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Expanding the victim’s role

Expanding the victim’s role

By VLRC

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A new report highlights the importance of victim participation in criminal trial processes.

The Victorian Law Reform Commission (VLRC) delivered its report on the role of victims of crime in the criminal trial process to the Attorney-General who tabled it in parliament on 22 November 2016.

The role of victims in the criminal trial has evolved. In modern jurisprudence, in the criminal trial there is a triangulation of interests: those of the victim, the accused and the public as represented by the prosecution. This represents a profound shift in understanding about what constitutes a fair trial from earlier times in which the interests of the prosecution and defence were the focus of the trial and those of victims were not acknowledged. Victims were at best witnesses. The report proposes measures to build on earlier legislative and procedural reforms and calls for victims to be recognised as a participant in the criminal trial process, but not as a party.

In practice, this means acknowledging that victims have an inherent interest in how the criminal justice system responds to the crime. This interest arises from the crime and the impact it has on the victim’s life. It is not confined to the criminal trial process and can continue after the offender has completed their sentence or any post-sentence monitoring.

The key recommendations are that the victim’s inherent interest should be recognised in the Victims’ Charter Act 2006 (Vic) and that the Charter of Human Rights and Responsibilities Act 2006 (Vic) should include a right for a victim of a criminal offence to be:

  • acknowledged as a participant (but not a party) with an interest in the proceedings
  • treated with respect at all times
  • protected from unnecessary trauma, intimidation and distress when giving evidence.

The VLRC supports the legitimate rights of the accused, particularly the requirement for proof beyond reasonable doubt and the testing of that proof including through cross-examination and access to relevant material to prepare a proper defence. The recommendations aim to ensure that the procedures and rights that regulate the contest between the defence and the prosecution are preserved while accommodating the triangulation of interests.

Many practitioners will be familiar with the legislative and procedural changes that have been introduced to acknowledge and secure the victim’s role in the criminal justice system. While some reforms have led to improvements, progress has been slow and limited. The VLRC was told in consultations that while the law has created more opportunities for victims to participate, in practice they often feel marginalised and disrespected, and sometimes are significantly retraumatised, by the trial process.

A recurring theme in the report is the need for cultural change throughout the criminal justice system. Agencies, lawyers and judicial officers need to see victims as necessary and legitimate participants and treat them accordingly. Expressly recognising the victim’s role in legislation and reinforcing it in professional standards and practices are seen as ways to drive cultural change. Victim-related courses should be incorporated into the formal education of all lawyers and the professional development requirements of criminal law specialists. The complaint resolution, monitoring and reporting processes under the Victims of Crime Act should be strengthened.

Further recommendations to facilitate and support victims as participants in the criminal trial process include:

  • amending the Victims’ Charter Act to specify the information that should be provided to victims, primarily by the prosecution, throughout the criminal trial process and to ensure that victims are able to participate in conferences with the prosecution before and after key court dates
  • requiring judicial officers to disallow any improper question directed to a victim when giving evidence as a witness and strengthening the test for cross-examining victims at committal hearings
  • broadening eligibility for the protective procedures that are currently available to child victims and victims with a cognitive impairment in sexual offence cases, to all victims assessed by the court as likely to suffer severe emotional trauma or be so intimidated or distressed as to be unable to give evidence or give evidence fairly.

The report can be downloaded from www.lawreform.vic.gov.au.

Key recommendations

  • Victims should be recognised as a participant in the criminal trial process, but not as a party.
  • The victim’s inherent interest should be recognised in the Victims’ Charter Act 2006.
  • The Charter of Human Rights and Responsibilities Act 2006 (Vic) should include a right for a victim of a criminal offence to be protected from intimidation and distress when giving evidence.

This column is contributed by the VLRC. For further information ph 8608 7800 or see www.lawreform.vic.gov.au.


Disclaimer: Views expressed by commentators are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV). No responsibility is accepted by the LIV for the accuracy of information contained in the comments and the LIV expressly disclaims any liability for, with respect to or arising from any such views.

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