There is no such thing as ‘Criminal Law for Victims’ – Criminal Law stipulates how an accused is to be treated.
It is really, really important for victims of crime to comprehend that the very basis of criminal law is that ‘a person is innocent until proven guilty in a court of law’, no matter what they have done, or what suffering or trauma is experienced by the victims. The criminal law promotes the belief that ‘it is better that 100 guilty men should go free than one innocent should go to jail’. How that notion impacts on victims of ‘guilty’ men or women who go free, or those who, in return for a reduced sentence, plead guilty to charges reduced way below what they did to their victims, is not an issue of concern for criminal law.
No matter how young, how old, how sick, how injured the victim is, or how heinous the crime was, there can be no ‘presumption of guilt’ against an accused and an accused person has the right to silence and has no obligation to assist a prosecution.
The Crown (the prosecution) has to prove its case; the accused does not have to prove their innocence.
The battle then is not victim against offender. It is sort of a mock battle between the powerful ‘combined’ resources of the state – the police and the prosecution – against the accused and their legal team.
All sounds good in theory – for an accused – but who’s looking after the victims?
A Victim is not a party to proceedings
A witness is not a party to proceedings. That means, a victim has no ‘right’ to a day in court, but may be called as a witness to ‘give evidence’, but only if and when required to do so, about the issues dictated by the prosecution.
Giving evidence also means being open to cross-examination, where any issue or aspect of the witness’s life can be exposed, in order to discredit them and their testimony.
The victim/witness has no right to even sit in court and hear the case, until after they have given evidence. Even though the case is about what is said to have happened to them, it’s not ‘their case’ and victims have little power, and their place in the matter is severely restricted.
It also means that victims have no solicitor or barrister on their side, no right to instruct counsel. There is no position allowed for a legal representative for the victim, there is no legal person looking out for the victim’s interest.
Because they are not parties to the proceedings, a victim has no right to appeal any aspect of any matter.
A victim cannot sue a prosecutor, barrister or judge over any issue that arises in a court.
Facts – a fact isn’t a fact until a court says so
It is up to the prosecution, the defence and the court to decide which ‘facts’ apply and what evidence will be excluded – and witnesses (including victim-witness) are often instructed by the prosecution ‘you can’t say anything about …..’ which of course means the witness feels like they cannot tell their truth – even though they just swore on a holy book, or affirmed to the court that they would.
Your day in court?
Many victim’s cases never get investigated or to court, and if it does, you may well find:
- that they don’t need you to attend.
- that the case will be decided and you won’t get told the outcome.
- that the day / days you were supposed to attend to give evidence can be changed on a whim or request from the defence side (but rarely because a victim needs it, or the prosecution). In a serious matter, one should expect delays. Many delays.
- that your expectations and instructions you’ve been given about the way a case will unfold, can also change without notice.
- that a ‘charge negotiation’ may be foisted on you, the ‘agreed facts altered’ and the hearing avoided.
- that cases can stretch out over days, weeks, months and years. They don’t need the victim, or the victim’s family to attend court unless they are giving evidence, so if you do attend, it may be at your own expense.
So to sum up – really, none of the first expectations we tend to hold might turn out quite like you expected. However, it is the system, the only one we have, and our role is to support people affected by the crimes, and by the systems.
In our view, justice for victims must be of our making. Properly informed and prepared, victims of crime can take their place, give cogent evidence and make every effort to hold offenders to account.
In the end, the responsibility is the prosecutors. Not the victims.
The Police and Prosecutors
Both the police and the prosecution have an independent role and neither is ‘on the victim’s side’. The police role is to investigate ‘complaints’ if they regard the case as worthwhile or able to be proceeded with. The police would then manage an investigation, arrest and charge an alleged offender, prepare a brief for the prosecutor and appear in court if required. For more information about the police role see www.police.nsw.gov.au
The prosecution role (briefly) can be carried out by a Police Prosecutor, or by the Office of the Department of Public Prosecutions in more serious matters, and is to examine the police brief, decide whether a prosecution is likely to be successful, whether prosecuting the case is in the public interest, and if so, conduct the prosecution. They have no investigative role. See www.odpp.nsw.gov.au for guidelines for prosecutors. Victims would do well to know what is supposed to happen.
The prosecution must ensure the defence has access to all material that will be in the brief of evidence well before court, and must also advise the defence of anything that might assist the defence case.
The defence has to disclose nothing until after the Crown case is completely over, and the defence begins.
The criminal law in practice accepts many excuses for violent, inhumane behaviour, reduces the severity of crimes, sentences using many things that do not generally include the impact on the victim or the costs of the matter. The victim might find all this unfair, hard to believe, and still cooperate with the system, because it’s the only system we have.
At VOCAL, we believe that the potential for victims to manage the out-of-balance criminal process with the least additional damage, is absolutely grounded in whether the victims are fully informed about the court process and what is expected of them, that they are treated respectfully, honestly, openly, met by non-judgmental service, and by whether they have been treated kindly by service providers, family, friends and the community. (We commonly find that service providers and others who ought to know are largely unaware of how the system works too.)
VOCAL will not keep secret the emphasis on the rights and choices of the accused in the Criminal Legal System and the virtual absence of real, pursuable rights for victims of crimes. There is no balance and until there is, victims will continue to be victimised again by the system.
We find that if properly informed about their rights, role and the process, victims tend to be more satisfied with the court process irrespective of whether the accused is found guilty or not. That’s a better outcome than ‘feeling betrayed’ by the court process where victims lose faith with the whole concept of a just society.
It is not our role to undermine the rights of an accused, but it’s time the word ‘Justice’ meant justice for victims too.