Charter of Advocacy. For prosecuting or defending sexual offence cases

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1 Charter of Advocacy For prosecuting or defending sexual offence cases

2 The Charter is a symbol of a shared commitment amongst these organisations 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.

3 Purpose of the Charter The Charter provides a guide for prosecutors and defence practitioners about good conduct in relation to court proceedings for sexual offences. This Charter reflects and reinforces the legal and ethical obligations that are already required of legal practitioners, for example, under the Evidence (Miscellaneous Provisions) Act 1958, the Evidence Act 2008, the Criminal Procedure Act 2009, the Victims Charter Act 2006 and the Victorian Bar Practice Rules. The Charter represents appropriate conduct in sexual assault cases. It has been developed in consultation with the Department of Justice Sexual Assault Advisory Committee, with particular input from: the Supreme Court of Victoria the County Court of Victoria the Magistrates Court of Victoria the Office of Public Prosecutions Victoria Police the Victorian Bar Council the Criminal Bar Association the Law Institute of Victoria Victoria Legal Aid the Judicial College of Victoria. The Charter is one of a number of initiatives to promote a culture across the legal profession in which all legal practitioners and their staff are aware of the particular challenges involved in prosecuting/defending sexual offence cases and are mindful of the laws and ethical obligations that arise in relation to these cases. 01

4 How the Charter can be used The Charter is also intended to help prosecutors explain to victim/complainants of sexual offences what they can expect from both prosecutors and defence practitioners in relation to court proceedings. It is hoped that prosecutors (and/or solicitors for the prosecution or witness assistance officers) will provide a copy of this Charter to victim/complainants as part of the process of explaining to them what they can expect from the prosecutor and defence practitioner during court proceedings. Terminology used in the Charter The Charter is written in plain English with minimal legal terminology so that it can be understood by people without legal qualifications and experience, including victims of sexual assault. The terms victim/complainant and victim are used in the Charter. This reflects a desire to use terminology that is familiar to members of the public; acknowledging that in criminal proceedings victims of sexual assault are often referred to as complainants (ie. the person who made the complaint to police) and that most victims are also witnesses in sexual offence proceedings. The inclusion of the word victim should not imply the guilt or innocence of any person accused. Where the term victim has been used in referenced legislation (for example the Victim s Charter Act 2006) it has also been used in the relevant section of the Charter. The terms sexual assault and sexual offences are used interchangeably throughout the Charter. These terms are intended to encompass the range of sexually abusive behaviours criminalised under current law. Review of the Charter The Charter will be reviewed after it has been in existence for two years to determine its effectiveness. 02

5 Innocent until proven guilty It is a fundamental principle of the criminal justice system that people accused of crimes are innocent unless and until they are proven guilty or plead guilty in a court of law. The agencies who have been involved in the development of this Charter are all committed to this fundamental principle and seek to ensure that individuals accused of sexual offences receive a fair trial. However, they also recognise that lawyers and criminal justice agencies can minimise the trauma experienced by victims of sexual assault by following the obligations outlined in this Charter and that this does not jeopardise the accused receiving a fair trial. The obligations in this Charter already exist in the law or legal practice rules. They are simply brought together in one document to provide a ready reference point and a tool that can assist in explaining to victims what they can expect in relation to a court hearing. This Charter will not remove the distress and difficulty for a victim attending court and/or giving evidence. However, it reflects a commitment from all the agencies who have been involved in the development of this Charter to build into their practice how they can minimise the trauma victims experience in the court-room without jeopardising a fair trial for the accused. The legal system, and the lawyers and police prosecutors who work within it, can operate in a way that is sensitive and respectful without jeopardising fairness and impartiality. 03

6 Legal practitioners should be aware Guiding principles 1. There is a high incidence of sexual violence within society. 2. Sexual offences are significantly under-reported. 3. A significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment. 4. Sexual offenders are commonly known to their victims. 5. Sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred. It is the intention of Parliament that in interpreting and applying the sexual offence provisions in the Crimes Act 1958 courts are to have regard to the above five guiding principles. 1 1 These principles are in s37b of the Crimes Act 1958 and are also applied to confidential communications (s32ab Evidence (Miscellaneous Provisions) Act 1958) and relevant witness provisions (s338 Criminal Procedure Act 2009). 04

7 Why does sexual assault require particular attention? Sexual offending research shows that many victims of sexual assault find it particularly traumatic to give evidence in court and be crossexamined. It is important for prosecutors and defence practitioners to seek to minimise any further trauma to the victim that may arise before, or during, court proceedings. Common features of sexual assault include: sex offences are crimes of violence sex offences occur in private in the absence of witnesses people of all ages and backgrounds experience sexual assault sexual offences can occur to both females and males, although women and children are more vulnerable victims may experience a wide range of emotions, including shame, anguish, embarrassment and guilt when reporting sexual offences and during the criminal justice process. 05

