The Criminal Justice Report contained 85 recommendations that deal with a broad range of issues, including the reporting, investigation and prosecution of child sexual abuse offences, and criminal and evidence law. You can read the Victorian Government’s 2018 response to the Criminal Justice Report here.
The recommendations made by the Royal Commission will be instrumental as the Victorian Government continues to reshape the criminal justice system to support victims of crime and strengthen laws to better protect children from abuse.
The Victorian Government accepted 30 recommendations in the Criminal Justice Report, accepted in principle 29 recommendations, is giving further consideration to 16 recommendations, and has noted 10 recommendations that are directed at states other than Victoria, institutions or survivor advocacy groups, or are otherwise not relevant to Victoria.
The Victorian Government will also implement recommendations of the Royal Commission relating to child abuse disclosed during religious confession. The Victorian Government has committed to make it mandatory to report information about child abuse or harm which is disclosed during confession to child protection authorities in the Department of Health and Human Services. The Victorian Government will also ensure that information about child abuse disclosed in the context of a religious confession is no longer exempt from disclosure for the purposes of the Crimes Act offence.
Reforms to improve policing
Over the last decade Victoria Police has undergone significant reforms to improve its practice in the investigation of sexual offences. The recommendations of the Royal Commission will inform Victoria Police’s ongoing work to improve victim-centric policing responses.
Policing Harm, Upholding the Right: Victoria Police Strategy for Family Violence, Sexual Offences and Child Abuse 2018-2023
In December 2017 Victoria Police launched its new organisational strategy, Policing Harm, Upholding the Right: Victoria Police Strategy for Family Violence, Sexual Offences and Child Abuse 2018-2023. The strategy provides an integrated focus on family violence, sexual offences and child abuse to recognise that these crime themes are often linked or co-occurring.
The strategy sets out a range of initiatives in 4 strategic priority areas: victim safety, offence and offender management, child safety, and a safe and capable workforce.
SANO Task Force
The SANO Task Force was established to investigate historic and new allegations that have come to light from the Betrayal of Trust report. The Task Force was expanded during the Royal Commission to include cases emerging as a result of the inquiry.
The SANO Task Force is based in Victoria Police’s Crime Command and comprises specialist sexual offences detectives. SANO investigators identify links between offenders and offences through the use of modern, specialist investigation methods. Since its establishment SANO has received more than 1537 reports.
Prosecution and witness reforms
The Royal Commission recognised the significant impact that interactions with prosecution services can have on how victims and witnesses experience the criminal justice system.
In Victoria, the Victims’ Charter Act 2006 (Victims’ Charter) sets out principles that govern how investigatory agencies, prosecuting agencies and victim service agencies should respond to victims of crime. The objects of the Victims’ Charter are to:
- recognise the impact of crime on victims (as well as victims’ families, witnesses and the broader community)
- recognise that victims should be treated with respect, and assisted to access services to help with their recovery
- help reduce the likelihood of secondary victimisation by the criminal justice system
The Victorian Government amended the Victims’ Charter to recognise that a victim of crime has an inherent interest in the response by the criminal justice system to that crime.
Dedicated victims services
The Royal Commission recommended developing material to better inform complainants or other witnesses about the process of giving evidence. In September 2017, the Office of Public Prosecutions (OPP) launched its dedicated Victims and Witnesses website, designed to help victims, witnesses and bereaved family members navigate the Victorian criminal justice system. This complements material available through State-wide Victims Assistance Programs and the Child Witness Service.
The Royal Commission’s guiding principles for prosecution responses to child sexual abuse included providing funding for Witness Assistance Services. The Victorian Government announced a $28.5 million ‘Victims Package’ as part of the 2017-18 State Budget, aimed at boosting frontline staff and support services for victims and witnesses.
The package included funding for the OPP to recruit more social workers to support victims, and for the Department of Justice and Community Safety Victims Support Agency to enhance online resources for victims of crime. The Victorian Government provided further funding in the 2018-19 State Budget, including $7.2 million to enhance support services for victims of crime.
The State-wide Victims Assistance Programs provide practical support, and a range of therapeutic interventions for eligible victims of crime via a flexible case management model. The OPP Victims and Witness Assistance Service (VWAS) provides support and assistance to victims and witnesses who are required to attend court for indictable matters. The VWAS prioritises matters involving sexual assault, family violence and death. The OPP is committed to developing innovative ways to embed the VWAS in its legal practice and expand the assistance the VWAS offers to as many witnesses as possible across a variety of cases.
