Referral to the Commission
1.1 On 27 October 2014, the then Attorney-General of Victoria, the Honourable Robert Clark MP, asked the Victorian Law Reform Commission to review and report on the role of victims of crime in the criminal trial process.
The terms of reference
[Referral to the Commission pursuant to section 5(1)(a) of the Victorian Law Reform Commission Act 2000 (Vic) on 27 October 2014.]
The Victorian Law Reform Commission is asked to review and report on the role of victims of crime in the criminal trial process.
In conducting the review, the Commission should consider:
(a) the historical development of the criminal trial process in England and other common law jurisdictions;
(b) a comparative analysis of the criminal trial process, particularly in civil law jurisdictions;
(c) recent innovations in relation to the role of victims in the criminal trial process in Victoria and in other jurisdictions;
(d) the role of victims in the decision to prosecute;
(e) the role of victims in the criminal trial itself;
(f) the role of victims in the sentencing process and other trial outcomes;
(g) the making of compensation, restitution or other orders for the benefit of victims against offenders as part of, or in conjunction with, the criminal trial process; and
(h) support for victims in relation to the criminal trial process.
The Commission is to report by 1 September 2016.
The Commission’s approach
Reference framework: theory and practice
1.2 This reference goes to the very heart of our criminal justice system, posing the challenging question: ‘What should be the role of victims in the criminal trial process?’ Throughout this reference, the Commission’s consideration of this question will be informed by two interrelated sources of information—theory and practice.
1.3 Many academics and researchers approach the question of the role of victims in the criminal trial process by examining the underlying purposes of the criminal justice system and the relationship between the victim, the accused and the state. Why do we have a criminal justice system at all, what do we (as a society) want it to achieve, and for whom? The lessons of history, developments in human rights law, empirical research and a broad cross-section of academic thought (ranging across law, sociology, philosophy, political theory, and psychology) all make valuable contributions to the task of imagining and understanding a criminal justice system suited to purpose.
1.4 Of course, the criminal justice system is not just a theoretical construct. Every year in Victoria, hundreds of criminal trials and thousands of guilty plea hearings impact directly on the lives of victims, accused and witnesses. Listening to the experiences of these people—and of the people who work in the criminal justice system—is crucially important. It allows for a systematic identification of the issues that exist, and an informed consideration of practical initiatives for improvement which have been implemented or championed in Victoria and around the world.
1.5 Practice and theory are interrelated. They inform each other. The Commission encourages an approach to this reference that considers what we can learn from theory and what we can learn from practice, both individually and together.
Scope of the reference
1.6 The terms of reference ask the Commission to consider the role of victims of crime in the criminal trial process. While the terms of reference are broad, they do not encompass every aspect of the criminal justice system. This section sets out what is within, and what is outside, the scope of the Commission’s review.
1.7 The terms of reference do not define the meaning and ambit of the word ‘victim’. The Commission acknowledges that the experience of the criminal trial process by each victim is unique and its uniqueness is to be respected. Further, there are differential impacts of the criminal trial process upon categories of victims, such as child and young victims, victims of family violence, victims of sexual offences, victims from disadvantaged and marginalised communities, and other groups. While the Commission fully acknowledges those significant personal and categorical differences, consonantly with the terms of reference the consultation paper generally uses the broad term ‘victim’. Reference is made to specific categories where the context requires it.
1.8 Further, the Commission acknowledges that there are members of the community who are dissatisfied with their personal experience of the criminal trial process. While the Commission encourages people to participate in our consultations and to make submissions that are informed by their experience, the Commission’s reference is to
review the role of victims in the criminal trial process. It is not to review or report on individual cases.
The investigation phase and support for victims of crime
1.9 The terms of reference do not ask the Commission to consider the police investigation. However, a victim’s journey through the criminal justice system starts with their first contact with the police and the police investigation that follows.
1.10 This early interaction can be a crucial phase of a victim’s journey, with the potential to shape their perceptions of the entire criminal justice process. It is particularly relevant to a victim’s need to be treated with respect and provided with information and support. The terms of reference ask the Commission to consider ‘support for victims in relation to the criminal trial process’. In addressing this, the Commission has viewed support needs as being on a continuum, which starts with a person’s first contact with the police and ends with the finalisation of criminal proceedings.
1.11 Some victims never start their journey through the criminal justice system. These victims may have been discouraged or impeded from reporting crimes committed against them by individuals or groups from outside the formal criminal justice system, including family members, other community members, or by members of religious groups to which the victim belongs. Other victims may not report a crime for a variety of reasons, including a distrust of police and the justice system, or because of some other barrier to access such as being from a non-English speaking background, fear, or a lack of understanding of the criminal justice system.
The Magistrates’ Court
1.12 Once the police decide to charge a suspect, the court processes begin. Those processes are set out in the Criminal Procedure Act 2009 (Vic).
1.13 Every criminal prosecution starts in the Magistrates’ Court. Criminal cases are dealt with either by summary procedure or committal proceedings. The large majority of criminal matters are dealt with entirely in the Magistrates’ Court, by way of summary procedure. During 2013–2014, the Magistrates’ Court finalised 237,452 criminal matters.
