1. society
2. crime

AUSTRALIA
INTRODUCTION
The Australian criminal justice system
1.
Australia is a federation with legal jurisdiction divided between the Commonwealth
and state (including two self-governing territories) jurisdictions. Criminal justice is
predominantly administered by the states under state legi slation. A small fraction of
criminal activities are reserved for Commonwealth prosecution.
2.
Notwithstanding the relative independence of state legislatures, the need for
compliance with the Australian Constitution preserves some legislative uniformity.
For example, throughout Australia most serious (‘indictable’) offences are tried by
judge and jury, whereas crimes of lesser seriousness can be tried by a judge alone.
This follows from a constitutional guarantee contained in section 80 of the
Constitution. 1 As a common law jurisdiction, Australian courts apply a doctrine of
precedent to maintain doctrinal consistency t o the extent possible between
jurisdictions.
Defining ‘victims’ and recent nationwide legislative developments
3.
Australia’s approach to victims’ rights has been steadily developing over the last
three decades. The adoption of the 1985 United Nations Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power (‘Declaration’) 2 prompted the
Australian states to take steps to better protect victims’ rights.
4.
Various mechanisms exist to encourage uniform legislative appr oaches to key policy
areas. Policy goals selected by the Council of Australian Governments (comprising
representatives from the Commonwealth and states) are pursued by standing
committees such as the Standing Council on Law and Justice (‘SCLJ’). Victims’
rights have been pursued since 1996 and steps have been taken to ensure a
consistent approach is adopted. To continue supporting a coordinated approach to
victims of crime nationally, the SCLJ published a National Framework paper in
2013. 3
See Brown v The Queen (1986) 160 CLR 171.
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res 40/34, UN Doc A/RES/40/34
(1985).
3 Standing Council on Law and Justice, National Framework of Rights and Services for Victims of Crime – 2013-2016 (2013)
(‘SCLJ, National Framework’).
1
2
5.
The Australian common law has no clear definition of ‘victim’ and no state criminal
code contains an all-encompassing general definition (though some criminal codes
have limited definitions for specific crimes). 4 While this remains the case,
definitions of ‘victim’ have been drafted , for example, into sentencing statutes
allowing judges to consider victim impact statements . 5 However, even statutes
enacted to meet nationwide goals frequently differ between states. Consequently,
‘[t]here exists multiple definitions in each juridiction of a victim for different
purposes, including victims registers, mental health legislation and the criminal
law.’ 6
6.
The broadest and most significant definitions of victim come from recent state
statutes designed to protect the rights and interests of victims of crimes. 7 Although
language varies between jurisdictions, the ‘Victims of Crime Acts’ generally take a
broader approach to the definition of victim. For example, although definitions
differ, four jurisdictions define victims by subcategorisation into primary and
secondary classes; 8 primary victims generally being those who suffer direct harm
from the commission of the offence. Several jurisdictions also create a subcategory
(variously defined) for family members of victims. 9 All jurisdictions define victims
as being natural persons and are derived to varying extents from the definition in
the UN Declaration.
7.
As the Victims of Crime Acts make provision for assistance and services to victims,
the subclassifications of victim are used to differentiate the extent of assistance and
services available to any particular victim. This relates to, for exam ple, the extent
of counselling available to the subcategory of victim s, or the threshold limit of
compensatory awards. 10 Crucially, the subclssifications genreally do not effect the
rights of victims, only their extent.
See, eg, Criminal Code (Tas) s 196 (Defamation); Criminal Code (WA) s 204B (Using electronic communication to
procure, or expose to indecent matter, child under 16).
5 See, eg, Sentencing Act 1991 (Vic) s 3 (definition: victim).
6 SCLJ, National Framework, above n 3, 2-3.
7 Victims of Crime Act 1994 (ACT); Victims Rights and Support Act 2013 (NSW); Victims of Crime Assistance Act (NT);
Victims of Crime Assistance Act 2009 (Qld); Victims of Crime Act 2001 (SA); Victims of Crime Assistance Act 1976 (Tas);
Victims’ Charter Act 2006 (Vic); Victims of Crime Act 1994 (WA).
8 Victims Rights and Support Act 2013 (NSW) ss 20-21; Victims of Crime Assistance Act (NT) s 4; Victims of Crime
Assistance Act 2009 (Qld) s 26; Victims of Crime Assistance Act 1976 (Tas) s 2.
9 Victims Rights and Support Act 2013 (NSW) ss 20, 22; Victims of Crime Assistance Act (NT) s 4; Victims of Crime
Assistance Act 2009 (Qld) s 26; Victims of Crime Act 2001 (SA) s 4.
10 Appendix A to this report summarises the various definitions of victim adopted by states for financial assistance
schemes and is reproduced from SCLJ, National Framework, above n 3, 31. These definitions can be taken as a
generalisation of the approach taken between jurisdictions to all victims’ services. For full comparative tables see
SCLJ, National Framework, above n 3, 30-52
4
8.
Appendix A to this report summarises the various definitions of victim adopted by
states for financial assistance schemes. These schemes are ancillary proceedings
taken by victims to recover compensation from the state or , restitution from an
offender. Financial assistance schemes are technically civil proceedings and
therefore not strictly part of the criminal process. They are ‘ a summary procedure
ancillary to criminal process’. 11
9.
Outside of statutory victims’ compensation schemes, there is no clear definition of
‘victim’ for civil claims. Civil claimants in Australia are ‘plaintiffs’ and their actions
turn on concepts such as harm suffered or damage incurred. These are terms of art
to be understood pursuant to private law concepts such as torts, contract and
equity.
Formalities of lodging criminal complaints
10.
Any witness of a crime, including a victim, should report the crime to the police.
The exact processes between jurisdictions differ as derived from state criminal
procedure and evidence legislation. The law is expressed to apply to witnesses, not
victims as such.
11.
There are no fees for reporting crimes. In all Australian jurisdictions complaints
can be made personally at a police station or via telephone hotlines or the internet.
Anonymous complaints are possible but investigations of serious crimes generally
commence with lodgment of a formal report with the police. The report takes the
form of a written or recorded ‘witness statement’. Statements are prepared based
on the account provided by the witness to police. Witnesses will then read their
statement to ensure it represents an accurate account of events. If so, witnesses
must sign the completed statement. Unlike informal reporting of crimes, witness
statements are important evidence used to charge suspects and at trial. There is no
requirement that witness statements be given under oath, however false statements
carry criminal consequences.
12.
The Commonwealth is responsible for crimes with international elements – called
‘Commonwealth crimes’. Victims of such crimes – such as human trafficking, drug
importation or exportation and terrorism can make a report to the Australian
Federal Police (‘AFP’). The AFP considers all reported Commonwealth crimes and
applies a ‘Case Categorisation and Prioritisation Model ’ to determine which crimes
DPP v Gardner and Coates [2004] VSCA 119, [29] (Winneke P). For discussion see RK v Mirik & Mirik [2009] VSC
14.
11
to investigate. 12 International crimes in the technical sense – genocide, war crimes
and crimes against humanity – arguably also fall within the category of
Commonwealth crimes. However, legislation requires that those crimes proceed to
prosecution only in the name of the Commonwealth Attorney-General and with his
or her written consent. 13
Private prosecutions
13.
Although rarely used, private prosecutions are permissible for Commonwealth
crimes 14 and some state crimes. 15 Even where private prosecutions are possible, the
jurisdictions impose differing preliminary hurdles to commencement – such as
requiring leave of the Supreme Court, 16 payment of security 17 or the signature of a
court registrar. 18 The Directors of Public Prosecution (‘DPP’) generally retain the
right to intervene and take-over private prosecutions. 19 The DPPs exercise their
discretion according to their respective policies. 20
QUESTION 1: IN LIGHT OF RELEVANT LEGISLATION, CASE LAW
AND POLICY DOCUMENTS, DOES YOUR JURISDICTION PROVIDE
FOR VICTIM PARTICIPATION IN CRIMINAL PROCEEDINGS FOR
ALL ALLEGED VICTIMS IN ANY OF THE FOLLOWING FORMS?
Introduction
14.
In addition to legislating for key services to be afforded to victims of crime, t he
Victims of Crime Acts also contain statements of overarching principles for
