365. Evaluation of the operation of any new proposal or policy is essential in determining whether that proposal is meeting its goals effectively and efficiently. Therefore, evaluation of whenever proposals are implemented will be required to determine:
- whether the stated goals are being met;
- what improvements, if any, might be made.
366. The implementation of the recommendations of this report would result in significant changes to the operation criminal justice system with regard to its delivery of justice to victims. The recommendations are designed to improve the delivery of justice and related services to victims of crime. In addition, they are intended to help the victim to be healed of the effects of victimisation.
(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;
(f) To consider whether provision should be made in law, in cases where an offender is sentenced to make reparation pursuant to section 22 of the Criminal Justice Act 1985, for the Crown to make an immediate advance to the victim of part of the sum ordered to be paid by the offender;
(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.[1]
369. The Task Force is funded by a 1 percent levy on all fines and was to cease to exist on 1 March 1993.[2]
370. The Victims Task Force appears to have been very successful in ensuring the effective implementation and acceptance of the measures of the Victims of Offences Act. VOCAL, in one of its submissions to the Committee, argued that this is an appropriate and successful model for evaluation of any measures introduced in the ACT. However, many of the functions of the Task Force are those that are recommended in this report as suitable to be dealt with by the Victims of Crime Coordinator. Indeed, function (c) of the Task Force refers specifically to coordination. This is probably because the New Zealand legislation is very much a 'framework' law around which administrative measures (which had not been developed at the time of enactment) would be developed. In the case of the ACT, many of these administrative matters have been developed and other protocols, such as the day-to-day working relationship between the Victims of Crime Coordinator and the Police , are properly a matter for the Coordinator and Police to determine.
371. Given therefore that the role needed in the ACT is strictly limited to evaluation and monitoring, it may not be necessary to establish a body as formal and comprehensive as the Victims Task Force.
377. The Victims of Crime Evaluation Committee should comprise senior representatives of the following agencies:
- Victims of Crime Coordinator;
- Australian Federal Police (ACT Region);
- Director of Public Prosecutions (ACT);
- ACT Corrective Services;
- Community Advocates Office;
- Juvenile Justice Section of the Department of Housing and Community Services;
- Attorney-General's Department;
- ACT Treasury;
- ACT Supreme Court;
- ACT Magistrates Court;
- Mediation Service; and
- Victims of Crime Assistance League.
378. The Victims of Crime Evaluation Committee should initially meet six months after the tabling of this report. An independent Chairperson might be drawn from interested staff of the Law Schools of the Australian National University or the University of Canberra. If the Chairperson is to be a member of the Committee, he or she might be nominated by Committee at its first meeting. It should meet monthly thereafter until the completion of the PAR pilot project. It should present its report to the Attorney-General within one calendar month of its final meeting. Secretariat facilities should be provided by the Attorney-General's Department.
379. As part of its monitoring and evaluation function, the Committee would particularly consider:
- The suitability of the form of victim impact statement being used;
- Whether victims who would particularly benefit from making a victim impact statement are generally being given the opportunity to do so and, if not, the desirability of extending the coverage of victim impact statements in the light of availability of funds;
- The reports of the Juvenile Justice Consultative Group concerning the impact the implementation of PAR on those agencies which support young people in particular;
- The reports of the Community Advocate and the Victims of Crime Coordinator regarding patterns of referral to PAR; and
- The desirability of extending the PAR project to other offenders and offences on the completion of the pilot project.
It could also consider any other matter arising from this report it considered relevant.
380. Enough has been said in this report to show that many victims of crime are gravely or seriously injured by the crimes committed against them. Still others are moderately or slightly injured. Some emerge from the experience unscathed, others do not. For the injured there must be healing. The Committee recognises that its proposals will not effect healing in many cases but it considers that the implementation of those proposals will go some distance towards healing all victims and will go a much greater distance in healing a considerable percentage of them.
381. While considering the reference, a Committee member utilised a 'brainstorming' session involving a Community Counselling graduate diploma class at the University of Canberra. Most of the class were women with experience in many community fields. A very short session produced a large number of proposals which are either reflected in this report, or are at least similar to many of its recommendations.
382. The Committee also used a 'brainstorming' session to get reactions from the Conflict Resolution Service. It is satisfied that it obtained similarly useful results which might be borne in mind as useful guidelines.
383. The Committee considers that if its recommendations are put into effect much healing will be effected. If all victims are accorded the full measure of dignity to which they are entitled, if appropriate resources are made available to meet their needs, if some practical measure of compensation is awarded them, if they are made aware by adequate information of the separate steps in the criminal process as it concerns them and if they are enabled to contribute their views to that process at appropriate stages, it is the strongly held view of the Committee that victims of crime in the Territory will receive much effective healing. If they are treated with unfailing courtesy at all stages of the process, the criminal law will be an instrument of healing and not an instrument of vengeance or retribution, both of which have failed in the past and will fail in the future to help victims of crime in any way or to rehabilitate the offender.
384. The Committee sees PAR as a particularly powerful tool to bring about reconciliation between victim, offender and the community. It does not suggest, for it would be impertinent to do so, that victims must accord forgiveness to offenders, but many might, and some certainly will, find themselves able to do so whether at an early stage of the prosecution process or after conviction when sentence has been served. As the incest victim referred to earlier[3], put it: after her father had completed his sentence, she wanted to get the whole business behind her so that she could get on with the business of living.
385. The Committee felt it was involved in a worldwide movement aimed at more justly dealing with victims of crime. It sees this as an opportune time to join in that movement and the Committee is grateful to have had the opportunity to make some contribution to it.
2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term "victim" also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimisation.
3. The provisions contained herein shall be applicable to all, without distinction of any kind, such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or group origin, and disability.
5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:
(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;
(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;
(c) Providing proper assistance to victims throughout the legal process;
(d) Taking measures to minimise inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;
(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.
7. Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilised where appropriate to facilitate conciliation and redress for victims.
9. Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanctions.
10. In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of a community.
11. Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimising act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims.