8 Legal practitioners should be aware Alternative arrangements for giving evidence Under Victorian law victim/complainants are provided with specific options to assist in giving evidence in sexual offence proceedings, including: giving evidence on closed-circuit television using screens so the victim/complainant does not have to see the accused allowing a support person to sit beside the victim/complainant to provide emotional support when she/he gives evidence. The court must allow these arrangements unless the victim/complainant is aware of her/his rights but does not want them to be in place. 2 Child victim/complainants or victim/complainants with a cognitive impairment whose case is heard in the County Court or Supreme Court have their evidence pre-recorded in a special hearing and then played at trial. 3 Privacy and confidentiality The court may order that the whole or part of any proceeding for a sexual offence be heard in closed court (or that only certain people may be present) if the court believes it is necessary to do so to avoid causing the victim/complainant undue distress or embarrassment. 4 No one is permitted to disclose or publish information that is likely to lead to the identification of a victim/complainant in a sexual offence case. 5 2 See Division 4 of Part 8.2 of the Criminal Procedure Act See Division 6 of Part 8.2 of the Criminal Procedure Act Note that special hearings do not occur if the case is heard in the Criminal Division of the Children s Court or the case is heard summarily in the Magistrates Court. 4 See s126 of the Magistrates Court Act 1989; s80 and s80aa of the County Court Act See also s360(d) of the Criminal Procedure Act 2009, which provides for the court to limit persons present while a witness gives their evidence in sexual offence cases. 5 See s4 of the Judicial Proceedings Reports Act

9 Professional manner Prosecutors and defence practitioners are responsible for maintaining a professional manner in the presence of victim/complainants while waiting inside or outside the courtroom and should not engage in incidental conversations or behaviour which may be interpreted as demeaning or trivialising. Supporting people with particular needs Prosecutors, defence practitioners and other professionals involved in court proceedings should seek to identify and take into account the particular needs, language or cultural issues facing those who: are Aboriginal or Torres Strait Islanders are from a culturally or linguistically diverse background are children have a cognitive impairment have a disability or mental illness, or have multiple needs and issues that should be taken into account. 07

10 Prosecutors will 6 Treat the victim/complainant with courtesy, respect and dignity. 6 Seek to minimise any trauma that she/he may experience during, or as a result of, the court proceedings. Request the involvement of the Witness Assistance Service or the Child Witness Service if they are not already involved. Meet with the victim/complainant before the court hearing and explain the prosecutor s role, the role of other people likely to be present, and what is likely to happen in court. Inform the victim if the charge is withdrawn, discontinued or substantially altered. 7 Seek the victim s view when considering the merits of a plea offer made by the defence. 8 Assist the victim/complainant to refresh her/his memory from her/his written or video statement. Answer any questions that the victim may have about the law or courtroom procedures/practices in plain English (and double-check that the victim has understood). 9 Actively object to unwarranted and irrelevant cross-examination by a defence barrister and seek the court s intervention where crossexamination is considered to be inappropriate or oppressive. Proactively challenge myths and stereotypes about sexual offending and victims of sexual offences that arise in court. 6 When the term prosecutor is used in this Charter it generally refers to the crown prosecutor, a private barrister briefed by the prosecution or a police prosecutor appearing in court. However, it may also refer to a solicitor employed by the Office of Public Prosecutions who is working on the sexual offence case. It is acknowledged that in some cases the barrister and in some cases the solicitor for the prosecution (and in some cases a worker from the Office of Public Prosecutions Witness Assistance Service or the Child Witness Service) will meet the various commitments outlined in this Charter. However, both are responsible for ensuring that the commitments are met. In some instances, the victim/complainant may choose not to take up certain offers of support, such as meeting the prosecutor before the court hearing. In these cases the responsible individuals are only bound to comply with the obligations to the extent that the victim consents. Note: Many of the items in this section are adapted from the UK Prosecutors Pledge. 7 See the Victims Charter Act 2006, sections 9 and See the Victims Charter Act 2006, section 9. 9 See the Victims Charter Act 2006, section

11 Identify and take into account any specific needs relating to race or Indigenous background, sex or gender identity, cultural or linguistic diversity, sexual orientation, disability, religion and age, and inform the court if and when required. Examples might include: allowing an Aboriginal support worker to be present at any meetings ensuring that an interpreter is booked for the hearing and pre-hearing conference clarifying any cultural practices with which the prosecutor is not familiar asking the court whether the oath can be taken on another relevant religious text rather than a bible or by way of making an affirmation. 10 Take time after the hearing to explain to the victim/complainant the outcome and its implications. On conviction, provide information to the victim about: how to apply to the Victims of Crime Assistance Tribunal (VOCAT) for financial assistance 11 how to apply for compensation from the offender how to apply to be on the Victim s Register (if the victim is eligible) the Sex Offender s Register. During the plea hearing, challenge any unwarranted attack on the victim/complainant s character. Keep the victim/complainant informed of the progress of any appeal, and explain the effects of the court s judgment in the appeal. Assist the victim/complainant to obtain information about how to apply for a Family Violence Intervention Order or Stalking Intervention Order if that may assist in protecting the victim/complainant and refer the victim/complainant to a legal service/practitioner, the police or court registrar as required. 10 Note sections 24 and 24A of the Evidence Act 2008, which provide, amongst other matters, that it is not necessary that a religious text be used in taking an oath and that a person may take an oath even if the person s religious beliefs do not include belief in the existence of a god. 11 Conviction of a sexual offender is not required in order for a VOCAT application to be made by the victim or granted by the Tribunal. 09

