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Criminal Justice System Essay

November 7th, 2009 Leave a comment Go to comments

Over the last twenty years “we have had considerable impact on the advancement of victims’ rights, expansion of services for victims and upon government policy”. I agree with that statement.
Until about thirty years ago, the rights and interests of victims of crime were given little recognition. Since then, the change has been steady and significant.

The Parliament of South Australia has legislated to confer rights on victims. The Criminal Injuries Compensation Act, and provisions in the Criminal Law (Sentencing) Act relating to victim impact statements, are two notable examples.

As well, the various arms of the Executive Government involved in the administration and application of the criminal law have made a real effort to recognise the interests and rights of the victims of the crimes with which they deal. I refer here to the police, to prosecutors, and to correctional services in particular. The courts also have become more attentive to the interests of victims, and quite apart from the changes in the law to which I have referred, have become much more attentive to the fact that for nearly every crime there is a victim, and that that victim has a legitimate interest in the process by which the court deals with that crime.

Governments have come to recognise the needs of victims, and to improve the services available to victims through a number of government agencies. Genuine efforts have been made to meet those needs.

The changes to which I refer involve a mix of legislation and administrative action. Mapping it all would be quite a task. The linking thread through it all is the existence of the victim, and the rights and needs which flow from that status.

A lot has been achieved over the last twenty years or so. There is a lot still to be done. There is no doubt that most governments are willing to do more, and equally there is no doubt that pressure will be applied to them to do more.

The topics to be discussed at this conference give some indication of the variety of ways in which the needs of victims are being met, or may yet be met as a result of ideas and proposals under consideration. The topics at this conference also indicate the increasing understanding of the impact of crime on its victims. They also indicate the very significant potential demand for the provision of services for victims.

In our rapidly changing society it is a bold and confident person who claims to be able to predict with accuracy the state of affairs in even five years’ time. Nevertheless, I have been asked to say what I think will be the role of victims in the criminal justice system in the future. I propose to do so not so much by way of making predictions, but by way of identifying issues which I think we will have to address and, hopefully, will address in the not too distant future.

Perhaps the most fundamental issue is that of identifying who is a victim of crime. Answering that question is not entirely an exercise in logic. We ask the question, “Who can legitimately claim to be a victim of a crime?” not out of a purely speculative interest, but because we realise that in answering the question we will identify the person who can make legitimate demands upon society.

In our approach to the rights and interests of victims, we have to have a coherent sense of who is a victim. In saying that I do not mean to suggest that the answer will necessarily be the same in every situation. It is legitimate to decide that the definition of victim might be one thing for the purposes of claims for criminal injuries compensation, and another for the purposes of a claim to be entitled to present a victim impact statement to a court. There might be yet another approach when one is considering the availability of a service such as counselling. But we do need to have an underlying coherent concept of who can legitimately claim to be a victim, to provide a guide to us in making important decisions about the allocation of resources and the recognition of rights.
I do not see this as a burning issue, but it is something to be borne in mind and attended to, particularly by the Executive Government.

Another obvious issue for the future is the issue of the appropriate allocation of public resources to the rights and interests of victims. We all accept the obligation of government to provide, for example, a basic free education system, a basic free health system, a system of courts. Thirty years ago there was a fairly clear and settled understanding of the obligation of government in these areas. Things are not so settled now. Changes are occurring. But in all these important areas, there is a basic issue of the extent of the obligation of the government to provide a particular benefit or service. It seems to me that equally in the case of victims, there is a fundamental issue of the extent of the obligation of society, through the government, to provide rights to and services for victims.

As things stand, I do not think there is any reason to fear an excessive allocation of resources. The problem is at the other end of the extreme. But we do need to face up to the basic issue of the extent of the obligation of society to victims of crime. We need to have an understanding of how far short of meeting that obligation we are. There will always be competition for public resources for various ends, and probably never enough public resources to satisfy all the demands upon them. But it is appropriate to have a benchmark against which the existing commitment of resources can be measured. I see that as an important issue for the future.

Another important issue is the scope of the rights which should be accorded to victims, and the range of services that should be available to them in one way or another. Issues like this are already addressed through various statements and charters of victims’ rights and interests. But this remains an important issue, and is closely linked to the issue with which I have just dealt.