(a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes;
(b) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimisation.
13. The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm.
15. Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them.
16. Police, justice, health, social service and other personnel concerned should receive training to sensitise them to the needs of victims, and guidelines to ensure proper and prompt aid.
17. In providing services and assistance to victims, attention should be given to those who have special needs because of the nature of the harm inflicted or because of factors such as those mentioned in paragraph 3 above.
The Victoria Police Department Project targeted victims of eight primary categories of crime, provided that a charge had been laid: sexual assault, nonsexual assault, robbery, residential breaking and entering, theft under $1000, Theft over $1000, impaired driving cases where a victim had been identified, and homicide. Other minor categories such as wilful damage/mischief were added if they seemed significant and/or if they were included with one of the above targeted offences.
In the Victoria project, a police constable, supported by a clerk, had overall responsibility for contacting the victim and arranging for the preparation of the statement. Each morning the constable received a copy of the "Arrest and Court Docket Sheet". The constable identified those charges falling into the categories targeted by the program, obtained the relevant file from the records division, and opened a victim impact statement file. The constable then contacted the victim by phone to determine if he or she wished to complete a statement. (If the individual was a victim of a sexual assault or spouse abuse, a female constable would contact the victim and conduct any subsequent interviews.)
If the victim agreed to participate, an appointment was made for a personal interview. Following the interview, the constable prepared a victim impact statement based on the notes taken during the interview. Unless an update of the statement was completed, victims usually did not see or sign the prepared statement. This statement was then delivered by the court liaison officer to the crown office, and its use became a decision for the crown counsel handling the case.
The North Battleford Victim Impact Statement Project was staffed by a civilian coordinator and clerk who were employed specifically for their positions. They were based at RCMP quarters with direct access to police files. Eight broad categories of offences were targeted for inclusion in the project. Because the number of offences occurring in the eight categories exceeded the capacity of one coordinator, not all offences could be included in the program. As a result, the coordinator systematically selected a sample of incidents from each of the offence categories. The offences and their respective sample size were as follows:
1) assault -- every third assault occurrence (excluding spousal, sexual and child assaults) for which a victim could be identified;
2) spousal assault -- all spousal assault incidents;
3) child assault -- all child abuse incidents;
4) sexual assault -- all sexual assault incidents;
5) robbery -- all robberies for which a victim could be identified;
6) breaking and entering -- every third break and enter;
7) theft over $1000 -- all offences in this category for which a victim could be identified;
8) motor vehicle theft -- every third motor vehicle theft for which a victim could be identified.
Victims in the above eight categories were asked to participate in the program, regardless of whether charges were laid in their cases.
Each morning the victim impact statement coordinator received a copy of the "Police Information Retrieval System" printout. The coordinator screened the offences and identified those eligible for inclusion in the program. The coordinator attempted to contact the victim and set up an interview as soon as possible by telephone or by personal visit. Interviews were conducted by the coordinator at the victims home with the aid of an "offence-specific" victim impact statement questionnaire. Unlike all the other projects, which used only one statement form, the North Battleford project developed five different forms to be used for various offences. Following the interview, the victim was asked to sign the statement. The coordinator prepared a narrative summary, which was attached to the statement questionnaire, and both documents were then forwarded to the RCMP Court Liaison Officer or Youth Liaison Office and the Crown Prosecution Unit. Use or nonuse of the statement then became a decision for the prosecutor handling the case.
In cases where victims completed statements but the offenders were never apprehended, the statements remained on the program files and were closed only when the police files on the incidents were closed.
The Winnipeg Victim Impact Statement Project commenced in 1986 and was housed adjacent to the Criminal Prosecutions Division of the Manitoba Attorney General's Department. The project was staffed by one full-time victim impact worker, who relied on the Winnipeg Police Department Court Unit staff to isolate and forward eligible cases. Victims were eligible for inclusion in the program if the following criteria were met:
1) The offence was one of assault causing bodily harm, assault with a weapon, aggravated assault, sexual assault, or robbery (noncommercial).
2) The offender had been arrested and charged.
3) The offence took place in one of three of Winnipeg's six police districts.
4) The victim was at least 14 years of age and the offender was an adult.
Once eligible victims were identified, the worker attempted to contact each one to make an appointment to complete a statement. Interviews using an unstructured questionnaire were undertaken. At the conclusion of the interview, the victim was asked to read the worker's notes for accuracy, sign and date the questionnaire.
Following the interview, the worker prepared a concise narrative based on the questionnaire notes, to serve as the actual victim impact statement. Unlike all the other projects, where the victim impact statement was given to the crown attorney (i.e., entered into the system) as soon as it was completed, the Winnipeg project introduced the statement only after a disposition of guilt and just prior to sentencing. More importantly, copies of the statement were given not only to the prosecutor but also to the defence counsel and the judge. This difference represents a departure from the philosophy of the other projects. In Winnipeg, the statement was considered to be the property of the victim. At all of the other sites, statements were the property of the court and used at the discretion of the crown attorney. Thus, if the crown attorney did not use the statement, the judge and defence counsel were unaware of its existence. In Winnipeg, the crown attorney still used discretion when deciding whether to refer to the statement during submission to sentence; however, in all cases the defence attorney and judge were aware of the existence of a statement at the time of sentencing.
For those cases where sentencing occurred as a continuation of the trial, the worker relied on the crown attorney to request the statement that was delivered immediately for distribution.
The Calgary Victim Impact Statement Project commenced in February 1986 and operated out of the Calgary Police Department, Community Services Section. The project was staffed by a full-time civilian coordinator and featured a mail-out/mail-back system that required victims to complete the statements themselves with no personal assistance from project staff.
Victims of the following categories of offences were eligible for inclusion in the program:
1) Assault -- in spousal assault cases telephone contact was made and agreement from the victim obtained before the statement was mailed out.
2) Homicides -- relatives of homicide victims and victims of attempted homicide were sent a statement.
3) Noncommercial robberies.
4) Residential break and enter.
