Victims of Crime

Summary of Recommendations

Definition of 'Victims of Crime' for the Purposes of the Report

For the purpose of this report, 'victims of crime' are:

Persons who have suffered harm, including physical or mental injury; emotional suffering including grief; economic loss and/or substantial impairment of rights accorded them by law[1] through acts or omissions that are in violation of the criminal law operating in the Territory.

Without limiting the foregoing, the definition includes people who have suffered such harm as a result of the death of a person upon whom they are financially or psychologically dependant and/or to whom they are closely related.

The definition includes people who are not financially and/or psychologically dependent on the harmed person if they see or hear the harm being done to the person directly affected in circumstances where it is probable that they will themselves suffer harm. (See paras. 28-30)

Needs of Victims to be met by the Criminal Justice System

The first of these needs was referral by an officer of the criminal justice system to on-going counselling services when necessary. The Committee takes the view that where there is an emotional reaction to a crime, skilled help in the form of counselling should be readily available and, where necessary, victims should be referred to a psychiatrist or consulting psychologist for specialist help. These counselling services should be subsidised by the government as part of its victim assistance program. Care should be taken to ensure that resources are not wasted in counselling every victim of crime as defined above. In order to ensure that counselling and other services are offered only to those in need, the Committee recommends that a case by case assessment be made as to the support offered and, if necessary, made available to the victim of crime in question. (See para. 85)

The Committee considers that issues set out in this report concerning the provision of information to victims of crime ought be addressed by police officers and, eventually, by prosecuting officers. (See para. 86)

In cases where investigation has taken a long time it seems reasonable that progress reports, which need not necessarily be detailed, be made to the victim by the relevant authorities. The standard for information provision is addressed by the Committee in the Declaration of Victims' Rights proposed in this report. In matters where the alleged perpetrator of the offence is quickly identified and charged, it seems appropriate that the victim should be advised of major developments such as arrest, applications for bail and the nature of the charges to be preferred. (See para. 87)

The Committee believes all victims should have the opportunity to be present at hearings and to observe that justice is done in their case. It is usual for victims to give their evidence early in the course of the hearing. That being the case there is nothing to prevent them from remaining in court although it is to be noted that victims frequently seek leave to depart the court after giving evidence. (See paras. 88)

The Committee recommends that victims who are to be witnesses should receive information concerning what will be required of them, but this information must never amount to their being influenced in any way as to what they should say. The Committee recommends that a video be prepared about the process of preparing oral evidence. It could act as an adjunct to a pamphlet similar to the South Australian pamphlet 'Tell it like it is' which has been prepared to assist children giving evidence but could readily be extended to the wider target group. (See para. 90)

Another important issue is that of victims having contact with the offender and his or her family and friends in the court precinct. The Committee is satisfied that unnecessary distress is often caused victims of crime when they are brought into contact with alleged offenders at court. It appreciates that this is usually accidental, but it considers that steps should be taken to ensure that such accidents do not occur. (See para. 91)

The Committee believes that when a victim has particular fears about the release of the alleged offender on bail or parole, the court determining whether bail should be granted and the parole board should be informed of those fears. As to the proposed release of the offender on bail, the Committee considers that victims may have 'special insights' or information related to their fears which ought to be considered. The Committee is of the opinion that the following represents an appropriate provision in this regard:

Where a victim demonstrates or perceives a need for protection from physical violence or harassment by an alleged offender he or she should be entitled to have that need placed before a court considering an application for bail. The victim should be advised of the outcome of all such bail applications and particularly of any conditions of bail which are imposed with a view to the protection of the victim (or potential witnesses for the prosecution). (See para. 93)

The Committee also suggests that the victim has a right to express concerns about the release of an offender. Such a right would operate at two stages of the proceedings, the first at the time of sentencing and the second when release on parole is being considered.

The Committee believes that it would be appropriate for a victim who is concerned about personal danger leading from the early release of the offender to set out those concerns and the reasons for them in a victim impact statement. In this way the concerns could then be properly considered by the sentencing judge. (See para. 95)

At the time parole is considered, the Committee believes it is reasonable that victims of violent crime should be advised of the release date of the offender so that they may be forewarned of the possibility of an encounter. (See para. 99)

More generally, the Committee recommends the adoption of a declaration of victims rights amended to meet some of the concerns identified by the Committee. The Committee considers that the Declaration of Victims' Rights of the Australian Capital Territory should be enshrined in legislation to ensure that those charged with the responsibility of putting the principles espoused in the Declaration into effect have clear guidelines. (See para. 105)

The Declaration of Victims' Rights should include the definition of victims of crime proposed in this report, then state:

'Offence' means an offence against the law in force in the Territory: an act or omission that is in violation of the criminal law operative within the Territory.

'Crime' means offence.

