent support’.21
  2. 12.15 In Queensland, New South Wales and Western Australia the obligation to provide information about support services and entitlements is more comprehensively detailed to include health, welfare, counselling, medical and/or legal services, and entitlements to compensation and restitution.22 In Western Australia, victims are to be informed about ‘the availability of lawful protection against violence and intimidation by the offender’.23
  3. 12.16 In addition to the obligation to inform victims of support services, the New South Wales Charter requires that victims have access to ‘welfare, health, counselling and legal assistance responsive to the victim’s needs’.24

 

  1. 12.17 Investigatory and prosecutorial agencies are given more specific obligations in the Australian Capital Territory, South Australia and Queensland. In the Australian Capital Territory, victims should be updated about the police investigation at intervals of ‘generally not more than 1 month’.25 In Queensland, victims are to be told about diversionary programs by both police and prosecutors, if they request it.26 Victims in Queensland must also be given reasons for decisions by an investigatory agency not to proceed with a charge, to amend a charge or to accept a plea to a lesser charge, but only if they request it.27
  2. 12.18 Victims in Queensland and South Australia have a right to request that they be provided with the name of an alleged offender.28
  3. 12.19 South Australian victims are to be provided with reasons for specified prosecutorial decisions relating to charging and guilty pleas if they so request.29

Participation through consultation

  1. 12.20 The New South Wales Charter places an obligation on the prosecution to consult with victims of serious crimes involving sexual violence or that caused bodily or psychological harm, before a decision is made to modify charges or to not proceed with charges, including the acceptance of a plea of guilty to a lesser offence.30 In addition, the Crimes (Sentencing Procedure) Act 1999 (NSW) requires prosecutors to provide certification to the court that the victim of any offence has been consulted in relation to ‘charge negotiations’, or reasons for a victim not being consulted.31
  2. 12.21 Victims of serious offences in South Australia also have a right to be consulted before certain prosecutorial decisions are made, such as a decision to charge an offender with a particular offence, to amend a charge or not to proceed with a charge.32
  3. 12.22 South Australian victims are also provided with the right to request, within 10 days, that the prosecution consider an appeal if the victim is dissatisfied with a determination made during criminal proceedings. The prosecution ‘must give due consideration’ to such a request.33

Protection

  1. 12.23 Some jurisdictions provide that victims do not have to appear as witnesses at preliminary or committal hearings unless the court orders otherwise.34
  2. 12.24 South Australia’s principles include a broad privacy protection, requiring that there be ‘no unnecessary intrusion on a victim’s privacy’.35

Compensation and restitution

  1. 12.25 South Australia’s governing principles require that a victim have access to information about how to apply for compensation or restitution. Further, if a prosecutor ‘is empowered to make an application for restitution or compensation’, the prosecutor is required to inform the victim about this and make the application in court on the victim’s behalf if the victim so requests.36

Victims’ rights in overseas jurisdictions

  1. 12.26 The following paragraphs highlight some provisions from victims’ rights instruments outside Australia that are more expansive than Victoria’s Charter. This section is not intended to provide a detailed analysis of the victims’ rights instruments in these countries.

Right to reasons and to have a decision to discontinue a prosecution reviewed

  1. 12.27 The European Union Directive 2012/29/EU37 (EU Directive), which is binding on all EU member states, includes:
  • a right to be provided with reasons for a decision not to prosecute38
  • a right to have a decision not to prosecute reviewed39
  • a right to be informed of the right to seek a review of such a decision.40
  1. 12.28 The right to a review of a decision not to proceed with a prosecution or to discontinue a prosecution also exists in England and Wales. This right can be exercised internally, through the Crown Prosecution Service’s ‘Victims’ Right to Review Scheme’, or externally by way of application to the High Court for judicial review. See Chapter 5 for more detail.