5) Sexual assault -- if the victim was a minor, statements were sent to the parent or guardian. In the case of a sexual offence where a sexual assault had taken place, an investigating officer from the sex crimes unit was contacted for advice on whether to mail out a victim impact statement. In about 30 per cent of these cases, officers decided against having a questionnaire mailed out. In 10 per cent of the cases, investigating officers personally took the statement forms to the victim; statement forms were mailed in the remaining 60 per cent of cases.
6) Child abuse cases -- a member of the child abuse unit was consulted to determine the advisability of requesting a statement from a nonoffending parent or the child victim. If the officer suggested a statement be sent, the coordinator did so.
The Calgary Police Department computerised information system was programmed to automatically route copies of the targeted offence categories to the project office. On receipt of this information the coordinator mailed to victims a victim impact statement questionnaire and a form letter explaining the purpose of the program, regardless of whether charges had been laid. At the request of police officers of crown prosecutors, victim impact questionnaires were also sent to victims of other offences, such as traffic and vehicle fatalities.
On the return of a completed and signed statement, a file was opened and case information obtained. where charges had been laid and a court date established, the statement was sent to the crown attorney's office. Prosecutors were then free to us the statements at their own discretion.
In January 1987, the Metropolitan Toronto Police Force introduced its Victim Impact Statement Program. The victim impact statement was collected by means of a four-page form that was given by the investigating officer to victims of serious crimes. Completed forms were then returned to the officer. The distribution of victim impact statements was at the officers' discretion; they were instructed to make these forms available to selected victims of crimes. The police force standing order specified that if a crime has had a significant impact on a victim, the victim should be given the opportunity to complete a statement. Victims were informed that their participation was voluntary and that the form should be returned to the investigating officer at the Police Department within 10 days of receiving it.
Once returned, the victim impact statement was placed in a crown envelope containing the prosecutor's brief and was sent to the prosecutor's office to be introduced at the discretion of the prosecutor.
The evaluation of each project covered three main areas:
1) An examination of the program operation and success in meeting its main objective (i.e., the preparation and presentation of the statements to court).
2) An examination of the effects of participation, in a victim impact statement program, on victims' satisfaction with the criminal justice process.
3) An examination of the effects of victim impact statements on the justice system (i.e., the effects on the administration of justice).
As previously indicated, each victim impact statement program had very different program objectives and each project evaluation was designed to address these specific objectives. Nonetheless, each site evaluation also included an examination of the problems and other issues that emerged as a result of the experimental nature of each project. The methodology and analysis, for components addressing problems and issues concerning the use of victim impact statements, were comparable across all sites.
In Victoria, the research design relied on a comparative control group using interviews with persons victimised prior to inception of the program. In Calgary, the evaluator developed a design that involved a comparison of cases within the total population of eligible victims. The Winnipeg project evaluation was based on a quasi-experimental analysis design, whereas the evaluation in North Battleford was a comparison of randomly selected victims of crime who may or may not have experienced the program intervention, or received a victim impact statement. Because of logistical problems in completing the criminal justice system research in Toronto. (there are more than twelve Police Divisions across Metropolitan Toronto) the study was a program review rather than an evaluation; thus a control group design was inappropriate.
Many of the evaluation data did not exist in program documents. In addition to collecting information from police and court files, data were obtained primarily from interviews with victims, prosecutors, and other justice officials. To this end, interview schedules were developed for victims who participated in the program, victims who were eligible but failed to respond to the program, and victims in the control/comparison preprogram group. All research designs involved either face-to-face interviews (North Battleford) or telephone interviews (all other sites) with victims. As well, in all sites, criminal justice officials with victims impact statement experience were interviewed in person.
Interviews with victims were designed to capture information on their views and perceptions of the program with respect to the following:
- reasons for participating or not participating in the program;
- purpose of the program;
- type and accuracy of the information collected;
- extent to which victims felt that statements conveyed the actual impact of the crime to justice personnel;
- extent to which they derived some benefit from the program;
- extent to which the program may have exacerbated their victimisation.
Interviews with victims also solicited demographic data and information on previous victimisation.
The following indicators of victim perceptions on involvement with the processing of their case were also obtained:
- degree of contact with various members of the justice system;
- awareness of criminal injuries compensation program;
- knowledge of charges laid;
- knowledge of case progress;
- attitudes towards various justice system members;
- satisfaction and dissatisfaction with process; and
- knowledge and degree of satisfaction of sentence or outcome of case.
In an effort to obtain more reliable information on the use of the victim impact statement by crown attorneys, a checklist was developed that required crown attorneys to indicate their use of the victim impact statement as cases progressed through the court.
Its main purpose was to capture limited data on the use of the victim impact statements prior to sentencing, and more detailed data on usage during sentencing. For ease of completion, the checklist was usually appended to all victim impact statement forms that were sent to crown attorneys.
Justice personnel interviews and the crown attorney checklist were intended to provide information on the extent to which:
- victim statements were used;
- victim impact statements contained new and useful information (e.g., similarity and/or difference in relation to police and presentence report information);
- victims were consulted;
- victims were cross-examined;
- victim impact statements were challenged;
- information in the victim impact statement was useful in recommending sentence;
- victim impact statements were used at other stages of court processing;
- justice personnel explained their support of victim impact statements;
- patterns or trends may have developed as a result of their usage;
- the means of introducing victim impact statements into the system could be improved.
i. What is Victim-Offender Reconciliation?
Victim-offender reconciliation is a process whereby offenders and victims are brought together by a trained (often volunteer) mediator to achieve a resolution to the criminal event which is satisfactory to both parties. Victim-offender reconciliation seeks to:
- effect reconciliation and understanding between victims and offenders;
- facilitate the reaching of agreements between victims and offenders regarding restitution;
- assist offenders in directing payment of their "debt to society" to their victims;
- involve community people in work with problems that normally lead into the criminal justice process; and
- identify crime that can be successfully dealt with in the community.