protection of victims’ rights. 21 The statutes refer to these broad principles variously
Australian Federal Police, Case Categorisation and Prioritisation Model
(May 2010) at
<www.afp.gov.au/~/media/afp/pdf/c/ccpm-may-2010-pdf.pdf>.
13 Criminal Code 1995 (Cth) s 268.121.
14 Crimes Act 1914 (Cth) s 13; Director of Public Prosecutions Act 1983 (Cth) s 10(3). Private prosecution of international
crimes such as genocide is not possible without consent of the Commonwealth Attorney-General.
15 See, eg, Criminal Procedure Act 1986 (NSW) ss 14, 49; Criminal Code (Qld) s 686; Criminal Code (Tas) s 420.
16 Criminal Code (Qld) s 686; Criminal Code (Tas) s 420.
17 Criminal Code (Qld) s 687.
18 Criminal Procedure Act 1986 (NSW) s 49(2).
19 See, eg, Director of Public Prosecutions Act 1983 (Cth) s 9(5); Director of Public Prosecutions Act 1990 (ACT) s 13; Director
of Public Prosecutions Act 1984 (Qld) s 13; Director of Public Prosecutions Act 1973 (Tas) s 12(1).
20 See, eg, DPP (ACT), Prosecutorial Policy at <www.dpp.act.gov.au/publications/prosecutions_policy>.
21 Victims of Crime Act 1994 (ACT) s 4; Victims Rights and Support Act 2013 (NSW) s 6; Victims of Crime Assistance Act
2009 (Qld) ss 8-16; Victims of Crime Act 2001 (SA) ss 6-14; Victims’ Charter Act 2006 (Vic) ss 6-17; Victims of Crime Act
1994 (WA) sch 1; cf Victims of Crime Assistance Act (NT) s 30 which gives statutory force to a Charter to be declared
by the government. The only version of the Charter we located was contained in DPP (NT), Prosecutions Guidelines
(13 January 2005) (under review) Appendix E, pp 60-4. The NT Charter differs from the others in being drafted as
an information pack informing victims of crime of various entitlements rather than as an enumeration of principles
12
as Charters or as a ‘Governing’, 22 ‘Fundamental’ 23 or ‘Declarations’ 24 of Principle
(collectively ‘Charters’). Consequently, the Victims of Crimes Acts now impose
standards of practice on designated persons and administrative bodies who interact
with victims. Although the overarching protections are intended to apply broadly,
their substantive effect on victims’ legal rights is qualified. Some statutes are
subject to limitations of practicability and appropriateness, 25 while others, such as
the Queensland Act, state that the ‘Principles do not give legal rights or affect legal
rights or obligations’. 26 This is notable in assessing whether victims’ rights are
firmly established in statute. On the other hand, there is a clear pattern of
legislatures amending various statutes and government agencies adopting policy
guidelines to be consistent with the Charters. This demonstrates that Charter
protections are securely incorporated into state laws. 27
Filing of complaints and investigations
15.
All Charters entitle victims to receive information regarding the investigation and
prosecution of the crime. This division between investigation and prosecution
phases is because crimes are reported to, and invest igated by the police. The DPPs
become involved when it is time to decide whether, based on the investigation
conducted, a suspect to should be indicted.
16.
Before investigations are completed, there may be some uncertainty as to whether
the alleged victim (‘AV’) has in fact been victimised. The Victims of Crime Acts do
not address AVs. Rather, it is the criminal conduct, and thus the status of the
offender that is ‘alleged’. 28 This drafting approach gives victims the benefit of the
doubt and ensures AVs receive Charter protections during the investigatory phase –
guiding the actions of administrative bodies. Victims of Crime Assistance Act 1976 (Tas) makes no legislative provision
for a broad statement of victims’ rights. The Tasmanian government has nevertheless adopted the Charter of Rights
for Victims of Crime (Tas) – which, like the NT Charter is an administrative declaration.
22 Victims of Crime Act 19994 (ACT) s 4.
23 Victims of Crime Assistance Act 2009 (Qld) Pt 2.
24 Victims of Crime Act 2001 (SA) Pt 2 Div 2.
25 Victims of Crime Act 19994 (ACT) s4. See also Victims Rights and Support Act 2013 (NSW) s 7(2); Victims of Crime Act
1994 (WA) s 3(1).
26 Victims of Crime Assistance Act 2009 (Qld) s 7. See also Victims of Crime Act 2001 (SA) s 5; Victims’ Charter Act 2006
(Vic) s 22; Victims of Crime Act 1994 (WA) s 3. Though the Quensland and Victorian Acts leave open the possibility
of disciplinary action against persons who violate victims’ protections by the agencies who employ them.
27 The Commonwealth government has not formally adopted a Charter of victims’ rights, though there have been
various declarations of support for Charter principles consistent with the UN Declaration.
28 See, eg,Victims of Crime Assistance Act (NT) s 4 (definition of ‘offender’); Victims of Crime Assistance Act 2009 (Qld)
s 25(7); Victims of Crime Act 2001 (SA) uses ‘alleged offender’ throughout; Victims of Crime Assistance Act 1976 (Tas)
s 3A; Victims of Crime Act 1994 (WA) s 2 (definition of ‘offence’); cf Victims Rights and Support Act 2013 (NSW) s 5
(act ‘apparently’ committed rather than ‘allegedly’). The ACT and Victorian legislation do not use either phrase.
before their allegations have been confirmed . 29 Another consequence of this
approach is that specialist schemes and services are regulated not by the type or
status of the victims, but by the type of offence or status of offenders.
17.
In entitling victims to information regarding investigations, the Charters assume an
investigation is being conducted. There is no obligation in the Charters for an
investigation to be conducted in every case. Under Australian common law, ‘[i]n
the absence of exceptional circumstances, police officers do not owe a duty of care
to an individual to investigate a complaint of actual or threatened criminal
conduct.’ 30 More onerous investigatory duties are imposed on police of ficers for
limited crimes in some jurisdictions. 31 Otherwise, the police are afforded a broad
discretion to pursue and prioritise investigions. Subject to the policies and
guidelines of the police service, it is therefore possible for complaints not to be
investigated or to be deprioritised.
18.
The Victims of Crimes Acts do provide some indirect protection against dilatory or
refused investigations. The statutes require designated persons and agencies to
establish ‘guidelines and policies’ 32 consistent with the Charter principles and to
provide for complaint mechanisms. Pursuant to these provisions, state police
services now have internal complaint mechanisms or external victim services
coordinators to process victim complaints. The actual mechanisms and details vary
between jurisdictions. Some Victims of Crimes Acts also establish a Commissioner
for Victims’ Rights to oversee implementation of Charters. 33 Intended as more of a
high-level office, victims may have limited recourse to the Commssi oners.
19.
These provisions represent statutory attempts to elevate and respect the interests
of victims. They do not establish clear legal rights and the outcomes of the
complaint procedures remain ambiguous. Significantly, none of the Victims of
The drafting approach of statutes addressing bail are mixed. Consistently with the Victims of Crime Acts, some
jurisdictions refer to the offence or offender as ‘alleged’, see eg, Bail Act 1992 (ACT) dictionary (definition ‘offence’);
Bail Act 1980 (Qld) s 6 (definition ‘offence’); Bail Act 1982 (WA) s 3 (definition ‘offence’); others consider the victim
to be ‘alleged’, see, eg, Bail Act (NT) s 24(1)(e); Bail Act 1985 (SA) s 3 (definition ‘victim’); Bail Act 1977 (Vic)
ss 4(3)(e), 18AD(1)(e). One jurisdiction defines both the offence and the victim as ‘alleged’: Bail Act 2013 (NSW) s
4(1) (definitions ‘offence’, ‘victim’).
30 Taha v Shaq Industries Pty Ltd & Ors [2012] VSC 30, [10] (Beach J) (and cases cited).
31 See, eg, Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 49; Domestic and Family Violence Protection Act 2012
(Qld) s 67(1); Restraining Orders Act 1997 (WA) s 62A.
32 See, eg, Victims of Crime Assistance Act 2009 (Qld) s 17(1).
33 Victims Rights and Support Act 2013 (NSW) ss 8-13; Victims of Crime Act 2001 (SA) s 16; in October 2014 Victoria
also appointed a Commisioner, see Victims of Crime Commissioner, ‘Victoria's first Victims of Crime
Commissioner’, at <www.victimsofcrimecommissioner.vic.gov.au/>. Other jurisdictions have appointed
Commissioners or ‘scheme managers’ solely for administration of services, or specific services such as compensation
awards, see, eg, Victims of Crime Act 1994 (ACT) ss7, 11; Victims of Crime Assistance Act 2009 (Qld) s 127; Victims of
Crime Assistance Act 1976 (Tas) s 2A.
29
Crimes Acts penalise breaches of Charter principles (beyond the possibility of
disciplinary proceedings). 34 On the whole, the procedures resemble administrative
review of government decisions. By statute, government agencies must adopt
practices and policies consistent with the range of victims’ interests identified in
the Charters.
Passive rights generally
20.
The interests protected by the Charters include many passive rights. The
protections vary between jurisdictions and differ in terminology and structure. All
Charters recognise at least victims’ rights:





21.
to information about investigations and prosecutions;
to have their safety concerns considered prior to suspects being released on bail;
to be informed if charges are to be withdrawn;
to influence the sentencing process via victim impact statements (‘VISs’); and
to compensation from the offender, and in some cases from the state.
The Charters are one way that victims’ interests are protected. Another way are
victims or eligible persons registers (‘ Victim Registers’). 35 If threshold requirements
are met, victims can be placed on a register that allows them to receive information
about persons who serving custodial sentence for offences relevant to them. This
entitles victims to information on an ongoing basis. I t also creates the opportunity
of victims making submissions to parole boards.
a)
Are there provisions for support services (including counselling, use of
interpreter, interim compensation and other measures) at the time of complaint?
Support services generally
22.
All states provide a central ‘one-stop’ Victims Services resource agency to help
victims. 36 Through free telephone helplines and internet and written resources, the
agencies provide an avenue for victims to receive information about their rights
and where to go for legal, counselling and other services. All agencies can direct
victims to other state and private service-providers. Beyond this, services vary
Cf Correctional Services Act 1988 (SA) s 85C provides for a maximum penalty of $10,000 for officials who breach
confidentiality of victims by disclosing information derived from the Victims Register.
35 See below, [69].
36 For details of the organisation for each jurisdiction see SCLJ, National Framework, above n 3, 29.
34
between jurisdictions and it is difficult to make broad statements about the nature
and standard of services nationally. 37
23.
Counselling
With respect to counselling services f or example, Victims Support ACT and
Victims Support Services in Tasmania can provide limited counselling services
directly 38 whereas in New South Wales (‘NSW’) and Queensland, victims are
referred to external counselling services by Victims Services or the police. 39 NSW,
Northern Territory (‘NT’) and South Australia (‘SA’) all have associated specialist
services for victims of sexual assault, and domestic violence. 40 Other jurisdictions
can refer victims to specialist counselling services provided by external agencies .
Queensland, for example, lists specialist services for domestic and sexual offences,
child victims and victims of mentally ill offenders. 41
24.
Each jurisdiction sets it own budget for provision of services. Victims’ services
may therefore be ‘capped’. For example, victims are entitled to 10 hours of
counselling services in NSW 42 but up to 26 in the Australian Capital Territory
(‘ACT’). 43
Interpreters
25.
The approach of the jurisdictions to interpreters and multi-language services also
varies. Most state government departments provide telephone information for a
free National Translator and Interpreter Service. 44 This generally follows from a
nationwide commitment to anti-discrimination and multiculturalism. Even so, the
interpreter service hotline details are not always obvious from the Victims Services
and other government websites. 45 Victoria requires an English speaker to call a state
helpline and request an interpreter. The interpreter will then call the victim
See comprehensive review see SCLJ, National Framework, above n 3, Appendix A ‘Jurisdictional Overview of the
Service System’.
38 See SCLJ, National Framework, above n 3, 11, 21.
39 Ibid, 13, 17.
40 Ibid, 14, 15, 19.
41 See, eg, Victim Assist Queensland, A Guide for Victims of Crime in Queensland (November 2012) 8-10.
42 See SCLJ, National Framework, above n 3, 13 (but victims can apply for more if necessary).
43 Ibid, 11 (victims are eligible for up to 20 hours, an additional 6 hours can be provided by application in
exceptional circumstances).
44
See,
eg,
Tasmanian
Government,
‘Family
and
community
violence’
at
<www.dpac.tas.gov.au/divisions/csrt/information_and_resources/family_and_community_violence>.
45 Queensland websites and written publications are the best at drawing attention to interpreter services. See, eg,
Queensland Government, ‘Support for victims of crime’ at <www.qld.gov.au/law/crime-and-police/victims-andwitnesses-of-crime/support-for-victims-of-crime/>.
37
directly. 46 State police and court services also provide avenues for interpretation
services. NSW Victims Services relies on the interpretation resources and Ethnic
Community Liason Officers of the police force. 47
Compensation schemes
26.
All jurisdictions provide for compensation schemes. Each state varies in its
procedures and threshold requirements. Provisions for interim compensation are
particularly diverse between the states. 48 For example, Victoria has established a
Victims of Crime Assistance Tribunal which can hear applications for ‘urg ent
expenses’ – including interim awards. In Tasmania, interim awards are available
only at the sole discretion of the Commissioner.
b)
27.
Are there provisions for witness protection during the investigation?
Witness protection provisions exist in some form in all jurisdictions. The source of
the protections and the circumstances in which they are available vary. In general,
the protections are defined not by the status or legal entitlement of the victim as
such, but by the nature of the criminal conduct alleged.
28.
With the exception of three states, a ll Charters recognise victims’ perceived need
for protection to be taken into account in bail proceedings. Most jurisdictions 49
(including two of the exceptions) 50 have this principle legislated into other statutes 51
so there is near-unanimity: in bail applications, the protection of victims must be
considered by the relevant authority. 52
29.
The status is less uniform with respect to other circumstances where witness
protection is available. Victims in Victoria can seek an intervention order by filling
Victims
of
Crime
(Vic),
‘Help
is
available
in
any
language’
at
<www.victimsofcrime.vic.gov.au/home/the+crime/get+help/get+help+in+your+own+language/>.
47
NSW
Government,
‘People
from
non-english
speaking
backgrounds’
at
<www.victimsservices.justice.nsw.gov.au/Pages/vss/Hidden/VS_specificneeds5.aspx>.
48 Appendix B to this report summarises the various schemes and is reproduced from SCLJ, National Framework,
above n 3, 42.
49 Tasmania’s legislation requires courts to consider the ‘interests of justice’, which arguably incorporates the
requirement in section 11 of Charter of Rights for Victims of Crime (Tas) to take account of victims’ ‘need or
perceived need for physical protection’. Otherwise, the ‘protection and welfare’ of a victim is addressed by
legislation in circumstances of family violence: Justices Act 1959 (Tas) s 34(2).
50 See Bail Act (NT) s 24(e); Bail Act 1980 (Qld) s 16(1)(a)(ii)(B).
51 Bail Act 1992 (ACT) s 23A; Bail Act 2013 (NSW) Preamble, ss 17(2)(c), 18(1)(n); Bail Act 1985 (SA) s 10(4); Bail
Act 1977 (Vic) ss 4(3)(e), 18AD(1)(e).
52 The only jurisdiction not to explicitly address the point is WA. Nevertheless, Victims of Crime Act 1994 (WA) sch 1
s 3 offers a broad protection that may be relevant in triggering other legal mechanisms such as restraining orders.
Section 3 states: ‘A victim should be informed about the availability of lawful protection against violence and
intimidation by the offender’. Consistent with this, the WA Victims Services website directs victims to the Witness
Protection Unit of WA police, see <www.victimsofcrime.wa.gov.au/W/witness_protection.aspx>.
46
out an application form at the local Magistrates’ Court . Victims will be interviewed
by the court registrar and a date will be set for a magistrate to hear the
application. 53 Protection orders in the ACT are similar in function and application
process, with the exception that ‘[i]f the situation is urgent, an interim (temporary)
order may be made by a Magistrate on the same day an application is lodged’. 54 The
most restrictive approach is Western Australia’s (‘WA’) specialist Witness
Protection Unit. Persons ‘at risk of death or injury by an offender’ can be
considered for protection but only on the request of police officer investigating the
case. In other circumstances WA witnesses must rely on ordinary legal processes,
such as restraining orders. 55
30.
On this point, restraining-type orders are available nationally in the context of
family-violence. 56 The details vary considerably and a formal complaint to the
police is not always necessary. Queensland provides a mechanism for the protection
of victims through Domestic Violence Orders. 57 Victims are directed to the
Department of Community Services to oversee that process.
31.
In summary, witness protections are most clearly available in the context of bail
applications. In other circumstances, witnesses and victims wou ld need to qualify
for specialist schemes defined by the nature of the criminal conduct, such as
domestic violence.
c)
32.
Are the alleged victims consulted while deciding whether to prosecute?
The ultimate decision to prosecute remains with the prosecution in all Australian
jurisdictions. Only one jurisdiction has an explicit legislative requirement for
(certain) victims to be consulted prior to prosecution.
33.
In SA, victims of ‘serious offences’ should be consulted before making certain
decisions including ‘to charge an offender with a particular offence’. 58 In NSW,
there is no statutory entitlement to consult victims before charging the accused,
Department of Justice (Vic), A Victim’s Guide to Support Services and the Criminal Justice System (May 2014) 9.
ACT Policing, Pocketbook Guide for Victims of Crime, 6.
55
See
generally
WA
Victims
of
Crime,
‘Witness
Protection’
at
<www.victimsofcrime.wa.gov.au/W/witness_protection.aspx>.