The provisions of this Declaration will be applicable to all, without discrimination on the grounds of race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or group origin, disabilities, or any other factor.

The victim of a crime shall have the right to:

(1) Be dealt with at all times in a sympathetic, constructive and reassuring manner and with due regard to his or her personal situation, rights and dignity.

(2) Information from time to time, and at reasonable intervals, (generally not exceeding 1 month), as to the progress of police investigations, except where such disclosure might jeopardise investigation. (Where this exception operates the victim is to be informed that it is operating until such time as the need for the exception no longer exists).

(3) Know all of the charges laid against the accused and of any modifications to those charges.

(4) Make a comprehensive statement, which must include information regarding the harm done and/or losses incurred as a consequence of the commission of the offence. The statement shall be taken at the time of the initial commission if the victim is able to give the information at that time, or at the time of the initial investigation if the victim is able to give such information at such time, or, if not, at the earliest time at which he or she might reasonably be asked to provide that information. The information in this statement shall be updated before the offender is sentenced.

(5) An explanation of any decision to accept a plea of guilty to a lesser charge or for accepting a guilty plea in return for recommended leniency in sentencing.

(6) An explanation of any decision not to proceed with a charge (called entering a nolle prosequi).

(7) Have property held by the Crown for purposes of investigation or evidence returned as promptly as possible. Inconvenience to victims should be minimised wherever possible, (For example, where photographs of stolen property could be used as evidence instead of the actual property they should be used and the property returned to the victim).

(8) Information about the trial process and of the rights and responsibilities of witnesses.

(9) To protection from unnecessary contact with the accused and defence witnesses during the course of the trial.

(10) Have his/her residential address withheld unless disclosure is deemed by the relevant court to be material to the defence.

(11) Relief from appearing at preliminary hearings and/or committal proceedings, unless that appearance be deemed by the relevant court to be material to the defence.

(12) Have his/her need or perceived need for physical protection put by the prosecution before an authority which is determining an application for bail by the accused person.

(13) Know the outcome of all bail applications and be informed of any conditions of bail which are designed to protect the victim from the accused.

(14) Have the full effects of the crime upon him or her made known to the sentencing court either by the prosecution or by information contained in a victim impact statement. These effects shall include any financial, social, psychological and physical harm done to or suffered by the victim. Any other information that may aid the court in sentencing, including the victim's need for restitution or compensation should also be put before the court by the prosecutor.

(15) An explanation of the outcome of criminal proceedings, and to be fully apprised of the sentence, when imposed, and its implications.

(16) Information on of the outcome of parole proceedings.

(17) Notification of the offender's impending release from custody.

(18) Restitution - Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families and/or dependants. Such restitution could include the return of property or payment for the harm or loss suffered. It could also include reimbursement of expenses incurred as a result of the victimisation, the provision of services and/or the restoration of rights.

(19) Financial Compensation - Where compensation is not fully available from the offender or other sources, the Territory should endeavour to provide financial compensation up to the limit set by law, to victims who have sustained significant bodily injury; impairment of physical and/or mental health; or deprivation of support as a result of serious offences.

(20) Assistance - Victims should receive necessary material, medical, psychological and social assistance through governmental or voluntary means.

(21) Professional and Equal Treatment - Police, justice, health, social service and other personnel concerned with the treatment of victims should receive training to make them aware of the needs of victims. Guidelines should be devised to ensure proper and prompt aid to victims.

(22) Access/Redress - Victims are entitled to access to the criminal justice system and to prompt redress (to the extent provided for by Territory legislation) for the harm they have suffered. The judicial and administrative mechanisms designed to enable them to obtain that redress should be accessible, speedy, fair, cost-effective and sensitive. Victims should be informed of their rights to seek redress through such mechanisms. (See para. 107)

Victim Impact Statements (VIS)

The Committee recommends there be statutory provision for the tender of a voluntary victim impact statement in all cases of indictable offences against the person or involving violation of a person's property whether by theft, fraud, robbery or otherwise, punishable by imprisonment for five years. It is of the opinion that statements would not generally be appropriate in respect of minor offences even though those minor offences might have had serious impact upon the victims. The Committee believes the decision to prepare a victim impact statement, even in respect of a serious offence, should be the victim's. A failure or refusal to adopt the option should give rise to no comment or adverse inference. (See paras. 140-1, 144)

The Committee recommends that the VIS form (and, as a result, the associated interview) be structured to the extent that necessary information is obtained. All victims preparing statements should be asked 'core questions'. The South Australian document used for this purpose should form a useful precedent. This structure should not inhibit the victim from providing further information about the effects of the crime. (See para. 146)