1.14 More serious criminal offences progress through the Magistrates’ Court by way of committal proceedings. At the conclusion of the committal proceedings, subject to a number of pre-conditions, the accused is committed to stand trial in either the Supreme Court or the County Court. The Supreme Court finalised 89 criminal matters in
2013–14. During the same year, the County Court finalised 2,361 criminal matters.
1.15 The Commission recognises that a significant proportion of criminal cases are heard in the Magistrates’ Court, albeit as summary hearings and not trials. While trial processes in the higher courts differ from summary hearing processes, they do share many features. As such, many of the issues raised by the terms of reference are common to the Magistrates’ Court and the Supreme and County Courts.
1.16 The terms of reference relate to trials in the Supreme and County Courts. They do not cover hearings in the Magistrates’ Court. The Criminal Procedure Act makes a clear distinction between ‘trials’ (which occur in the Supreme and County Courts) and ‘hearings’ (which occur in the Magistrates’ Court). Only two procedures in the Magistrates’ Court are covered by the terms of reference: compensation and restitution by the Victims of Crime Assistance Tribunal (VOCAT) and committal proceedings, as these proceedings are integral to the subsequent criminal trial process.
Victims of Crime Assistance Tribunal
1.17 The terms of reference ask the Commission to consider ‘the making of compensation, restitution or other orders for the benefit of victims against offenders as part of, or in conjunction with, the criminal trial process’. The Commission considers VOCAT, which is independent to the trial process, to be an integral part of Victoria’s system for the compensation of victims of crime.
1.18 While the Commission does not propose reviewing the quantum of awards made by VOCAT, VOCAT is part of the broader review of compensation and restitution proceedings.
The sentencing process
1.19 The terms of reference ask the Commission to consider ‘the role of victims in the sentencing process and other trial outcomes’.
1.20 The terms of reference do not ask the Commission to consider sentencing outcomes. The Commission recognises however, that any proposal to change the role of the victim in the sentencing process should consider the way that proposal might affect sentencing outcomes.
1.21 The Criminal Procedure Act allows for the prosecution and defence to seek leave to appeal in certain circumstances. As appeals are both a part of the trial itself, and a trial outcome, the Commission will consider the role of victims in the appeal process. The Commission’s review will, however, be limited to the victim’s role in appeal procedures, and will not include the substantive law of appeals.
Criminal hearings not covered by the terms of reference
1.22 The terms of reference do not encompass:
• bail hearings
• appeals from the Magistrates’ Court to the County Court
• parole hearings.
1.23 While each of these hearings is integral to our criminal justice system, and can often be a very important part of a victim’s experience, they are not contained in the terms of reference and are therefore outside the scope of the Commission’s review.
Victim, survivor, complainant
1.24 The terms of reference refer to the role of victims in the criminal trial process.
1.25 There has been much debate about the use of the terms ‘victim’ and ‘survivor’. The term victim has been criticised, particularly in feminist literature, as reducing a person to their experience of victimisation. It is also said to connote weakness rather than the resilience and strength of surviving.
1.26 The Commission also acknowledges that there is some tension between the use of the term ‘victim’ and the presumption of innocence to which an accused is entitled during a criminal trial.
1.27 Reflecting this tension, the central piece of legislation setting out criminal trial procedures, the Criminal Procedure Act, uses the term ‘complainant’ in provisions setting out protective procedures which apply to victims during trials for sexual offences.
1.28 The Commission acknowledges the issues surrounding the use of the term ‘victim’. However, as the terms of reference refer to ‘victims’ and the word ‘victim’ is used in many Victorian laws dealing with prosecution, punishment and reparation, the term ‘victim’ will be used in this consultation paper.
Judge, magistrate, court
1.29 The Criminal Procedure Act refers to the powers of the ‘court’ during the criminal trial process. For example, section 337 provides that ‘Unless the context otherwise requires, a power or discretion conferred on a court by or under this Act may be exercised by the court on the application of a party or on its own motion.’
1.30 It is the judge who exercises the power or discretion of the court in the Supreme and County Courts, and the magistrate who does so in the Magistrates’ Court. The judge or magistrate presides over each stage of the criminal trial process, and makes decisions, orders and directions which bind the parties.
1.31 As such, while the legislation generally refers to ‘the court’, this consultation paper refers to ‘the judge’ or ‘the magistrate’.
1.32 As part of its preliminary research on the reference, the Commission conducted a series of meetings with representatives from some of the key stakeholders in the criminal justice sector, and with individuals who have had personal experiences of the criminal trial process.
1.33 As part of these preliminary consultations, the Commission conducted two roundtable discussions. The first was with practitioners from across the criminal justice sector. The second was with a small group of people who had experienced the criminal trial process as a victim-witness or family member of a victim.
1.34 The purpose of these consultations was for the Commission to gain a preliminary understanding of the issues surrounding the current role of victims in the criminal trial process in Victoria, and to start to identify proposals and options for reform.