The Royal Commission suggested considering specialist services for child witnesses. The Child Witness Service is a specialist agency within the Department of Justice and Community Safety that works with children who are required to give evidence in court. It maintains a website that provides information such as the process of giving evidence and the support services that are available to young people who are going to court. The 2018-19 State Budget included $6.9 million to enhance the capacity of the Child Witness Service.
The Royal Commission identified staff training as critical to improving prosecution responses to child sexual abuse. The OPP conducts professional legal education sessions on working with victims of abuse, trauma and family violence, and people experiencing mental illness or substance abuse. These aim to ensure that lawyers understand the nature of sexual abuse in a family or institutional setting.
Prosecution decision making and communication with victims
The Royal Commission recommended that the OPP:
- have comprehensive policies for consulting with victims
- provide a right for victims to seek written reasons
- establish a robust and effective formalised complaints mechanism
OPP lawyers work with the VWAS to provide victims and witnesses with assistance, support and opportunities for consultation throughout the prosecution process.
The OPP legal practice guide emphasises the importance of consulting with victims and police. The Victorian Director of Public Prosecution Policy provides:
- general principles for how the prosecution should communicate with victims
- information that an OPP solicitor must provide to victims
- matters that an OPP solicitor must seek the victim’s views about
- that a person with a legitimate interest in a prosecutorial decision (which includes a victim) may be given reasons for a discretionary prosecutorial decision
In September 2018, the OPP began trialling a Discontinuance Review Framework, which provides an additional opportunity to seek a victim’s views before decisions are made to discontinue a prosecution. Before the DPP makes a final decision about whether or not to discontinue a matter, the victim is asked if they would like anything further taken into account in the review process.
The OPP has also developed a framework for receiving and resolving victim complaints, modelled on the best practice model identified by the Victorian Ombudsman.
The Victorian Government amended the Victims’ Charter and Victims of Crime Commissioner Act 2015 to:
- require better communication with victims before, during and after criminal proceedings, including seeking victims views before deciding to (among other things) substantially modify charges, discontinue a prosecution
- accept a plea of guilty to a lesser charge
- require the DPP to give victims reasons for such decisions, either orally or in writing
- require agencies to establish improved complaints handling systems
- establish a new complaints oversight role for the independent Victims of Crime Commissioner
These amendments are scheduled to commence in November 2019.
The Royal Commission recommended that information provided to victims should better prepare victims for making a victim impact statement, and give them a better understanding of the role of a victim impact statement in the sentencing process. Amendments to the Victims’ Charter will require prosecutors to provide better information to victims about victim impact statements.
The Royal Commission recommended that prosecution charging and plea decisions in prosecutions for child sexual abuse offences should be guided by certain principles. These principles include recognising the importance of laying, or confirming, the correct charges as early as possible. In October 2018, the Victorian Government asked the Victorian Law Reform Commission (VLRC) to review and report on Victoria’s committal system by March 2020. Under the terms of reference, the VLRC will consider best practices for supporting victims in the committal system, and identify opportunities for reform that improve early disclosure processes and encourage early appropriate guilty pleas.
Protections for giving evidence
Giving evidence can be a particularly distressing experience for some witnesses because of the nature of the criminal proceedings, such as where they relate to sexual or violent offending. This may result in unnecessary trauma to the witness, discourage the witness from giving evidence, and can affect the quality of the evidence.
The Royal Commission made 14 recommendations relating to protections for witnesses giving evidence in child sexual abuse prosecutions. These include ensuring that necessary legislative provisions as well as physical resources are in place to allow for evidence to be pre-recorded, and establishing an Intermediaries Scheme to assist in communication with vulnerable witnesses.
Recorded evidence and alternative arrangements
Alternative arrangements may be necessary to assist particular witnesses, such as children or witnesses with a cognitive impairment, to give accurate evidence and participate in the court process.
