Victims of Crime

VICTIMS OF CRIME TO HAVE A REAL SAY – SWEEPING NEW RIGHTS UNDER SA-BEST PUSH

  • In serious cases victims or their families will have the right to separate legal representation at the trial
  • Victims to have say in any plea bargain with rights to legal representation under Legal Aid
  • Sweeping reforms - costing $10 million per year - to be paid for by the Victims of Crime Compensation Fund, which currently has almost $300 million sitting in it

Victims of crime in South Australia will have the strongest rights in the Commonwealth under proposals unveiled by SA-BEST.

SA-BEST is proposing sweeping changes to remedy the inescapable fact that victims of crime are often revictimised by the criminal justice system.

The proposed changes - to be a key issue for negotiation - should SA-BEST win the balance of power include:

  1. Establishing an enforceable Victims of Crime Charter placing an obligation on police and prosecutorial authorities to fully inform victims of their rights and recognising them as genuine participants in the criminal justice system.
  2. Criminal matters can no longer proceed unless the court is satisfied that firstly, the victim has been consulted in any plea bargain, and that victims have the right to legal representation for advocacy, and secondly, during sentencing that the victim is given the opportunity to provide a Victim Impact Statement.
  3. A legal aid system is to be established for victims to be funded for advocacy and legal representation - consistent with the UN guidelines for legal aid and in matters involving death or serious injury the victim's family or the victim will have the right of legal representation at the bar table at trials - similar to a highly successful system operating in Sweden.
  4. Grossly underfunded victim support services are to be subject to an immediate audit to ensure victims get the support they need, and to establish a new support service for victims of online abuse and scams.
  5. Alleged perpetrators in offences involving acts of violence must be drug and alcohol tested, and the statistics made available on a quarterly basis specifying the type of offence and the type of drug found in the alleged perpetrator.
  6. Reviewing the mental impairment defence under 269A of the Criminal Consolidation Act so that the defence cannot be used by those who say they are under the influence of drugs, such as ice.
  7. Victims should have the right to legal representation at pre-trial hearings in the Magistrates court.
  8. Increase the budget of the Commissioner for Victims Rights by at least $1 million per year to ensure that they can fund victims to have legal representation at coronial inquests and at judicial inquiries/Royal Commissions.
  9. The introduction of sentencing guidelines, with the establishment of a Sentencing Guidelines Council to include representative voices from victims of crime. Whilst not in the category of mandatory sentencing, it will include a requirement for the courts to explain why a sentencing guideline has not been followed.
  10. An annual reporting requirement to the Parliament through the Commissioner for Victims Rights as to the outcomes contained in the reform measures so there is greater transparency in the criminal justice system.

For too long victims of crime have been ignored, or just given lip service to their rights and concerns that they are to be treated fairly.

Too often victims are revictimized by the criminal justice system.

The eminent UK jurist Lord Steyn summed up the imperative when he said in a 2001 House of Lords case: 'There must be fairness to all sides. In a criminal case this requires the courts to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family and the public'.

The process for reforming victims rights should commence within the first 100 days of Parliament sitting and should include a draft exposure bill and consultation leading to a bill being tabled within six months of the new Parliament sitting.

VICTIMS OF CRIME IN THE CORPORATE CRIME CONTEXT

The criminal justice system has struggled to hold a corporation to account in the same way it does ordinary civilians. A corporation can chameleon from a personal entity to insolvent at the stroke of a pen. In law a corporation has no brain and yet it thrives financially on all manner of decision-making. The difficulty has always been in finding a single controlling mind to hold to account when decisions are made that harm others. It is an awkward side to criminal justice and unfortunately, in life and death matters, the real human factor is often overshadowed by the complexities of very old law.

Family members finding themselves suddenly impacted and traumatised by a workplace death need. Currently there is no mechanism to provide that help. The Statutory body charged with regulating safety are an impartial organisation that is ill equipped to provide that support.

If SA-BEST is given an opportunity, we will make sure families have:

  • An independent legal representative to assist in providing:
    • Immediate independent assistance and advice at the outset
    • Acting as a conduit between SafeWork SA and Prosecutor
    • Acting on behalf of the family in procedural matters
    • Acting on behalf of the family as legal representation (but not in civil matters)
  • The VOC fund should be used to provide this support. The legal representative should independent from the AGD and SafeWork SA.

LOOKING AT WORKPLACE DEATH THROUGH A NEW LENS

The greatest downside to the way we handle investigations and prosecutions into a workplace death. How can prevention be a genuine WHS objective when most of the factual evidence surrounding the cause of a serious incidents are hidden away in the filing cabinets of lawyers? 

The criminal law is constrained by a very narrow lens – and this limits the permissible evidence in relation to much of what lands outside the ‘event’ itself. Another focus is on the individual worker. This is especially frustrating for families because a common defence strategy is to blame the deceased worker.

Latest research confirms the long-term harm caused by the current systems and procedures following a workplace fatality. The criminal justice system has demonstrated time again that it fails to provide satisfactory outcomes for the families of deceased workers and the broader working community.

FROM INVESTIGATION TO A FACT-FINDING INQUIRY

A coroner’s inquest is a fact-finding exercise whereas a prosecution is an adversarial contest. One seeks the truth and the other pitches adversary against adversary to find a winner.

  • SA-BEST is eager to put together a consultation think-tank in order to discuss ways in which justice can better be served after someone dies at work.
  • We will discuss the recommendations made by the state Coroner, Mark Johns in 2011 as a starting point as to what the best institutional response is to a workplace death

If SA-BEST is given an opportunity, we would endeavour to ask the following questions of key stakeholders currently involved:

    • Should a death in the workplace matter progress first to an inquest?
    • What are the advantages and disadvantages to this course of action?
    • To what extend should the family be involved?
    • Is there an advantage in giving the Industrial Court coronal-like powers so that it may operate as a quasi-inquisitorial court to determine the immediate cause of a death?
    • Is it still then possible to cease an inquiry so criminal charges can be laid?

THE ROLE OF RESTORATIVE JUSTICE

The principal objective of any changes to the current WHS regime should aim to provide realistic and constructive outcomes to all participants – and that includes those who have been impacted by the offending.

Restorative justice places the spotlight on those who have been harmed. The victim plays a central role as a significant participant in all facets of the proceedings. In contrast the criminal justice system places the victim on the outer as a mere spectator. 

If SA-BEST is given the opportunity, we would:

  • Support and promote therapeutic measures of restorative justice as a means to providing a more cost effective and kinder remedial outcome for all concerned 
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