5. The role of victims in the decision to prosecute

Introduction

  1. 5.1 This chapter is concerned with the role of victims in the decision to prosecute. A lack of involvement in, and understanding of, a decision of the prosecutor not to proceed with a prosecution or to accept a plea of guilty to lesser charges may be a particular source of concern for victims.1
  2. 5.2 The role of victims in the decision to prosecute is inherently linked to the role and duties of the prosecutor. As such, this chapter considers the role and responsibilities of the Director of Public Prosecutions (DPP), before turning to two key prosecutorial decisions:
  • whether to continue or discontinue a prosecution
  • whether to negotiate a plea settlement with the accused rather than continue to trial.
  1. 5.3 In respect of these key prosecutorial decisions, this chapter examines the current system in Victoria and how the victim is incorporated in other jurisdictions, and considers some options for reform.
  2. 5.4 Although there are other stages in the criminal trial process at which the prosecutor is required to make important decisions, the victim’s role in respect of these decisions is covered in later chapters. The prosecutor’s duties and relationship with a victim are central to analysing the role of victims at every stage of the trial process.

The current system in Victoria

Reporting the crime

  1. 5.5 Generally, victims of crime have a choice about whether to report a crime to police, and following a report, whether to make a statement to police. As stated in [1.11], some victims may have been discouraged or impeded in exercising those choices, including by family members and other community members. Further, the attitudes of those to whom an offence is reported can significantly impact on the decision making of victims.
  2. 5.6 Victims do not have the power to decide whether an alleged offender is charged by the police with a criminal offence.
  3. 5.7 The decision to charge an accused and then proceed to prosecution has significant ramifications for victims. Where charges are not filed or a prosecution is discontinued, victims may be left without any avenue to have their justice needs fulfilled. On the other hand, if a prosecution proceeds against the wishes of victims, their personal interests are secondary to the public interest in the state prosecuting and punishing criminal activity.

Filing charges

  1. 5.8 Although victims have the power to commence and conduct a private prosecution, in practice the decision to charge is made by the police, sometimes after obtaining advice from the Office of Public Prosecutions (OPP).2 Although victims’ views may be considered, the decision to charge a suspect is based on an assessment of the evidence, the law and the public interest.
  2. 5.9 If the police decide to charge a suspect, the victim’s journey through the criminal court process begins. The law governing this process is primarily set out in the Criminal Procedure Act 2009 (Vic).
  3. 5.10 There are three ways to commence a criminal prosecution:
  • Filing a charge with the Magistrates’ Court.3 While any individual may act as an informant and file a charge, in Victoria charges are almost always filed by police officers or other public officials.4
  • Filing a direct indictment in the Supreme or County Court.5 This may only be done by the DPP or Crown Prosecutor,6 and most commonly occurs after an accused has been discharged at the end of committal proceedings.
  • A direction by a judge that a person be tried for perjury.7
  1. 5.11 Criminal cases are dealt with in the Magistrates’ Court by way of summary procedure or
    committal proceedings.8

Summary procedure

  1. 5.12 Summary offences, and indictable offences that are able to be determined summarily, are prosecuted by Victoria Police prosecutors by way of summary procedure.9 The entire proceedings are conducted in the Magistrates’ Court. As noted in Chapter 1, summary proceedings are beyond the Commission’s terms of reference.

Committal proceedings

  1. 5.13 Serious indictable offences progress through the Magistrates’ Court by way of a committal proceeding. At the conclusion of the committal proceeding the magistrate will either:
  • discharge the accused for lack of evidence
  • commit the accused to stand trial.10
  1. 5.14 If an accused is committed for trial, the case must be transferred to the Supreme Court or County Court. The DPP decides which court the trial should be heard in by filing an indictment (the document containing the charges against the accused) in that court.11
  2. 5.15 When deciding in which court to file the indictment, the DPP must have regard to a number of matters, including the complexity of the case, the seriousness of the alleged offence and any particular importance attaching to the case.12
  3. 5.16 The Criminal Procedure Act does not provide a role for victims in any of these processes (save for potentially as a witness at the committal hearing). Chapter 6 considers committal proceedings and the role of victims in more detail. The role of victims in the trial is covered by Chapter 8.

