2. The history of the common law adversarial criminal trial and the experiences and needs of victims of crime

 

Introduction

  1. 2.1 The form of the adversarial criminal trial has changed considerably over time. These changes have related to shifting ideas about the nature and meaning of crime and what it is that the criminal justice system should achieve for victims, offenders and society generally.1
  2. 2.2 This chapter first outlines the development of the adversarial criminal trial process and the relationship between victims and the state in the common law system that developed in England after the Norman Conquest of 1066. It then provides an overview of the core elements of the modern adversarial criminal trial.
  3. 2.3 Finally, this chapter considers the justice needs of victims of crime and their experience of the modern adversarial trial process.

Understanding crime and public prosecutions

  1. 2.4 The way in which crime is understood is inextricably linked to who is responsible for prosecuting crime and the relative place of victims, offenders and society in the criminal justice system.2
  2. 2.5 There are numerous theories about the meaning of crime, from multiple disciplines. Crime is variously described as:
  • what the law deems as criminal3
  • the ‘legal response to deviance over which the state has the dominant if not exclusive right of action’4
  • conduct that ‘injures or threatens’ the common good5
  • conduct that society finds inherently immoral6
  • a reflection of societal values about appropriate behaviour7
  • a tool of governance8
  • a way to ensure public safety.9
  1. 2.6 While there are important differences between these theories, a common theme is evident: crime is something more than a wrong done or a harm caused to an individual—it has a public or communal element. Crime profoundly affects individual victims, but also has broader adverse impacts for society generally. A crime committed against one individual can lead to fear, concern and apprehension in the general community.
  2. 2.7 Closely linked to the public nature of crime is the broadly accepted ‘general justifying aim’ of the modern criminal justice system as being to control crime by detecting, convicting and sentencing the guilty.10 To achieve that aim, the purpose of the criminal trial is understood as being to establish that the accused committed the crime charged so that punishment can be lawfully imposed.11 It has also been argued that the purposes of the criminal trial process, which encompass the imposition of punishment, are much broader than this, and include important expressive functions. Through public prosecutions, the state affirms the norms and values of society and facilitates the public denunciation and condemnation of conduct deemed criminal.12 In doing so, the public prosecutor, on behalf of the state, plays an important role in helping to bring closure and restoration to the lives of individual victims, and also contributes to the rehabilitation of society more generally.13
  3. 2.8 This public aspect of crime is what justifies its prosecution by the state on behalf of the community, rather than on behalf of the victim.14 According to liberal political theory, the social contract between individuals and the state requires the state to protect society’s individual members.15
  4. 2.9 This is the modern concept of the purpose of the common law adversarial trial. The state’s role in prosecuting crime, and the related purposes of the criminal trial, have not always been understood this way.

The historical development of the common law adversarial criminal trial

Common law jurisdictions

  1. 2.10 The ‘common law’ is a large body of judge-made rules,16 which include rules of evidence and definitions of criminal offences. The common law system of law making developed in England following the Norman Conquest (1066). The basis of this system is that court rulings developed in earlier cases, called precedents, must be applied by courts determining later disputes with similar facts.17
  2. 2.11 Countries with legal systems based on the common law, also known as common law jurisdictions, are generally those countries which were colonised by the British, including Australia, Canada, New Zealand and the United States. Although legislation is replacing judge-made law as the primary source of legal rules in many common law countries, the use of precedent and the centrality of judge-made law remain core elements of common law systems today.18

