- a 'contract' between State and individual whereby in consideration of the victim's relinquishing rights over any criminal dispute, the State promises to compensate him or her if he or she sustains injury as a result of a crime;
- welfare-type intervention to alleviate financial hardship caused by criminal violence;
- compensation for the failure by the State in its duty to protect its citizens from harm; and
- distribution of the losses caused by criminal violence.
274. An alternative rationale was provided by Glenn Bartley. In a speech delivered to the Institute of Criminology entitled 'Criminal Injuries Compensation: Quo Vadis?', he stated that in his opinion, criminal injuries compensation serves as:
1. A formal acknowledgment of the injury and suffering occasioned by a crime.
2. A formal acknowledgment on behalf of the community that the injury and suffering were unjustly inflicted.
3. An expression of support and concern by the community and government authorities.
Awards of criminal injuries compensation belatedly give some justice to victims of violent crime, and also usually have the therapeutic effect of alleviating various kinds of psychological injury and engendering a more optimistic and positive approach to the future.[1]
275. Whatever the justification used, there is no doubt that criminal injuries compensation is now regarded as an integral part of the criminal justice system. Article 12 of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power stipulates that States should endeavour to provide compensation for victims of violence and the families of those who have died as a result of a criminal act.
(i) injured victims;
(ii) any person responsible for the maintenance of the injured victim who has suffered pecuniary loss or has incurred expenses as a consequence of the injury;
(iii) (a) any person who, immediately before the death due to a prescribed injury of an injured victim, was responsible for the maintenance of that victim and who has suffered pecuniary loss or incurred expenses as a consequence of the injury or death;
(b) any dependant of an injured victim or, if there be no such dependant, any person who has incurred expense as a consequence of the death.[2]
277. Section 2 of the Act provides a wide range of prescribed injuries, including damage to 'spectacles, a contact lens, a hearing aid, artificial teeth, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance'. This range is wider than that in any comparable Australian legislation.[3]
278. A prescribed injury now means, by and large, an injury sustained by a person as a result of an act or omission that constitutes, or is an element of, an offence against a law in force in the Territory or one sustained while assisting a police officer in the exercise of his or her power to arrest a person, or to take action to prevent the commission of an offence by a person.[4] Compensation will not be paid if the amount that would have been awarded is less than $100.[5]
279. Section 2 also provides for compensation for property damage sustained by a person assisting a police officer in the circumstances described above. There is no lower limit to the amount which may be recovered in respect of property damage.[6]
280. The victim must, within 12 months of the date of the prescribed injury or property damage, or within such further time as the Court having jurisdiction to hear the application allows, lodge in writing in the prescribed form an application with the Registrar of the Supreme Court who, if the Magistrates Court has jurisdiction to hear the application, is to forward the application to the Registrar of that Court.[7]
281. Depending on which Court has jurisdiction under s. 11(1) or s. 11(2) of the Act, the application is generally heard by the Master of the Supreme Court or a Magistrate after the related criminal hearing. If no criminal proceedings have been instituted in respect of the relevant offence, the Registrar of the Supreme Court has the power to determine the application. An interim award of compensation before the hearing may be made.[8] The applicant may act on his or her own behalf or may be represented by a barrister or solicitor (whose fees may not be included in any award).[9] The Territory Government has a right of appearance and customarily exercises that right.
283. In the Supreme Court, a more formal, adversarial procedure has been adopted. This is due, now, in part, to the decision in, and interpretation of, a Federal Court decision in Pillifeant's Case . The Federal Court said:
We are of opinion that it is proper to infer, notwithstanding the absence of express provisions concerning the various matters mentioned above, that the legislature envisaged that such an officer would, in determining an application for compensation, adopt procedures akin to those appropriate to a judicial proceeding.[10]
284. Chief Justice Miles, in The Matter of an application by Joan Mary Anne O'Brien, interpreted the case mentioned above, as requiring a hearing before the Registrar and any re-hearing on appeal by the Supreme Court 'to be treated much like an assessment of damages in an action for damages for personal injury'.[11] The rules of evidence are to be applied and the court has no power to inform itself as it sees fit. But the adversarial procedure stems, it would seem, in large part from what is believed to have been the invariable exercise by the Territory Government and its predecessor, the Commonwealth Government, of their right to appear at the hearing of the application.[12] In fairness it should be noted that the Government's legal representative often has taken little, or a perfunctory, part in the proceedings but his or her presence during the course of the hearing has served, it is thought, to emphasise the adversarial nature of the proceedings and to have lent a formal air to them, in line with that envisaged by the Federal Court in Pillifeant's case.
285. The victim can suffer financially and psychologically from the adoption of an adversarial approach by the Territory Government. An adversarial approach is to the victim's financial detriment because it generally necessitates legal representation (with its costs not now recoverable) to ensure that the victim's interests are protected and promoted in the face of legally trained opposition.
