Criminal Justice Report (2017)

The Royal Commission identified the need to reform the criminal justice system to support victims of crime and strengthen laws to better protect children from abuse. The recommendations in this Report address a broad range of issues, including the reporting, investigation and prosecution of child sexual abuse offences, and criminal and evidence law.

The Victorian Government has been at the forefront of introducing reforms to improve the criminal justice system’s response to child sexual abuse, including institutional child sex abuse (see Figure 7 for further detail). The government recognises the importance of providing support to victim 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 and initiatives to improve prosecution engagement with victims

The Office of Public Prosecutions Victoria (OPP) recently launched its new website, with an 18-part video series, designed to enable victim survivors, witnesses and the broader community to better understand the prosecution process. The OPP will be rolling out more victims training to its staff in the coming months. The modules within the 2022 Victims Training Program included ‘Grief and Bereavement’ and ‘Understanding Child Development and the Impact on Giving Evidence’.

The OPP has developed a framework for the conduct of an annual internal audit of prosecution and higher court appeal files worked on during each financial year.

The results of the 2021–2022 audit, published in the OPP’s 2021–22 annual report, are as follows:

• 97.91% compliance with organisational policies on decision making, and
• 91.47% compliance with victim consultation.

The OPP will use these audit results to inform internal training, communication and systems to improve compliance. As part of its Digital Transformation Project, the OPP is working towards a future state where it can, as far as possible, audit this information automatically.

The OPP is also supporting witnesses through the court process via its multidisciplinary team.

Protections for witnesses giving evidence

New co-located premises for the Child Witness Service and the Intermediary Program

The Child Witness Service provides specialist support to children, young people and their families to prepare them to participate as a witness throughout the criminal trial process.

This support can include:

• assessing a child witness’s needs and identifying strategies to best support their experience with the criminal justice system
• familiarising child witnesses and their families with the criminal justice process
• preparing child witnesses for the role of being a witness by explaining what to expect while giving evidence and possible outcomes
• providing debriefing services and referral to specialist counselling or support services, such as the Victims of Crime Helpline, the Victims Assistance Program, Centres Against Sexual Assault or The Orange Door and family services
• assisting child witnesses to prepare a Victim Impact Statement.

Intermediaries are skilled communication specialists who facilitate communication with adults with cognitive disability, and children and young people. The Intermediary Program assists police, lawyers and the judiciary to plan their questioning so that victim survivors can understand, participate, feel more confident, and provide better quality evidence.

Both the Intermediary Program and the Child Witness Service continue to experience high demand. In the 2021–22 financial year:

• the Intermediary Program received 525 requests for assistance (332 at police stage for visual and audio recording of evidence and 193 at court stage), and
• the Child Witness Service supported 1,266 clients (new and continuing clients).

These two services are also being improved through greater use of technology and new, co-located premises that have been purpose built to meet the needs of service users.

This new co-located premises for the Child Witness Service and the Intermediary Program opened in March 2023. The premises houses eight new remote witness rooms, in addition to breakout spaces for conferences, for families and for staff. The new premises is COVID-19 safe, meets Rainbow Tick and child safety standards, and is designed to be culturally safe for Aboriginal peoples. Bringing these two services together for the first time will also support practice improvements and a more seamless experience for victim survivors.

Supporting remote hearings

The 2021–22 State Budget provided $40.9 million to expand the Online Magistrates’ Court state-wide. It also included $34.8 million for extra resources in Victoria’s courts to reduce backlogs, which included funding to continue the Children’s Court’s online case management pilot and expand online and remote-hearing services. These investments support the implementation of Royal Commission recommendations, which are intended to provide better protections for child witnesses or victim survivors in prosecutions.

Court Services Victoria has enabled courts and tribunals to continue hearing matters online through upgrades of audio-visual link technology in courtrooms accompanied by voice conferencing applications. During 2021–22, court technology systems supported over 140,000 matters being heard virtually or in a hybrid setting, and the courtroom video conference systems connected over 64,000 calls.

The government will continue to work with Court Services Victoria and the courts and tribunals to ensure that audio-visual link technology and remote-hearing services continue to meet the needs of child witnesses and victim survivors in prosecutions.

Reforms to criminal law

Implementing sexual offence recommendations made by the Victorian Law Reform Commission that align with Royal Commission recommendations

In September 2022, the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (Act) received royal assent. The Act is the first stage of law reforms in response to the Victorian Law Reform Commission’s 2021 report on Improving the Justice System Response to Sexual Offences. The Act also contains reforms to implement recommendations from the Victorian Law Reform Commission’s 2020 report on Committals

To strengthen protections available for child complainants in criminal proceedings involving sexual offences, the Act clarifies that a committal hearing cannot be held in any proceeding in which a sexual offence complainant was a child or person with a cognitive impairment at the time the proceeding commenced.

