18th April 2018
This proposal emanated from the views expressed by Victims at a recent meeting of the Victims of Crime Justice Reference Group.
The legal system in Victoria poses a number of difficulties for Victims, which can only worsen unless substantial changes are made.
Lack of fairness and equality before the law and equity in the Judicial process are but a few of the key anomalies.
This paper briefly addresses the problems and provides solutions.
As a bonus, considerable fiscal and resource savings can be made across the sector.
The problems that are easily identified:
1. Long delays in bringing offenders before the Courts adversely effecting Victims in a number of ways.
2. The accuracy of the testimony of witnesses, expected to remember detail over two or three years, impacting on the fairness of any Trial for the Victim, perpetrator and the witnesses.
3. Adverse impact on Victims, feeling shut out and penalised by the legal system, aggravating and slowing the recovery process. A common feeling amongst Victims that their victimisation is increased by the legal process.
“The accused plunges the knife in but the courts twist and turns it to an intolerable degree.”
4. Victims being confronted in Courts and the vicinity of Courts by perpetrators and their families and supporters.
5. Overcrowding in Prisons used as an excuse for legal outcomes favouring the Criminal in the failed Therapeutic Justice model which must be abandoned. The overcrowding or other interferences in the Judicial system are matters for Corrections, not the courts and interferes in the proper administration of Justice. Courts have no role in adjusting sentences on Corrections issues.
6. The burgeoning of Legal Aid, Courts, Prisons and Policing costs stretching both budgets and resources heading towards an unsustainable level.
7. Victims feeling extremely aggrieved by the Plea Bargaining Process. A prosecutor, for expedience, may, plea bargain away the core or gravity of the offence (as experienced by the Victim) leaving Victims who suffered the crime feeling empty and irrelevant. Informants and Victims must be adequately consulted, currently, this consultation is erratic in the application. Victims and Informants where consulted must not be pressured by prosecutors to acquiesce. Essentially Victims need legal representation to ensure basic legal fairness.
8. The current practices of restitution or compensation are totally ineffective and are rarely of any meaningful value to the Victim.
9. A severe lack of confidence in the judicial system and its ability to manage itself.
Any reform within the justice system is usually subjected to significant review by the various vested interest groups, never independent of the decisions that need to be made. Even those vested interests would find it very hard to argue against a reform package that focuses on the Victims as the starting point. The vast majority of crime starts with a Victim so it is logical that any review starts from the perspective of the Victim. This document addresses the areas where Victims of crime are currently being denied real justice, compassion, and understanding. Opposing these initiatives would be seen to be anti-victim.
These recommendations are a pragmatic approach to a major problem that is inhibiting victims to report serious crime for fear of being further victimised by the justice process. The adverse consequences for Victims continue to grow along with the current proliferation of violent crimes against the person. Government has a responsibility to the community to bring about change when required, and it is not a matter of if, but when. The trigger points for the, ‘when’, are very clear and must be addressed now as a matter of urgency.
The following changes are recommended:
I. Committals for trial Proceedings — Remove the antiquated, costly and irrelevant Committals for the Trial process. The introduction of the Police “Hand up Brief” have relegated the Committal for Trial hearings as an antiquated irrelevant duplication and in most cases unnecessary. The statistics tell the story with over 90% of Committals sending perpetrators for trial and the balance would be the matters sent directly for trial by the DPP. Cases which are not proposed to be dealt with summarily should be evaluated by the Director of Public Prosecutions (DPP) and the accused person either presented for Trial, directed to be referred to the Summary Jurisdiction or discharged (as can, in fact, happen now).