286. For some victims, the psychological trauma caused by opposition to their claim can outweigh any benefits from the recognition of their plight inherent in the payment of compensation. In the aftermath of the trial, many victims find the prospect of further cross-examination terrifying, so that some refuse to pursue claims for compensation. Generally, the need for the victim to be cross-examined again at the compensation hearing is questionable.[13] The Magistrates Court is able to determine the proper amount of an award in most cases without cross-examination of the victim on his or her evidence.
- the formality of Supreme Court hearings including the application of the rules of evidence,
- the adversarial approach taken by representatives of the government including the exercise of the right to cross-examine,
- the need for the victim to appear in Court for the hearing,
- delay in determination of claims, and
- the cost of bringing a claim.
Whilst it may be that in other parts of Australia criminal compensation proceedings are intended to be informal, quick and cheap and able to be determined without an application of the rules of evidence, this is not the result in the Australian Capital Territory. Applications for criminal compensation take up considerable time of the Registrar and of the Court. The Registrar and the court are bound by the terms of the Act and of the decision in Pillifeant's case and it is not open to streamline proceedings any further without legislative action. Whether such action should take place is a matter that might be considered by the ACT Law Reform Commission (sic).[14]
289. The Committee considers that the formality of the Supreme Court hearings has, but only on very rare occasions, caused additional unnecessary distress to an applicant and it may be that, on a proper view, additional distress was confined to one case only. In that case, over which the Chairperson of the Committee presided, the applicant was subjected to cross-examination which, although perfectly fair, was nevertheless of a kind which the Chairperson would describe as 'enthusiastic'. In the event it made no difference to the result because the applicant was plainly honest.
290. The Committee considers that there is generally no need for the adversarial approach. The vast majority of cases are routine in the sense that the injuries sustained are consistent with the nature of the offence and with what might be expected to result from that offence. There may be cases where the applicant is seeking to exaggerate his or her claim or is seeking to put forward one that is not properly based. If that be the case, the government would certainly be entitled and should be able to appear to put its case by Counsel or solicitor.
291. The Committee takes the view that the proceedings should be in the words of Chief Justice Miles, 'informal, quick, cheap and able to be determined without the application of the rules of evidence'.[15] Generally it sees no reason why the application could not be dealt with in chambers on the papers. 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.
292. The Committee also recommends that in making an award under the Act the court not be required to have regard to the rules of evidence but be entitled and bound to inform itself in any way that it thinks fit and to proceed with as little formality as possible.
295. 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 if the applicant wishes to do so.
297. Although delay is unavoidable, it does result in hardship to some victims and their families. Bills have to be paid and suppliers are not necessarily impressed by the 'law's delay'.[17] VOCAL has raised the issue of financial difficulties caused by the payment of funeral costs by a deceased victim's family, using borrowed money. Some families are unable to repay loans taken out to pay these costs until an award of compensation is made. In the meantime, interest continues to accrue or friends become anxious for the return of their generously lent money. Other expenses which must be borne by victims until an award of compensation can be made include medical costs not covered by Medicare or a medical fund, the cost of the preparation of appropriate reports by medical practitioners (which frequently have to be paid at or before the time of consultation); and other expenses stemming directly from the crime.
298. It must not be forgotten, however, that a prescribed injury may be compensated if it is sustained as a result of the criminal conduct of another person and that criminal conduct is narrowly defined by section 2 of the Criminal Injuries Compensation Act to mean an act which constitutes, or is, an element of an offence. It seems to follow, therefore, that a trial in respect of a crime may deal with much wider issues than mere criminal conduct as that phrase is defined by section 2. As well, the onus of proof which an applicant for compensation bears is much less than that borne by the Crown in a criminal trial - proof of an element of an offence on a balance of probabilities against proof beyond reasonable doubt of all the elements of the offence. This lessens, it would seem, to a great degree the risk of corruption of a verdict in respect of an offence. Also, the determination of who is guilty of the offence or whether the offence is technically established is not a necessary pre-requisite for compensation.
299. The Committee considers that a reasonably satisfactory solution for the problem of delay already exists in the Act. Section 16(1) provides that where the court is satisfied that an award of compensation should be made to an applicant but does not have sufficient information before it to enable it to determine finally the amount of compensation to be awarded it may, if it thinks just, by order, make an interim award of compensation to the applicant pending the making of a full award. An interim award can be made at any time after the application for compensation is made, including before the related criminal trial. Such an interim award ceases to have an effect when an order is made under s. 5 in relation to that applicant. It would seem that the words 'ceases to have effect' appearing in s. 16(2) indicate that an interim award may be of a periodical nature as well as of a lump sum. In appropriate circumstances, therefore, it seems that the court should be able to make an award not only for lump sums to deal with expenses incurred but also for periodical payments in the nature of damages for loss of earnings due to the criminal conduct in question.