The Director of Public Prosecutions (DPP)

  1. 5.17 The Victorian DPP is responsible, on behalf of the state, for the prosecution of indictable offences, including the committal hearing, trial, plea negotiation, sentencing hearing and any subsequent appeal.13
  2. 5.18 The DPP is supported by the Office of Public Prosecutions (OPP). Lawyers working for the OPP represent the DPP and take over the prosecution of indictable offences from the police at the first hearing in the Magistrates’ Court after the charge is filed (called a filing hearing). The DPP may take over the prosecution of any summary or indictable offence, including where a private individual has filed a charge in the Magistrates’ Court.14
  3. 5.19 Lawyers at the OPP prepare cases for committal, trial or sentencing hearing. OPP lawyers brief either Crown Prosecutors or private barristers to conduct the prosecution in court on behalf of the DPP. Crown Prosecutors are barristers whose functions are set down in the Public Prosecutions Act 1994 (Vic). They are briefed by OPP solicitors in the most serious and complex cases. They have delegated authority from the DPP to make decisions about whether to accept a plea of guilty as part of plea negotiations.15 The Chief Crown Prosecutor and Senior Crown Prosecutors are also delegated the power to discontinue a prosecution.16

Prosecutorial duties

  1. 5.20 The DPP must maintain independence from all other participants in the criminal justice systemand is obliged to act in the public interest.17 These obligations flow to Crown Prosecutors, solicitors and private barristers briefed by the DPP. It is often said that a prosecutor’s role is that of a ‘minister of justice’.18
  2. 5.21 The DPP has emphasised that:

Prosecutors represent the DPP, not the government, the police, the victim, or any other person. The DPP represents the Crown and acts in the public interest.19

  1. 5.22 As noted in Chapter 2, that the prosecutor is not the victim’s lawyer is often cited as a cause of victims’ dissatisfaction with the criminal justice system.20
  2. 5.23 Although the DPP does not represent victims, the DPP does have a statutory obligation to ‘ensure that the prosecutorial system gives appropriate consideration to the concerns of the victims of crime’.21
  3. 5.24 OPP staff and lawyers have a number of professional obligations to victims, which include:
  • ensuring that victims are treated with dignity and respect
  • consulting with victims about certain decisions
  • referring victims to support services
  • informing victims about court processes and the status of their case
  • informing victims about the right to provide a victim impact statement
  • informing victims about possible entitlements to compensation, restitution and financial assistance.22
  1. 5.25 No Australian jurisdiction, including Victoria, gives victims the right to commence legal proceedings against a prosecutor for failing to fulfil his or her obligations.23
  2. 5.26 The DPP and all prosecutors are also obliged by legislation to have regard to ‘considerations of justice and fairness’, and ‘the need to conduct prosecutions in an effective, economic and efficient manner’.24 Prosecutors are officers of the court and must act fairly in the way they conduct the trial.25 This includes complying with ongoing disclosure obligations.26

The role of victims in the decision to continue or discontinue a prosecution

  1. 5.27 Whether or not to continue with an indictable prosecution once proceedings have been commenced is a decision that rests with the DPP. It is a decision that is subject to constant re-evaluation throughout the criminal trial process.
  2. 5.28 In some circumstances, the DPP will decide not to continue a prosecution after the committal hearing. In 2013–14 there were 198 cases where an accused was committed for trial in the County Court of Victoria but the prosecution was discontinued before the trial commenced.27 In addition, where a jury has been unable to reach a verdict, or an accused has successfully appealed a conviction, the DPP has to decide whether to continue the prosecution in front of a new jury.28
  3. 5.29 The DPP has two criteria that must be met before deciding to continue a prosecution:
  • there is a reasonable prospect of a conviction
  • the prosecution is in the public interest.29

 