Reconciliation has been used effectively in many North American communities since the birth of the concept in Kitchener/Waterloo, Ontario in 1974. The Committee heard from representatives of programs operating in Ontario, Manitoba, Saskatchewan and British Columbia. Generally, such programs deal with minor offences (eg., property offences, assault and causing a disturbance, etc.), particularly where the parties know one another; but victim-offender reconciliation can be used in more serious cases. (This is further discussed later in this chapter.) Many victim-offender reconciliation programs also handle dispute resolutions where no criminal charges have arisen or are likely to arise.
ii. How it Works
Reconciliation helps break down the stereotyped images victims and offenders have of one another by bringing them together. When they meet face-to-face, there can be a mutual understanding and agreement as to what can be done about the offence. The assistance of an objective third party is useful in facilitating interaction at such meetings. These mediators do not impose settlements, but rather assist the victim and offender in arriving at their own settlement - a settlement which is agreeable to both.
Victim-offender reconciliation techniques:
- help victims face painful emotions and to feel personally empowered by gaining control of their lives again;
- help offenders feel empowered by taking responsibility for their actions,
; and
- help victims, offenders and others learn effective conflict resolution strategies which can be used in other situations.
iii. Benefits of Victim-Offender Reconciliation
First, and most important, victims benefit through reconciliation by: participating throughout the process; receiving restitution and reparation (losses may be restored through cash or service); receiving information about the crime itself (motive/method/background), about the offender (stereotypes dissolve) and about the criminal justice system and its processes; and peacemaking. Access to information allays fears, anxiety, frustration and a sense of alienation, and positively affects attitudes toward the system. Because victims and offenders are often neighbours or members of the same community, mediation facilitates the finding of common-sense solutions today which enable living together peacefully tomorrow.
Equally important, offenders benefit by: gaining an awareness of the harm suffered by victims (the human cost and its consequences); participating in a process that allows for "making it right"; receiving information (especially about the victim, thereby breaking down stereotypes); receiving a sentence which is an alternative to incarceration (victim-offender reconciliation can provide an escape from the damaging effects of incarceration without providing an escape from responsibility); and participation (which yields ownership in, and commitment to, the agreement, resulting in high contract-fulfilment rates).
In addition, reconciliation provides the following benefits to the criminal justice system and the community:
- appropriate alternative sanctions are available to judges;
- low cost;
- provision of a mechanism for the establishment of losses;
- effective means of intervention in cases that resist or defy solution in the traditional criminal justice process;
- increased understanding about the criminal justice system (community education);
- assistance to victims, thereby reducing the hostility many project upon the system itself;
- empowerment: Community members are provided with an opportunity to develop skills which they can apply to the resolution of the conflicts which arise in the community;
- reduction of levels of conflict within a community; and
- deterrence from further irresponsibility: While more research will be required to demonstrate this conclusively, offenders who meet their victims face-to-face in this manner are believed to be less likely to re-offend.
iv. Evaluation of Mediation Services and Other Reconciliation Programs
The Mediation Services program in Winnipeg was recently evaluated by the Attorney-General of Manitoba. Highlights of this evaluation were included in its brief to the Committee: 90 percent of 500 cases resulted in agreements; 90 percent of participants rated the service as either good or excellent; and 80 percent would mediate again if the need arose (Brief, p.2).
Four Indiana reconciliation sites were evaluated in 1984. Following are highlights from their evaluation report:
- 83 percent of the offenders and 59 percent of the victims expressed satisfaction with the process (another 30 percent of victims were "somewhat satisfied");
- 97 percent of the victims reported that they would choose to participate if they had to do it over again and that they would recommend it to other victims;
- both victims and offenders saw "being responded to as persons" as the greatest strength of the program;
- most of the offenders interviewed by the evaluators seemed to have a better sense, than did a matched sample of offenders who had not been referred, that what they did hurt people and required a response;
- for those who participated in face-to-face meetings, completion of restitution was quite high;
- offenders experienced reconciliation as punishment and many victims viewed it as a form of legitimate punishment in which they had an opportunity to participate; and
- victim-offender reconciliation may be used along with incarceration as a means of reducing reliance on incarceration.
Mediation hearings held in Oklahoma prisons may be conducted to reach an agreement between the victim and offender which may then form the basis of recommended sentence modifications which are taken back to the judge. (The mediation service may also be used as part of case pre-sentence investigation to propose an appropriate punishment prior to sentencing.) Both violent and non-violent cases are handled, although larceny-related crimes are the most common.
Mediation facilitators inform the parties of the limits and the parameters of the hearing (which are established by the judge, prosecuting attorney and Department of Corrections, with a view to maintaining overall consistency). The sentencing judge and prosecutors are contacted prior to the mediation meeting so that their concerns, as well as the victim's, can be addressed. Mediation agreements generally address: length of incarceration/supervision, community service, rehabilitative programs for either the victim or offender, and restitution.
The process encourages and facilitates the sharing of the victim's feelings and emotions about the criminal incident and its impact. Offender accountability and responsibility is emphasized; it results in a structured plan going beyond incarceration.
In the first 18 months of the program, 1400 victims provided direct input into sentencing plans. Seventy-two percent of those victims wished to meet the offender(s) to mediate; 97 percent of the mediation meetings resulted in agreements which were satisfactory to the victims. These agreement generated $20 000 for the state Crime Victims' Compensation Fund, 50 000 hours of community service (valued at $165 000), and $650 000 for restitution. Mediated offenders are reportedly "model" probationers while under supervision - less than eight percent failed to carry out their mediated agreements or were involved in new crimes.
Almost all witnesses before the Committee who talked of victim-offender reconciliation referred to the Genesee County, New York model when queried about the applicability of reconciliation in situations where offenders had committed crimes involving violence. Initially, the Committee was sceptical about the possibility of applying reconciliation techniques in such cases. (In fact, a few witnesses themselves agreed.)
The Committee heard from Doug Call who, when Sheriff of Genesee County, in 1983 introduced victim-offender reconciliation for violent offences as part of his program of victim assistance services, and from Dennis Whitman, Coordinator of the Genesee County Community Service and Victim Assistance Programs. They described examples of various "violent" cases in which their victim assistance program contributed to community-based sanctions.
