Legal Representation for Victims of Crime

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The following report has been undertaken by James Catley on behalf of the Attorney General. The report addresses the proposed amendments to the Victims of Crime Act 2001 (SA) for which the Attorney General will have responsibility. The proposed amendment will give the Commissioner for Victims’ Rights and/or the alleged victim of a sexual offence the specific power to be legally represented in criminal proceedings. The report will employ three methods of research; case studies, research studies and jurisprudential studies. The recommendations made will be based upon policy considerations, philosophical arguments and the way in which the amendments may work in practice. It is evident from the statements made by the premier that the proposal aims to protect, empower, and satisfy victim’s internationally recognised human rights. Furthermore, the proposal intends to ensure that the needs of the victim are at the heart of the criminal justice system, especially the victims of sexual offences. A number of legislative tools are currently in place to ensure that victims internationally human rights are protected and recognised. In 1985 the United Nations adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power to which Australia is now a signatory. These principles protect a victim’s privacy and safety, and ensure that they are to be treated with respect and dignity, irrespective of age, gender, race or religion. Although the declaration is not binding many of the states and territories in Australia have given statutory recognition to these principles and the rights of victims in the criminal justice system. In South Australia the Victims of Crime Act 2001 (SA) provides a number of tools to protect the rights of victims which include: * Consultation in relation to certain decisions;

* Entitlement to be present in court;
* Entitlement to have impact of offence considered by sentencing court and to make submissions on parole; * Ability to request consideration of appeal; and
* The appointment of a Commissioner for Victim’s Rights. Despite the enactment of this legislation, it is questionable as to whether these tools sufficiently protect the rights of victims and meet the principles outlined in the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The criminal justice system is an adversarial system which involves the government on one side against the defendant who is accused of a crime on the other. Through the prosecutor the government has a responsibility to protect the interests of society as well as the rights of the defendant however, the place of the victim in this system is unclear. A number of the tools mentioned above ensure that the prosecution communicate with victims both as witnesses, and parties affected by the committal of the crime. Despite this, their obligation is to protect the interests of society rather than the interests of the victims in their personal capacities. A question must be asked, how does this system work to protect the rights of the victim? In a number of international jurisdictions it is now clear that this adversarial system does not sufficiently protect the rights of victims. This is most evident in relation to sexual offences where victims act as witnesses during trial. In the United States a witness is not afforded the right to legal representation and thus, may not be aware of their legal rights during the different stages of proceedings. For example, in a Massachusetts case a rape victim was asked by defence counsel to discuss the contents of a privileged counselling conversation. Neither the judge nor the prosecutor objected to this question or advised the victim that she was under no obligation to declare the information. Unaware of her rights the victim answered the question which resulted in the defence questioning her credibility as a witness. Once this information is revealed,...
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