Reasonable prospect of conviction

  1. 5.30 In assessing whether there is a reasonable prospect of conviction, prosecutors must have regard to a range of matters, including:
  • the availability, competence and compellability of witnesses
  • the credibility and reliability of witnesses
  • how witnesses are likely to stand up to giving evidence in court
  • whether there is any reason to suspect that a witness has concocted a false story
  • whether there is other admissible and reliable evidence, such as medical evidence
  • possible arguments that the defence may advance.30

Public interest

  1. 5.31 Whether the prosecution is in the public interest is the dominant consideration in the decision to continue or discontinue a prosecution.31 The DPP’s prosecutorial discretion policy lists a range of public interest factors to be taken into account, including:
  • the seriousness of the offence, including whether it can only be tried on indictment
  • the personal circumstances of the victim and offender, including any particular vulnerability of the victim
  • the prevalence of the offence and the need for deterrence
  • the availability of alternatives to prosecution
  • whether the alleged offence is of particular public concern
  • any entitlement of the victim to compensation, reparation or forfeiture if prosecution action is taken
  • the attitude of the victim to a prosecution.32
  1. 5.32 A prosecution may be discontinued by the Director at any time during proceedings, except during a trial.33 The Victims’ Charter Act 2006 (Vic) requires the prosecution to inform a victim as soon as reasonably practicable of a decision to discontinue.34 However, the DPP’s prosecutorial discretion policy goes further and requires that:

The views of the informant and victims should be sought and recorded before a discontinuance is filed. Their views should be taken into account but are not determinative. The informant and victims should be informed of the decision to enter a discontinuance before it is publicly announced.35

Internal review of the decision to discontinue a prosecution

  1. 5.33 Prosecutors must seek authorisation from the DPP to discontinue a prosecution.36
  2. 5.34 The OPP Complaints Policy permits complaints from victims dissatisfied with a decision not to proceed with a prosecution. However, there is no publicly accessible DPP or OPP policy that sets out a process for internal review or the handling of a complaint seeking reconsideration of a decision to discontinue a prosecution.37
  3. 5.35 The Director may provide a victim with reasons for a decision to discontinue if requested in accordance with the policy The Giving of Reasons for Discretionary Decisions.38
  4. 5.36 The DPP may give advice to another agency about whether a prosecution should go ahead. For example, if a person believes that an offence under the Occupational Health and Safety Act 2004 (Vic) has been committed, they may request that the Victorian Workcover Authority bring a prosecution. If the Authority decides not to prosecute, the person may ask for the matter to be referred to the DPP for advice about whether there should be a prosecution. That advice must be provided to the person, as well as reasons why the Authority has not followed the DPP’s advice (if that is the situation).39

Judicial review of the decision to discontinue a prosecution

  1. 5.37 Most DPP discretionary decisions are immune from review by the courts.40 In Maxwell v The Queen41 Justices Gaudron and Gummow confirmed that certain decisions of the DPP are not able to be challenged through the courts, including decisions to proceed or not proceed with a prosecution. They stated:

The integrity of the judicial process—particularly, its independence and impartiality and the public perception thereof—would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.42

  1. 5.38 After citing this passage with approval, the joint judgment of Justices Gummow, Hayne, Crennan, Kiefel and Bell in Likiardopoulos v The Queen43 confirms that:

sanctions available to enforce well established standards of prosecutorial fairness are to be found mainly in the powers of a trial judge and are not directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or an action for damages.44

  1. 5.39 In Maxwell v The Queen, Justices Gaudron and Gummow noted that the line of authority on which they were relying was based on the view that the discretion of the DPP was part of the prerogative of the Crown, and ‘may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute’.45 This point was picked up by Chief Justice French in Likiardopoulos v The Queen, who raised the possibility that a prosecutor’s exercise of statutory power may be open to judicial review.46