The first 13 offenders referred into their reconciliation program were convicted of the following offences:
3 criminally negligent homicide
2 armed robbery
1 criminal possession of a deadly weapon
1 rape
1 assault and battery
1 sodomy
1 reckless endangerment
1 attempted manslaughter
1 grand larceny
1 unspecified misdemeanour.
Genesee County claims to have matched justice with fairness for victims, offenders and their communities. Its services consist of adult and juvenile community service, intensive victim assistance, victim-directed sentencing, victim-offender reconciliation conferences, victim-orientated pre-sentence conferences, affirmative agreements, intensive felony and second felony offender diversion, felony reparations, and uniform cemetery and school vandalism sentencing guidelines.
The Sheriff's Department urges victims to "fight back" by reporting crime and demanding their rights and privileges under the law. By supporting victims in a comprehensive and ongoing way, the Sheriff's Department encourages victims to use their pain as motivation to go through the court process. The Department has dramatically increased services and support to victims, decreased the jail population (both regular and weekend sentenced days), obligated offenders to help themselves and others, and increased the involvement of victims and the community in the criminal justice system.
This innovative criminal justice initiative has been developed for several reasons. Primarily, there is a need for significant and serious change in our criminal justice system to provide a human and personal dimension for the victim as well as the offender. Humanising the system brings a far more direct accountability between the offender and the victim.
Victims are included at every stage of the process and offenders are made accountable to them, as well as to society. With the cooperation of chiefs of police and judges, this central focus serves to "integrate" the criminal justice system. The Genesee County Community Service/Victim Assistance Program has shown that reconciliation between victims and offenders can take place even in cases of the most serious crimes and is especially important in these cases.
Preparation of both victims and offenders must be done carefully and systematically; it can involve many different kinds of third parties. The victim is the key person as to whether or not victim-offender reconciliation takes place. It is not an easy decision for a victim or surviving family member to make. The victim is visited immediately, or at least within two to three days, after the offence occurs and is kept fully informed of the situation and the process with at least a monthly report. After charges have been laid, the victim meets with the prosecutors and a victim impact statement is prepared. The victim is visited by members of a victims' group as well as by victim assistance officers of the policy force who are specially trained in mediation, with a view to reducing trauma and anxiety. Program staff meet separately with the victim and the offender prior to the reconciliation meeting to build a bond of trust between the mediator and each party. (It is not uncommon for the program staff to hold up to 90 meetings with the victim.) The offender is prepared for a meeting with the victim between conviction and sentence.
The meeting between victim and offender can be a cause of great relief to the victim: an emotional burden is lifted, victims gain confidence in the system, and they begin to see the offender as a human being rather than as an evil monster. In Genesee County, judges increasingly order victim-offender meetings and they consider the effect of the crime on the victim in determining the sentence. Victims' suggestions, when constructive, may be incorporated in the sentence.
Child victims are usually extremely angry over what has taken place, even if their anger has been repressed to such a degree that it is not evident. Children who have been abused tend to have a low self-esteem, feeling that they must be of little worth to have been treated as they have. They are also likely to have difficult trusting new people in their lives, this often being the result of broken promises by offenders for example 'I won't do this to you again'.
The initial approach to the prospective child witness must accommodate these feelings and, during the course of preparing the child, allowances need constantly be made. It should be borne in mind, however, that some of these responses, notably anger, can be utilised to great advantage in achieving the result of a strong, credible and fully prepared child witness.
Preparing the Child for Court
A professional preparing a child for court should concentrate on three key areas:
- informing the child;
- instilling confidence; and
- giving the child a friend in court.
Certainly it is desirable that the number of people tho whom a child must relate their complaint be kept to a minimum. This is both in the interests of reducing trauma to the child and from an evidentiary point of view, so that discrepancies in the various versions are not used by the defence to prejudice the prosecution. However, it is important that the child understand that there may be five or six key people who each have a different role in helping them. Some of these people will be concerned with the substance of the child's complaint and others, whose role is more of a counselling nature, will not.
Professionals should explain their role in the helping process: the police officer should explain their investigative role, the counsellor their informative and supportive role, the doctor their medical role and the prosecuting solicitor their role in court. The child should also be informed what stage in the process has been reached and what other helpers will be involved at a later time.
Having been given this information, children and families are more inclined to cooperate because they appreciate that the mosaic of personnel involved is in the business of helping rather than harassing them.
Although child victims may be involved in Children's Court proceedings (which are concerned with the protection of the child) and/or Family Court proceedings (in cases where the parents are disputing custody and access) they are rarely subjected to cross-examination in these courts. For this reason, court preparation is usually directed towards giving evidence in criminal courts.
The child should be told that the criminal case is against the accused person and that it is likely to be heard twice, once in a local court before a magistrate, who will decide whether there is enough evidence to go further, and once in a higher court before judge and jury, who will decide whether or not the accused is guilty.
In cases where committal proceedings will take place by way of tendering of statements without witnesses having to be called to give evidence (paper committal), the child witness should be told when and why this will take place and prepared for a single appearance at a trial court.
Where committal proceedings will entail the calling of all witnesses the child should be told from the outset that they are likely to be required to give evidence twice. If the child is not made aware of this eventuality before committal proceedings they will feel tricked, lose faith in the people who should have advised them and be reluctant to give evidence at trial for fear that will not be the last time they have to give evidence.
When a child is required to give evidence at committal as well as trial, the news can be conveyed in an advantageous way. The child can be told that the first time is a case to be sent to trial, the child's testimony is a good practice run for the harder part of convincing the jury that the accused is guilty.
The child can be told, quite truthfully, after committal that giving evidence at trial is likely to be easier for them because they will have had a practice run and be aware of all the issues which will be raised by the defence (some of which will not be pursued a second time). The child can be reassured that the defence is not likely to be nasty (or as nasty, if committal has been less than pleasant) to the child with a jury present.