The Committee has concluded, after some initial reluctance, that the initial victim impact statement should be obtained by a police officer engaged in the investigation of the offence. If the officer's experience in the area is insufficient, an officer experienced in investigation of offences of the type in question and who has also had experience or sufficient training in the taking of victim impact statements should prepare the statement. Preferably, police should gather the victim impact information during an interview, but if the victim refuses to participate in an interview, he or she should be given the option of completing a mail-out form. The interview should, as a general rule, be held in the victim's home, although the Committee would not be adverse to statements being taken at a police station if the victim approves. (See paras. 151, 156, 158)

The victim should be required to sign the document as being an accurate reflection of his or her situation. (See para. 162)

The Committee takes the view that the appropriate time for taking information relating to victim impact is as soon as possible after the offence, and after the victim has recovered sufficiently from the shock and injury inflicted during the crime to be able to gather his or her thoughts about the event. A follow-up statement would be made just before trial, or if the trial is expected to be a long one, just before verdict. (See para. 160)

In line with the tendency in Australia to make available all the material in the hands of the prosecution to the defendants, the Committee believes victim impact statements should also be furnished to both the prosecution and defence as soon as a finding of guilt is made or a plea of guilty entered, but only if this is feasible. (See para. 165)

The court should be notified that the evidence being presented regarding the effect of the crime on a victim is taken from a victim impact statement. Likewise, the victim should be notified at the time of taking the VIS of any use of the VIS outside court (for example, diversion, probation or parole). Fairness to the accused should be an essential consideration at all times. (See paras. 168, 171)

The Committee recommends that the defence Counsel be given the opportunity to cross-examine a victim on his or her VIS as is done with any other material which could adversely affect the offender's interests. Given the supply of the VIS to defence Counsel prior to the hearing, the Committee expects that any difficulties defence Counsel has with the material in the VIS would be resolved prior to the VIS being presented to the court. This is likely to make cross-examination of the victim unnecessary. However, the victim should be given the opportunity at any time until tender of the VIS to withdraw it rather than face the possibility of cross-examination upon it. (See para. 178)

The Committee considers that the use of VISs (and their affects on sentences) should be evaluated over a period of 12 months. If that evaluation shows an aberrant result, their further use should be reconsidered. (See para. 195)

Victim-Offender Process of Attempted Reconciliation

The Committee believes, in the case of the pilot PAR project, best use would be made of available resources by making use of an existing alternative dispute resolution service. Continued use of that service should be carefully evaluated at the end of the trial project. (See para. 248)

If the PAR fails, the matter should be returned to the court for formal consideration. On the completion of PAR, its facilitators will write a report to the court outlining whether or not the process was successful and the details of the agreement, if any. (See paras. 265-6)

The Committee recommends that any agreement reached after PAR, and which has been tested by the facilitator, should be lodged with the court after a 'cooling-off' period of two weeks. It should have the status of a bond imposed by a court. If the court is satisfied that the agreement befits the crime, the matter will continue to be adjourned pending fulfilment of the agreement. Subject to the satisfactory fulfilment of the agreement, the court will order a full discharge of the matter. If the offender fails to fulfil the agreement, the matter will return to court where it can be dealt with as though for a breach of bond if the victim so wishes. If the victim does not so wish, the court can discharge or vary the agreement under s. 556D of the Crimes Act 1900 (ACT). (See para. 252, 266-67)

Patterns of referrals of young offenders and their victims to PAR should be monitored by the Community Advocates Office and the Victims of Crime Coordinator. It will be the duty of those agencies to determine whether cases which might be suitable for PAR are being referred in a consistent manner and to report any patterns of referral or non-referral to the responsible senior officials of the Magistrates Court and eventually to the agency responsible for the evaluation of the trial project. (See para. 268)

The Committee is of the opinion that the wider statutory protection offered to facilitators and participants by the Community Justice Centres Act 1983 (NSW) would be advantageous, given the position of PAR within the criminal justice system. (See para. 258)

The Committee envisages that, should the trial PAR project in the juvenile justice sphere be a success, it might be expanded to include adult offenders and perhaps a wider range of offences. (See para. 269)

Criminal Injuries Compensation

The Committee recommends that applications generally be dealt with in chambers on the basis of written materials before the court. The contents of the papers before the court and the decision of the court would continue to be available for scrutiny in a manner consistent with current practice. (See para. 291)

The Committee also recommends that, in making an award under the Act, the tribunal deciding the claim ought not be required to have regard to the rules of evidence, but ought be entitled and bound to inform himself or herself in any way that he or she thinks fit, and to proceed with as little formality as possible. (See para. 292)