The role of victims in the plea negotiation process

  1. 5.40 In Victoria, as in other common law adversarial jurisdictions, the plea negotiation process between the prosecution and the accused can occur in a range of circumstances and for a range of reasons.
  2. 5.41 Indictments often contain multiple charges of varying degrees of seriousness, sometimes expressed as alternative charges.47 Commonly, the accused will negotiate with the prosecution, offering to plead guilty to an offence with a lower penalty if the more serious offence is discontinued, or to plead guilty to the more serious charge if an agreement can be reached about the facts on which the plea is based.
  3. 5.42 There may be an evidentiary problem that will make it difficult for the prosecution to prove a necessary element of an offence, a legal issue that undermines the strength of the prosecution case, an issue with the availability, reliability or credibility of crucial prosecution witnesses, or some matter in the public interest that makes resolution of the matter following negotiations an appropriate course to take (rather than proceeding to trial).
  4. 5.43 The Victims’ Charter Act 2006 (Vic) requires prosecutors to inform victims about a decision to:
  • accept a plea of guilty to a lesser offence
  • substantially alter charges
  • not proceed with some or all charges.48
  1. 5.44 However, these obligations are not enforceable, and only require the victim be informed of the decision after it has been made. There is no statutory requirement for the victim to be involved in the process leading to the plea agreement.
  2. 5.45 The DPP’s policy on resolution states that when considering a plea of guilty, a prosecutor must have regard to the views of victims, among other matters.49 In addition, a prosecutor ‘should consult the victims and the informant prior to the resolution of a prosecution by a plea of guilty to lesser charges’.50 The views of the victim are to be taken into account but are not determinative.51 Victims must be informed if a prosecution resolves in a plea of guilty, ‘regardless of whether the plea of guilty is to lesser charges’.52
  3. 5.46 Victims cannot enforce obligations set out in prosecution guidelines. While victims can complain about a lack of consultation in accordance with the OPP Complaints Policy, there are no implications for the subsequent sentencing proceedings if there has been a lack of consultation with a victim prior to the agreement to accept a plea settlement.53

Alternative processes and procedures

Victims’ involvement in the decision to continue or discontinue a prosecution

  1. 5.47 The role of the prosecutor in other Australian jurisdictions, including obligations and responsibilities to victims, resembles that of Victoria. The purpose of this section is to outline alternative procedures in other jurisdictions that enhance the victims’ role in prosecutorial decision making.

United States

  1. 5.48 The Crime Victims’ Rights Act (CVRA) of 200454 applies to all federal matters in the United States.
  2. 5.49 The CVRA provides for a ‘reasonable right to confer with the attorney for the Government in the case’.55 Although prosecutors must confer, they retain control over the ultimate decision.56
  3. 5.50 Victims are able to assert this right with or without a lawyer in a district court.57 However they are not granted independent legal standing in the criminal proceedings.
  4. 5.51 In United States of America v Heaton,58 the District Court of Utah refused to consider an application by a prosecutor for a charge against an accused to be dropped until the prosecutor was in a position to ‘recount that the victim has been consulted … and what the victim’s views were on the matter’.59 The judges relied on the right of victims under the CVRA to be treated with fairness and respect for dignity, which it considered could only be satisfied if the judges ensured that it had heard the victim’s views on the dismissal application.60 The right of victims to confer with the prosecutor was viewed as a ‘convenient mechanism’ for the judges to be informed of the victim’s views.61

Civil law inquisitorial trial systems

  1. 5.52 Although there is not a wealth of information available in English regarding prosecutorial decision making in inquisitorial criminal justice systems,62 the available material has allowed for a review of the law and practice in France, Germany, the Netherlands and Sweden.63
  2. 5.53 It is important to recall that civil law jurisdictions and common law jurisdictions have a fundamentally different approach to criminal prosecutions, both in principle and practice. Centrally, the inquisitorial system merges prosecution with investigation, rendering a direct comparison of inquisitorial and adversarial procedures difficult. There is also variation in principle and practice between different civil law inquisitorial jurisdictions, which can be seen in the differing implementation of the two key principles underlying the decision to prosecute in civil law systems: the principle of legality64 and the principle of expediency.65
  3. 5.54 France and the Netherlands66 both follow the principle of expediency, under which prosecutors are permitted to exercise discretion over whether to commence a prosecution, based on a variety of public interest factors.67The public interest may include victims’ interests, although this is a matter for guidelines in each jurisdiction.68
  4. 5.55 In contrast, Sweden and Germany operate under the principle of legality, where prosecution is mandatory if there is sufficient evidence.69 Nonetheless, the prosecutor is given a limited discretion not to prosecute on certain public interest grounds, generally related to the minor nature of the offence.70