Before trial the child should be told that, if there is a verdict of not guilty this does not mean that people did not believe them, but only that the evidence was not enough to pass the very hard test that courts impose before they find someone guilty of a crime.
The first will be the magistrate or judge who will ask the child a series of questions designed to ascertain whether they are of sufficient maturity and intelligence to understand the duty to tell the truth. Depending on the age and background of the child, the presiding judicial officer may also wish to discover whether the child has the capacity to swear an oath.
The magistrate or judge is likely to ask the child where they attend school, what class they are in and (notwithstanding the diminution of the notion that a lie on oath will send a perjurer straight to Hell), whether they have attended any religion or Scripture lessons, or whether they know about God or the Bible.
It is sometimes useful, particularly for a prosecutor, to have a discussion with the child about these things and to prepare the child to answer simple questions about the difference between the truth and a lie.
As a general guide, high school age children are often required to swear an oath if they indicated knowledge of the Bible (for example it is a book about God) whereas younger children will usually only be required to promise (in the form prescribed by the relevant Oaths Act) to tell the truth provided they have been able to give an appreciation of it (for example if shown a book, answering in the negative when asked: 'Would it be the truth if I said this was a football?').
The second person who will ask the child questions in court will be the prosecutor who, ideally, will be known to the child before the hearing and who will have taken at least some part in the child's court preparation. This part of the evidence is where the child gives their story, prompted (where necessary) by non-leading questions (for example 'What happened then?'; 'How long did this continue?'). The child should also be prepared to have to identify the accused (if the circumstances of the case require it) and be reassured that a casual hand gesture in the direction of the accused, without eye contact, should be all that is required.
The child should then be told that the final person to ask them questions will be the defence lawyer who is being paid to a job for the accused person. The child should be frankly informed that the defence will probably suggest to them that they are lying, making up the story, or imagining it. A child witness will often be asked whether they have ever told a lie and it is wise to prepare the child that a truthful answer to this question will not harm the case and that an explanation of why this is a different matter (for example because it is very serious or because I have promised to tell the truth) is quite appropriate.
Children should of course be informed that just because something is contained in their statements does not mean they do not have to mention it in their evidence. It is important that everything is described fully in court.
Ideally arrangements should be made for the child to see the court in which the proceedings will take place. If this is not possible, any other court will suffice, the layout tending to be uniform. Failing this a diagram can be drawn. The child should be shown that the judge or magistrate sits at the front of the court behind a raised bench. The jury (if it is a trial) sits usually along one side, the lawyers representing the prosecution and the defence sit at a table facing the judge or magistrate. The accused person sits either behind their counsel or in a dock area. There is a court constable or officer somewhere in the body of the court and a court reporter or monitor sits close to and in front of the judge or magistrate. The child should be permitted to sit in the witness box and given an indication of where their support person will be sitting and what direction to face so that the accused is out of their line of vision. The child can be reassured that there will be no 'audience' as it is usual that the court is closed if not for the entire proceedings, then at least for the duration of the child's evidence.
Instilling Confidence
Any witness of whatever age and whether civilian or expert is likely to be extremely apprehensive about the prospect of giving evidence in court. The younger the witness the more frightening the ordeal. Children frequently lack confidence when facing the ordeal of verbal confrontation with adults, a breed of person they have been brought up to respect and defer to. The child victim has the added stress of being at least the principal, and in most cases the only, witness. They are mindful of the fact that if they fail to come up to proof the prosecution will not succeed.
It is essential then that the child witness be given the court survival skills to fortify them for the experience of giving evidence.
The child victim is the most important person in court and should know it.
The child should be reminded that they should answer all questions honestly and cannot possibly get into any difficulty if this rule is observed.
The child's confidence should be boosted by reminding the child that whatever the defence counsel's attitude to their evidence (they may scoff, or doubt, or cut them short) the court really wants to know what they as 'most important witness' have to say.
Therefore it is important that the child knows they can give a detailed answer or an explanation even if the defence counsel attempts to confine them to a 'yes' or 'no'. They should be encouraged to be persistent in giving the answer they want to give and not just choosing between two answers suggested ;by the defence. The child can be told that, far from annoying anybody (except perhaps the defence,) the court will be impressed that they are taking the matter seriously enough to ensure that the correct answer is recorded.
The child should be reminded that they are there to tell the truth about what happened because they were there. The defence counsel was not. The judge, magistrate and jury were not. this will assist the child with the inevitable cross-examination questions designed to confuse or water down the evidence (for example "What you really meant to say was, I suggest that happened on a school day and not in the holidays . . . ').
Preparation should also address the invariable defence practice of suggesting to the witness that the evidence (or part of it) is a lie, story, fantasy or dream. This is always an intimidating experience for a child witness, who would not realise that all witnesses are put to their proof in this fashion. The child should be reassured that a question of this nature does not mean that they are in trouble or that anyone disbelieves them, it is merely the defence counsel doing a job which they have been paid to do.
The child should be told that if they are asked a question to which they do not know, or cannot remember, the answer, it is perfectly acceptable to say so rather than merely to agree with a suggested answer of which they are not sure. In such circumstances the truthful answer is 'I don't know' or 'I can't remember' and that is the response which should be given.
The corollary of this advice is that the child should be encouraged, if they are quite sure of something, or cannot remember something vividly, to say so. The child can be advised, in such a case, to answer a question such as 'But you're not sure of that?' With a firm, loud and confident 'Yes, I am' or 'I am certain of that'. The child, of course, was there, the defence counsel was not.
It is useful to remind the child that the defence counsel has no right to cut a witness' answers short and that even if the lawyer looks annoyed, they should complete their answer. If the answer is going outside the court's interest, the judge will stop the witness.
The important thing is to build the child's confidence so that by reason of their superior knowledge of the evidence, they feel at least something of a match for the defence counsel and are sufficiently self-assured to answer questions confidently, consistently and persistently.