The Committee is of the view that the right to be represented when an application for criminal injuries compensation is dealt with should not be routinely available to the government of the Territory. However, the government of the Territory should receive a copy of every application under the Criminal Injuries Compensation Act 1983 (as it presently does under s. 34 of that Act). If the government has reasonable grounds to believe that an application has been falsely or fraudulently made or is exaggerated, or if the application raises a question of law of general importance, it should have the right to seek to be heard. If the court, having considered the petition by the government, considers that there are grounds for its opposition, the matter should be transferred into open court, to be dealt with in much the same way, mutatis mutandis, as these applications are now dealt with. Section 34 of the Criminal Injuries Compensation Act 1983 should be amended to reflect the recommendations of the Committee contained in this paragraph. (See para 293)

The Committee recommends that the applicant need not appear before the tribunal deciding his or her claim for criminal injuries compensation, unless the tribunal deems it necessary or the applicant wishes to do so. (See para. 295)

The Committee considers that applications for criminal injuries compensation should continue to be heard after any related criminal hearings are completed. The Committee is aware, however, that the delay caused by post-trial compensation can cause some victims hardship. It suggests that this problem might be resolved by the greater use of the power of courts to make interim awards. The Committee recommends that the Victim Coordinator be required to advise a victim that he or she should, if his or her circumstances warrant such an application, make an application for an interim award of compensation under the Act before criminal proceedings against the offender are completed. To prevent the perception that a criminal verdict may have been corrupted, the Committee recommends that applications for interim awards should be heard in a closed court (that is, with all members of the public being excluded) and no publicity until after the criminal proceedings against the offender have been completed. (See paras. 301-2)

The Committee recommends that section 11 of the Criminal Injuries Compensation Act 1983 (ACT) be amended to enable the Supreme Court, including the Master and Registrar, and the Magistrates' Court, when faced with a situation of divided jurisdiction with regard to a single victim, to negotiate that one tribunal relinquish jurisdiction to hear the application for criminal injuries compensation to the other, so that the injury done to the victim by the separate incidents may be considered in its totality by one tribunal. (See para. 307)

Although it would wish to recommend an increase in the maximum amount payable for compensation, in light of the financial constraints on the Government, the Committee recommends that the current maximum amount of criminal injuries compensation of $50,000 be retained. However, the amount of the award to that maximum should be calculated as though the issues in question were those in a civil action for personal injuries. (See paras. 308, 309)

The Committee recommends that multiple awards in cases where injuries arise out of similar, but not the same, circumstances as gave rise to other injuries be given a legislative footing in the ACT. Circumstances would not be the same if they are 'so separated in time and place that it can not be said that each arose out of the same circumstances as the other'.[2] However, multiple awards of compensation of this nature should not exceed $100,000 in total. (See para. 311)

The Committee recommends that applicants for criminal injuries compensation should have their costs, including solicitor and client costs, paid by the Territory. Costs should not be awarded where the compensation awarded to an applicant is less than $500. The Committee recommends that a modest scale of costs be prescribed after consultation with the Registrar of the Supreme Court and the Registrar of the Magistrates Court. The same scale of costs should be applicable in the Magistrates Court and the Supreme Court. The Committee recommends that disbursements should continue to be paid as at present. (See para. 313)

The Committee also recommends that the scale of the amount of costs payable in respect of applications to the Supreme Court and to the Magistrates' Court should be renewed annually by the Registrars of the Courts and should be varied annually to accord with movements in the cost of living. (See para. 314)

The Committee recommends that section 29A of the Criminal Injuries Compensation Act and the consequential section 29B be repealed so as to remove the right of the Territory to obtain reimbursement from the offender of the money paid by the Territory to the victim in criminal injuries compensation. (See para. 320)

The Criminal Justice System and the Intellectually Impaired Victim

Coordination

Implementation

- The creation of the statutory office of Victims of Crime Coordinator and guidelines for the performance of the functions of that office, including the Declaration of Victims' Rights.

- Appropriate statutory protection for participants in the Process of Attempted Reconciliation to ensure, for example, confidentiality, privilege and indemnity for mediators acting in good faith.

- Amendments consequential to the recommendations of this report, in particular with regard to the completion and tender of VIS's and the suggested changes to the criminal injuries compensation scheme. (See para. 358-59)

Administrative and legislative change must be accompanied by education to ensure a commitment on the part of officers of the criminal justice system to the principles of fair treatment of victims as outlined in this report. The Committee recommends that the agencies of the criminal justice system in particular emphasise the importance of training for their officers in victims' issues. (See para. 362)

The Committee suggests that an educational video of the process should be made in respect of PAR. The Committee also recommends that a video be prepared in respect of the process of giving oral evidence. (See para. 363)

The Committee believes it would be desirable for the proposals of this report to be, as far as is possible, self-funding. Although the Committee expects that some of the recommendations will result in savings within the criminal justice system, it recommends that further funding could be obtained through the adoption of a system of levies on fines, whether on-the-spot fines or fines ordered to be paid by a court. It considers that a suitable levy might be 3 per cent on top of existing fines. (See para. 365)

Evaluation

Unsworn Statements

Operation of the Process

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