300. An important element in insuring that victims of crime whose financial situation necessitates an interim award is information about the existence of the legislation. The Committee understands that some crime victims are unaware that they are entitled to claim criminal injuries compensation. It seems reasonable to assume that an even greater number are unaware of the availability of interim awards in some circumstances. The Committee is of the opinion that the presence of a source of information dissemination, namely the Victims' Coordinator[18], and the publication by the Magistrates Court of brochures informing victims of the availability of criminal injuries compensation will address the problem of lack of knowledge. The Committee recommends that the Victim Coordinator[19] be required to advise a victim of a crime as soon as may be reasonable after the commission of that crime of the provisions of section 16 of the Criminal Injuries Compensation Act 1983 and to advise that 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.
301. To minimise or even obviate the risk that an interim award might seem to prejudge the issue before the court, it would seem desirable to provide that applications for interim awards should be made in camera and that there should be no publicity of any kind concerning the outcome of those applications. If a Magistrate hears such an application he or she would, it is thought, be disqualified from dealing with the criminal proceedings in respect of the conduct in question. The same consideration would not appear necessarily to apply to a Judge of the Supreme Court separated from the accused as he or she would be by the jury deciding the truth although one would expect a judge to advise the accused that he or she had dealt with the earlier application. It would appear to be entirely a matter for that Judge to decide whether he or she should preside over a trial of the offence in question.
302. The Committee's view that applications for compensation should be dealt with usually after the related criminal proceedings have been completed, accords with the general proposition that criminal proceedings ought to be completed before a civil suit arising out of the same facts is dealt with unless unusual delay in bringing the alleged offender to trial has occurred. There is also another practical reason why criminal proceedings should be disposed of before a claim for compensation is finalised. Giving evidence during the criminal proceedings may either stir up old feelings of depression or other psychological conditions, or may give rise to them for the first time. It may well be that until those proceedings are completed the victim will not be in a position to give evidence with accuracy as to the full extent of the damage sustained as a result of the criminal act in question. This is the reason for delay in preparation of the second VIS until plea of guilty or verdict of guilty or until very late in the trial.
The Committee is of the view that the criminal injuries compensation system as exists in this State works very well. It can be described as speedy, accessible, cost effective, sensitive and fair.
On lodging an application for compensation a victim can expect that the hearing of the application will be heard within a matter of weeks.
The Master [of the Supreme Court who alone has jurisdiction to deal with such applications] on receiving applications refers them to the Director of Public Prosecutions. With rare exceptions, the Director of Public Prosecutions always concedes criminal conduct and a lack of an adequate civil remedy. The attitude of the Director of Public Prosecutions to these applications is one of the major reasons why the system works so well in this State.
The hearing time for the application is usually from 10 to 15 minutes. Applications are informal and the victim rarely has to recount his or her experiences before the Master. As a result, the applications are dealt with in a sensitive fashion and with as little discomfort to the victim as possible.[20]
304. The Tasmanian compensation scheme is evidence that an administrative tribunal need not be established in order to ensure that compensation hearings are informal, quick and non-adversarial. Existing officers within the criminal justice system, such as the Master in Tasmania, are able to ensure that hearings are not traumatic for victims or costly to the government.
305. The Committee is satisfied that there is not the slightest need for a separate compensation tribunal to be established. Amendments to the Act in line with the suggestions made above would, it is thought, resolve any difficulties which applicants might have in respect of delay. There is no suggestion that applicants have been dealt with unfairly or without sensitivity. The Committee believes that the establishment of a specialist tribunal would be an example of proliferation of unnecessary tribunals and consequent greater and unnecessary expense. Funds spent on such a tribunal would, it is thought, be more appropriately spent in direct assistance to victims of crime.
306. However, two cases have been brought to the attention of the Committee in which applications for criminal injuries compensation brought by one victim are heard within different courts. In one case, one perpetrator was a juvenile and the other an adult. This meant that criminal hearings were held in the Supreme Court and the Children's Court. The second case involved two distinct criminal acts, the effect on the victim of the second victimisation compounding that of the first. The perpetrators of the first crime were found and dealt with in the Supreme Court; those of the second crime were not caught. Section 11 of the Criminal Injuries Compensation Act divides jurisdiction in criminal injuries compensation matters in an exclusive manner according to which court has heard or will hear the related criminal matter and whether the perpetrator of the crime has been caught:
11. (1) The Supreme Court has jurisdiction to determine an application in respect of a prescribed injury or prescribed property damage where, in respect of the relevant offence--
(a) an indictment was presented in that court; or
(b) a person was committed for trial or sentence in that court.
(2) The Magistrates Court has jurisdiction to determine an application in respect of a prescribed injury or prescribed property damage where, in respect of the relevant offence, an information was laid in that court and the Supreme Court does not have jurisdiction under subsection (1).
(3) The Registrar of the Supreme Court has power to determine an application in respect of a prescribed injury or prescribed property damage where, in respect of the relevant offence, an indictment has not been presented or an information laid.