Giving the Child a Friend in Court
Most Australian jurisdictions have provision for an exception to be made to an order closing a court for certain evidence. The exception permits a person to be present to support a child victim of assault for the duration of the evidence.
Where the support person is seated is generally a matter for the discretion of the presiding officer but may be next to the child in the witness box or in the child's line of sight. This person's presence is often of fundamental importance to the child and can make the difference between a good witness and a mute one.
Better than one friend in court is, of course, two. The prosecuting officer should have taken the time to participate in the child's court preparation and to have built a rapport with the child. This is not only of great benefit to the child, but assists the prosecution to elucidated confusing matters arising from any idiosyncratic speech patterns which are common in children.
The child can be encouraged to look only at their friend(s) in court and not to make eye contact with the accused, something which could only result in them becoming more nervous and confused.
A child witness cannot be expected to be confident or self-assured if they do not have sufficient knowledge of the court process and the skills to employ while under cross-examination.
It is important for a professional involved in court preparation to endeavour to redress the imbalance between the victim's age, level of confidence and knowledge of 'The System' and the defence counsel's experience and maturity.
Although there is a school of thought which considers that it is counter-productive for children to endure the trauma of the court process, I am of the view that a well-prepared child witness derives therapeutic value from breaking down the secrecy involved in the assault and publicly stating how the accused has hurt them.
A child's age and frustration can be harnessed an alleviated by the experience and, even in cases where the accused is found not guilty, they did everything they could do in the interests of justice.
A well-prepared child is not only a better, more confident witness but is also more likely to find the experience of giving evidence in court a positive step towards regaining their control and self-esteem.
Chesterton, History of England, Chatto and Windus, London, 1917.
Committee of Inquiry on Victims of Crime, Report of the Committee of Inquiry on Victims of Crime, Adelaide, January 1981.
David Daubney, Taking Responsibility. Report of the Standing Committee on Justice and Solicitor General on its Review of Sentencing, Conditional Release and Related Aspects of Corrections. Printer for Canada, Toronto, August 1988.
Gwynn Davis, Making Amends. Mediation and Reparation in Criminal Justice, Rutledge, London, 1992.
Department of Justice, Tasmania, Report of the Inter-Departmental Committee on Victims of Crime, Government of Tasmania, December 1989.
Tom Fisher, Pat O'Malley and Anne Leigh, Alternative Dispute Resolution Strategies for Dealing with Young Offenders. A Report on Existing Models and community Receptiveness to Them in the Preston Area, La Trobe University, Melbourne, 1992.
Earl Jowitt, The Dictionary of English Law, 1st edition, Sweet & Maxwell Ltd, London 1959.
J.K. Matthews, Alternative Dispute Resolution in Victim Offender Cases, Attorney-General's Department, Victoria, 1990.
Satyanshu Mukherjee, Debbie Neuhaus and John Walker, Crime and Justice in Australia - Australian Institute of Criminology, Canberra 1990.
Gwenn Murray, Mediation and Reparation Within the Criminal Justice System. A Discussion Paper which explores issues surrounding Victim-Offender Mediation and Reparation, Department of the Attorney-General, Queensland, 1991.
New South Wales Law Reform Commission, Alternative Dispute Resolution: Training and Accreditation of Mediators, DP 21, New South Wales Law Reform Commission, Sydney 1989.
Office of Crime Statistics, Research Report, Victims of Crime. An Overview of Research and Policy, Series C, No. 3 South Australian Attorney-General's Department, November 1988.
Pollock and Maitland, History of English Law, Bk. II, First edition, Cambridge University Press, Cambridge, 1895.
Daniel W. Van Ness, Crime and its Victims, InterVarsity Press, Downer Grove, Illinois, 1986.
S. Walklate, Victimology. The Victim and the Criminal Justice Process, Unwin Hyman, London, 1989.
Western Australia Department of Corrective Services, The Role of Community Based Corrections in Restorative Justice, unpublished, 1992.
Nils Christie, 'Conflicts as Property', British Journal of Criminology, vol. 17, 1977, pp. 1-15.
Christopher Corns, 'The Other Side of Victims' Rights', The Bridge, vol. 10, no. 3, Aug/Sept 1987.
Jenny David, "Mediation: A Viable Alternative", Criminal Law Journal , vol. 9, 1985, pp. 86-97.
A.M.E. Duckworth, "Restitution, an Analysis of the Victim-Offender Relationship: Towards a Working Model in Australia", (1980) 13 Aust & NZ Journal of Criminology, vol. 13, 1980, pp.227-240.
Wendy Faulkes, "Pursuing the Best Ends by the Best Means", Australian Law Journal , vol. 59, 1985, pp. 457-462
Drs Fischer and Wertz "Empirical Phenomenological Analyses of Being Criminally Victimized", in A. Giorgi, R. Knowles and D.L. Smith (Eds.), Duquesne Studies in Phenomenological Psychology, vol. 3, Duquesne University Press, Pittsburg, pp. 135-158.
Lynne N. Henderson, "The Wrongs of Victims' Rights", Stanford Law Review, vol. 37, 1985, pp. 937-1021.
Margaret Jarvis, " Wading in the Deep End with a Verbal Hug", Social Work Today, Vol 20, No. 47, 3 August 1989, D Hagland (Ed.), BASW, Macmillan Ltd 1989 London pp 16&17.
Robert Ludbrook, "Juvenile Justice - New Zealand's Family Oriented Approach", Children Australia, v. 17 no. 4, p.p. 7-10.
Gabrielle Maxwell and Allison Morris, The Family Group Conference: A New Paradigm for Making Decisions About Children and Young People", Children Australia, v. 17 no. 4, 1992, pp. 11-15.
Gabrielle Maxwell and Allison Morris, "Family Participation Cultural Diversity and Victim Involvement in Youth Justice: A New Zealand Experiment", unpublished, 1992.
Allison Morris and Gabrielle M Maxwell, "Juvenile Justice in New Zealand: A New Paradigm", Australian and New Zealand Journal of Criminology, vol. 26, no. 1, March 1993, pp. 72- 90.