The history of the adversarial criminal trial

  1. 2.12 A key feature of contemporary common law systems is the adversarial criminal trial.19 This form of criminal trial has been through several different phases since 1066.
Vengeance and retribution
  1. 2.13 Historically, criminal disputes were considered private matters, and their resolution was driven by the need for vengeance or retribution.20 An accused proved their innocence by surviving a physical ordeal, or by producing ‘oath-helpers … to back his denial by their oaths’.21
  2. 2.14 Private settlements, which could involve branding or maiming the offender, or the payment of land or money to the victims, were encouraged as the most appropriate form of dispute resolution.22
  3. 2.15 The role of the state was very limited and ‘the choice to prosecute and the mode of punishment rested with the victim’.23
Private prosecutions and the emergence of official institutions
  1. 2.16 From the mid-1100s onwards, the King’s interest in maintaining peace in England led to increased Crown involvement in the settlement of criminal disputes.24 Certain offences, including homicide, serious offences to the person, robbery, burglary, arson, and trespass, came to be known as breaches of the King’s peace.25
  2. 2.17 The King established a series of official institutions, such as sheriffs and King’s courts.26 Early versions of the modern jury, parish constables and justices of the peace also emerged.27
  3. 2.18 Notwithstanding these developments, the role of laying charges against accused persons and conducting the prosecution was almost exclusively undertaken by the victim or their family until as late as the start of the 1400s.28
  4. 2.19 Between the 1400s and 1700s, royal courts and ‘officers of royal justice’, including justices of the peace, began to exercise increasing influence in conducting investigations and prosecutions. This has been described as one of the most significant developments in the history of the adversarial criminal trial.29
  5. 2.20 Nonetheless, in many cases victims remained responsible for apprehending the offender, filing charges with the magistrate, collecting evidence, organising witnesses, and running the criminal trial, well into the 1700s.30
  6. 2.21 The early criminal trial had a shape unfamiliar to modern common law courtrooms:
  • For trials of more serious offences, the justice of the peace would examine the accused, the victim and witnesses before a grand jury of citizens, which would decide if the matter would proceed to a jury trial before the royal courts.31
  • The trial was often very short, sometimes only 15–20 minutes.
  • The evidence previously heard by the grand jury was read at the trial, followed by the victim telling the jury his or her account of the alleged crime.32
  • The accused would often tell his or her own version of events, in response to the evidence.33
  • The accused was not informed of the charge before it was read to the court, to ‘prevent the fabrication of a defence’; was usually detained before trial; and had no means to compel the attendance of witnesses.34
  • The victim did not have to prove their case beyond reasonable doubt, there were few restrictions on what evidence and witness testimony could be admitted, and it is unlikely there was a presumption of innocence.35
  • Jurors questioned witnesses, the accused and the judge, and sometimes asked for witnesses to be called to give evidence.36
  • Judges frequently questioned the accused and witnesses, intervened in the presentation of the evidence and were known to challenge the jury’s findings and verdict.37
  • At the conclusion of the trial, the jury was responsible for delivering a verdict.
  1. 2.22 A key feature of these trials was that the accused was forbidden from being represented by a lawyer. Rather, judges were expected to protect the interests of the accused by highlighting weaknesses in the prosecution case and ensuring questions remained relevant. However, judges often failed to perform this role.38 Victims, while permitted to engage a lawyer, rarely did so.39

Transformation to the modern adversarial criminal trial

  1. 2.23 A series of developments linked generally to the need for greater crime control led to the modern form of public prosecutions, in which considerable emphasis is placed on the rights of the accused, and the victim is a witness not a prosecutor.
Crime control, fair trials and public prosecutions
  1. 2.24 The industrial revolution and the corresponding growth in urban populations (particularly around London) led to a rise in crime during the 1700s.40
  2. 2.25 Informal associations for the prosecution of criminals became common. Members paid to join, and then shared the costs of conducting investigations and prosecutions, frequently engaging lawyers to carry out these tasks.41 Victims, particularly institutional victims such as banks, the post office and state-run organisations, also began to use lawyers to conduct trials.42 In contrast, defence lawyers remained forbidden, apart from on behalf of individuals charged with treason.43
  3. 2.26 From the mid-1700s, the government began to offer rewards and incentives for the apprehension and prosecution of criminals. The outcome was a sharp increase in ‘false witnessing and false prosecution’ and related miscarriages of justice.44
  4. 2.27 The early 1800s saw the establishment of a police force organised and run by the state. The police force was more efficient than individual victims at gathering evidence against the accused, including forensic and expert witnesses. However, police often failed to assess the reliability or credibility of the evidence they gathered, which also led to miscarriages of justice.45
  5. 2.28 Concurrently, accused persons were regularly imprisoned before trial with little opportunity or capacity to prepare a defence; they were not advised prior to trial of the evidence against them; they had no ability to subpoena witnesses; and in most cases were poor, illiterate and incapable of preparing a proper defence.46
  6. 2.29 Consequently, the form and conduct of criminal trials changed to address the disadvantaged position of the accused. Most notably, from the 1730s onwards judges began to permit the accused to be represented by a lawyer.47 All restrictions on the presence of defence lawyers were formally lifted in 1836.48 This contributed to the development of evidentiary rules and the modern style of cross-examination. Judges became ‘neutral arbitrator[s]’ of an adversarial contest between the prosecution and the accused’s lawyer; juries become passive observers; and lawyers for accused persons advised their clients to remain silent at trial hearings, obliging the prosecution to prove its case.49
  7. 2.30 Private prosecutions by victims gradually lost prominence. By the 1850s, most offences were prosecuted on behalf of victims by the police. The first Director of Public Prosecutions (DPP) for England and Wales was appointed in 1879, with a very limited role.50 It was not until 1985 that England established the Crown Prosecution Service, which together with the DPP, is now responsible for prosecuting criminal cases investigated by police in England and Wales on behalf of the state.51
  8. 2.31 The role of the Victorian DPP and Office of Public Prosecutions in prosecuting criminal matters in Victoria is considered in Part Two.

