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Criminal Justice Report (2017)

The Victorian Government continues to reform the criminal justice system’s response to child sexual abuse, including institutional child sex abuse. The government recognises the importance of providing support to victims and survivors involved in the criminal justice system and is working to ensure the system operates in the interest of justice and protects the rights of the complainant and the accused.

Prosecution reforms

Reforms to prosecution engagement with victims

As part of the Victorian Government’s ongoing commitment to victims, the Office of Public Prosecutions (OPP) is continuing to find ways to reduce the risk of re-traumatisation of victims through the criminal justice process. In 2020, the OPP rolled out training to all staff in the legal practice designed to help them understand how trauma impacts victims of crime and how this might manifest during the trial process. The training was delivered by an external provider and covered:

  • the impact of trauma on victims
  • how impacts might manifest for victims, and
  • the principles of a trauma-informed approach when dealing with victims.

A further training session was offered to all staff which focused specifically on survivors of institutional sexual abuse. This session covered the types of trauma commonly experienced by these victims and how that trauma continues to impact their lives. The training also outlined the social and mental health impacts of trauma and the differences in trauma experiences by gender.

These training sessions were supplemented by a series of micro-learning modules directed towards improving engagement with victims and understanding triggers and re-traumatisation. The training was made available to all staff who have dealings with victims and witnesses. The OPP is also exploring ways in which some of these modules could be made available to barristers at the private Bar who prosecute child sexual abuse matters on behalf of the Director of Public Prosecutions (DPP).

The OPP is also exploring options to revamp its dedicated victims’ website to make the content more accessible to users and easier to navigate.

Following the publication in 2019 of the report of the Centre for Innovative Justice entitled Communicating with Victims about Resolution Decisions: A Study of Victims’ Experiences and Communication Needs, the OPP continues to work on implementing the five recommendations made. This includes the development of a best-practice guide for communicating with victims throughout the course of a prosecution and ensuring that individual justice needs are considered when consulting with victims about resolution decisions.

In late 2019 the OPP introduced a new electronic record of victim engagement (ROVE) that documents all communication between solicitors and victims, or social workers and victims. As the ROVE is a single platform accessible to both solicitors and social workers it has proved a useful internal tool to support the OPP’s multidisciplinary approach to victim engagement that was first piloted in 2018.

The multidisciplinary approach is now firmly embedded across the trial divisions of the OPP and allows solicitors and social workers to work collaboratively in order to better meet the support and information needs of victims. The ROVE itself contains built-in prompts to remind solicitors of their obligations under the Victims Charter Act 2006 (Vic) throughout the course of the prosecution.

A project is currently underway to develop a way to use the ROVE to conduct random audits of its compliance with the prosecution’s obligations to victims under the Victims Charter Act 2006 (Vic).

Complaints processes and review of decisions to discontinue a prosecution

The OPP has formalised its complaints process which is now clearly published on the OPP’s general website and victims’ website. Any person directly affected by an act, omission, or decision of the OPP may make a formal complaint. This includes victims of crime, family members of victims of crime, witnesses, defence solicitors, barristers, investigative agencies such as Victoria Police, the courts, accused persons, and family members of accused persons.

In late 2018, the DPP piloted a new Discontinuance Review Framework, which has now been adopted and is available on the OPP’s website.

The Discontinuance Review Framework provides an additional opportunity for victims to have input prior to the DPP reviewing a decision to discontinue a prosecution. If a decision is made to discontinue a prosecution, it is not final until the victims are asked if there is anything further to be considered in an internal review.

Any additional information provided by victims is considered by the DPP before the final decision is made. Victims are informed of the final decision before it is announced in court.

Victorian Law Reform Commission’s review of committal system

The Royal Commission made several recommendations to reduce the trauma experienced by victims of child sexual abuse when giving their evidence in criminal proceedings and to expedite the finalisation of such proceedings.

In October 2018, the Victorian Government asked the Victorian Law Reform Commission (VLRC) to consider whether Victoria should maintain, abolish, replace or reform the way accused persons are committed to stand trial. The VLRC was also asked to examine best practice for supporting victims and means of reducing trauma to victims and witnesses. The VLRC consulted widely during its review, and its findings were delivered in a report to the Attorney-General on 31 March 2020.

Some of the report’s key recommendations relating to improving the experience of victims were:

  • replacing the test for committal with a power to discharge the accused
  • retaining cross-examination in the lower courts, subject to additional limits and safeguards
  • ensuring early and ongoing involvement of experienced legal practitioners
  • reforming charging practices and disclosure requirements, and
  • improving case management in the lower courts.

The Victorian Government is committed to implementing reforms to improve the committal and indictable pre-trial process in line with the policy intent of the VLRC’s recommendations. This seeks to improve efficiencies in the criminal trial process and reduce the trauma experienced by victims while ensuring fair trial rights.