Review of a decision to discontinue a prosecution

United Kingdom

Judicial review
  1. 5.56 In England and Wales victims can apply to the courts for judicial review of a decision by the Crown Prosecution Service (CPS) to prosecute or not to prosecute.71 The availability of judicial review for a decision not to proceed with a prosecution recognises that this decision ‘is in reality a final decision for a victim’.72
  2. 5.57 Victims have been successful where they have been able to show that the law has not been properly applied, that evidence has not been properly considered, that CPS policy has not been applied, and that a previous court or coronial decision has not been carefully considered.73
  3. 5.58 In relation to the court’s willingness to interfere with prosecutorial discretion, the Supreme Court has stated that:

the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else … In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences … So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere.74

  1. 5.59 If a decision of the CPS is quashed as a result of an application for judicial review, this does not then require the CPS to prosecute. Rather the CPS is required to reconsider its decision and ensure it addresses any errors of law identified by the court in the original decision.75 The final decision as to whether to prosecute is still a matter for the CPS.
Internal review
  1. 5.60 Following criticism of the internal processes of the CPS for review of a decision not to prosecute in R v Christopher Killick,76 and the coming into force of the binding European Union Directive 2012/29/EU,77 the CPS enacted the Victims’ Right to Review Scheme in June 2013.78 The purpose of the scheme is to provide victims with a structured internal review process for any qualifying decision by the CPS. Qualifying decisions are restricted to CPS decisions not to lay charges and decisions that will in effect end a prosecution.79
  2. 5.61 The scheme is intended to provide a review process that does not require victims to commence judicial review proceedings in court. Victims can still apply to a judge for review if they are dissatisfied with the CPS decision after an internal review.
  3. 5.62 The scheme does not apply to all CPS decisions. Relevantly, the decisions that are excluded include:
  • to proceed with some (but not all) charges or to proceed with charges against some (but not all) alleged offenders
  • to terminate a charge or charges (but not all) or to terminate proceedings against one accused (but not all)
  • to substantially alter a charge or charges
  • to discontinue where a victim requests proceedings be stopped, or withdraws support.80
  1. 5.63 The scheme sets out a clear procedure and timeframes for the CPS to follow when a victim seeks internal review of a qualifying decision.
  2. 5.64 The scheme excludes decisions made by police not to proceed. However, it appears that a similar ‘right to review’ scheme has been enacted at police level.81

Civil law inquisitorial systems

  1. 5.65 In Sweden, France and Germany, victims can seek review of a decision not to prosecute from a more senior prosecutor, who can order that the prosecution go ahead.82 In Germany, a second stage of review is available in cases where the original prosecutor determined there was insufficient evidence to prosecute and the reviewing prosecutor agrees with this assessment. When this occurs, the victim can request that a judge review that decision.83 If the judge finds there is enough evidence, the judge can order that the prosecution be initiated.84
  2. 5.66 Victims in France can also influence the decision as to which charges are pursued by the prosecutors. If a victim seeks a more severe penalty than the crime the accused is charged with permits, the victim may file a complaint with the examining magistrate, who may order that the matter be prosecuted in a higher jurisdiction with the power to impose greater penalties.85
  3. 5.67 Victims in the Netherlands can appeal decisions not to prosecute to a court. The court can overturn the prosecutor’s decision to drop the case and order that a prosecution be initiated.86