Right to be heard and provide evidence

  1. 12.29 The EU Directive requires member states to ensure victims may be heard and give evidence during criminal proceedings.41 This broadly worded right is capable of diverse application:

this right may range from basic rights to communicate with and supply evidence to a competent authority to more extensive rights such as a right to have evidence taken into account, the right to ensure that certain evidence is recorded, or the right to give evidence during the trial.42

  1. 12.30 The federal Canadian Victims Bill of Rights states that victims have a right to ‘convey their views about decisions to be made by appropriate authorities in the criminal justice system that affect the victim’s rights under this Act and to have those views considered’.43

Right to protection from secondary victimisation and intimidation

  1. 12.31 The EU Directive also provides for a range of rights relating to preventing secondary victimisation, repeat victimisation, intimidation and retaliation, as follows:
  • the provision of advice in relation to risks and prevention44
  • the provision of shelters or safe interim accommodation45
  • measures to safeguard victims during restorative justice processes46
  • measures to mitigate the risk of emotional harm, to protect the dignity of victims when giving evidence and to protect victims from physical harm47
  • the provision of timely assessments of individual protection needs, including alternative arrangements for giving evidence during criminal proceedings.48
  1. 12.32 The Canadian Victims Bill of Rights provides for victims’ security and privacy to be ‘considered by the appropriate judicial authorities in the criminal justice system’.49

Right to legal aid

  1. 12.33 Where a victim is a party to a proceeding, which more commonly occurs in inquisitorial trial systems in Europe, Article 13 of the EU Directive obliges the state to ensure that legal aid is available to victims.50

Realising victims’ rights

General issues with making victims’ rights enforceable

  1. 12.34 Many victims’ rights are directed at changing the way actors in the criminal justice system understand, treat and interact with victims: that is, changing legal culture and practice. The literature suggests that effective oversight or enforcement mechanisms can drive desired changes, and that the threat of sanction encourages a culture of compliance.51 The absence of procedures for enforcement and remedies for non-compliance has been described as rendering victims’ rights ‘illusory’52 and unlikely to lead to change.53 Matthew Hall has suggested that the actors in the criminal justice system would be more likely to give legitimacy to victims’ rights and interests if these rights were enforced within the justice system.54
  2. 12.35 Granting a right to pursue a legal cause of action for breach of victims’ rights has the potential to give victims greater leverage when first lodging a complaint and might provide a path for remedying breaches that are not satisfactorily resolved by way of complaint.55 The threat of legal action may act to deter criminal justice agencies from unjustifiably violating victims’ rights in the first place. Such a result would arguably create a greater culture of compliance.56 The Crime Victims’ Rights Act in the United States is one of the few victims’ rights instruments to provide for any form of legal recourse for breach.
  3. 12.36 Nonetheless, most common law adversarial criminal systems have hesitated to include enforcement mechanisms which would give victims a cause of action for a breach, or have consequences for the conduct of a criminal trial. In Australia, the United Kingdom and Canada, victims’ rights instruments typically contain a section stating that breach of a victims’ right or principle does not establish a legal right or provide grounds for a cause of action.57

 

  1. 12.37 As has been highlighted throughout this consultation paper, making victims’ rights enforceable raises a number of issues:
  • Victims’ rights relate to an individual’s private interest in the criminal proceedings, which can directly challenge the public interest underpinnings of the adversarial criminal justice process.
  • Related to this, the two-party contest between the state prosecutor, representing the harmed society, and the accused, does not easily create space for a third party.
  • Attempts to enforce rights through legal proceedings may disrupt and delay criminal proceedings.
  • If new legal causes of action are created for victims whose rights are violated, legal aid funding may be needed to ensure equity in the realisation of victims’ rights.
  • Different rights might apply differently at different stages of proceedings, requiring various approaches to enforcement.
  1. 12.38 Reflecting these issues, complaints resolution processes have emerged as the more common pathway given to victims to ventilate their grievances. Robust complaints processes, especially where a mechanism for independent review exists, have the potential to provide victims with fairness, transparency and accountability.

Enforcement and investigation in Victoria

  1. 12.39 A breach of the principles in Victoria’s Victims’ Charter Act does not create any legal right or give rise to a cause of action.58
  2. 12.40 The Charter does not include a specific right to make a complaint, but it does require appropriate processes to be established for complaints and for victims to be informed of these processes.59 The Charter does not prescribe a specific complaints process or designate a body to complain to. This can be contrasted to New South Wales and South Australia, where an independent victims’ commissioner can receive and investigate complaints. This is discussed further below.
  3. 12.41 Similarly, compliance with the Charter must be monitored and reviewed, although the regularity and mechanism for this is not stated.60
  4. 12.42 Victims who want to complain about a Charter right not being respected have the option of contacting the Victims’ Charter enquiries and complaints line. Information provided on the Victims Support Agency website states that an enquiries and complaints line officer can mediate between the victim and the agency or person complained about and discuss options for making a more formal complaint.61
  5. 12.43 The OPP Complaints Policy states that complaints relating to the OPP can be made via telephone, post or email and will be dealt with ‘consistently, expeditiously and fairly’.62
    A complaint will be investigated thoroughly if it cannot be resolved immediately. A victim is to be kept informed and notified of an outcome, and can expect his or her privacy to be protected. No further process for handling the complaint is articulated in the policy.