The report has now been tabled in Parliament and the Victorian Government will carefully consider its findings and recommendations. As part of this process, stakeholders will be consulted on the specific proposals in the report.

Protections for witnesses giving evidence

Improved protections for witnesses giving evidence in child sexual abuse prosecutions

On 1 July 2020, reforms to the Criminal Procedure Act 2009 came into effect that strengthen protections for child complainants in sexual offence proceedings. The Justice Legislation Miscellaneous Amendments Act 2020 clarified that no committal hearing can be held and no witnesses may be cross-examined in any proceeding in which a child is a complainant for a sexual offence charge. This will be the case even if the proceeding also involves an adult complainant.

The reform builds on changes to the Criminal Procedure Act introduced in March 2019, which abolished committal hearings in sexual offence proceedings involving child and cognitively impaired complainants. These changes implement Royal Commission recommendations to expedite the finalisation of sexual offence proceedings involving vulnerable complainants and reduce their exposure to uncertainty and distress.

Recorded evidence and alternative arrangements

The Victorian Government is continuing to work closely with the courts and other justice entities to increase the uptake and quality of audio-visual links across the justice system. Building on the previous investment in the 2019-20 Victorian Budget, this broad and continuing work has improved audio-visual links capacity, delivering upgrades to 27 courts across eight Magistrates’ Court sites and 26 police stations.

In response to coronavirus (COVID-19), a rapid expansion in audio-visual links and other remote hearing capability has occurred across the Supreme, County, Magistrates’ and Children’s Courts of Victoria. This includes ensuring the quality of audio-visual links equipment can be relied upon to conduct online hearings, offer remote solutions for court users, and hear a higher volume of matters. Commercially provided videoconferencing software, such as the Cisco WebEx platform, are being used across jurisdictions to support court operations. Judicial training in the use of videoconferencing software has also been undertaken. Consideration is being given to further opportunities for technological enhancement to increase the availability of remote court attendance and assistance.

Support services for witnesses

As part of an initiative to increase court capacity, the Victorian Government has funded additional judges and magistrates and has also enhanced the Child Witness Service to support additional child witnesses going through the courts. This funding allows the recruitment of additional staff, phased over four years, to meet rising demand for specialised support for victims and their families. In 2018-19, an additional four staff members were recruited. In 2019-20, another five staff members were recruited, bringing the cumulative number to nine. The recruitment of further Child Witness Service support staff during the next two financial years is under review.

The Child Witness Service provides specialist support to child witnesses and their families to prepare them for the role of being a witness, support them throughout the criminal trial process, provide debriefing support post-trial and offer referrals to specialist and other community services.

Intermediaries Pilot Program

Intermediaries are skilled communication specialists from a range of professional backgrounds that are engaged as independent and impartial officers of the court to address communication needs of certain witnesses. The experience of giving evidence in criminal justice processes is highly traumatising for most victims of crime. For child witnesses and adults with a cognitive impairment it is particularly distressing, with a high chance of the system contributing to people feeling re-victimised.

Many routinely face systemic barriers to justice because police and the courts are ill-equipped to meet their communication needs. The methods used to question these witnesses are particularly difficult for people with communication challenges and can compromise their evidence. It is all too often assumed that their evidence is unreliable, so prosecutions do not proceed, and the justice system does not hear these victims’ voices.

The role of an intermediary is to assess and facilitate communication between vulnerable people and the police or courts. This helps police, lawyers and the judiciary to plan their questioning so that the victim can understand, participate, feel more confident, and provide better quality evidence. This improves access to justice and makes the trial fairer and more efficient. In some cases, an intermediary will be the difference between a vulnerable person being able to participate in the criminal justice system or not.

Case Study: More appropriate engagement for a man with disabilities

Jason was an 18-year-old man who was a complainant in a sexual offence by an older male. He had a diagnosis of mild intellectual disability and moderate-severe language disorder. Jason left school in Year 7 and spent time in and out of home care throughout his teens. Jason lived in rural Victoria with few supports and was extremely anxious about travelling outside of his community. The allegations included indecent acts and sexual penetration of a child under the age of 16, as well as grooming and supply of a drug of dependence to a child.

The intermediary travelled to the country to assess Jason, who covered his head with his jumper and hid behind his sibling, refusing to engage. Eventually, Jason answered some simple closed questions and stated that he didn’t want to enter the building so the informal assessment took place in a carpark. Jason left after 15 minutes. The intermediary organised to meet with Jason a second time, to gather some more information and attempt to develop rapport. Jason was able to remain in that assessment for a little over 15 minutes before walking out. Jason was highly anxious and largely monosyllabic in his responses to questions.