(4) In the application of this section in relation to an application in respect of a prescribed injury or prescribed property damage sustained as a result of the criminal conduct of each of 2 or more persons acting together--
(a) the reference in subsection (1), (2) or (3) to the relevant offence shall be read as a reference to any of the relevant offences; and
(b) the second reference in subsection (2) to jurisdiction shall be read as a reference to jurisdiction by reason of any of the relevant offences.[21]
Master Hogan of the ACT Supreme Court urged reform of this aspect of the legislation in both of these cases. He argued that in cases where the total injury results from separate criminal activities and the total picture needs to be considered by one tribunal, some arrangement should be devised to enable such consideration by a single tribunal.
307. The Committee recommends that section 11 of the Criminal Injuries Compensation Act be amended to enable the Supreme Court, including the Master or 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 by one tribunal in its totality.
309. However, the Committee recommends that the Act be amended to provide that awards of compensation to the maximum available be made as though the issues in question were those in a civil action for personal injuries arising out of a tort. The Committee makes this recommendation because it considers that this accords with the general intent of the statute[22] and because to proceed in the way recommended would provide a measure of consistency and near certainty for those who are asked to advise on amounts recoverable under the Act.
310. A matter which has been brought to the attention of the Committee is that of multiple awards of compensation for injuries arising out of similar, but not the same, circumstances. In at least two cases in the ACT, a case of incest[23] and one of domestic violence[24], awards of compensation have been made which exceeded the maximum amount of compensation then available. In those cases, the single application for compensation made by the victim was treated as if a separate application had been brought for each of the separate incidents. The Committee understands that Government Solicitors Office of the ACT Attorney-General's Department is of the opinion that such awards are incorrect in law, but the Territory has not challenged the awards because of considerations of a political nature.
311. The Committee recommends that multiple awards in cases where the injuries arose 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'.[25] However, multiple awards of compensation of this nature should not exceed $100,000 in total.
314. 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 reviewed annually by the Registrars of the Courts concerned and should be varied annually to accord with movements in the cost of living.
316. The Committee is of the opinion that an important application of the principle of due process is that a person who may become liable to pay an amount of money to the Territory by order of a court should be entitled to question the bases of the claim for that amount.
317. On the other hand, the Committee recognises that to require victims of crime to undergo further cross-examination by the offender or the offender's legal representative could nullify some of the healing the victim has received as a benefit from the payment of criminal injuries compensation or from other victim oriented legislation. Further, it would seem inappropriate that the offender be given standing to cross-examine the witness when the Territory may not have an automatic right to appear at criminal injuries compensation determinations. A relevant consideration is the fact that an offender required to reimburse the Territory for compensation paid to the victim would face a far heavier penalty than a person who had committed the same offence but who was not required to reimburse the Territory.
318. The aim of this report is to improve the delivery of justice to victims of crime. This includes the minimisation of the trauma caused the victim by the criminal justice system. The Committee cannot support the increased traumatisation of the victim on the grounds that the Territory might take action to recover from the offender compensation paid to the victim. It should be noted that, to date, the Territory has recovered no money from offenders as reimbursement for money paid to victims in compensation.
319. The Committee is of the opinion that the only way in which the conflict between the interests of the offender in being able to cross-examine the victim on a claim for criminal injuries compensation for which the offender may eventually be liable and the interests of the victim in not being further traumatised by cross-examination on a claim for compensation would be to repeal s. 29A of the Criminal Injuries Compensation Act. It is believed that the Territory has as yet been able to recover no money through use of the section, so that it would be in no worse financial position if denied the right to recover. The Committee perceives the exercise of that right to be a real potential source of injustice to a dependent who would pay for his or her crime an amount which may not be able to be calculated and which in effect forms a type of fine as part of the punishment for the crime. The principle of consistency of sentencing would be most difficult to apply in these circumstances. The Committee therefore recommends that section 29A of the Criminal Injuries Compensation Act and the consequential section 29B be repealed. If this recommendation were rejected, the Committee would recommend that, in any case, where the government seeks reimbursement, it should be required by appropriate rules of court to seek that reimbursement at the time the application for compensation is made by a simplified form of third party proceedings so that the traumatic effect of any cross-examination would be reduced to a minimum.
320. There could, however, be one instance where justice would require that the offender be given an opportunity to further cross-examine the victim. If the victim, dissatisfied with the award of compensation under the Criminal Injuries Compensation Act, were to seek damages in a civil action, it would seem just that the government should be entitled to be reimbursed money it has paid as compensation from any judgment in the civil action in favour of the victim. But the amount of damages which the victim would seek would plainly be a matter of vital interest to the offender and it would be in his or her interest to attempt to cut down the amount of those damages by cross-examination in the usual way.
321. The Committee recommends a compromise solution. If an applicant, having received an award of compensation under the Criminal Injuries Compensation Act, brings an action for damages in respect of the same injury for which he or she was awarded compensation, he or she puts himself or herself at risk of cross-examination in the usual way. But the Committee recommends that the government does not take advantage of the right of subrogation given it by s. 29 of the Act unless the victim himself or herself commences action for damages.