The plea negotiation process

New South Wales

Court certification
  1. 5.68 In New South Wales, for matters that resolve following negotiations about the charges on an indictment or the facts of an offence(s), prosecutors are expected to file a certificate with the court confirming consultation with the victim.87
  2. 5.69 If this certificate is not filed, the charge negotiations, or any agreed statement of fact, cannot be taken into account by the court.
  3. 5.70 The certification scheme is designed to provide a procedural safeguard to complement existing obligations to consult with victims in the Office of the Director of Public Prosecutions’ (ODPP) Prosecution Guidelines, and thereby promote greater accountability and transparency in the plea negotiation process.88
  4. 5.71 The certificate filed with the court must be signed by the Director of Public Prosecutions (or an authorised person) and must verify:
  • that consultation has taken place between the victim, the police officer in charge of the investigation and the prosecutor; or
  • if consultation has not taken place, the reasons for that; and
  • that the statement of agreed facts arising from the charge negotiation process constitutes a fair and accurate account of the objective criminality of the offender.89
  1. 5.72 The New South Wales ODPP Prosecution Guidelines require prosecutors to seek the victim’s views ‘at the outset of formal discussions’, or at least before any formal proposition is put to the accused’s lawyers.90
  2. 5.73 The views of the victim (and police informant) must be recorded in writing. If a victim disagrees with the proposed charges, and the matter is in a higher court, the prosecutor should consult a more senior officer within the ODPP. While the victim’s views are to be taken into account, the ODPP Prosecution Guidelines make it clear that the victim’s views ‘are not alone determinative’ and that ‘it is the general public, not any private individual or sectional, interest that must be served.’91

United States

Enforceable right to conferral
  1. 5.74 In the United States, the Crime Victims’ Rights Act (CVRA) provides victims with a ‘reasonable right to confer with the attorney for the Government’ in all federal cases.92 It also gives victims a right to be ‘reasonably heard’ during any District Court public proceeding concerning a plea.93
  2. 5.75 If a victim feels that he or she has not been conferred with or reasonably heard, relief may be sought from a District Court. If relief is denied by the District Court, the victim may seek a review by the Court of Appeals.94 While victims are not given standing in the criminal proceedings, they are given an alternative avenue for judicial enforcement of their rights, which has the capacity to provide a stronger safeguard than the certification scheme in New South Wales.
  3. 5.76 The CVRA contemplates relief including having a ‘plea or sentence’ re-opened, but only if all of the following circumstances exist:
  • The victim asserted the right to be heard before or during the plea hearing, but relief was denied by the District Court.
  • The application for review of the District Court’s decision was made to the Court of Appeals within 10 days.
  • The accused ‘has not pled guilty to the highest offense charged’.95
  1. 5.77 In matters where there are multiple victims, which make it impractical for all victims to be consulted in relation to a plea negotiation, the court can ‘fashion a reasonable procedure’ to give effect to CVRA rights, which ‘does not unduly complicate or prolong the proceedings’.96
  2. 5.78 The Fifth Circuit of the Court of Appeals has stated that the obligation to confer with victims is one that applies before prosecutors enter into the plea negotiation process, not just once a plea settlement has been reached. While prosecutors must confer, they retain control over the ultimate decision.97 This means that they do not have to make a decision that is consistent with the views of the victim if they consider the public interest requires a different course of action.

Civil law inquisitorial systems

  1. 5.79 Negotiated plea settlements have been described as inconsistent with the inquisitorial trial procedures of civil law jurisdictions.98 This is because the inquisitorial criminal trial process is directed at searching for the truth—a process that cannot be negotiated or arrived at by consensus.99
  2. 5.80 As a result, the use of prosecutorial discretion to dispose of matters by way of negotiated settlements in inquisitorial jurisdictions is limited.100 Nonetheless, in Europe the practice is growing, although it is commonly limited to less serious crimes.101
  3. 5.81 The literature which does exist suggests that it is a prosecutorial process in which victims rarely play a role.102 For example, in Poland, Germany and Sweden, a prosecutor does not need the agreement of a victim to proceed by way of a negotiated settlement.103

Discussion and options for reform

  1. 5.82 The Commission encourages consideration of whether some or all of the procedures and approaches in place in the other jurisdictions considered above might be adopted in Victoria. In doing so, it is instructive to note that based on the Commission’s research, the reforms in New South Wales, the United Kingdom and the United States discussed above appear not to have fundamentally altered the nature of the relationship between the prosecutor and the victim.