An assessment report was prepared, and discussed at the ground rules hearing, where all recommendations were accepted by the Judge. Ground rules for Jason’s Special Hearing included giving evidence later in the morning consistent with his sleep cycle; he was able to wear a hood that covered his face and to face away from the camera; questions were to be very simple requiring only short responses of one to three words; he was offered breaks every 15 minutes; provision was made for him to use visual aids or the intermediary to communicate his answers if needed; a visual timeline was developed to help orient him when answering questions; an, the duration of questioning was limited to one hour or less. Jason was able to give his evidence clearly, with little need for intermediary intervention and left the remote witness facility exclaiming “I did it!”.

The Intermediaries Pilot Program experiences high demand. From 1 January to 31 October 2020, the program received 395 requests from Victoria Police and the courts and assisted 353 clients. Since it was established in July 2018, the program has received a total of 1032 requests for its services.

Victims services reforms

Support services for victims of crime

The Victorian Government is assisting victims by providing case management, recovery support, and additional capacity for the Victims of Crime Helpline. The increased capacity of the Helpline provides victims of crime with telephone support, assessments and offer referrals to the Victims Assistance Program and to other services.

Impact of coronavirus (COVID-19) on victim services

During coronavirus (COVID-19), there has been no service disruption to the Victims of Crime Helpline nor to the localised service providers of the Victim Assistance Program. The Helpline is successfully operating with staff working from home and continues to operate 8 am to 11 pm, seven days per week.

The Intermediaries Pilot Program continues to operate in police and courts settings throughout the coronavirus (COVID-19) pandemic, triaging matters to distinguish priority cases and assessing safety concerns. For example, the program’s use of WebEx to support victims and witnesses virtually has maintained the service during lockdown restrictions and ensured social distancing requirements could be observed. Intermediaries continue to attend police sites for the Video, Audio and Recorded Evidence (VARE), to assess witnesses’ communication and assist police and witness communication in the VARE. During stage 4 restrictions intermediaries have been conducting assessments via a virtual platform and attending ground rules hearings via WebEx. As restrictions are lowered intermediaries will resume face-to-face court assessments at the police sites or the Child Witness Service.

The Child Witness Service offers virtual support for child witnesses participating in plea and sentence hearings. This flexible option for victims allows the two coronavirus (COVID-19) compliant Child Witness Service remote witness rooms to be prioritised for witnesses who need to give evidence in hearings or urgent matters.

Reforms to criminal law

Reforms to the failure to disclose offence, mandatory reporting and confessional privilege

On 17 February 2020, reforms in the Children Legislation Amendment Act 2019 to the failure to disclose offence in the Crimes Act 1958, mandatory reporting laws in the Children, Youth and Families Act 2005, and confessional privilege in the Evidence Act 2008 commenced by proclamation. These reforms require religious ministers to report or disclose relevant information received in confession under the mandatory reporting laws and failure to disclose offence. This also means religious confessions privilege in the Evidence Act 2008 does not apply in proceedings for the failure to disclose offence or failure to make a mandatory report offence.

The Victorian Government will consider the principles developed by the Council of Attorneys-General 2019 working group on confessional privilege to determine whether further reforms to Victorian legislation are required.

Admissibility of tendency and coincidence evidence

The Royal Commission recognised that one of the most significant issues affecting criminal justice in child sexual abuse cases is how the criminal justice system deals with allegations of sexual offending against multiple children by an individual. The Royal Commission made several recommendations relating to the admissibility of tendency and coincidence evidence. Tendency and coincidence evidence can link different complainants, allowing their cases to be heard together and bolstering their credibility. Permitting the use of this evidence in more cases is expected to increase the number of successful prosecutions for child sexual offending.

In November 2019, the Council of Attorneys-General approved a draft Model Bill designed to increase the admissibility of tendency and coincidence evidence in the Uniform Evidence Law. The Model Bill was developed by a Council of Attorneys-General working group, which included Victoria, in consultation with judicial, legal and other stakeholders across jurisdictions.

The Model Bill aims to increase the admissibility of tendency evidence in child sexual offence prosecutions by introducing:

  • a rebuttable presumption that tendency evidence of an accused person’s sexual interest in children has significant probative value, and
  • guidance on considering that presumption.

It also includes reforms to increase the admissibility of tendency and coincidence evidence in all criminal proceedings, for example by lowering part of the test for admissibility under the Evidence Act.

Victoria proposes to introduce legislation to implement the Model Bill in 2021.

Improving professional responses

Supporting the police workforce

Victoria Police has published in-field guidance to support frontline members when they receive a report of child abuse or a sexual offence. The guidance is available on mobile devices. It is designed to prompt members on the key issues to consider when attending an incident, and the steps that must be undertaken as part of the initial response including the notification of specialist investigators. Foundational training has also been reviewed to ensure it addressed all the issues raised by the Royal Commission. Some minor updates were made in order to strengthen this training, including:

  • incorporating the ‘Reporting sexual offences to police’ booklet into training materials
  • provision of comprehensive guidelines for when police receive the initial report of a sexual crime, and
  • guidelines for first responders to the scene of a sexual crime.