323. In a paper entitled 'T.V. or not T.V. - the Question of the Use of Technology in Courts Where Children are Witnesses', Ron Cahill, Chief Magistrate, and Mark O'Neill, then Senior Deputy Clerk of the ACT Magistrates Court, pointed out the need to balance the conflicting interests of those involved in a case where a child has complained of abuse and the complaint has ended up before the court.[26] They said three basic factors needed to be considered. They are:
- The need to protect the child from trauma caused by the legal process;
- The rights of persons affected by allegations of child abuse; and
- The need to enforce the criminal law and maintain social standards.
The authors then said:
It is difficult to assess with accuracy the degree to which children are affected by the obligation to give evidence, particularly where the person who is placed in jeopardy by that evidence is a close relative or a person who has had a long-standing association with the child. It is clear that the effect on some is profound and immediate. The courts have frequently encountered the spectacle of children called to give evidence being unable to utter a word. It is generally believed that this results from the child's sense of fear and intimidation at the task which they are called upon to perform rather than from a reluctance to make a false complaint.[27]
324. An accused person has a right to confront his accuser. Justice Murphy said:
The fact that the complainant is a witness satisfies one of the most important rights of an accused which is, that in the absence of satisfactory cause such as death or incapacity, the accused is to be given the opportunity of testing evidence against him. This right of confrontation is 'one of the fundamental guarantees of life and liberty ... long deemed to be essential to the protection of life and liberty'.[28]
325. Cahill and O'Neill went on to discuss the question of hearsay and its general inadmissibility. However, the rule against hearsay evidence is no longer to be considered as sacrosanct. It has been considered at great length by the Australian Law Reform Commission. The question of hearsay evidence is also discussed at some length in two papers presented to the Conference by Ms Kate Warner and Mr Stephen Mason.[29] Messrs Cahill and O'Neill put succinctly the problems in prosecuting offenders. They state:
There is nothing new in the revelation that the present rules of criminal procedure and evidence make it extremely difficult to prosecute child abusers. Briefly, the problems are these: Firstly (sic), the child victim, however young, is expected (like an adult) to tell the embarrassing tale in an open court in front of a judge, jury, court officials, barristers and the alleged attacker, and be submitted to a possibly bullying cross-examination. This is a terrifying ordeal for older children, and in the case of very young children, it is impracticable even to consider it. Secondly, if the child can be induced to tell the story to the court, there can usually be no conviction on this evidence without 'corroboration', which is a highly technical and restrictive legal concept. And thirdly, what the child told parents, doctor, social worker or the police about the incident is usually inadmissible in evidence because it amounts in law to 'hearsay'.[30]
326. The authors see two approaches as being necessary for prosecutions for child abuse. They are:
- a special set of rules for children in court for their protection; and
- a multi-disciplinary approach to avoid a multiplicity of interviews, not only for the protection of the child but to protect and preserve evidence and its evidentiary weight.
327. They quote from J.R. Spencer's article entitled 'Child Witnesses, Video Technology and the Law of Evidence':
How [can] any rule or tradition sensibly be dignified with the title of a basic principle of British criminal justice unless it furthers one of the following three objects: (i) the conviction of the guilty; (ii) the acquittal of the innocent and (iii) the conduct of the trial in a humane fashion which inflicts no greater pain or indignity on the participants than the seriousness of the case makes necessary. Any so-called basic principle which does not further one of these objects is bogus ... seeking to turn the serious business of criminal justice into an artificial game, amusing and enriching lawyers, but detrimental to the general public for whose help and protection criminal justice supposedly exists.[31]
328. The same conference heard a paper presented by Sergeant George Vickers of the Child Exploitation Unit of the Victoria Police, who suggested that there were certain basic measures which had to be adopted before a statement from a child could be taken. These were:
- the interview should take place in surroundings in which the child feels at ease. Ideally this would be at the child's own home and may even extend to the child's own room;
- the interviewers should be dressed in a casual manner so as not to intimidate the child;
- the interviewer must obtain the child's confidence at the outset. This can be done by playing a game with the child or having the child tell a story;
- clear simple language should be used when speaking to the child, not jargon such as 'offender' or 'perpetrator'. It is also vital to ascertain from the parents of the child what names the child uses for the male and female genitals. It is imperative that the words used by the child are recorded accurately by the interviewer. If the child calls his penis his 'doodle', then this must be used and not replaced by the word 'penis' because the interviewer thinks it more appropriate;
- the interview should take place at a reasonable hour. It is of little value trying to talk to a child that is falling asleep;
- it is usually advisable that the interview take place in the absence of the parents. Experience has shown that victims can talk more easily about the event when the parent is not present. It also prevents the parent from answering questions on the child's behalf.[32]
329. Sergeant Vickers also considered that, in most cases, the victim would probably require some sort of counselling from a psychologist, paediatrician or social worker. The degree of counselling would vary, he said, from child to child , but the investigator should ensure that the parents are made aware of what counselling services are available. He also said that it should be remembered that counselling services can be of benefit to the investigator. It may well be that the child has blocked out the events of the molestation from his or her mind and it would only be after counselling by qualified persons that the child would be able to relate to the investigator the details of what occurred. He recommends further that the counsellor and parents should prepare the child for the subsequent court case, stating that the child must be made aware of the procedure that will take place and of the questions that are likely to be asked. He recommended that the child should be taken to the courtroom before the hearing so that he or she might be shown what actually happens inside. He declares it imperative that a conference between the counsellor, parents, child and prosecutor take place before the hearing. At the hearing he recommends that when a child does finally give evidence, the parent or the counsellor should be present in the court to give support.