Participating-witness reforms—enhancing consultation with victims

  1. 5.83 Reforms to the role of the victim in the context of prosecutorial decision making are often focused on how the wishes of victims can be given greater weight and how consultation between the victim and the prosecutor can be improved. Such reforms can generally be characterised as participating-witness reforms.

Giving greater weight to victims’ wishes

  1. 5.84 Reform proposals might involve giving the wishes of victims more influence when the OPP is considering whether or not to proceed with a prosecution, or to accept a plea following negotiations. Commentators have expressed concern about such proposals on the basis that some victims may seek to pursue a prosecution for reasons unrelated to the likelihood of obtaining a conviction, such as for therapeutic reasons.104 Evidence about whether participating in a criminal trial has therapeutic benefits for victims is inconclusive.105 Some evidence suggests that involvement in the criminal trial, particularly the experience of giving evidence and being cross-examined, causes victims distress and can lead to secondary victimisation. Therefore, if an acquittal is a likely prospect, it may not be in the victims’ best interests to proceed, despite their preference to do so.
  2. 5.85 Moreover, if the wishes of victims are given considerable weight, costs may be incurred running trials that are unlikely to result in a conviction. Another consequence is that accused persons, who might have entered a plea to less serious charges or to a negotiated set of facts, may instead be acquitted of more serious charges.
  3. 5.86 In some cases, victims may seek to have a prosecution discontinued. This could be for a number of reasons, such as fear, wanting to move on, forgiving the offender, or because they would prefer an outcome not available through the criminal justice system. In such circumstances, consideration must be given to whether the views of victims should be given weight in the decision to discontinue a prosecution.
  4. 5.87 The European Court of Human Rights has considered this issue in the context of family violence. It concluded that continuing a prosecution in circumstances where the victim wants to withdraw may be justified because of the risk family violence poses to the victim’s health and rights and the need to prevent further crime.106 Of course, this gives rise to questions about whether such an approach appropriately protects or potentially disempowers victims.

Enhancing consultation with victims

  1. 5.88 In the context of discontinuing a prosecution or entering into a plea negotiation, one option for ensuring that consultation with victims by prosecutors is meaningful and effective is to allow victims to obtain independent legal advice, or representation if appropriate.
  2. 5.89 While legal advice should only be given by a qualified lawyer, if representation is limited to asserting victims’ views and interests to prosecutors, it could be provided by a non-legal victim advocate. The training and accreditation required of an advocate would need to be carefully considered so as to ensure the victim’s interests are properly represented.
  3. 5.90 The Commissioner for Victims’ Rights in South Australia has provided funding to victims for legal representation while they are involved in consultations with the South Australian Office of the Director of Public Prosecutions.107 While it is not the function of the Commissioner to provide legal advice about plea negotiations, the Commissioner is empowered to ‘assist victims in their dealings’ with prosecutors,108 which leaves open the possibility of funding the provision of legal representation or advice on issues related to plea negotiation.
  4. 5.91 In 1999, the Law Reform Commission of Western Australia considered how to strengthen and formalise prosecutorial obligations to consult with victims as part of the plea negotiation process.109
  5. 5.92 It recommended victims be:
  • afforded the right to be consulted prior to any negotiations
  • entitled to submit a statement for consideration in the plea negotiation process
  • afforded the right to be informed of the outcome of any negotiation, and related reasons (irrespective of whether they took part in any consultation or provided a statement).110
  1. 5.93 The Law Reform Commission of Western Australia also recommended that consultation be mandatory. To achieve this, it proposed that prosecutors be subject to a legislative obligation that would preclude a plea agreement being reached without the prosecution having first taken all reasonable steps to consult the victim.111 How this would work in practice was not expanded upon, although the court certification scheme that exists in New South Wales is an example of a statutory mechanism that aims to ensure prosecutors consult victims properly as part of the plea negotiation process. A similar scheme could be introduced for prosecutorial decisions to discontinue a prosecution.

