Review of the Role of the Victims of Crime in the Criminal Trial Process

Liberty Victoria welcomed the opportunity to make this submission in relation to the Victorian Law Reform Commission’s (Commission) review of the Role of the Victims of Crime in the Criminal Trial Process (Review).

Central to the Commission’s review is the question: what should the role of the victim be in the criminal trial process? In relation to consideration of this question, the Commission has indicated that it will inform itself with respect to what can be learnt from practice and what can be learnt from theory.

Liberty had the benefit of reading the Commission’s consultation papers and submissions received by the Commission. Our submission was therefore informed by the views put forward by other stakeholders as well as the professional experience of our members practising in the courts.

The Commission put forward three scenarios: the role of the victim is one of a protected witness; the role of the victim is as a participating witness; and the role of the victim is as a prosecuting witness. As the Commission noted, each of these proposals have different reform implications.

The role of victim as a protected witness leads to reforms to protect victims from being subjected to further harm in their role as witness for the prosecution; the role of the victim as a participating witness aims to empower victims by providing avenues for greater participation in prosecutorial and judicial decision-making, and for them to be heard during the trial process; the role of prosecuting witness leads to reforms that aim to give victims some or all of the functions, rights and obligations associated with the role of the prosecutor.

1. Liberty strongly opposes any reforms which would lead to victims assuming the functions of the prosecution and rights with respect to judicial decision-making. As already identified in a number of submissions, giving victims the role of prosecutor is fundamentally inconsistent with our adversarial system of criminal justice and may, as a consequence, result in wrongful convictions and miscarriages of justice.
2. Liberty’s position with respect to the role of victims of crime in the criminal trial process is that of the protected witness. Further harm to victims should not arise from the criminal trial process whether it is a consequence of participation as a witness or harm arising through lack of information or advice with respect to procedural matters or decisions made by the prosecution.
3. It should be noted that in criminal proceedings that proceed to trial or contested hearing it is for a fact-finder, whether jury or magistrate, to determine whether a complainant is a victim. There is an increasing move towards describing complainants as victims or survivors prior to any such fact-finding process. While that is understandable, it inverts the presumption of innocence.
4. Further it should be noted that there are significant protections afforded to complainants and victims in the criminal justice system. That includes protections with regard to confidential communications and the general prohibition on adducing sexual history evidence.
5. Section 41 of the Evidence Act 2008 (Vic) provides that a court must disallow questioning that is misleading or confusing; unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; belittling, insulting or otherwise inappropriate; or has no basis other than a stereotype.

The Commission has completed its report on Victims of Crime in the Criminal Trial Process, and delivered its report to the Attorney-General on 1 September 2016. 

The report was tabled in the Victorian Parliament 22 November 2016. Central to the report's 51 recommendations are measures to secure the place of victims as participants in the criminal trial process.
Download the Commission's report (pdf).