330. In another paper given at the Conference on Children as Witnesses, referred to above (see footnote 117), Margaret Cunneen, a Senior Principal Solicitor for the Child Sexual Assault Unit in the Office of the Solicitor for Public Prosecution in Sydney, set out a detailed protocol for preparing a child, specifically a child victim of sexual abuse, for her or his appearance in court to give evidence against an alleged offender. A copy of the paper, which the Committee considers it would be difficult to improve, appears as Appendix 'E' to this report by kind permission of Ms Cunneen. The Committee recommends that it be used as a basic protocol in the preparation of child witnesses in appropriate cases.
331. The Evidence (Closed Circuit Television) Act 1989 (ACT)(and its successor the Evidence (Closed-Circuit Television) Act 1991 (ACT)) provide in substance that the Magistrates Court may at any stage in criminal proceedings, proceedings under Part V of the Children's Services Act, proceedings under the Domestic Violence Act 1986 (ACT) and proceedings in the Coroners Court order that a child who is to give or is giving evidence may give all or part of that evidence from a place other than the courtroom. The general object of the Acts is to ensure that, if it is likely that a child would suffer mental or emotional harm if required to give evidence in the ordinary way or that the facts will be better ascertained if the child's evidence were given in accordance with such an order, the child should be physically separated from the courtroom where the defendant is present.
332. As part of the Australian Law Reform Commission's project on children's evidence, a research paper on the use of Closed-Circuit Television for child witnesses in the ACT was prepared by Dr Judy Cashmore with the assistance of Nicola De Haas. It was published in October 1992. The final report has now been published. The Committee respectfully agrees with its recommendations.
333. The Committee makes no further recommendations concerning children as victims of crime at this stage. It already has a reference on mandatory reporting of child abuse which is well advanced and deals, of course, more specifically with the question of the child as victim. Additionally, the Australian Law Reform Commission report on evidence is yet to be debated in the Parliament of the Commonwealth but it seems that many of the problems which face prosecutors dealing with alleged abuse of a child could be dealt with if the appropriate sections of the legislation recommended as a result of the Australian Law Reform Commission Report were brought into effect in the Territory. It should be noted that this legislation has been the subject of detailed consideration some years ago by the Criminal Law Consultative Committee of the Australian Capital Territory and that the evidence legislation in the Territory was to be reviewed as long ago as 1971 when the Evidence Ordinance came into being following the disallowance of certain provisions of the law relating to evidence then operative in the Territory.
334. The Committee thinks that a good deal of the problems associated with victims of crime and, in particular, child victims of crime, could be dealt with, at least with substantial success if the recommended legislation were brought into effect.
336. Members of the staff of the school were concerned particularly because they felt that children were subjected to 'system abuse' in which a child is moved in a disorganised fashion between services because each feels that another would be more appropriate to deal with the abuse of an intellectually disadvantaged child. They were concerned at the apparent lack of coordination between the various services which allowed this type of movement to occur.
337. The recommended solution was that there should be a 'facilitator' appointed to protect the interests of the child. Such a facilitator could act as a friend at court, and could help the prosecution and defence to question the child, in particular by assisting in the formulation of questions which the child could understand. The staff of the school pointed out that there is no 'one' way in which a child with intellectual disabilities should be spoken to so that what is said to her or him might be understood. It is necessary for the questioner to understand the child's environment and the way in which the child 'operates'. This means that a facilitator assigned to assist in the case of a child who has been the subject of abuse should be able to spend some time with the child and to be briefed by people who know the child well. Then, and only then, would the facilitator be in a position to pinpoint the issues which are of importance in the case. Legal and welfare experts would be able to assist by putting forward general propositions applicable in all such cases but they would need the assistance of the facilitator to ensure that the child understands the questions asked and can thus assist reliably in the conduct of the case.
338. The staff of the school pointed out that intellectually disadvantaged children tell things 'as they are', for they have no guile and no desire to impress. They do not embroider the evidence they give and their perceived 'incompetence' is because of the questions asked. Simple questions leading the child along the path of the evidence which she or he can give would be enough to keep the narrative going without any impression of coaching. Thus the emphasis would be on telling the story rather than upon the answering of questions. If an intellectually disadvantaged child answers questions only half understood in a strange environment with little or no support, it would be, in the opinion of the staff of the school, a matter for little surprise that the child would give incorrect answers, and that she or he may be influenced by the expression on the questioner's face to alter answers or to assume that questions re-asked meant that the first answer given was wrong. It would follow that repetition of questions in cross-examination could easily enough lead to a situation where the cross-examiner could point to discrepancies in answers to the same question repeated a number of times. It would seem necessary, therefore, that a suitably qualified child psychologist should give evidence concerning the way in which the mind of an intellectually disadvantaged child works so that the tribunal of fact can assess the value of the child's evidence in the matrix of the child's mental capacity and the way in which she or he 'operates'. When the child actually gives evidence, a facilitator, effectively an interpreter, who is familiar with the child, should be available to assist in the understanding of his or her evidence.