Terry O'Connell and David Moore, "Wagga Juvenile Cautioning Process: The General Applicability of Family Group conferences for Juvenile Offenders and their Victims", Rural Society, vol. 2, no. 2, 1992, pp. 16-23.
Mark S. Umbreit, "Violent Offenders and their Victims", in Martin Wright and Burt Galaway (eds), Mediation and Criminal Justice. Victims, Offenders and the Community, Sage Publications, London, 1989, pp.101-112.
J.J.M. Van Dijk, "Victims Rights: a Right to Better Services or a Right to Active Participation", in J Van Dijk et al. (Eds.) Criminal Law in Action, Kluwer Law and Taxation Publishers, Netherlands, 1988.
Ron Cahill and Mark O'Neill, 'T.V. or not T.V. - The Question of the Use of Technology in court Where Children Are Witnesses', in Children as Witnesses. Proceedings of a Conference held 3-5 May 1988, Australian Institute of Criminology, Canberra, 1991, pp. 101-106.
Margaret Cunneen, 'Preparing Child Witnesses', in Children as Witnesses. Proceedings of a Conference held 3-5 May 1988, Australian Institute of Criminology, Canberra, 1991, pp. 71-6
D.B. Moore, 'Facing the Consequences. Conferences and Juvenile Justice', paper delivered to National Conference on Juvenile Justice, September 1992.
Satyanshu Mukherjee, paper delivered to Victims of Crime: Reforming the System Conference, 9-10 July 1992.
Peter Severin, "Victim-Offender Mediation Programs in Germany and the Work of Christian Pfeiffer", paper delivered to Crime Reparation Project Advisory Committee, May 1982.
C. Sumner, Statutes Amendment (Victims of Crime) Bill, Second Reading Speech, speech delivered in the Legislative Council of South Australian Parliament on Tuesday 29 October 1985.
Jeff Sutton, Roseanne Bonney and Alix Goodwin, 'Victims as a Policy Issue',paper delivered at a seminar "Victims - Evaluation of the New Initiatives", August 1987, Institute of Criminology, University of Sydney, Convenor Jenny David, Chairperson, Sir Laurence Street, Proceedings (No. 73) pp 25-40.
J.J. Taylor, 'Victim Support Movement in New Zealand', Paper delivered to 'Victims of Crime: Reforming the System' Conference,', 9-10 July 1992.
George Vickers, The Child as a Witness - The Use of Aids', in Children as Witnesses. Proceedings of a Conference held 3-5 May 1988, Australian Institute of Criminology, Canberra, 1991, pp. 27-32.
Mount Isa Mines Ltd v. Pusey (1973) 125 CLR 383
R v Nicholls, 8 May 1991, (No. 744 of 1990, unreported) the Supreme Court of South Australia.
The Matter of an application by Joan Mary Anne O'Brien, ACT Supreme Court, SCA 54 of 1991, 24 June 1992
Whitehorn v. The Queen (1983) 152 CLR 657
Criminal Injuries Compensation Act 1983 (ACT)
Victims of Offences Act 1987 (NZ)
Evidence Act 1958(Vic)
Community Justice Centres Act 1983 (NSW)
Disputes Resolution Centres Act 1990 (Qld)
The ACT established the Community Law Reform Committee in July 1990. The purpose of the Committee is to:
. help the Government to identify areas in need of reform;
. anticipate emerging social and legal issues; and
. assess the practical impact of various proposals and laws on the people of the ACT.
The Committee's Office and Secretariat are at 3rd floor GIO Building, City Walk, Canberra City ACT 2601 (Tel (06) 2070546 fax (06) 2070538)
ISBN 1036-5567
Copyright in this publication is waived. It may be copied freely without the need for permission being sought. However, acknowledgment of the source should be made.
I, BERNARD COLLAERY, Attorney-General of the Australian Capital Territory, REFER the following matter to the Community Law Reform Committee as provided for in the constitution of the Committee:
TO REVIEW the role of the victim of crime in the Territory's criminal justice system and to REPORT
(a) whether the current system adequately deals with the needs of victims;
(b) whether the Territory should adopt the use of victim impact statements such as in South Australia;
(c) on the need for any further measures or legislation to improve the delivery of justice to victims of crime; and,
on any other relevant matter the Committee wishes to take into consideration.
In making its review, the Committee may wish to consider the following:
(a) the South Australian model in relation to the use of victim impact statements;
(b) the relationship between the victim, the offender and the State; and,
(c) Court ordered rehabilitative or therapeutic measures.
In making its review and report the committee is to have regard to
(a) the Declaration of Principles of Justice Relating to Victims of Crime adopted by the United Nations in 1985; and
(b) any views of government agencies or the community on this matter.
SIGNED THIS THIRTEENTH DAY OF DECEMBER 1990
BERNARD COLLAERY
Chairperson
The Honourable Mr John Kelly, QC
Deputy Chairpersons
Ms Jennifer Kitchin
Chief Magistrate Mr Ron Cahill
Committee Members
Ms Robin Burnett
Mr Rod Campbell
Professor Duncan Chappell
Ms Sanora Dell1
Mr Rainer Frisch
Mr Ross Gengos2
Ms Judy Harrison3
Mr Peter Hohnen
Ms Vivienne Joice4
Ms Veronica Laletin5
Ms Annmarie Lumsden6
Mr Graeme Lunney
Mrs Bettie McNee
Mr Nick Seddon
Mr Peter Sutherland
Professor Roman Tomasic
Mr John Kelly
Prof Duncan Chappell
Mr Ron Cahill
Ms Jennifer Kitchin
Ms Judy Harrison (resigned December 1991)
Ms Mary Davis
Mr David Snowden (July 1991-December 1991)
1 Appointed 28 November 1991, resigned mid-1992
2 Resigned late-1992
3 Resigned 19 December 1991
4 Appointed 28 November 1991
5 Appointed 28 November 1991
6 Appointed 28 November 1991
.
.
.
.
.
.
.
.
.
.
.
.