56 See, eg, Domestic Violence and Protection Orders Act 2008 (ACT); Crimes (Domestic and Personal Violence) Act 2007
(NSW); Domestic and Family Violence Act 2007 (NT); Domestic and Family Violence Protection Act 2012 (Qld); Intervention
Orders (Prevention of Abuse) Act 2009 (SA); Family Violence Act 2004 (Tas); Family Violence Protection Act 2008 (Vic)
(establishing ‘family violence protection orders’); Restraining Orders Act 1997 (WA). For a review of these statutes in
the context of violence against persons with a disability see DLA Piper, Background Paper on Access to Justice for People
with a Disability in the Criminal Justice System (2013) 22-8.
57 Domestic and Family Violence Protection Act 2012 (Qld).
58 Victims of Crime Act 2001 (SA) s 9A; DPP (SA), Statement of Prosecution Policy & Guidelines (October 2014) [127] 22.
53
54
however there is a limited right to consultation. T he right is triggered where an
accused has been charged with a serious crime involving sexual violence or that
resulted in actual bodily harm or psychological or psychiatric harm to the victim . 59
In those circumstances, a victim will be consulted before a decision is made to
modify or withdraw charges. 60 Some DPP’s have established similar entitlements as
a matter of departmental policies. 61 The DPP policy of NT (which is currently
under review) provides the broadest entitlement to consultation. In ‘all cases
involving indictable offences’, the witness assistance unit and prosecution should
consult victims. 62 These DPP policies go beyond legislative requirements.
34.
In deciding whether prosecution is in the public interests, DPP policies in each
jurisdiction cite victims’ interests as a relevant consideration. The language often
used is: ‘the attitude of the victim of the alleged offence to a prosecution ’. 63 As a
practical matter, it would be difficult to establish a victim’s attitude towards
prosecution without some form of consultation.
35.
The decision to charge an accused is the responsibility of police officers
investigating the crime. 64 While the decision is sometimes made in consultation with
the DPP, this is not always the case. 65 Frequently the DPP becomes involved only
after investigating and charging the accused is completed, and prepare the
indictment based on material provided to them by the police. As discussed above, 66
there is no clear right to challenge the decision of investigating officers to abandon
or deprioritise an investigation.
36.
In all jurisditions the ultimate decision to prosecute is left to the prosecutor’s
discretion of the public interest. 67 There is no explicit avenue for victims to
challenge the prosecutor’s decision. All Charters require that victims be informed
Victims Rights and Support Act 2013 (NSW) s 6.5(2).
Victims Rights and Support Act 2013 (NSW) s 6.5(1)(b).
61 DPP (NT), Prosecutions Guidelines (13 January 2005) (under review) [6.5] 8, [7.1] 9; DPP (Vic), Director’s Policy:
Victims and Persons Adversely Affected by Crime (8 January 2014) [29]; DPP (WA), Statement of Prosecution Policy and
Guidelines (2005) [124A].
62 DPP (NT), Prosecutions Guidelines (13 January 2005) (under review) [11.9] 23.
63 DPP (Tas), Prosecution Guidelines at <www.crownlaw.tas.gov.au/dpp/prosecution_guidelines>. See also DPP
(ACT), Prosecution Policy, above n 20, [2.5(17)]; DPP (NSW), Prosecution Guidelines (1 June 2007) [3.20] 9; DPP (NT),
Prosecutions Guidelines (13 January 2005) [2.5(21)] 3 (currently under review); DPP (Qld), Director’s Guidelines (2014)
[4(ii)(l)] 4; DPP (SA), Statement of Prosecution Policy & Guidelines (October 2014) 5; DPP (Vic), Director’s Policy:
Prosecutorial Discretion (24 November 2014) [5]; DPP (WA), Statement of Prosecution Policy and Guidelines (2005) [31(k)].
64 See, eg, DPP (WA), Statement of Prosecution Policy and Guidelines (2005) [5] 5.
65 See, eg, DPP (Tas), Prosecution Guidelines.
66 See [17]-[18].
67 DPP (ACT), Prosecution Policy, above n 20 [1.3]; DPP (NSW), Prosecution Guidelines (1 June 2007) 8, 33; DPP (NT),
Prosecutions Guidelines (13 January 2005) 2 (currently under review); DPP (Qld), Director’s Guidelines (2014) 4-5; DPP
(SA), Statement of Prosecution Policy & Guidelines (October 2014) 5; DPP (Vic), Director’s Policy: Prosecutorial Discretion (24
November 2014) 2; DPP (WA), Statement of Prosecution Policy and Guidelines (2005) [15]-[19] 6-7.
59
60
of the prosecutor’s decision. In most circumstances where the prosecutor decides
not to proceed, most jurisdictions have policies entitling victims to receive reasons
for the decision. 68
37.
Several jurisdictions provide for victims to be consulted before indicted charges are
amended, withdrawn or guilty pleas accepted. In other s, the requirement is only to
be informed of such decisions (and in some jurisdictions to receive reasons). 69
Passive rights when indictment issued
38.
In all states victims are entitled to certain passive rights. Most jurisdictions entitle
victims to receive information only at their request. 70 The other jurisdictions either
require victims to be informed of certain matters relating to prosecutions in a
timely manner, 71 or make no specification as to time. 72
39.
In varying terms most jurisdictions require agencies to inform victims of their legal
rights to receive counselling, legal and other services. 73
d)
What are the rights available to the alleged victims in relation to the trial?
Pre-trial investigations
40.
As discussed, crimes are investigated by the p olice who are not obliged to pursue
specific investigations at the request of victims. The influence of victims on pre trial investigations relates mostly to the witness statements and other information
they provide to police investigators. After that, the matter is left up to the
investigators.
41.
Pre-trial detention
Victims’ rights in relation to pre -trial detention (‘bail’) are nearly unanimous across
Australia and clearly articulated in legislation. As discussed above, 74 relevant
Victims Rights and Support Act 2013 (NSW) s 6.5(1)(a); Charter for Victims of Crime (NT) p 63; Victims of Crime Act
2001 (SA) s 8(1)(e); Charter of Rights for Victims of Crime (Tas) s 3; Victims’ Charter Act 2006 (Vic) s 9(b).
69 Victims of Crime Act 1994 (ACT) s 4(c)-(d); Victims Rights and Support Act 2013 (NSW) s 6.5; Charter for Victims of
Crime (NT) 63; Victims of Crime Assistance Act 2009 (Qld) s 12; Victims of Crime Act 2001 (SA) s 8(1)(e); Charter of
Rights for Victims of Crime (Tas) ss 3, 5; Victims’ Charter Act 2006 (Vic) s 9(c); Victims of Crime Act 1994 (WA) sch 1
s 6(d).
70 Charter for Victims of Crime (NT) 63; Victims of Crime Assistance Act 2009 (Qld) s 12; Victims of Crime Act 2001
(SA) s 8; Charter of Rights for Victims of Crime (Tas) ss 2-3; Victims of Crime Act 1994 (WA) sch 1 s 6.
71 Victims Rights and Support Act 2013 (NSW) s 6.5(1); Victims’ Charter Act 2006 (Vic) s 9.
72 Victims of Crime Act 1994 (ACT) s 4(c)-(e).
73 Victims Rights and Support Act 2013 (NSW) s 6.2; Victims of Crime Assistance Act 2009 (Qld) s 10; Victims of Crime Act
2001 (SA) s 11; Victims’ Charter Act 2006 (Vic) s 7; Victims of Crime Act 1994 (WA) sch 1 s 2. Tasmania and the ACT
do not obligate any agency to inform victims of their entitlement to services. The Charter for Victims of Crime (NT)
is drafted to address victims directly. However there is no obvious legal obligation for a government agency to make
the Charter available to victims.
68
authorities must consider victims’ perceived need for protection in deciding bail
applications. Usually, it will be for the DPP or police prosecutor to bring a victim’s
concerns to the attention of the court or other bail authority. Victims themselves
do not present bail submissions.
Passive right to pre-trial information
42.
Although varying in language and detail, a ll Victims of Crime Acts recognise the
right of victims to be told about the trial process and the rights and responsibilities
of witnesses. Despite differences in language, it appears that this right relates to
situations where the victim will be appearin g as a witness in the trial. In two
jurisdictions, this information must be requested by the victim. 75 Other statutes do
not place the onus on the victim to request information. 76 In most jurisdictions,
information packs have been published for victims of crime which include
information regarding the trial process and the role of witnesses , and contact
details for relevant organisations that can answer questions . 77 These packs arguably
satisfy the statutory requirement. Even so, many police and DPP policies require
them to discuss the issue with victim -witnesses. 78
Other pre-trial and trial rights
43.
Victims have a right to be protected from unnecessary contact with the accused and
defence witnesses during the trial. 79 Even when victims are not participating in a
trial as a witness, they are entitled to receive information about certain
prosecutorial decisions.
See [27]-[28].
Charter for Victims of Crime (NT) 62-3; Victims of Crime Act 1994 (WA) sch 1 s 7.
76 Victims of Crime Act 1994 (ACT) s 4(g); Victims Rights and Support Act 2013 (NSW) s 6.6; Victims of Crime Assistance
Act 2009 (Qld) s 13; Victims of Crime Act 2001 (SA) s 9; Charter of Rights for Victims of Crime (Tas) s 7; Victims’
Charter Act 2006 (Vic) s 11.
77 See, eg, Victim Assist (Qld), A guide for victims of crime in Queensland (November 2012) 25-41; Department of Justice
(Vic), A Victim’s Guide to Support Services and the Criminal Justice System (May 2014) 29-31; DPP (Vic), Now you are a
witness (June 2014).
78 NSW Police, Customer Services Guidelines (2010) 8-9; DPP (NSW), Prosecution Guidelines (1 June 2007) 33; DPP (SA),
Statement of Prosecution Policy & Guidelines (October 2014) 23; DPP (Vic), Director’s Policy: Victims and Persons Adversely
Affected by Crime (8 January 2014) [26]; cf DPP (WA), Statement of Prosecution Policy and Guidelines (2005) [132] 23 which