The modern common law adversarial criminal trial process

  1. 2.32 While modern adversarial trial procedures are not uniform across the common law world, they share core elements:52
  • The trial is a contest between the prosecution, acting as the state’s representative, and the accused.
  • The role of the victim is that of a witness for the prosecution.
  • The trial must accord with the principles of a fair trial, which include:53
  • - The accused has a presumption of innocence and the right to silence.
  • - The prosecution has the burden of proving guilt beyond reasonable doubt.
  • - The accused has the right to examine witnesses.
  • - The prosecution must disclose all evidence for and against the accused.
  • - The trial should be conducted without unreasonable delay.
  • - If an accused is charged with a serious offence and cannot afford a lawyer, the accused should be provided with one by the state.
  • The prosecution and the defence decide how their respective cases will be conducted, and define the issues for the jury to consider.
  • The judge plays a relatively passive role. The judge is not involved in investigating the alleged crime, deciding what charge(s) are filed against the accused, or how the prosecution or defence cases are conducted during the trial, except to ensure that the rules of evidence and procedure are followed.
  • The case is presented primarily by witnesses giving live oral evidence in court and being subject to cross-examination.
  • After the prosecution and the defence have presented their cases, the judge gives the jury instructions about the law to be applied to the evidence and their deliberations on the verdict.
  • The jury, after hearing all the evidence and the judge’s instructions, determines whether the prosecution has proven beyond reasonable doubt that the accused committed the crime. In coming to a verdict of guilty or not guilty, the jury must rely only on the evidence presented in court.
  1. 2.33 The particular procedures adopted at each stage of the criminal trial process in Victoria are considered in detail in Part Two of this consultation paper.
The place of the victim
  1. 2.34 Ultimately, the victim in the modern adversarial criminal trial has been described as ‘evidentiary cannon fodder, of witness or claimant, not of citizen with participatory rights and obligations’.54
  2. 2.35 Who then are victims of crime, what are their experiences, and what do victims need from the criminal justice system?