Victims as prosecuting witnesses

  1. 5.94 In the introduction to Part Two, the possibility of allowing victims to participate as prosecuting witnesses in the criminal trial is raised.
  2. 5.95 Reform proposals that give victims the power to proceed with a prosecution when the DPP decides to discontinue would need to consider the responsibilities such a role would entail. These include deciding the charges with which to proceed, what evidence to rely on and how to finance a private prosecution. Even the role of auxiliary prosecutor in inquisitorial criminal trials in civil law systems is subject, or subsidiary, to the key role of the prosecutor or investigating judicial officer.112
  3. 5.96 If the role of victims as prosecuting witnesses is not subsidiary to the public prosecutor, circumstances may arise where the positions of the DPP and the victim-prosecutor are in conflict. This is most likely where the DPP seeks to enter into a plea agreement based on a careful assessment of the charges, evidence and public interest, but the victim-prosecutor prefers to proceed to a trial. In this context, who should have the final decision?
  4. 5.97 Any reforms that amplify the role of the victim to include prosecutorial decision-making power are likely to change the relationship between the prosecutor and the victim and challenge the fundamental structure of the adversarial criminal trial process. In addition, giving victims decision-making power may also require them to bear additional responsibilities and obligations. The Commission notes that empirical research suggests that while victims may express dissatisfaction with their ‘outsider’ status in respect of prosecutorial decision making, victims do not necessarily seek that role for themselves.

Restorative justice

  1. 5.98 As discussed at [3.38], there are instances where although a victim has made a complaint to the police, either the police decide not to charge the accused or the victim is reluctant for the matter to go to trial. It has been proposed that restorative justice might provide an alternative process at this early stage, to give victims some autonomy in the decision to prosecute and an alternative avenue to fulfil some of their justice needs.
  2. 5.99 In mid-June 2015 the South Eastern Centre Against Sexual Assault commenced a partly government-funded pilot of such a proposal, based on research by the Centre for Innovative Justice (CIJ).113
  3. 5.100 The CIJ also recommended a system for referrals to restorative justice to occur after a prosecution has commenced. The CIJ proposal is intended to apply in circumstances where the OPP has assessed a case as unlikely to succeed at trial, the victim consents, and the judge has given his or her approval.114
  4. 5.101 This restorative justice approach focuses on the offender acknowledging the harm caused, as narrated by the victim, and seeking to repair that harm. The CIJ noted that a number of factors will determine whether a particular matter is suitable for referral to a restorative justice process, including:
  • type and severity of offence and harm caused to the victim
  • the victim’s relationship with the offender
  • the time between the commission of the offence and the commencement of the prosecution
  • any particular vulnerabilities of the victim and offender.115
  1. 5.102 Some of the considerations and issues surrounding the use of restorative justice as an alternative to prosecution are considered in Chapter 7. One of the significant issues is ensuring that a victim’s choice is made freely, and is not a second-best option taken simply to avoid being subjected to re-victimisation during the trial process.

 

Questions

The role of victims
  1. 4 Should victims have a greater role in the decision to continue or discontinue a prosecution?
  2. 5 If a victim wants to withdraw their complaint, should this determine whether the prosecution continues?
  3. 6 Should a victim be able to require a prosecution to proceed where the DPP decides it should be discontinued?
  4. 7 Should victims have a greater role in the decision to accept a plea of guilty after plea negotiations?
Consultation
  1. 8 Is there adequate consultation with victims before a decision is made to continue with charges, discontinue a prosecution or accept a plea of guilty after plea negotiations? If not, what additional consultation do victims require?
  2. 9 If the prosecution fails to consult with victims about a decision to discontinue a prosecution, or to accept a plea of guilty after plea negotiations, should this attract consequences? If so, what should those consequences be?
  3. 10 Should victims be given the opportunity to access legal advice or representation during any consultation with the prosecution?
Review of decisions
  1. 11 Should there be a way to review decisions made by the DPP or Crown Prosecutor to discontinue a prosecution or accept a plea after plea negotiations? If so, what mechanism might be used?
Alternative procedures
  1. 12 Should victims be able to pursue restorative justice or other alternative processes instead of, or at any point during, a traditional prosecution? Why, or why not?

Footnotes

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