339. The Committee recommends, therefore, that in all cases where a child victim who suffers from an intellectual disability is to give evidence, evidence should first be given by an expert on the capacity of the child and the way in which his or her mind works so that the tribunal of fact can more accurately judge the truth of the evidence given and the weight which should be afforded it. It recommends also that a suitably qualified person should give evidence as a skilled facilitator, able, in effect to translate what the child is saying or attempting to say and able to transmit in a way comprehensible to the child questions being put to him or her by the court, or by Counsel for the prosecution or the defence.
341. There are already established in the ACT several services which provide assistance to victims of crime. They have earned the goodwill of victims who have turned to them and the respect of other agencies. The problem faced by the ACT is not the lack of appropriate services, but the lack of coordination of those resources devoted to helping victims of crime. As the welfare dollar is limited, it is vital that all available funds are used to greatest effect: that services are not duplicated to an unnecessary extent and that the needs of victims are heeded.
342. It is important that any problem with the coordination of services is not compounded by the implementation of any of the recommendations contained in this report. The recommendations of the Committee are designed to improve the delivery of justice to victims rather than make that delivery more complex. Coordination is a vital element in achieving that objective.
343. An important factor in achieving the objectives of schemes, such as those proposed in this report, is the development of implementation strategies, including the integration of proposed measures into the existing criminal justice system. The contrasting circumstances in South Australia and New Zealand following the release of recommendations designed to improve the delivery of justice to victims of crime illustrate the point.
344. In South Australia, the Committee of Inquiry on Victims of Crime released its final report at the beginning of 1981. The recommendations of the Committee of Inquiry were well conceived and well received by agencies within the criminal justice system and by the community. However, a lack of funding and coordination for the implementation of the suggested reforms meant that coherent implementation of the proposals of the Committee did not occur until some time later.
345. Section 12 of New Zealand's Victims of Offences Act 1987 provided for the establishment of a Victims Task Force. Section 13 of that Act set out its functions:
13. Functions of Victims Task Force - The functions of the Victims Task Force shall be as follows:
(a) As a matter of priority, to work with Judges, Registrars, prosecutors, Government departments, and community organisations involved with victims in order to develop guidelines to promote the principles set out in sections 3 to 11 of this Act;
(b) To assess the adequacy of existing services available to victims and to identify any shortcomings;
(c) To co-ordinate and promote the distribution of comprehensive information about the services and facilities available to victims;
(d) To consider whether further measures are needed to assist victims;
(e) To receive requests for financial assistance from community organisations working to assist victims and to make recommendations on those requests to the Secretary for Justice;
...
(g) To consider any other matter relating to victims referred to it by the minister of Justice;
(h) To make recommendations to the Minister of justice, as it sees fit, on matters relating to victims.
The Task Force is also responsible for evaluation of the victims of crime scheme established by the Victims of Offences Act. Its role in this area is discussed in greater detail in the chapter dealing with evaluation.
346. The Task Force has wholly accomplished its aim to achieve acceptance of the principles set out in the Act by governmental departments and other agencies. The criminal justice system in New Zealand has become far more victim conscious than when the Act was first passed. Departments and agencies no longer require supervision to ensure that they take into account the needs of victims of crime.
347. The Committee consider that it is vital to the successful operation of the scheme proposed in this report that a statutory office be created with the responsibility for functions similar to those performed by the Victims Task Force in New Zealand. This officer might be called the 'Victims of Crime Coordinator'. The Committee thinks that the appointment of such a Coordinator would be an important factor in ensuring a complete implementation of the recommendations of this report, in particular by:
- Formally recognising the important position of victims in the criminal justice system;
- Ensuring that individual victims are given the advice and assistance they need to participate in the criminal justice process;
- Promoting the necessary attitudinal changes within the criminal justice system;
- Giving a formal voice to victims within the criminal justice system;
- Coordinating existing and proposed services and resources.
348. It is essential that the person nominated to the position of Victims of Crime Coordinator have an intimate knowledge of the workings of the criminal justice system and the various needs of victims of crime.