Victims and the criminal justice system

Victimisation—the data

  1. 2.36 During the 2014 calendar year, 205,913 people and 73,078 businesses or organisations in Victoria reported to the police that they had been the victim of one or more crimes.55 The age group most likely to report an experience of victimisation were those aged between
    25 and 29.56
  2. 2.37 There were 54,002 individuals who reported being the victim of a crime against the person, compared to 151,191 who reported being the victim of property crime.57
  3. 2.38 Just over half of all victims of crime were male (55.4 per cent).58 However, there was a greater proportion of female victims of crimes against the person, and significantly more male victims of property and deception offences.59
  4. 2.39 The most prevalent crime against the person was non-sexual assault. In Victoria, men were slightly more likely than women to be victims of such assaults.60
  5. 2.40 Eighty per cent of Victorian sexual assault victims were female. Females were also more likely than males to be victims of abduction, stalking, harassment and intimidation offences.61
  6. 2.41 Australian Bureau of Statistics data indicate that male victims of assault are less likely to know their assailant than are female assault victims. Eighty per cent of women physically assaulted in 2013–14 were assaulted by someone that they knew, most commonly an intimate partner or family member.62 Similar statistics exist in relation to face-to-face threatened assault,63 homicide64 and sexual offences.65 This is not surprising in light of the fact that women are disproportionately victims of family violence offences.66 The majority of sexual and family violence offenders are male.67
  7. 2.42 Individuals from disadvantaged or marginalised communities may have an increased likelihood of being offended against, and may also be vulnerable to certain types of offending.68
  8. 2.43 Disadvantaged and marginalised groups often also face greater barriers when seeking to access the criminal justice system. Research in relation to the victimisation of particular groups has been limited. Those studies that have been conducted show increased risk of criminal victimisation and/or greater barriers to justice for individuals who are homeless, of Aboriginal or Torres Strait Islander background, from a culturally or linguistically diverse background or who have a mental illness or disability.69
  9. 2.44 Children and young people also experience special difficulties in the criminal justice system, by reason of their age and related vulnerability.
  10. 2.45 Crime occurs to and within communities. Risk of criminal victimisation is usually dependent upon a ‘confluence of several risk factors’.70 For example, in 2005 the Australian Institute of Criminology published a report analysing key results of the 2004 International Crime Victimisation Survey, which identified people with the following characteristics as being at higher risk of being a victim of personal crime:
  • not being married
  • relatively higher incomes
  • residing at a postcode for less than one year
  • unemployment, or
  • an active lifestyle outside home in the evenings.71

 

The diverse impacts of crime

  1. 2.46 The experiences and needs of victims will vary depending on personal factors such as age, gender, ethnicity, socio-economic status and health; the type of crime; the seriousness of the crime; the victim’s relationship with the offender; and the victim’s interactions with authorities. The Australian Institute of Criminology has noted:

the impact of crime victimisation varies with the individual. It can be short- or long-lasting; some may find the psychological impact hardest; for others it may be the physical injuries. Research continues to prove that each victim will react differently according to their life experience.72

  1. 2.47 The most common effects of crime on victims include shock, a loss of trust in society, guilt, physical injury, financial loss, psychological injury, behavioural change and responses related to a perceived risk of future victimisation.73 There is little doubt that the ‘effects of crime are pervasive and deleterious to the victims’ emotional health’.74
  2. 2.48 Research indicates that:
  • An emotional reaction to being victimised occurs in the majority of victims.75
  • Longer-term impacts are experienced by victims of severe sexual assaults, and to a lesser extent, physical assaults.76
  • Sexual assault can lead to feelings of guilt, self-blame and unworthiness, as well as contributing to low reporting of sexual offences to police.77
  • More serious or violent offences are more likely to cause higher levels of emotional stress and long-lasting psychological, social and physical impacts, while financial and property loss are more typically short-term experiences.78
  • Victims of physical or threatened violence and/or attempted break-in tend to have poorer social wellbeing outcomes than people who have not experienced those crimes, for example feeling less safe at home.79
  • Although property crimes (particularly non-violent property crimes) typically result in less severe and long-term effects than violent personal crimes, victims of property crimes do suffer emotional, psychological and physical health impacts.80
  1. 2.49 There is limited research comparing the experiences of victimisation across victims of different social categories, or across different types of crime. Nevertheless, research shows that the effects of crime may compound, and be compounded by, the vulnerability of individuals already experiencing disadvantage or marginalisation. For example, a ‘convergence of factors increases the risk of physical and sexual violence for women’ from culturally and linguistically diverse backgrounds, including recently arrived refugees.81 For refugee women in particular, the impact of crime may be more complex by reason of their earlier traumatic experiences.82 Family violence is one of the leading causes of homelessness for women, and once homeless, there is an increased risk of being a victim of crime.83

Victims and the adversarial trial process

  1. 2.50 At its worst, the adversarial criminal trial process is experienced by victims as secondary victimisation,84 causing negative psychological consequences that can be distinguished from, and compound, the trauma of the original event.85 Judith Herman, an expert in traumatic stress, has observed that:

if one set out intentionally to design a system for provoking symptoms of traumatic stress, it might look very much like a court of law.86