 

  1. 12.44 In October 2014, Mr Greg Davies APM was appointed Victoria’s first Victims of Crime Commissioner. The Commissioner’s role has not yet been finalised.63 One function might be to conduct or coordinate complaint taking, investigation and resolution processes. The following overview of the way in which victims’ commissioners in other Australian states and territories are involved in complaints processes may inform consideration of this proposal.

Victims’ commissioners and complaints processes

New South Wales

  1. 12.45 The Charter of Victims Rights in New South Wales provides for a right to make a complaint.64
  2. 12.46 The Victims Rights and Support Act 2013 (NSW) established the New South Wales Commissioner of Victims Rights as a member of the public service.65 The functions of the Commissioner include:
  • receiving complaints from victims about alleged breaches of the Charter of Victims Rights, using ‘the Commissioner’s best endeavours to resolve the complaints’
  • recommending that agencies apologise to victims of crime for breaches of the Charter of Victims Rights.66
  1. 12.47 The Commissioner is empowered to undertake such inquiries and investigations as considered necessary to advance the exercise of any of their functions.67 The Commissioner can compel the provision of information to the Commissioner’s office, including documentary information, from a person or government agency within a specified timeframe if relevant to the exercise of the Commissioner’s functions.68
  2. 12.48 The Commissioner can also provide a special report to the minister for presentation in Parliament on any matter relating to the Charter of Victims Rights or the Commissioner’s functions, including in relation to any breach of the Charter by an agency.69

South Australia

  1. 12.49 The Victims of Crime Act 2001 (SA) provides for the appointment of an independent Commissioner for Victims’ Rights.70 One of the Commissioner’s functions is to assist victims in their dealings with prosecutors and other government agencies.71
  2. 12.50 As noted in Chapter 5, the Commissioner has the power to compel a public agency or official to consult with the Commissioner ‘to further the interests of’ an individual victim, victims in general or a particular class of victims.72
  3. 12.51 If the Commissioner is satisfied that a public agency or official has failed to comply with the declaration of principles governing the treatment of victims when it would have been practicable to comply, and no apology has been issued or the public agency or official has not dealt with the matter in a satisfactory way, then the Commissioner can recommend in writing that the public agency or official issue a written apology to the victim.73
  4. 12.52 A copy of the Commissioner’s recommendation to the public agency or official must be given to the victim. In exercising these powers, the Commissioner must have regard to the wishes of the victim.74

Australian Capital Territory (ACT)

  1. 12.53 The ACT Victims of Crime Commissioner is also a member of the ACT Victims Advisory Board.75 The ACT Commissioner’s functions include:
  • monitoring and promoting compliance with the governing principles for the treatment of crime victims76
  • ensuring that concerns and formal complaints about non-compliance with the governing principles are responded to ‘promptly and effectively’.77
  1. 12.54 The Victims of Crime Act 1994 (ACT) distinguishes between ‘concerns’ and ‘formal complaints’. If a victim raises a concern with the Commissioner about non-compliance with the governing principles, the Commissioner must try to resolve the concern. In doing so, the Commissioner can request any document or information reasonably required and which could be obtained by the victim, from an agency. The agency must provide the document or information, with the victim’s consent.78
  2. 12.55 Alternatively, a victim may make a formal complaint to the Commissioner about non-compliance with the governing principles. If a formal complaint is made, the Commissioner is required to refer the complaint to a relevant complaints body, such as the human rights commission or the Ombudsman.79
  3. 12.56 The Commissioner may be present at a public or private criminal court hearing in order to exercise the Commissioner’s functions, unless a court orders otherwise.80