Victoria Police has also completed a review of the mandatory training delivered through the Centre for Crime Investigation at the Victoria Police Academy, for members responsible for investigating sexual offences and child abuse, including on the taking of recorded statements. This was in order to ensure that the training effectively addressed all the issues raised by the Royal Commission. Minor updates to strengthen specialist training has occurred in the following areas:

  • interviewing children
  • the impact of childhood abuse and likelihood of trauma transfer to adulthood, and
  • introduction to child development/brain and memory.

Additional training in victim management, rapport building, engagement, and interview skills has also been introduced into specialist training packages, including case studies and role play to support members’ awareness and understanding of putting policy into practice.

Detectives within the Family Violence Investigation Units also continue to complete specialist sexual offence investigator training in recognition of the correlation between crime themes of sexual offences, child abuse, and family violence.

Improving victim survivors’ experiences within the justice system

Victoria Police published its revised booklet ‘Reporting sexual offences to police’, which provides information on avenues to report, what to expect during an investigation, including consultation and decision making, going to court and giving evidence.

The booklet has also been translated into 20 languages, with an easy English version also made available.

Guidance on historical sexual offences has also been updated to support members and prosecutors with the laying of correct charges early. The Victoria Police Manual has been also been updated to:

  • reflect 2019 amendments to the Victim Charter Act 2006, to ensure that the victim survivor is consulted prior to the withdrawal or downgrading of charges or the acceptance of a plea, and
  • provide clear guidance on options available with regards to pre-recording of evidence. Alternatives to attending court in person include video conference, pre-recording evidence and closed-circuit television. Victoria Police discusses these options with the witness to determine the most appropriate option on a case-by-case basis.

Victoria Police also supports victims and survivors to have a support person with them throughout their engagement with police, as well as using interpreters or translators to aid in their understanding and engagement with the criminal investigation.

Encouraging reporting to police

Channels to report

In Victoria there are multiple channels to report current, historical and/or institutional child sexual abuse to police in person, over the telephone (general and specialist telephone numbers) or online.

Online reporting is an important pathway and removes some of the barriers faced with telephone or in-person reporting, such as fears of follow-up questions and feeling judged by the person taking the report. Crime Stoppers is further enhancing their online reporting to help victims feel more comfortable in reporting.

When using the various available channels to report child sexual abuse, victim survivors are also provided information about what to expect next from police.

Blind reporting

In 2020 Victoria Police has strengthened its approach to blind reporting, which refers to the practice of reporting information to police without giving the alleged victim’s name or other identifying details, through the development of clear guidelines in the Victoria Police Manual. These guidelines stipulate that after receiving a report of child sexual abuse anonymously or from a third party, police practice is to create an Intelligence Report to record the information provided in the report.

If more information is required to assist an investigation, police will then contact the report’s original source in the first instance in order to work collectively with the support agency or institution to support the victim survivor to be open to contact from police.

Judicial education

The Judicial College of Victoria delivered several education programs in 2019/2020 to assist judicial officers to understand the impacts of trauma, including child sexual abuse.

The College and the County Court of Victoria ran a conference on ‘The Brain: Time, Trauma and Memory’. A session with Dr Patrick Tidmarsh focused on the myths and misconceptions of sexual offences to allow juries and judges to accurately assess the material presented in cases.

Trauma was the focus of the College’s 2019 Koori Twilight series, exploring the links between intergenerational trauma, collective trauma and family violence. The College invited Western Australia State Coroner Ros Fogliani to talk about intergenerational trauma to a judicial audience in the context of the 2017 Inquest into the Deaths of 13 Children and Young Persons in the Kimberley Region.

The College’s ‘Intimate Terrorism of Family Violence’ program covered empowering practice with victims. This included interactive sessions, to provide judicial officers with an understanding of the impact of trauma on the behaviour of people affected by family violence. The program also assisted judicial officers to develop strategies for sensitive and empowering communication in the courtroom. Further sessions looked at intergenerational trauma from the perspective of Aboriginal communities including a recital of Tammy Anderson’s play I Don’t Wanna Play House, which explores and documents deeper issues of physical and emotional violence, child abuse, displacement and trauma.

Delivered in Moorabbin in January 2020, the Specialist Family Violence program looked at:

  • trauma-informed practice to enhance a person’s ability to take part in the court process and promote recovery, and
  • communicating with victims to gain an understanding of the impact of trauma on their behaviour.

The bi-yearly Drug Court education program held in February 2020 examined ‘The Power of Words’ with a practical and interactive session exploring complex trauma and how judicial officers can adopt a trauma-informed approach when working within the Drug Courts.