only requires the DPP to refer victim-witnesses to Victim Support Services.
79 Victims of Crime Act 1994 (ACT) s 4(h); Victims Rights and Support Act 2013 (NSW) s 6.7; Charter for Victims of
Crime (NT) 62; Victims of Crime Assistance Act 2009 (Qld) s 14; Victims of Crime Act 2001 (SA) s 14(3); Charter of
Rights for Victims of Crime (Tas) s 8; Victims’ Charter Act 2006 (Vic) s 12. Cf Victims of Crime Act 1994 (WA) sch 1
ss 3-4 protect a victim’s right to privacy and require that inconvenience to the victim should be minimized which
amounts to an equivalent protection.
74
75
44.
There is no clear entitlement for victims to access casefiles, though victims who
provide a witness statement will normally be given a copy of their statement.
Victims’ trial rights: legal representation
45.
In Australia, the DPPs represent the interests of the state, not individual victims. 80
As such, victims do not receive independent legal representation during trials. 81 It
follows that victims therefore have no right to deliver opening or closing
statements, present evidence or otherwise participate in the trial. This assumes that
a victim has not been complicit in criminal conduct. If victims are also defendants
in criminal proceedings, they will be entitled to full and independent legal
protection by virtue of their being a defendant. This entails the full panoply of
legal rights to participate in the trial to put the state to its burden.
46.
For victims who are not defendants, an important exception exists in the
presentation of Victim Impact Statements (‘VISs’) on sentencing hearings. 82 Unlike
defendants in criminal trials, victims are not entitled to present oral evidence. In
practice however, defence counsel will often require victims to attend court so they
can be subjected to cross-examination on the evidence recorded in their witness
statements.
Victims’ trial rights: interpreters and support persons
47.
Australian common law does not provide an automatic right to interpreters to any
witnesses in court proceedings (including the accused in criminal trials). 83 Some
jurisdictions have intervened statutorily to varying extents. 84 Where the common
law applies, the right to an interpreter will be at the discretion of the presiding
judicial member. 85
See, eg, DPP (WA), Statement of Prosecution Policy and Guidelines (2005) [9]-[10] 6.
That is not to say that victims cannot get independent legal advice from criminal lawyers or legal aid sources to
explain their rights and obligations. Since a criminal trial is concerned with the conduct of the accused in protection
of society as a whole, there is infrequently a direct focus on the victim. Where defence challenges aspects of victims’
conduct, the prosecutor will defend them in the interests of putting forward the strongest case possible to succeed
in a conviction.
82 See [52].
83 Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75, 80; De La EspriellaVelasco v R (2006) 197 FLR 125, [18];
Dairy Farmers Cooperative Milk Co Ltd v Acquilina (1963) 109 CLR 458.
84 See Evidence Act 1995 (Cth) s 30 (all witnesses in criminal trials); Migration Act 1958 (Cth) s 427(7) (parties before
the Refugee Review Tribunal); Defence Force Discipline Act 1982 (Cth) s 101H(6) (persons in custody for a service
offence); Evidence Act 1929 (SA) s 14 (interpreter available for witnesses not proficient in English in any court
proceedings).
85 Dairy Farmers Cooperative Milk Co Ltd v Acquilina (1963) 109 CLR 458, 464. Some statutory provisions codify the
common law position to various extents, see, eg, Evidence Act 1977 (Qld) s 131A: ‘in a criminal proceeding, a court
80
81
48.
In the criminal context, the discretion must however be exercised according to
clear principles. The court must ensure tht the defendant has a fair trial. 86 To
facilitate a fair-trial, the defendant must be able to understand the substance of the
proceedings. 87 On this basis – that the defendant has the right to a fair trial, which
would be denied if the victim’s testimony could not be understood or effectively
cross-examined, in most cases an interpreter would be provided so victims can
present evidence. Victims therefore have only a right derived from the defendant’s.
There is however no general requirement for the entirity of the proceedings to be
interpreted for the victim’s sake, this will be a matter for the court’s discretion.
Victims’ trial rights: support persons
49.
In all states mechanisms exist for witnesses to attend court in advance of trial s to
become more comfortable with the environment. To varying extents, all
jurisdictions also provide in-court support for victims who are witnesses in a trial.
Requirements for victims to qualify for in-court services vary.
50.
In Queensland, the magistrate or judge decides if victims can be accompanied by an
in-court support person. The victim ca n select their support person provided that
person is not also a witness in the trial. 88 The scheme in SA is similar. Victims in
SA can be assigned an court companion with appropriate training through the DPP
or the non-governmental Victim Support Service. 89 Victims can request the Sheriff’s
Officer who is present in the courtroom to sit besides them if they do not have a
court companion. Victoria and WA provide trained volunteers to assist victims in
court through victims support agencies. 90 It appears the schemes in NT and
Tasmania are also similar. 91 Tasmania has specific in-court services for indigenous
persons and victims of family violence. 92
51.
If victims fall into designated categories of vulnerable witnesses, special in -court
measures may be available to them (such as giving evidence through television
may order the State to provide an interpreter for a complainant, defendant or witness, if the court is satisfied that
the interests of justice so require.’
86 Dietrich v The Queen (1992) 177 CLR 292.
87 See, eg, The Queen v Wurramara [2011] NTSC 89; De La Espriella-Velasco v The Queen (2006) 197 FLR 125.
88 Victim Assist Queensland, A Guide for Victims of Crime in Queensland (November 2012) 34.
89 Commissioner for Victims’ Rights (SA), Information for Victims of Crime (June 2011) 33-4.
90 Department of Justice (Vic), A Victim’s Guide to Support Services and the Criminal Justice System (May 2014) 19; Victim
Support and Child Witness Service (WA), What About Me? The Victim: a helpful guide for victims of crime, 11.
91 See SCLJ, National Framework, above n 3, 16, 21.
92 Department of Justice (Tas), Court Support and Liaison Services at <www.justice.tas.gov.au/victims/court_support >.
links). These rights are not generally available to all victims/witnesses, and vary
greatly between jurisdictions. They will be addressed in question 2 below.
e)
At the time of sentencing, are there any provisions for victim impact statements?
Is the reward of compensation allowed at sentencing? If yes, who bears this cost?
Are there any other forms of rehabilitation guaranteed to AVs? Do these depend
on a finding of guilt?
Victim Impact Statements
52.
By legislation, all states acknowledge victims’ right to present a VIS at the time of
sentencing. 93 The definitions and procedures vary between jurisdictions.
53.
Most jurisdictions permit written or oral presentation of VISs. 94 Most jurisdictions
also allow certain ‘secondary’ victims to present VISs if the primary victim is
unable to do so (for example the parent of a minor who is a victim). The simplest
definitions allow VISs that address the effects of the offence on the victim and give
particulars of the injury, loss or damage suffered as a result of the offence. 95 Other
jurisdictions provide more detailed definitions and provide for diagrams and
photographs to be annexed to the VIS. 96 Some jurisdictions specify that medical
and other relevant reports can be annexed to the VIS. 97 One jurisdiction specifically
bars victims from expressing opinions on how an offender should be sentenced . 98
54.
If written VISs are to be presented to the court, they must meet the formal
requirements of the relevant statute and have been provided to the defence
beforehand. 99 Failing to give the defence notice of a VIS may prevent the court
from considering its contents. 100 This requirement relates cross-examination of
Victims Rights and Support Act 2013 (NSW) s 6.14; Charter for Victims of Crime (NT) 62; Victims of Crime Assistance
Act 2009 (Qld) s 15; Victims of Crime Act 2001 (SA) s 10; Charter of Rights for Victims of Crime (Tas) s 13; Victims’
Charter Act 2006 (Vic) s 13. The ACT and WA provide for VISs in their sentencing statutes, see Crimes (Sentencing)
Act 2005 (ACT) ss 47-53; Sentencing Act 1995 (WA) ss 24-26.
94 Crimes (Sentencing) Act 2005 (ACT) s 50; Crimes (Sentencing Procedure) Act 1999 (NSW) s 30A; Sentencing Act (NT)
s 106A; Victims of Crime Assistance Act 2009 (Qld) s 15A; Penalties and Sentences Act 1992 (Qld) s 9(2); Criminal Law
(Sentencing) Act 1988 (SA) s 7A; Sentencing Act 1991 (Vic) s 8K; Sentencing Act 1995 (WA) s 25; cf Sentencing Act 1997
(Tas) s 81A(2).
95 See, eg, Crimes (Sentencing) Act 2005 (ACT) s 51(6); Sentencing Act 1995 (WA) s 24.
96 See, eg, Victims of Crime Assistance Act 2009 (Qld) s 15(9)(c)(ii); Crimes (Sentencing Procedure) Act 1999 (NSW)
s 30(1A).
97 See, eg, Victims of Crime Assistance Act 2009 (Qld) s 15(9)(c)(i); Sentencing Act 1991 (Vic) s 8M.
98 Sentencing Act 1995 (WA) s 25(2).
99 See, eg, Crimes (Sentencing Procedure) Act 1999 (NSW) s 30(3) (on formalities); Criminal Law (Sentencing) Act 1988 (SA)
s 7C.
100 See, eg, Crimes (Sentencing) Act 2005 (ACT) s 53(2); Sentencing Act (NT) s 106(8). In WA the court may rule any part
of the VIS inadmissible: Sentencing Act 1995 (WA) s 26(2). Other jurisdictions reserve similar powers to the court
93
witnesses on the content of their VIS. For example, in Victoria – where medical
reports may be annexed to VISs – the offender may request cross-examination of