Queensland

  1. 12.57 The Queensland victim services coordinator is a member of the public service.81 The functions of the coordinator include:
  • helping government agencies to develop processes for implementing, and complying with, the fundamental principles of justice for victims, and for resolving complaints
  • referring complaints about conduct inconsistent with Queensland’s fundamental principles of justice for victims
  • facilitating the resolution of complaints, but only if provided for under the complaint resolution processes of a government agency.82
  1. 12.58 The coordinator is empowered to do ‘all things necessary or convenient’ in order to perform the above functions.83
  2. 12.59 A victim has a statutory right to make a complaint where the victim believes that a government agency or official has acted inconsistently with the fundamental principles.84 The coordinator appears only to be empowered to deal with a complaint where the government agency has a complaints handling process that includes the victim services coordinator. Otherwise the complaint must be referred by the coordinator to the government agency to deal with.85
  3. 12.60 Where the victim services coordinator is involved in the complaint resolution process, the coordinator’s role is to assist the government agency to meet their responsibilities. It is not the coordinator’s role to oversee the resolution of complaints.86 The 2014 Review of the Victims of Crime Assistance Act 2009: Consultation Paper discussed the possibility of strengthening the Queensland coordinator’s role to permit intervention into complaints, independent investigation or an elevation of the role to that of a Commissioner.87

Enforcement and complaints in other jurisdictions

  1. 12.61 In the United Kingdom, the Code of Practice for Victims of Crime is issued pursuant to the Domestic Violence, Crime and Victims Act 2004 (UK).88 Breaches of the Code do not create legal rights. However, the Code is admissible as evidence and a failure to comply with the Code may be taken into account by a court in criminal or civil proceedings.89 The Code also sets out a complaints process, specifying that complaints may be escalated to the Parliamentary and Health Service Ombudsman.90
  2. 12.62 In the United States, the federal Crime Victims’ Rights Act (CVRA) provides that a victim, or victim’s representative, may assert the rights contained in the CVRA in court.91 If certain rights to be heard are denied, a victim may apply to a higher court for a plea or sentence to be re-opened.92 The CVRA does not confer party or intervener status on victims during the criminal trial process, which means that in practice victims are reliant on prosecutors and judges to uphold their obligations to inform and afford victims their rights.93 The enforceability of the CVRA stems from the right of a victim to seek an order from a district court requiring a CVRA right to be afforded, or to apply to the court of appeals by way of writ of mandamus where the district court is alleged to have denied a CVRA right. This appears to be similar to an application for judicial review in Australia. A practical example of this enforcement mechanism is Kenna v United States District Court,94 where the Court of Appeals upheld a victim’s complaint about not being permitted to speak at a sentencing hearing in a district court when he attempted to assert the CVRA right to be heard. It remitted the matter back to the district court but considered that the only way to give effect to the victim’s right to speak would be to conduct a new sentencing hearing, in which the victim would be provided with his right to be heard.95
  3. 12.63 The recent Canadian Victims Bill of Rights establishes an interpretive obligation, requiring all laws, orders, rules or regulations of Parliament to be ‘construed and applied in a manner that is compatible’ with the rights in the Victims Bill of Rights, ‘[t]o the extent that it is possible to do so’.96 The Victims Bill of Rights prevails where there is inconsistency with most other laws.97
  4. 12.64 The Canadian Victims Bill of Rights grants a right to victims to complain about breaches. It also requires all federal criminal justice agencies to have a ‘complaints mechanism’ for the review of alleged breaches of the Victims Bill of Rights. Such mechanismsmust include the power to make recommendations and an obligation to notify victims of outcomes.98 Victims are not granted party or intervener status in criminal proceedings by the Victims Bill of Rights and are not afforded recourse to the courts for an alleged breach.99

Questions

  1. 55 Could the obligations set out in the Director of Public Prosecutions Victoria’sDirector’s Policy: Victims and Persons Adversely Affected by Crime, particularly obligations to consult, be strengthened by incorporating them into the Victims’ Charter Act 2006 (Vic) or other Victorian legislation?
  2. 56 Should the Victims’ Charter Act 2006 (Vic) be amended to include other rights, or broaden existing rights for victims?
  3. 57 Should victims have a legal right to enforce some or all of the rights contained in the Victims’ Charter Act 2006 (Vic)? If so, how might this be achieved, and in what circumstances?
  4. 58 Should there be a legislatively prescribed process for investigating and resolving complaints about breaches of victims’ rights? If so, what might this process look like? Should the Victims of Crime Commissioner in Victoria have a role in complaints resolution relating to breaches of the Victims’ Charter Act 2006 (Vic)?
  5. 59 What remedies should be available for breach of a victim’s rights?

 

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