  1. 2.51 Some victims of crime do have positive experiences in their interaction with criminal justice system agencies and officials. However, research from around the world over the last three decades has consistently reported victim dissatisfaction with some or all of the processes, actors and institutions making up the criminal justice system.87
  2. 2.52 Much of the research into the justice experiences and needs of victims has focused on victims of sexual offences. This may reflect the more severe and longer-term impact of these types of crimes on the victims. It may also reflect that sexual offence cases are more likely to go to trial than cases for other offences. Recent County Court statistics illustrate this point: there were 358 trials in the County Court of Victoria in 2013–14, and 40 per cent of those trials were for sexual offences. While overall 71 per cent of cases in the County Court resolved as a plea of guilty without a trial, only 44 per cent of sexual offence matters resolved as a plea of guilty.88
  3. 2.53 There have been significant innovations and reforms to the criminal trial process in Victoria and other common law jurisdictions. These reforms have mostly focused on vulnerable victims, primarily children and victims with cognitive impairments, and victims of serious and sexual offences. They will be considered throughout Part Two of this consultation paper.

Victims’ experience and justice needs

  1. 2.54 The following section provides an outline of victims’ experience of the adversarial trial process and victims’ justice needs. The Commission encourages readers to refer to information paper 2, Who Are Victims of Crime and What Are Their Criminal Justice Needs and Experiences? published in May 2015, as a companion document to this section.
  2. 2.55 It is often said that victims want justice. But justice is a contested and contextual concept, shaped at a community level by culture, history, geography and resources, and at the individual level by the experiences, social situation and personalities of the people involved.89 Justice means different things to different people.
  3. 2.56 Understanding the justice needs of victims of crime is important. If victims’ needs can be better satisfied by the criminal justice system, confidence in the criminal justice system should improve, and this may encourage victims to report crime and cooperate with justice agencies in order to bring offenders to account.90
  4. 2.57 Justice as a concept can be broken into two interrelated aspects:
  • procedural justice (or procedural fairness)91
  • distributive justice (or substantive justice).

Procedural justice

  1. 2.58 Procedural justice is concerned with the quality of an individual’s experience of the processes that result in the ultimate outcome. Research indicates that victims of crime are more likely to consider an outcome fair and the system legitimate if the processes leading to that outcome are perceived to be fair.92
  2. 2.59 While there is need for caution when generalising about victims, studies suggest that the central ideas of procedural justice can be seen across highly diverse social environments.93
  3. 2.60 The procedural justice needs of victims which emerge from research are captured by the following three categories:
  • participation and voice
  • information and support
  • trust, neutrality and respectful treatment.94
Participation and voice
  1. 2.61 The passive role allocated to victims in adversarial trial processes can lead to feelings of frustration and alienation.95 This in turn can exacerbate the traumatic impact of the crime itself.
  2. 2.62 A particular focus of research has been victims’ exclusion from participating in, or contributing to, prosecutorial decisions, particularly in relation to decisions to discontinue a prosecution or to accept a plea of guilty to lesser charges. Studies have reported victim dissatisfaction with their inability to give directions to a prosecutor and with a perceived lack of transparency in the prosecutorial decision-making process.96
  3. 2.63 While many victims want the opportunity to have input into the decision-making process, they do not necessarily want the burden of responsibility for making the ultimate decision.97 For example, a small study of sexual assault victims from Victoria found that these victims instead sought participation through strong representation of their interests throughout the stages of the criminal trial process.98
  4. 2.64 Research also reveals that many victims feel that their role as a witness simultaneously requires them to re-live the trauma of the crime, while denying them the ability to voice the circumstances and impact of the crime in a way that is meaningful for them.99
  5. 2.65 Just retelling a traumatic event can be a traumatising experience.100 Victims have described the process of giving evidence as humiliating, degrading and manipulative, and as adding to the trauma of the original crime.101 The public nature of a criminal trial; the focus on what happened instead of the impact; aggressive cross-examination techniques;and rules of evidence that restrict the way in which a victim can communicate have all been identified as contributing to victims’ distress and frustration.102
  6. 2.66 It has therefore been argued that reforms to the criminal justice system should be aimed at providing options for victims to give a full account of what happened to them in a supportive environment.103
Information and support
  1. 2.67 The provision of timely, accessible and accurate information to victims about criminal procedures, sources of support and the status of their case is consistently identified in the research as one means to remedy victim dissatisfaction.104
  2. 2.68 Ensuring victims are informed sends a message that their experience of victimisation has not been forgotten in the criminal trial process. Accurate information also helps manage victims’ expectations by setting out the reality of the victim’s role within the criminal trial process.105
Trust, neutrality and respectful treatment
  1. 2.69 Individuals are likely to be more satisfied with the outcome of the court process if they are treated with respect and dignity, and if they see the actors in the system as carrying out their roles impartially and fairly.106 Fair dealings promote trust, address feelings of uncertainty and encourage positive perceptions of the system.107
  2. 2.70 In contrast, insensitive, infrequent or dismissive interactions may leave victims feeling that they are of lesser value in the system, that they have not been believed or that their victimisation is of minimal concern.108
  3. 2.71 The distress associated with giving evidence in court, particularly cross-examination, has been well documented. The experience can also undermine trust in the decision-making process by leaving victims feeling that the information on which a decision will be based has been rendered inaccurate by the questions used to obtain the evidence.109
  4. 2.72 Research suggests that victims of sexual assault in particular are likely to place emphasis on respectful and dignified treatment by authorities as a way of counteracting negative stereotypes, which still influence society’s response to sexual assault victimisation.110