In 1983, when the office of the Director of Public Prosecutions was created, this was seen as a very progressive move for jurisprudence in Australia, the failing was that at the same time the Committal for the Trial process was not discontinued by the same legislation. Even an opt-in approach would make substantial savings. With the establishment and the now developed expertise of the DPP, the Committal for the Trial process has continued to further traumatise victims and delay the justice process by many months and sometimes years. Propping up this archaic process bleeding resources and achieving little is pointless. Accused people can, and sometimes do, waive committal proceedings and still get a fair trial
II. Legal support for Victims – With the abolition of the Committal for the trial process, the saving to the Legal Aid budget can be redirected to the Victims. All Victims of major crimes could have access to a legal representation to represent their interests and pursue their lawful rights, including rights to compensation or restitution. The advantage to the Legal profession is that this will generate a new specialist skill for the Legal profession with some Legal Practices specialising in Victim representation. The administration of this legal support could form part of the function of the Commissioner for Victims who could oversee and manage the process.
III. Compensation and Restitution- Currently the process for compensation and/or restitution is inconsequential for a guilty offender. It can be an annoyance to be ignored, as any Order amounts to a civil debt with no chance of recovery without the offender’s cooperation. Representation on behalf of the Victim would be to seek any compensation/restitution to be enforced as an Order of the Court. Failure to obey the Order automatically triggers enforceable action by a collection authority such as the Sheriff or the Taxation Office. Each is well set up for the long game in debt recovery and has the powers to achieve a result. There should be no reason for a perpetrator who receives a salary or a welfare benefit having a percentage of that income garnisheed. An added advantage to this approach is to remind the accused of the consequences of their crime, as a deterrent to further offending Victims must be made to feel that it is worthwhile to seek justice under the law, (That after all is supposed to be there to protect them)and that when the crime committed against them incurs a financial cost, or pain and suffering, they are adequately compensated. Their Victimisation has a dollar value and makes the perpetrator accountable in a dollar sense as well.
IV. Prison numbers- – The long delays in bringing perpetrators to Trial causes pressure on Corrections, and causes undue pressure on Courts to release accused people on bail and non-custodial sentences. This problem is highlighted in the Juvenile System where the majority of prisoners are on remand – an absolute disgrace and serious impediment for justice to Victims and justice for perpetrators.
V. Removal of the Plea Bargain- The intent of this process is laudable and reduces Court time by encouraging Guilty pleas, but the damage to Victims has been totally disregarded. The criminal not only gets a discounted sentence but also gets a free pass on any future repeat offences as the Courts can only sentence on subsequent matters as a first offence. The Plea Bargain needs to be replaced by Sentence Bargaining – a process where if the accused pleads to all offences the prosecution will only seek penalty on the negotiated offences with the Victim and the original informant. The outcome for the accused is the same except that they now have prior convictions for offences they would have had expunged, and the Victim is respected because what they have experienced has not been whitewashed away, and the perpetrator has been held to account. With nearly half of all prisoners returning to jail within two years, the practice of expunging offences and therefore artificially eliminating prior convictions through a plea bargain deal is certainly not a crime prevention initiative and may have the reverse effect by demonstrating to the perpetrator they can actually get away with crimes.
VI. Sentencing Guidelines- Despite the constant cries in defence of the wisdom of sentencing Judges and against interfering with Judicial independence, this countervailing meddling with those near-sacred institutions has an undeserved aura of academic respectability. This anomaly must be removed from our legal process. If a member of the Judiciary cannot determine a suitable and fair sentence based on the evidence presented to them, then they should remove themselves from the bench. The so-called Sentencing Guidelines have worked to become completely absurd and to actually undermine the law. They rely on the average length of sentences for similar offences, though how any court is able to determine similarity without actually conducting further inquiry by examining the evidence in each case to grade them as similar is unclear. Inevitably the tendency is to apply offence categories, rather than similarities between behaviour. Using statistics in this manner compels courts to never even consider imposing the Parliament-set maximum penalty, and guarantees a steady diminution of penalties imposed – ultimately mathematical certainty of this approach is to end up at ‘Zero’.
VII. Safety and security of victims. A major concern to many victims is their appearance at Courts and they are torn between an apparent duty and desire to sit through trials, with constant exposure to the perpetrators and their families and supporters, not only in the Court but outside the Court precinct. Victims can easily feel at risk, and the reality is that sometimes that risk, even if hidden, genuinely exists. The proposal is that with the savings achieved by the abolition of the Committal for a Trial process that a purpose-built studio or set of studios be developed away from the Court precinct where Victims can give their evidence and watch the proceedings of the trial via video link. Video links are in use with the accused so the extension to the Victim is the least the system can do.