the victim or the medical expert who prepared the report. 101
55.
The statutes between jurisdictions vary in how they instruct courts to use VISs. In
Queensland, the court ‘must’ have regard to the nature and seriousness of the
offence, assessed in part by consideration of a VIS. 102 Similarly, ACT courts ‘must’
have regard to a VIS. 103 In contrast, courts in NSW may ‘receive and consider’ a
VIS ‘if [the court] considers it appropriate to do so’. 104
56.
Throughout Australia, the weight to be given to a VIS remains at the discretion of
the court. VISs must be assessed according to normal evidentiary principles if they
are used as a basis for mitigating or aggravating factors at sentencing. 105
57.
Victims’ Compensation Schemes
Legislation in every jurisdiction entitles victims of crime to financial assistance.
The differences between the schemes were recently reviewed by the SCLJ. 106
58.
As alluded to above, 107 states have adopted different administrative mechanisms for
financial assistance schemes. Victoria has established a Tribunal to oversee
compensation applications. SA’s scheme is court-based – eligible victims sue the
state of SA and the offender (as first and second defendants) . The advantage of this
approach is that when the offender is unidentified, victims can seek redress against
the state alone.
59.
The structural differences between the schemes impact on the application
procedures. All states require applicants to complete an approved form and lodge it
with the administrative body (Tribunal, court or office of Director/Commissioner )
charged with oversight of the scheme. 108 The approved forms guide applicants and
identify supporting documentation that must accompany applications.
with references to the general rules of evidence or discretions, see, eg, Victims of Crime Assistance Act 2009 (Qld)
s 15(8); Victims’ Charter Act 2006 (Vic) s 13(1).
101 Crimes (Sentencing) Act 2005 (ACT) s 53(3); Sentencing Act 1991 (Vic) s 8O.
102 Penalties and Sentences Act 1992 (Qld) s 9(2)(b).
103 Crimes (Sentencing) Act 2005 (ACT) s 53(1).
104 Crimes (Sentencing Procedure) Act 1999 (NSW) s 28(1).
105 See, eg, R v Evans; R v Pearce [2011] QCA 135; EG v R [2015] NSWCCA 21.
106 SCLJ, National Framework, above n 3, 27-52.
107 See [26].
108 SCLJ, National Framework, above n 3, 37.
60.
The eligibility requirements vary between the states but generally require that
eligible persons be victims of a violent act that occurred in the relevant state. 109 The
territorial limitation has been criticised. 110 One of the stated aims of the SCLJ’s
National Framework is to establish reciprocal arrangements between the states. 111
Victims in all states may be eligible for the schemes even if the re is no conviction
or finding of guilt against the defendant . 112 Consistent with this position, applicants
for financial assistance must demonstrate on a balance of probabilities – the civil
standard – that they suffered harm as a consequence of the violent act. 113
61.
The limitation periods to make a claim vary from 12 months in the ACT to 3 years
in Queensland, SA, Tasmania and WA. 114 In SA, Tasmania and WA, the limitation
periods run from the date of (or ‘the occurrence of’) the ‘offence’. The other
jurisdictions use ‘act of violence’ instead of ‘offence’. Despite the drafting
language, it appears the statutes have substantially similar effects; each state
selecting terminology to be consistent with its other enactments and its own
broader legislative approach. In line with the purposes of the legislation – to assist
victims’ recovery by ameliorating financial hardships associated with violent
crime 115 – the schemes allow applicants to recover for broadly similar expenses. In
varying language, all schemes allow claims for the costs of counselling and medical
expenses, loss of salary or earnings and pain and suffering. Some schemes specify
other bases for ‘exceptional’ recovery, such as funeral expenses. Although loss of
clothing or personal effects is compensable, the schemes exclude claims for
property damage.
Other Rehabilitation Schemes
62.
There are no other significant and consistent rehabilitation schemes between the
jurisdictions.
f)
What rights rest with the alleged victim in respect of the appeal?
Appendix C to this report summarises the various schemes and is reproduced from SCLJ, National Framework,
above n 3, 32.
110 See, eg, Sam Garkawe and Michael O’Connell, ‘The Need for a Federal, Australia-Wide Approach to Issues
Concerning Crime Victims’ (2007) 18 Current Issues in Criminal Justice 487.
111 SCLJ, National Framework, above n 3, 5.
112 In Tasmania, a conviction will be treated as establishing in fact that the offence was committed (unless an appeal
or new trial is pending). See Victims of Crime Assistance Act 1976 (Tas) s 6; SCLJ, National Framework, above n 3, 34.
113 SCLJ, National Framework, above n 3, 34.
114 For comparative table showing various lengths and drafting, see Ibid, 35.
115 Ibid, 30.
109
63.
Australian criminal law permits broad rights of appeal only to the defendant. In
each state, prosecutors’ rights of appeal are reserved to the Attorney-General or
the DPP. Prosecutors in all jurisdictions are entitled to appeal against sentences, a
right that is used sparingly and exceptionally. Some jurisdictions also permit
prosecutors to appeal against conviction in limited circumstances. 116 Prosecution
appeals against conviction are so limited they need not be considered further in this
report. It follows that victims in Australia do not have a right to lodge an appeal.
64.
Victims in SA have the strongest position as they have a statutory right to request
that the DPP consider an appeal against a ‘determination made in relation to the
relevant criminal proceeding’. 117 The DPP is statutorily obliged to ‘give due
consideration’ to the request. 118 No other jurisdiction has a similar legislative
provision.
65.
Similarly, in no jurisdiction do the DPP policies concerning appeals afford victims
significant rights of appeal. Only two jurisdictions make mention of victims’
interests with respect to appeals. In Victoria, after a sentence has been delivered,
the DPP guidelines require a report to be prepared assessing the appellability of
sentences. That report must refer to the ‘expressed opinions of the … victim or
victim’s family as to the sentence’. 119 The NSW DPP guidelines do not consider
victims’ views in considering appeals, but do regard the attitude of victims in
deciding whether to pursue a re-trial. 120
Rights on appeal: passive right to information
Although framed with respect to the ACT, a helpful summary of the Australian position is given by DPP (ACT),
Prosecution Policy above n 20:
116
4.1 The Australian legal system generally confers a right of appeal on any party to legal proceedings who is aggrieved by the result.
The nature and extent of that right depends upon the nature of the proceedings, the type of order made and the rules of the
particular court in which the proceedings were conducted. In criminal proceedings the prosecution normally has no right to appeal
against a finding that the accused is not guilty of the offence charged though, in the Australian Capital Territory, there is a limited
right to have the Supreme Court review decisions of law made by a Magistrate. Furthermore, where a conviction has been
quashed on appeal there may be a further appeal against that decision. An accused may, of course, appeal against conviction.
4.2 Both the prosecution and the defence have the right to appeal against the sentence imposed following a conviction. However,
appellate courts have stressed that the prosecutor's right to appeal against the perceived inadequacy of a sentence should be
exercised with due caution.
Victims of Crime Act 2001 (SA) s 10A; DPP (SA), Statement of Prosecution Policy & Guidelines (October 2014) 25.
Victims of Crime Act 2001 (SA) s 10A(3).
119 DPP (Vic), Director’s Policy - Appeals by the DPP to the Court of Appeal (22 August 2014), [21] 5.
120 DPP (NSW), Prosecution Guidelines (1 June 2007) 56.
117
118
66.
All but two jurisdictions 121 specifically entitle victims to be informed of matters
relating to appeals. 122 Consistent with their general drafting approach,
in
Queensland, SA and WA information about appeals is provided only if it is
requested by the victim.
g)
Are there any rights available to the alleged victim when it comes to enforcement?
Enforement rights: right to information
67.
Legislation in each state entitles victims to be informed (at their request) of certain
events after an offender has been given a custodial sentence. The primary statutory
right is a passive right to be informed of any changes to the offender’s custodial
sentence.
68.
The statutes differ in terminology and comprehensiveness of the entitlement. 123 For
example, victims in the ACT ‘should be told about the offender’s impending release
from custody’. 124 The NT Charter directs victims to Correctional Servic es who can
provide information about ‘when the offender is due to be released from prison’. 125
Queensland provides more comprehensive protections that entitle victims to also
be informed if offenders escape from custody or are transferred to correctional
facilities interstate or internationally. 126 Some states also differentiate victims based
on the offences committed. Tasmania, for example, limits the entitlment to be kept
informed to victims of sexual assault or other personal violence. 127
Administering the right to information and right to make
submissions on parole: the Victims Registers
ACT and Tasmanian provisions are drafted more broadly to entitle a victim the right to be informed of the
‘outome of criminal proceedings and of any sentence and its implications’. The DPP guidelines of neither state
explicit addresses right of information on appeal matters.
122 Victims Rights and Support Act 2013 (NSW) s 6.5(1)(d); Victims of Crime Assistance Act 2009 (Qld) s 12(d); Victims of