1.35 The preliminary meetings and roundtables do not form part of the Commission’s formal consultations for this reference. Formal consultations will be conducted in conjunction with the publication of this consultation paper, along with a call for public submissions.
1.36 The Commission published a series of four information papers in May 2015. The four papers are:
37. The Role of Victims of Crime in the Criminal Trial Process—History, Concepts and Theory
38. The Role of Victims of Crime in the Criminal Trial Process—Who Are Victims of Crime and What Are Their Criminal Justice Needs and Experiences?
39. The Role of Victims of Crime in the Criminal Trial Process—The International Criminal Court: a Case Study of Victim Participation in an Adversarial Trial Process
40. The Role of Victims of Crime in the Criminal Trial Process—Victims’ Rights and Human Rights: the International and Domestic Landscape.
1.41 The first information paper provides an overview of some historical, theoretical and philosophical approaches to the role of victims in the criminal trial process. The second information paper surveys the evidence about who victims are and what they need from the criminal justice system. These matters are dealt with in Chapter 2 of this consultation paper.
1.42 The third information paper examines the International Criminal Court (ICC) as a case study of victim participation. Processes at the ICC are considered against existing Victorian trial procedures throughout the chapters of this consultation paper.
1.43 The fourth information paper provides an overview of the sources of victims’ rights and issues relating to their enforceability internationally and in Australia. While relevant to and discussed in many parts of this consultation paper, victims’ rights are specifically discussed in Chapter 12.
1.44 The preliminary consultations, the background information contained in the information papers and other research undertaken by the Commission form the basis of this consultation paper.
1.45 The structure of this consultation paper is based on the reference framework. Part One considers the history and purposes of criminal justice systems and the needs and experiences of victims of crime, and these inform consideration of the question posed in Chapter 4, ‘What should be the role of victims in the criminal trial process?’
1.46 Part Two contains eight chapters which consider the role of victims at each stage of the common law adversarial criminal trial process.
1.47 Part Three concludes this consultation paper. It examines two key issues that arise at every stage of a victim’s journey through the criminal trial process and underlie many reform proposals: victims’ rights and victims’ support.
1.48 Each of the chapters in Parts Two and Three sets out questions designed to capture the issues and reform proposals identified, and guide the public and stakeholders in the preparation of submissions.
Formal consultation process
1.49 The next stage of the reference will involve consulting widely with interested organisations and people to gather information and comments on the current role of the victim in the criminal trial process, identify additional issues and develop and test options for reform.
1.50 The Commission intends to consult with representatives across the criminal justice sector, including the judiciary, court personnel, legal practitioners, counsellors, social workers and support service providers (government and non-government).
1.51 The Commission seeks the views of individuals who have experienced the criminal trial process as victim-witnesses or the family and friends of victims.
1.52 The feedback and information that the Commission receives from submissions and formal consultations, combined with additional research, will inform its final recommendations to the Attorney-General. A report setting out the Commission’s recommendations will be provided to the Attorney-General by the reporting date of 1 September 2016. Within 14 sitting days of receipt of the report, the Attorney-General must table the report in the Victorian Parliament. The Victorian Government then decides whether to implement the Commission’s recommendations.
See Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process Information Paper 2: Who are Victims of Crime and What are Their Criminal Justice Needs and Experiences? (May 2015).
Terms of reference, [h].
See eg, Family and Community Development Committee, Parliament of Victoria, Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations (2013); Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response: Final Report, ALRC Report No 114, NSWLRC Report No 126 (2010) [8.56], ch 26; Emma Birdsey and Lucy Snowball, ‘Reporting Violence to Police: A Survey of Victims Attending Domestic Violence Services’ (Crime and Justice Statistics: Bureau Brief, Issue Paper No 91, NSW Bureau of Crime Statistics and Research, 2013).
See, eg, Matthew Willis, ‘Non-disclosure of Violence in Australian Indigenous Communities’ (Trends & Issues in Crime and Criminal Justice No.405, Australian Institute of Criminology, 2011) 1; John McDonald et al, Mapping Access and Referral Pathways for Marginalised Victims of Violent Crime in Rural and Regional Victoria (University of Ballarat, 2010) iv (describing the reticence of people from culturally or linguistically diverse backgrounds to report crime).
Criminal Procedure Act 2009 (Vic) ch 3.
Ibid ch 4.
This includes pleas of not guilty, which are called summary hearings: ibid pt 3.3.
Magistrates’ Court of Victoria, Annual Report 2013–14 (2014) 3.
Criminal Procedure Act 2009 (Vic) s 100 (setting out the hearings which may occur during committal proceedings).
Ibid pt 4.9 (setting out the test for an accused to be committed to stand trial).
Supreme Court of Victoria, Annual Report 2013–14 (2015) 45.
County Court of Victoria, Annual Report 2013–2014 (2015) 4. The County Court also heard 3061 appeals from the Magistrates’ Court during the same period.
Terms of reference [g].
Terms of reference [f].
Criminal Procedure Act 2009 (Vic) pt 6.3.
Terms of reference [e].
Terms of reference [f].