Another issue which we may have to face in the future is that of the appropriate management of the delivery of services to victims. In this State, at present, services are provided by a range of government agencies and non- government bodies, and, of course, by the Victim Support Service. In Australia it is generally accepted that we should have a Minister of Education, a Minister for Agriculture, a Minister for Health and so on. The existence of these ministries reflects a general acceptance that the Executive Government has a major role to play in the area of the ministry, and also reflects the public importance accorded to the relevant area of activity. Should there be a Ministry for Victims’ Services or with some similar title? This is not an idle question. Nor is it just a matter of what is the most efficient way of providing services to victims. It is a question of whether the rights and interests of victims are of such significance, and whether the role of the government in this area is of such significance, that there should be a government ministry dealing with the rights and interests of victims. I make no comment about the appropriate answer to the question. I simply identify it as an issue to be considered, because it is a convenient way of provoking discussion about and reflection upon the extent of the commitment that society makes to victims of crime.

The issues to which I have referred are issues to be addressed by Parliament, on behalf of the community, and by the Executive Government.

The role of victims in the administration of justice by the courts is a matter to be considered by the courts, by Parliament and by the Executive Government.

The judiciary needs to give careful consideration to this issue. It should have a properly thought out view. Parliament also must be involved because if new rights are to be conferred, it is likely that legislation will be necessary. The Executive Government needs to be involved in this issue because it will play an important part in formulating policy, in promoting legislation, and in making the necessary resources available if further rights are to be provided to victims in connection with the administration of justice by the courts.

In dealing with this aspect of the matter I put to one side the issue of services that are or should be provided to victims with the system as it now is. I refer to services such as information about the progress of cases, facilities at courts for victims who are required to attend the court and so on. I am talking now of the issue of the part, if any, to be played by the victim in the process by which the courts administer criminal justice.

I see little scope for according to a victim of crime a role in the process of the court determining guilt of an offence. Under our system the State charges the offender, and prosecutes the case. The determination of guilt involves a court controlling the presentation of the prosecution case and of the defence case, and a magistrate, judge, or jury guided by a judge, deciding upon guilt. The process is essentially one of a contest between the State and the accused, with a verdict given by the court
I fully understand that many immediate victims of crimes, and others affected by the crime, may feel that they are unfairly excluded from this stage of the process, because the law denies them any formal status in it. Their only status is that of a witness, and even then only if their testimony is relevant and admissible.

But the denial of any formal status in the trial itself is a necessary consequence of our approach to the prosecution of crime, and to the proof of guilt.

I do not envisage this changing in my time on the bench. I do not envisage us abandoning the principle that it is the State that prosecutes serious crime, and the principle that the proof of crime involves the State presenting the case against the alleged offender.

Nor do I see room for the victim to play a subsidiary part in the prosecution process as it now is. The fact is that under our system the prosecutor is not there to act for the victim, although the prosecutor must in a number of ways consider the interests of the victim. An important feature of our system of criminal justice is that the prosecutor is expected to prosecute fearlessly, vigorously, but independently. The purpose of a prosecutor is not to secure a conviction if at all possible. The function of the prosecutor is to present the evidence fearlessly and vigorously, but always to remain conscious that the trial must be fair. In this respect, the prosecutor exercises an independent judgment. This is because as a society we value a system in which trials are fair, as distinct from a system in which the prosecutor might attempt to secure a conviction without regard to principles of fairness. To say that is not to say that other approaches are not possible. We could require the prosecutor to secure the approval of the victim to all major steps in the prosecution process. I do not consider that that is possible, as a matter of principle, within our system of criminal justice as we know it. I would oppose such a proposal. But, if society wanted a fundamentally different system, that would be a possibility. Alternatively, we could require the prosecutor to keep the victim fully informed about the course of the prosecution and we could require the prosecutor at least to consult with the victim on all major issues arising at trial. Although to do that would not present the problems that would be presented if the prosecutor had to act as required by the victim, it would bring with it quite significant difficulties. It would substantially increase the burden on the prosecutor, and would, I believe, involve the commitment of significant additional resources to the office of the public prosecutor. It would also make life quite difficult for a prosecutor, because under this concept the prosecutor would be obliged to consult, but not to act in accordance with the wishes of the victim. That would give rise to obvious tensions and difficulties that would have to be accommodated by a prosecutor. I do not envisage even this change occurring, nor is it one that I would favour. I do believe that the role of the prosecutor is to prosecute crime on behalf of society as a whole, mindful of the interests of the victim, but no more than that.