349. The Committee believes that, unlike the New Zealand Victims Task Force, the Coordinator would have a permanent role. Some of the tasks that the Victims of Crime Coordinator might perform are:
- Ensuring that a victim is adequately informed concerning the progress of the criminal proceedings in which he or she is involved;
- Ensuring that victim impact statements are made when appropriate;
- The creation of a central register of services which can provide assistance to victims of crime;
- The coordination of services provided to victims to ensure their effective and efficient delivery;
- The education of officers within the criminal justice system to ensure adequate recognition of victims and their needs;
- Acting as a central contact point for victims of crime (for example for the provision of general information and as contact officer for more specific details about the progress of a particular case);
- Identifying those situations where necessary information is not reaching victims and relatives and develop protocols for the provision of information;
- Ensuring as far as is possible that victims of crime with special needs have those needs met;
- Ensuring as far as is possible that those victims who should have been offered the opportunity to complete a victim impact statement have in fact been offered this opportunity; and
- 'Vetting' certain victim impact statements to ensure generally that they accurately reflect the effects of the crime experienced by the victims.
350. It is important that from the outset victims be directed toward the services best suited to their particular needs. This will only be possible after the identification and listing of the range of services available. The cataloguing of victims' services will enable the service-providers and the government to identify which services are available, whether there is any duplication of services and whether there are any victims whose needs are not being met by existing services. Obtaining this information would allow the development of effective and cost-efficient network of services for victims.
351. The Committee has identified as being essential to the development of a more victim-oriented criminal justice system the education of officers of the criminal justice system and, more generally, the community, about victims of crime and their needs. The Coordinator will occupy an ideal position from which to promote this education on a continuing basis. For example, the Coordinator might assist in the development of education programs for officers within or entering the criminal justice system and, perhaps, more generally, programs suitable for school children and community groups.
352. This report has identified the adequate provision of information as being the most important factor in determining whether victims are satisfied with the operation of the criminal justice system. The Committee believes the Coordinator will have two important functions in ensuring that victims receive adequate information. As well as being ideally placed to provide victims with general information about the operation of the criminal justice system and where a victim might obtain appropriate assistance, the Coordinator would play an important role in helping organisations such as the Australian Federal Police and the Office of the Director of Public Prosecutions identify those victims or relatives who should be informed of the progress of a particular case but who currently do not receive this information.
353. The Committee believes the Coordinator might play a role in the identification of victims who might have special or additional needs not identified by the officers of the criminal justice system. An example might be the families of murder victims or victims of serious assault who might need access to outreach services (such as that provided by VOCAL) or counselling services.
354. As stated earlier in this report, the Committee recognises that it is not practical to offer all victims the option of preparing a victim impact statement. The Coordinator will play a role in ensuring that victims who should be offered the opportunity to prepare statements are given that opportunity, both by assisting in the preparation of guidelines and in conducting 'spot checks'.
355. The Victims of Crime Coordinator should be an independent officer within the criminal justice system. However, because the role of the Coordinator will be dependant on close connections with the Australian Federal Police, the Committee recommend that the Coordinator be allocated an easily accessible office within the City Station of the Australian Federal Police. This arrangement operates very successfully in New Zealand, allowing the coordinators of the victim outreach services easy access to police officers and police records. It also encourages police officers to remember the existence of a victims' coordinator.
356. The Coordinator should develop protocols with the Australian Federal Police and the Office of the Director of Public Prosecutions for the exchange of information. It is particularly important that the Coordinator be given access to crime reports of the AFP to enable the identification of victims who might need special consideration or assistance. The New Zealand coordinator has access to the crime reports from the previous 24 hours. That system appears to be working well.
358. The first of these proposed legislative changes is the creation of the position of the Victims of Crime Coordinator, as a statutory office, with suitable guidelines for the operation of that office. The Committee recommends that these guidelines include the Declaration of Victims' Rights, described in detail earlier in this report. The placement of the Declaration within a legislative framework will ensure that victims have, and are seen by relevant agencies to have, actionable rights within the criminal justice system. In this respect, the Committee therefore is of the opinion that the ACT should follow New Zealand, where the Declaration of Victims Rights were included in the Victims of Offences Act, rather than South Australia, where the victim's right to complete a victim impact statement and to have put before the bail authority his or her need for protection are the only provisions that have been given legislative backing.
359. As detailed earlier, the Committee is of the opinion that statutory recognition ought to be given to victim-offender PAR. The Committee is of the opinion that such legislation should be modelled upon that of New South Wales.
360. Some amendments to ACT legislation consequential upon the recommendations of the Committee will be required. These are set out in the legislation attached to this report at Appendix 'F'.
362. Of course, the types of administrative changes suggested in this report would provide the framework for officers to cater to a greater extent for the needs of victims of crime. Education of officers is important to ensure that they become committed to working within this framework. Victims need to feel that officers of the criminal justice system are genuinely interested in the their welfare. The Committee therefore recommends that the agencies of the criminal justice system in particular emphasis the importance of education for their officers in victims' issues.
364. The Committee recommends that the government consider 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 three per cent on top of existing fines. Therefore, if a person is fined $300, the fine he or she would actually pay into the Treasury would be $309. The nine dollar levy would be directed into a fund specifically for use in the victims' programs suggested in this report. The non-payment of the levy should not, however, result in imprisonment.
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