12 Defence practitioners Will act in accordance with their duty to their clients (eg. people accused of sexual offences) and in accordance with their duty to the court as outlined in the Victorian Bar Practice Rules. 13 Must legally represent accused persons in court to the best of their ability and this may include challenging the truthfulness, consistency or accuracy of statements made by the victim/complainant or other witnesses. 14 Are aware that the law says that victim/complainants in sexual offence cases are not an inherently unreliable class of witness. They are no more or less likely to tell the truth than any other witness in court. Will treat the victim/complainant and other witnesses with courtesy, respect and dignity at all times. Will refrain from improper questioning: The law gives courts the power to stop improper questioning of all witnesses, including victim/complainants in sexual offence trials. This includes questioning which: -- is misleading or confusing -- is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive -- is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or -- has no basis other than a stereotype (for example, a stereotype based on the witness s sex, race, culture, ethnicity, age or mental, intellectual or physical disability) When the term defence practitioner is used in this Charter it refers to a barrister appearing on behalf of the accused in court. However, it may also refer to a solicitor representing the accused. Both are responsible for ensuring that the commitments are met. 13 Victorian Bar Practice Rules (effective 22 September 2009) Rules and Victorian Bar Practice Rules (effective 22 September 2009) Rules 10 and The definition of improper question used in this Charter reflects that used in s41 of the Evidence Act Under s41 of the Evidence Act 2008 the court may disallow an improper question put to a witness in cross examination but must disallow an improper question put to a vulnerable witness in cross examination unless the court is satisfied that in all the relevant circumstances of the case, it is necessary for the question to be asked. 10

13 The court must disallow improper questioning of witnesses, including victim/complainants, who are considered vulnerable witnesses. Children and those with a cognitive impairment are vulnerable witnesses. Other witnesses may be considered vulnerable depending on the circumstances. The court will consider such things as: -- any relevant characteristics, for example, the person s age, education, ethnic and cultural background or gender -- whether the witness has a mental or physical disability -- the nature of the offence which is before the court -- the relationship between the witness and the accused. It is important to note that a question is not an improper question just because it challenges the truthfulness, consistency or accuracy of the evidence being given by a witness, or requires the witness to discuss things which are distasteful or private. Will, if necessary, advise their clients of what may amount to an inappropriate approach to, or contact with, the victim/complainant or prosecution witnesses in and around the courtroom. 11

14 Complaints and feedback If a victim of sexual assault is concerned about how she/he has been treated by someone involved in the justice system, she/he can make a complaint to the organisations below. Positive feedback can also be provided. Victims Charter - Enquiries and Complaints Line Free call: (Business Hours 9am - 5pm Monday to Friday) The Victims Charter is a law in Victoria that sets out the rights of victims of crime. All victims of violent crime have the right to be treated with courtesy, dignity and respect by all criminal justice and victim support services and the right to be given information about support services, the police investigation and the court outcome where relevant. An important aspect of the Victims Charter is the right of victims to be able to make a complaint if any of the Victims Charter principles have not been followed. The Enquiries and Complaints Officer can assist where there is a potential breach of a Victims Charter principle. If the matters fall outside the scope of the Victims Charter, the Enquiries and Complaints Officer will refer you to the appropriate complaints body. The Enquiries and Complaints Officer cannot: influence decisions made by criminal justice agencies affect court decisions take action on a case already being investigated by another complaints body. Complaints against Legal Practitioners including any lawyer working in Victoria Tel: Local call Australia wide: Legal Services Commissioner 9/330 Collins Street Melbourne VIC 3000 Website: The Legal Services Commissioner s core function is to receive and handle complaints about lawyers. Complaints to the Legal Services Commissioner must be made in writing. The Legal Services Commissioner cannot deal with your complaint if the matter is before the courts or if the complaint is about courts or court staff. 12

15 Published by the Department of Justice, Melbourne. Copyright State of Victoria 2010 June 2010 This publication is copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act ISBN Authorised by the Victorian Government, 121 Exhibition Street, Melbourne Designed by Modern Art Production Group Printed by Print Dynamics, 25 Lionel Road, Mt Waverley, The Department of Justice provides access to a range of services through its Justice Service Centres located in Ballarat, Bendigo, Berwick, Box Hill, Broadmeadows, Carlton, Geelong, Morwell and Wangaratta. Check out the locations at If you would like to receive this publication in an accessible format, such as large print or audio, please us at

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