In short, I do not envisage any fundamental change in the status of the victim in the process of determining guilt of a crime.

I am not so sure about the process of sentencing offenders, once guilt has been determined. As we know, victims are now accorded a significant status in that process. Courts must consider victim impact statements, and in this State they may now be presented in person. Courts are generally more attentive to the interests of victims in the sentencing process.

However, when it comes to the imposition of a sentence, the wishes of a victim are not important under the law as it stands. The judge must impose the appropriate sentence, whether the victim wishes it to be heavier or lighter.

I doubt whether this can change, without fracturing our existing system of sentencing. Requiring a sentencing judge to act on the wishes of a victim would transform our system. Such a change would make the wishes of a victim the dominant consideration in the sentencing process. It would not be consistent with the existing principles upon which our sentencing system operates. Even to require a sentencing judge to take into account the wishes of the victim would cause difficulties. If the wishes of a victim are taken into account, they must play a part in the final decision. It must follow that we would contemplate heavier sentences for an offender when a victim is insistent that the sentence should be, for example, the maximum permitted by law, and lesser sentences for an offender guilty of the same offence but faced with a merciful victim. Our present concept of consistency in sentencing, difficult enough to maintain as it is, would become impossible. So would the emphasis upon rehabilitation. In short, I doubt whether any fundamental change will occur in our system of sentencing.

There may be greater scope for procedural changes. For example, it would be possible to provide for the victim to be entitled to be represented by a victim’s advocate in the sentencing process, that advocate having the ability to make submissions and to present material to the sentencing court. I do not consider that this would improve the sentencing process itself. I think it likely that any information that could be presented by a victim’s advocate will, under the existing system, be presented by the prosecutor. But it may be that according this greater recognition to a victim would assist victims in coming to terms with the impact of the crime on them, and in their acceptance of the system by which society deals with the crime. This is something that may merit consideration, although once again I wish to make it clear it is not something that I necessarily advocate.

I should say that I also anticipate that in the near future we will see more consideration given to the use of alternatives to the present judicial sentencing model. In particular, I think we may see increasing use of what I will loosely call diversionary processes, under which offenders are diverted from the courts and dealt with by a system which involves the offender and the victim meeting face to face. This usually involves a process in which a sentence is arrived at taking into account the interests and wishes of the victim. Just how far this sort of process can be taken remains to be seen. Processes like this may indeed prove to be a better way of dealing with certain types of crime, and with a good deal of minor crime. This sort of process may be better for society, for the victim and for the offender. The general model of sentencing is sound, but is not necessarily the only model, or the model best suited for all types of crime. But concepts like this raise quite complex issues, that require careful consideration.

In summary, my belief is that the over the next five to ten years the focus should be on ensuring a sensible approach to the understanding of who is a victim of crime, and upon ensuring a coherent approach to the provision of services to victims, and a realistic assessment of the extent to which public resources should be committed to serving the interests of victims. I envisage a growing acceptance of the concept of victims’ rights in the sense that a victim is entitled, by virtue of that status, to certain facilities and services from the Executive Government. Increasingly it will be understood, as it is I am sure by all at this conference, that the provision of these services is not an act of kindness or charity, but results from the recognition of a right on one side and an obligation on the other. I envisage increasing attention by the courts to the interests of victims. But, for reasons that I have explained, I do not envisage any fundamental change in the status of a victim in the process by which we establish guilt of an offence. I can see the possibility of some significant changes in the process by which we punish certain types of crime, and less serious crime, and a move towards a process in relation to such crimes in which victims play a significant part in determining the outcome.

There is plenty happening in this area, and plenty that will happen. There are some important issues to be faced. I expect change to be gradual, but to be the sort of change that, over a period of time is quite significant. It will be interesting to see where things do stand in five years time.

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