The Act makes a number of reforms to improve the effectiveness of sexual offence laws in Victoria, including by:

• strengthening the criminal justice response to image-based sexual abuse by:
  • making key image-based sexual offences indictable triable summarily (so that they can be heard in either the County Court or the Magistrates’ or Children’s Courts) and increasing their maximum penalty to three years’ imprisonment
  • requiring the Director of Public Prosecutions to give their consent before a prosecution of a person under the age of 16 years can commence ensuring that children are only prosecuted for this type of offending in appropriate cases, and
  • updating these offences to better protect gender diverse victims and apply to ‘deepfake porn’
• promoting certainty in prosecutions by clarifying how a sexual offence should be charged if the offence was significantly reformed during the period of the alleged offending. This addresses a particular problem when the prosecution is unable to pinpoint the exact time of the alleged conduct, which is a common issue in these cases, particularly for historical sexual offending against children
• introducing a clear and flexible process to guide when judges should give directions to juries to address misconceptions about sexual violence, and introducing new jury directions to address misconceptions, such as regarding the types of relationships in which sexual offending can occur, and
• requiring judges to explain the phrase ‘proof beyond reasonable doubt’ to a jury in all criminal trials and allowing an explanation of the phrase to be included in a general jury guide, which can be given to jurors in a trial.

The Act also includes reforms to better protect and support victim survivors of sexual offending by:

• requiring magistrates to provide reasons for granting leave to cross-examine a witness at a committal hearing, to ensure that leave is only granted where appropriate
• expanding the use of ground rules hearings (which are used to discuss the questioning of witnesses and agree to a set of rules that legal practitioners must follow) by making them compulsory for all complainants in sexual offence matters, and
• strengthening procedural protections regarding the disclosure and use of a sexual offence complainant’s confidential communications in criminal proceedings, including by:
  • extending those protections to health information
  • giving the complainant a clear right to appear in applications to access their confidential communications or health information
  • ensuring the complainant is aware of such applications, their right to appear and that they may wish to consider obtaining legal advice, and
  • allowing the complainant to provide a confidential statement, describing the harm they are likely to suffer if the application is granted.

The Act also includes reforms to introduce an affirmative consent model, which will mean a person must say or do something to confirm the other person (or persons) consents to the sexual act for their belief in consent to be reasonable (where consent is an element of the offence). This is intended to put greater focus on the actions of the accused rather than just on the actions of the victim survivor. The reforms also make clear that ‘stealthing’, the non-consensual removal, non-use or tampering with a condom is a crime.

To support the community’s understanding of the affirmative consent reforms, the 2022–23 State Budget allocated $4 million over two years to work with local organisations and specialist services to deliver community-based consent education.

Twelve community projects have been funded across Victoria to engage and educate young people aged 12 to 25 years old about affirmative consent and different forms of sexual violence. The program complements the Respectful Relationships initiative in schools.

Improving the offence of persistent sexual abuse of a child under the age of 16

The Royal Commission recognised several challenges in prosecuting repeated child sexual abuse. For instance, it was noted that child victim survivors subjected to repeated sexual abuse in similar circumstances are often unlikely to be able to distinguish occasions of abuse. To overcome these challenges and allow for effective charging and successful prosecutions, the Royal Commission proposed a detailed model offence that makes the action or conduct of maintaining an unlawful sexual relationship, rather than individual occasions of sexual abuse, be the main physical element of the offence.

The Victorian Government is currently considering these Royal Commission recommendations to strengthen and simplify the existing offence of ‘persistent sexual abuse of a child under 16’, so that it can be used effectively to hold perpetrators accountable.

Admissibility of tendency and coincidence evidence

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.

In response to the Royal Commission’s recommendations, a draft Model Bill was developed by a Council of Attorneys-General working group, which included Victoria, in consultation with judicial, legal and other stakeholders across Australian jurisdictions. The Model Bill includes reforms to enable the greater admissibility of tendency and coincidence evidence in child sexual offence prosecutions, with the aim of increasing the number of successful prosecutions. In November 2019, the Council of Attorneys-General approved this draft Model Bill.

In March 2022, the Victorian Attorney-General advised parliament that the government would await the findings of a statutory review into how the Model Bill’s reforms have been operating in New South Wales before further progressing work to implement the reforms in Victoria. A report on the outcome of that review was tabled in the New South Wales parliament on 30 September 2022. The Victorian Government will use the review’s findings to inform Victoria’s policy development and implementation of the Model Bill.

Improving professional responses

Improving self-reporting for current and former prisoners

In line with Royal Commission recommendations, Victoria Police and Corrections Victoria have developed a poster for display in Victoria’s prisons, which informs prisoners how they can confidentially report instances of child sexual abuse to the Police Sex Crimes Squad (SANO Taskforce). Corrections Victoria also assists prisoners to report historic and/or current sexual assault through a staff-initiated call with a support service, or by organising for the support service to contact the prisoner.

Judicial education

The Judicial College of Victoria (College) provides education programs and resources to assist judicial officers to understand the impacts of trauma, including child sexual abuse, and the legal issues arising in child sexual abuse matters.

In 2022, the College continued to maintain the following relevant publications and resources:

• Criminal Charge Book
• Victorian Sentencing Manual
• Uniform Evidence Manual, and
• the Victims of Crime in the Courtroom: A Guide for Judicial Officers resource.

This material predominantly covers legal and procedural issues in child sexual assault trials, including evidence law, jury directions, sentencing and supporting vulnerable witnesses.

The College also delivered an associated education program called ‘Child abuse materials: Managing the impact’. In July 2022, it launched a dedicated webpage with comprehensive resources for judicial officers on Victims and Witnesses

The College was funded to continue educating judicial staff, as part of the Intermediary Program funded in the 2021–22 Victorian State Budget. This supports judicial officers working with child witnesses and witnesses with cognitive impairment in relevant criminal matters, which often involve sexual offending.