Distributive justice

  1. 2.73 Distributive justice is concerned with the perception of justice arising from outcomes, such as a plea settlement, jury verdict, sentencing determination or award of compensation.
  2. 2.74 For some victims, the outcome of the trial process will be the major determinant of their satisfaction with the criminal justice system, even where procedures have been fair.111
  3. 2.75 The research suggests that, broadly speaking, victims seek distributive justice in the
    form of:
  • punishment and retribution
  • deterrence, protection and community safety
  • material and emotional restoration (including validation and denunciation).
Punishment and retribution
  1. 2.76 Retributive punishment refers to punishment as an end in itself. It is typically reflected in the imposition of a sentence that is proportionate to the gravity of the crime.
  2. 2.77 Retributive punishment is undoubtedly sought by some victims. However, for other victims, retribution is a lower priority than community acknowledgment and denunciation, public safety, emotional reparation and compensation.112
  3. 2.78 The level of retribution sought may vary depending on factors such as severity of offence, perceptions of immorality and the relationship between the victim and the offender.113
Deterrence, protection and community safety
  1. 2.79 Some victims want an offender to face a prison sentence as a way of making them understand the gravity of the wrong committed, thus deterring future crime and protecting others from harm. Other victims may seek such an outcome through offender rehabilitation in addition, or as an alternative, to prison.114
  2. 2.80 Victims of violent offences (including family violence and sexual assault) have been reported as particularly concerned about their immediate personal safety and the protection of others. This is often a key motivation for these victims wanting an offender to serve a custodial sentence.115
Material and emotional restoration
  1. 2.81 Restoration (or reparation) is a broad term that is generally understood to include any attempt, whether financial, practical or emotional, to make good a wrong.
  2. 2.82 Research indicates that some victims place value on what offenders can do by way of practical or emotional restoration, rather than the amount of money that offenders can afford to pay to them.116
  3. 2.83 In relation to financial restoration, it has been suggested that victims may prefer compensation from an offender rather than state-funded compensation, even though it is likely to be limited, because it links offender recognition with the harm caused.117
  4. 2.84 Emotional restoration may be facilitated by processes which:
  • allow for the offender to make an apology118
  • require an offender to understand the harm caused to the victim
  • facilitate the demonstration of remorse by an offender
  • see an offender, family and/or community members validate a victim’s experience and denounce the offender’s actions
  • allow an offender to demonstrate rehabilitation.119
  1. 2.85 A guilty plea or verdict or an award of compensation may ultimately be necessary for some victims to feel that validation and denunciation have truly occurred, particularly in the context of sexual assault or family violence.120

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