Victoria has a number of protections which apply in criminal proceedings to the evidence of certain classes of witness. These are in Part 8.2 of the Criminal Procedure Act 2009, and include:
- allowing the court to use alternative arrangements for giving evidence by witnesses in sexual offence or family violence matters (including permitting evidence to be given by CCTV, the use of screens, the presence of an emotional support person and by requiring only specified persons be present while a witness gives evidence)
- allowing the evidence-in-chief of children and cognitively impaired witnesses to be pre-recorded in sexual offence and assault matters
- taking the evidence of a child or a person with a cognitive impairment in sexual offence matters during a recorded ‘special hearing’
- allowing previously recorded evidence of a complainant in sexual offence trials to be re-used in specified related proceedings, including re-trials and appeals
A series of upgrades to audio-visual facilities in the Supreme Court, County Court and Magistrates’ Courts have occurred, or are scheduled to occur in coming years, to ensure that vulnerable witnesses are able to give their evidence-in-chief by video and audio recording of evidence, and generally only have to be cross-examined in court once. This includes the funding of:
- $10.9 million over 4 years in the 2017-18 State Budget to the Supreme Court, to upgrade audio-visual technology in all Supreme Court courtrooms. This project is forecast to be completed in January 2020.
- $14.6 million over 4 years in the 2015-16 State Budget to Victorian courts for the provision of 148 video conferencing units, which separate vulnerable witnesses from accused persons when those witnesses give evidence.
The OPP has established a Victim Support Dog program, where a professionally trained therapy dog is available to accompany victims and witnesses as they give evidence from a remote witness room. This program as been utilised in a number of matters involving victims of child sexual abuse.
The terms of reference for the VLRC review of Victoria’s committal system include examining if, and in what circumstances witnesses or classes of witnesses should be examined prior to trial, including consideration of how to minimise the need for victims and other vulnerable witnesses to give evidence multiple times.
The Victorian Government has introduced an Intermediaries Scheme which will enable communication specialists to assist children and vulnerable people to provide evidence to police and in court. It is designed to increase access to justice for vulnerable witnesses, produce the best quality evidence, and decrease the trauma experienced by victims and other vulnerable people giving evidence.
The Victorian Government allocated $2.6 million in the 2017-18 State Budget to establish the Scheme. This initial funding was supplemented by an additional $2.5 million in the 2018-19 State Budget. This included funding for the Judicial College to provide training to judicial officers about the Scheme, focussing on the impact of violence and trauma on child witnesses.
All members from the Victoria Police Melbourne Prosecutions Unit Sexual Offences Team have received initial training and will begin using intermediaries in sexual offence prosecutions.
The Victorian Government also introduced Ground Rules Hearings, a pre-trial process that aims to bring to the attention of lawyers and judicial officers the comprehension abilities and communication needs of the particular witness.
Victoria Police Sexual Offences and Child Abuse Investigation Team sites in Geelong, Frankston, Box Hill, and Fawkner, are also piloting access to intermediary support for police interviews.
Reforms to Criminal Law
The Royal Commission suggested a broad range of criminal law reforms to improve responses to institutional child sexual abuse. Its recommendations covered reforms to introduce or amend particular offences, amend aspects of evidence law, remove limitation periods and immunities, introduce mandatory reporting and codify jury directions.
Child sexual abuse offences
In recent years, the Victorian Government has made a number of legislative amendments to strengthen child sexual abuse offences, which the Royal Commission recognised in its report.
Reforms to Victoria’s sexual offences include:
- the introduction of a course of conduct charge in relation to certain sexual offences and removed any immunity from prosecution arising from the time limits on commencing prosecutions of certain sexual offences committed before 1991
- introduction of new offences of failing to disclose a sexual offence committed against a child under the age of 16 and failing to protect a child under the age of 16 who is under the care, supervision or authority of an organisation
- legislative amendments to modernise existing offences such as persistent sexual abuse of a child under 16 and grooming; introduction of age-based offence classifications for sexual offences against a child aged under 16 and sexual offences against a child aged 16 or 17 and under care, supervision or authority, and amendments to make consent irrelevant to exception or defence to those offences
The Royal Commission recommended that a failure to report offence should not exempt religious confessions. The Victorian Government will amend the law to ensure that, under the failure to disclose offence in section 327 of the Crimes Act 1958 information disclosed in the context of a religious confession is not excluded from the reporting obligation. It will also ensure that religious officials are mandatory reporters for the purpose of the mandatory reporting scheme, and that there is no exemption or defence from reporting for information gained in the context of religious confession.
The Council of Attorneys-General has commissioned further work to develop a nationally consistent approach to the religious confessions evidentiary privilege in the Uniform Evidence Law.