VIII. Coordination of services -Throughout government departments, there are a plethora of Quango’s providing services in the Victim space that are uncoordinated and therefore extremely inefficient with each reach requiring their own administration and resources contributing to the loss of Victim budgets on administration rather than output services. Coordination by the independent Commissioner for Victims would be a very sensible move.
IX. Confidentiality of Victims information– An incredible abomination of procedural unfairness has been allowed to evolve in the Trial process where Judges we are told allow evidence solicited from people who have had conversations with a witness. The cross-examination of the character of witnesses in these circumstances where victim’s confidential communications with professionals and others can be explored by the defence is an absolute disgrace and urgent legislation is required to outlaw this practise. What a victim may confide in another person is not admissible or relevant to any criminal trial and by any legal interpretation, any evidence of this type is hearsay and is purely a fishing exercise by defence trying to discredit witnesses.
X. Prior sexual activity of a Victim – This never should be admissible in any circumstances. The offence of Rape can be committed on a Prostitute and the fact of her being a prostitute is not and never should be relevant to the case before the court. If additional Legislation is required then so be it. If this type of practice is not stopped it will be extended to the assailant of a boxer and the previous boxing would go to the severity of the assault being less of an offence because a boxer is used to being assaulted.
XI. Judicial review and Judicial Tenure– The need to review the Judiciary has been tried on many occasions without success because the review is always conducted by the very people who need to be reviewed. Therefore entrenched practices remain, never challenged. The solution is to legislate the tenure of members of the Judiciary where appointments are made by a Joint Parliamentary Committee making recommendations to the Governor in Council. Fixed-term tenure with the ability for extensions, similar to the way the Chief Commissioner is appointed, will see the Judiciary, at last, engage in serious reform or face not being reappointed. If a member of the judiciary is performing well then a long service is very achievable providing the stability that the Judicial system needs. The separation of powers argument cannot be applied to the administrative function of the courts.
XII. Legal representation for vulnerable victims – There is a need for legal support being mandated for young people and people who through age or some other mental impairment to be represented by a Lawyer. Often the accused can be the Victims carer or family member. The Office of the Commissioner for Victims must be given urgent and adequate budget capacity to ensure vulnerable Victims are protected.
Applying these recommendations will have the following effect.
a) Reduce the Court backlog by freeing Magistrates up and reducing demands on Court resources.
b) Reduce the costs associated with the administration of Committals for Trial.
c) Free up Legal aid Budget to allow for Legal aid for Victims.
d) Reduce the demand for services on the office of the DPP only having to deal with a Brief twice instead of three times.
e) Reduce dramatically Police time committed to the Committal for the Trial process.
f) Reduce demand on Prison staff in transporting and managing prisoners.
g) Free up Prisoner beds by more timely processing of accused persons
h) Give the Victims long overdue recognition and support.
i) Create more effective sentencing procedures
j) Removing Plea Bargaining while still retaining its benefits creates a plea and sentencing consultative process that holds all accused to account without undue additional penalty.
k) Rebuild confidence in the Judicial system which is perceived by the community as being a Law unto itself with little regard to what the community expects.
l) Fixed-term appointments will rapidly correct a number of anomalies and deliver better quality Justice for victims, and perpetrators.
m) Demonstrates tangible support for Victims.
This document was motivated by the plight of a number of victims I had the privilege to listen to, recently. They were not retelling the horrific nature of their encounters with the perpetrators, they were without exception, relating the horrors of dealing with the “system” as a consequence of the crime committed on them. They were reconciled, to various degrees, in relation to the actual crime but what they were not reconciled with was the torturous and unfeeling “System” that made them feel as though they were the perpetrator and have done something wrong by unwittingly becoming a victim.
Ivan W. Ray
Community Advocacy Alliance
23rd February 2018