Crime Act 2001 (SA) s 8(1)(f); Victims’ Charter Act 2006 (Vic) s 9(f); Victims of Crime Act 1994 (WA) sch 1 s 8; cf
Charter for Victims of Crime (NT) does not refer to information regarding appeals, however the policy of the DPP
is to inform victims of matters relating to appeals, see DPP (NT), Prosecutions Guidelines (13 January 2005) (under
review) [11.6(7)] 22.
123 Victims of Crimes Act 1994 (ACT) s 4(l); Victims Rights and Support Act 2013 (NSW) s 6.15; Victims of Crime Assistance
Act 2009 (Qld) s 16; Victims of Crime Act 2001 (SA) s 8(2); Charter of Rights for Victims of Crime (Tas) s 15; Victims’
Charter Act 2006 (Vic) s 17; Victims of Crimes Act 1994 (WA) ss 11-12; cf Charter for Victims of Crime (NT) implicitly
establishes the entitlement by directing victims to Correctional Services who can assist them.
124 Victims of Crime Act 1994 (ACT) s 4(l).
125 Charter for Victims of Crime (NT) 63.
126 Victims of Crime Assistance Act 2009 (Qld) s 16(2); see also Victims of Crimes Act 1994 (WA) s 12.
127 Charter of Rights for Victims of Crime (Tas) s 15.
121
69.
All states use the mechanism of a victims register for administering victims’ right
to information about a convicted offender. Victims registers also facilitate victims’
submissions to parole boards – a more direct means through which victims can
enforce judgment.
70.
Of all the Victims of Crimes Acts, o nly two jurisdictions directly entitle victims to
make submissions to parole boards regarding early release of offenders. The NSW
statute merely states the right; 128 Victoria’s casts all victims’ rights with respect to
custodial information as linked to a victims register. 129 Nevertheless, each
jurisdiction has established a victims register through legislation to be administered
by state correctional services. 130 Victims must apply for registration by completing
an application form. In some circumstances secondary victims such as family
members can also apply to be registered. Once registered, the department of
correctional services will notify victims of upcoming events in relation to the
relevant offender’s custody.
71.
When the relevant event is a parole hearing, the notification process also facilitates
the opportunity for victims to direct submissions to the parole board. 131 This is the
most direct right victims in Australia have to enforcing judgment. Although the
entitling legislation varies between jurisdictions, they generally address only victims
of violent or sexual offences and only entitle them to make written submissions to
the parole board. 132
h)
Are there any other rights that facilitate alleged victim participation not covered
in the above chapter?
72.
N/A
QUESTION 2: ARE THERE ANY SPECIAL CATEGORIES OF
ALLEGED VICTIMS (EG CHILD WITNESSES, WITNESSES WITH
INTELLECTUAL
OR
MENTAL
DISABILITY,
WITNESSES
Victims Rights and Support Act 2013 (NSW) s 6.16.
Victims’ Charter Act 2006 (Vic) s 17.
130 Crimes (Sentence Administration) Act 2005 (ACT) s 215; Crimes (Administration of Sentences) Act 1999 (NSW) s 256;
Victims of Crime Rights and Services Act (NT) s 8(b); Corrective Services Act 2006 (Qld) s 320; Correctional Services Act 1982
(SA) s 55; Corrections Act 1997 (Tas) s 87A; Corrections Act 1986 (Vic) s 30A; Sentence Administration Act 2003 (WA).
131 Crimes (Sentence Administration) Act 2005 (ACT) s 124; Crimes (Administration of Sentences) Act 1999 (NSW) s 145;
Victims of Crime Rights and Services Act (NT) s 24; Corrective Services Act 2006 (Qld) s 188(3)(c); Correctional Services Act
1982 (SA) s 77(2)(ba); Corrections Act 1997 (Tas) s 72(2B); Corrections Act 1986 (Vic) s 74A; Sentence Administration Act
2003 (WA) s 5C.
132 Cf Correctional Services Act 1982 (SA) s 77(2)(ba) which also permits oral submissions to be made to the parole
board if pre-arranged.
128
129
ALLEGING SEXUAL ABUSE ETC) TO WHOM THE ABOVE RIGHTS
ARE AVAILABLE? IF YES, DEFINE THOSE CATEGORIES AND
ANSWER THE ABOVE QUESTION IN RESPECT OF EACH
CATEGORY.
Introduction
73.
As discussed above, 133 Australia does not recognise special categories of victims, as
such. Given the vast differences that exist in statutory definitions and approaches,
it is not possible to infer categorisations. The answer to this question is therefore
‘no’.
74.
That said, all states recognise particular circumstances where additional statutory or
policy-based victim protections are necessary. Consequently, a complex patchwork
of specialist regimes exists throughout Australia. The most developed of the
specialist regimes relates to protection of vulnerable witnesses. Despite there being
broad similarity in the protections provide d, various attempts at comparative
analysis or national harmonisation of even this one area have proven difficult. 134
Other specialist areas are unique to particular jurisdictions. In NSW for example, a
special victim register exists for victims of offenders who are ‘forensic patients’ –
persons found to be not-guilty of crimes by reason of mental illness. 135
75.
The sections that follow highlight some notable features of regimes from the
Australian jurisdictions. The sections follow the structure of Question 1, however,
only circumstances that entail greater or more specific protection are mentioned
here. These comments are not intended to be a comprehensive review.
a)
Are there provisions for support services (including counselling, use of
interpreter, interim compensation and other measures at the time of complaint?
Interview and procedures for reporting crimes
See [5]-[7].
See, eg, Standing Committee of Attorneys-General, Communiqué (4-5 March 2011) 5; Department of Justice
(NT), Report: Review of Vulnerable Witness Legislation (June 2011) 6:
133
134
‘It is difficult to compare the vulnerable witness legislation in each state and territory as, like the NT, most jurisdictions do
not have one piece of legislation which contains vulnerable witness protections. Rather, the protections are found
throughout legislation relating to evidence and court procedure. Further, each jurisdiction has a different definition of
vulnerable witness and, often, various categories of vulnerable witness.’
For discussion see: Michael Barnett and Robert Hayes, ‘The Role of Victims in NSW Forensic Patient
Proceedings’ (2009) 13 University of Western Sydney Law Review 7.
135
76.
States generally provide special procedures for interviewing children or persons
with disabilities. These procedures are partially designed to minimise trauma to
interviewees. They are also drafted to conform with statutory requirements on
procedure and admissibility of evidence. For example, the Queensland Police
guidelines provide for specially-trained officers to interview children and persons
of special need, 136 where possible, and that support persons should be availble
during the interview. To satisfy statutory requirements, there are also procedures
for video recording of interviews with children. 137
77.
Queensland also provides a unique mechanism for victims of sexual assault. Using
alternative reporting options, victims can inform the police of their circumstances
without formally reporting the crime to the police. The information allows police
to use the information for other investigations and potential prosecutions and also
to devise policy strategies. 138
b)
78.
N/A.
c)
79.
Are there provisions for witness protection during the investigation?
Are the alleged victims consulted while deciding whether to prosecute?
N/A
d)
What are the rights available to the alleged victims in relation to the trial?
Vulnerable witnesses
80.
Australian jurisdictions have legislated to protect persons considered to be
particularly ‘vulnerable’ to things such as embarrassement, distress and intimidation
in a courtroom. 139 There are differences between the Australian jurisdictions’
definition of ‘vulnerable’ and this affects the scope of the protection s available to
witnesses cum victims. 140 Adding to the legislative complexity, some jurisdictions
separate general statutory protections for vulnerable witnesses from additional
NSW Police have taken a similar approach in making available specially trained police ‘liaison officers’ who can
provide support and referrals to victims in unique circumstances, such as domestic violence liaison officers,
multicultural community liaison officers and gay and lesbian liaison officers, see NSW Police, Information for Victims of
Crime (Information Pack), Fact Sheet 05 (‘Victim Support and Referral’).
137 See Queensland Police, Operational Procedures Manual: Issue 46 (December 2014) Ch 6 (Special Needs) [6.3.3] 5; Ch
7 (Child Protection) [7.6.6] 30; see also Commissioner for Victims’ Rights (SA), Information for Victims of Crime (June
2011) 9-10. For a comprehensive review in the context of vulnerable adults see Lorana Bartels, Australian Institute
of Criminology, ‘Police Interviews with Vulnerable Adult Suspects’ Research in Practice Report No 21 (July 2011).
138 Queensland Police, Alternative Reporting Options at
<www.police.qld.gov.au/programs/adultassault/altReportOpt.htm>.
139 See, eg, Evidence Act 1929 (SA) s 13.
140 See Department of Attorney General and Justice (NT), Consultation Results Report: Consultation regarding application in
the lower courts of recorded statement protections for Vulnerable Witnesses: section 21B of the Evidence Act (March 2014) 16.
136
protections for witnesses in sexual offence matters. 141 Groups that are generally
considered to require special protections are ‘ children and young people;
Aborigines and Torres Strait Islanders; the mentally ill or disordered, and persons
with developmental disabilities; and persons from culturally and linguistically
diverse communities’. 142
Vulnerable witness protections
81.
A state review of the various legislative schemes summarised the vulnerable witness
protections that are common to all states (except Tasma nia) as being: 143