The Victorian Government has introduced significant reforms in respect of jury directions. The Royal Commission referred to Victoria’s jury directions reforms as establishing a precedent for other jurisdictions to develop reforms.
Jury directions reform in Victoria has focused on dealing with or neutralising misconceptions that can affect how jurors assess a witness’s evidence. For example, specific directions on delay and credibility prohibit the trial judge and parties from making certain generalisations about sexual offence complainants as a class of witnesses, and require the trial judge to deal with common misconceptions about those complainants. Directions on differences in a complainant’s account reflect research that shows that gaps and inconsistencies (both within and between accounts) are common. Complainants may describe an offence differently because of how they retain and recall memories, the context of the disclosure, stress or embarrassment.
The Victorian Government also introduced a new direction on the language and cognitive skills of child witnesses. This new direction aims to neutralise misconceptions that may unfairly affect the assessment of child witnesses and is based on extensive empirical research on children’s abilities as witnesses in criminal proceedings.
Review of costs
Consistently with the Royal Commission’s recommendation, the Victorian Government will review the current operation of section 401 of the Criminal Procedure Act 2009 regarding the award of costs in summary jurisdiction.
Tendency and coincidence evidence
The Royal Commission made several recommendations relating to the admissibility of tendency and coincidence evidence. At its December 2017 meeting, the Council of Attorneys-General agreed to refer the test for admissibility of tendency and coincidence evidence in the Uniform Evidence Law to a working group including representatives from uniform evidence jurisdictions and led by NSW. The working group has developed several proposals for consideration, and will undertake further consultation with stakeholders and report back to the Council of Attorneys General at its first meeting in 2019. Victoria will continue to actively participate in the working group.
The Royal Commission recommended that governments work to ensure that delays are reduced and kept to a minimum in prosecutions for child sexual abuse. The Victorian Government has implemented reform to reduce delays in prosecutions of child sexual abuse.
The Children’s Court, Magistrates’ Court and County Court each manage sexual offence cases in Victoria through specialist sexual offences lists, serviced by specialist sexual offence prosecutors.
A range of statutory and court case management requirements are in place to encourage early guilty pleas. Existing measures include a sentence indication scheme in the higher courts that allow the court to indicate whether it would or would not be likely to impose a sentence of imprisonment. Other statutory mechanisms that encourage early guilty pleas include statutory recognition of an early plea as a factor that mitigates sentence length and the requirement for courts to announce the sentence that would have been imposed but for a plea of guilty having been entered.
The Criminal Procedure Act 2009 imposes a range of requirements on parties to disclose evidence, consider and narrow issues and be prepared to engage in structured discussions in both summary and indictable stream cases. This includes provisions about:
- initial and ongoing disclosure of the prosecution case, including mechanisms for an accused person to seek, and the court to order, further disclosure
- disclosure of the case of the accused, including a written response to the prosecution opening in indictable stream cases that identifies the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken
- out of court discussions
- express case management powers
The VLRC may identify further opportunities to reduce delay during its review of Victoria’s committal system. In particular, the VLRC will examine opportunities for reform that facilitate efficient use of court time and encourage proper preparation for trial.
Improving professional responses
The Royal Commission recommended that the judiciary and the legal profession receive regular training and education programs in relation to understanding child sexual abuse and current social science research in relation to child sexual abuse.
Material and training is available to legal professionals in relation to child sexual abuse offences. This includes the various jury directions reports prepared by the Department of Justice and Community Safety, as well as the Victorian Criminal Charge Book and the Sexual Assault Manual, which are published by the Judicial College of Victoria.
The OPP conducts training designed to ensure staff who have contact with victims of child sexual abuse understand the nature and impact of child sexual abuse and how it can affect people who are involved in a prosecution process. Additionally, a multi-disciplinary team of solicitors and social workers has also been established to ensure that these services work more closely together to support victims and witnesses.
The Department of Justice and Community Safety has also produced the Charter of Advocacy – Prosecuting or Defending Sexual Offence Cases, which provides a guide for prosecutors and defence practitioners about good conduct in relation to court proceedings for sexual offences. It is a symbol of a shared commitment by justice agencies to minimising the trauma experienced by victims of sexual assault in the justice system while ensuring that people accused of sexual offences receive a fair trial.