the option for evidence to be given by way of CCTV;

the option for screens or physical barriers to be used so that the witness
cannot see or be seen by the accused person;

a prohibition on cross examination by self -represented defendants;

availability of a support person for the vulnerable witness;

courts to be closed when a vulnerable witness gives evidence;

a written or recorded statement to be adm itted as a witness’ evidence in
chief;
82.

pre-recording of evidence at a special sitting (not a vailable in NSW); and

admission of a record of transcript in retrials or related proceedings.
Some jurisdictions make provision for a court -companion to be available when a
vulnerable witness gives evidence.
83.
Most state legislation requires that the DPP apply to the court for a witness to be
treated as vulnerable and trigger the protections. Some jurisdictions provide basic
information about vulnerable witness protections to witnesses and encourage them
to discuss the matter with their DPP contact if potent ially applicable. 144
84.
Witnesses in sexual matters are afforded a significant protection through ‘rape shield’ laws. 145 All states have also legislated to prevent the publication of
See, eg, Evidence Act (NT); Sexual Offences (Evidence and Procedure) Act (NT); Evidence Act 1977 (Qld); Criminal Law
(Sexual Offences) Act 1978 (Qld). For review of the protections between the two NT statutes see Department of
Justice (NT), Report: Review of Vulnerable Witness Legislation (June 2011) 4.
142 Jessica Anderson, Kelly Richards and Katie Willis, Australian Institute of Criminology, ‘Evaluation of the ACT
Sexual Assault Reform Program (SARP): Final report’ AIC Reports: Technical and Background Paper 51 (2012) 2.
143 Department of Justice (NT), Report: Review of Vulnerable Witness Legislation (June 2011) 6.
144 See, eg, Witness Assistance Service, DPP (SA), Information/Fact Sheet: Vulnerable Witness Protections (July 2011).
145 See, eg, Evidence (Miscellaneous Provisions) Act 1991 (ACT); Criminal Law (Sexual Offences) Act 1978 (Qld); Sexual
Offences (Evidence and Procedure) Act 1983 (NT).
141
information that might tend to identify a complainant in a sexual assault matter. 146
More generally, Australian common law and statutes empower courts to disallow
inappropriate questions on cross-examination. 147 While applicable broadly, the
power is particularly relevant to victims in sexual matters.
CONCLUSION
85.
In summary:

General points
Australia’s criminal laws are primarily within the purview of state jurisdiction, resulting in
a varied approach to victims’ rights.
Recent Victims of Crime Acts provide for broad definitions of victims and adopt
overarching principles to guide treatment of victims.
Victims report crimes to police who investigate and charge offenders. The DPPs
generally become involved after the investigation phase.
The prosecutor represents the interests of society as a whole; the victim is represented
indirectly.
Private prosecutions are occasionally available but seldom used.

Question 1
State jurisdictions do provide for some victim participation in criminal proceedings.








At the time of complaint
All states provide central agencies to assist victims obtaining necessary services.
Counselling is available in all jurisdictions to varying extents.
Government agencies in all states do provide interpreters, though their accessibility to
victims differs.
All states have compensations schemes offering interim financial assistance, but the
schemes differ in approach in breadth of allowable claims and procedures.
During the investigation



Witness protection provisions exist in some form in all jurisdictions.
There is near-unanimity: in bail applications, the protection of victims must be
considered by the relevant authority.
In other circumstances, witnesses and victims would need to qualify for specialist
schemes defined by the nature of the criminal conduct, such as domestic violence.
Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 40; Crimes Act 1900 (NSW) s 578A; Sexual Offences (Evidence and
Procedure) Act 1983 (NT) s 6; Criminal Law (Sexual Offences) Act 1978 (Qld) s 6; Evidence Act 2001 (Tas) s 194K; Evidence
Act 1929 (SA) s 71A(4); Judicial Proceedings Reports Act 1958 (Vic) s 4; Evidence Act 1906 (WA) s 36C.
147 See, eg, Crimes Act 1914 (Cth) s 15YE; Evidence Act 1977 (Qld) s 21; Evidence Act 1929 (SA) ss 22–5; Evidence Act
1906 (WA) ss 25–6; Uniform Evidence Acts ss 26, 29, 41, 42, 192A, 193; Libke v The Queen (2007) 230 CLR 559, 597604 (Heydon J). For examination of this issue see Phoebe Bowden, Terese Henning and David Plater, ‘Balancing
Fairness To Victims, Society And Defendants in the Cross-Examination Of Vulnerable Witnesses: An Impossible
Triangulation? (2014) 37 Melbourne University Law Review 359.
146






Victims influence pre-trial investigations mostly through witness statements. Otherwise,
investigations are left to the investigators.
In all jurisdictions the decision to prosecute remains with the prosecution and there is no
explicit avenue for victims to challenge the decision.
Only one jurisdiction has an explicit legislative requirement for (certain) victims to be
consulted prior to prosecution.
Several jurisdictions provide for victim-consultation before significant amendments to
indictments are made.
All jurisdictions entitle victims to receive information regarding the investigation and
prosecution of the crime.
Most jurisdictions require agencies to inform victims of their legal rights to receive
counselling, legal and other services.
In relation to the trial






All states recognise the right of victims to be told about the trial process and the rights
and responsibilities of witnesses.
Victims have a right to be protected from unnecessary contact with the accused and
defence witnesses during the trial.
Victims have no right to deliver opening or closing statements or present evidence.
In practice, either the prosecution or defence will require victims to give evidence to
establish or defend their case, respectively.
Victims have no general right to an interpreter. Based on the defendant’s right to a fair
trial, interpreters may be provided, at the court’s discretion.
In all jurisdictions mechanisms exist for witnesses to attend court in advance of their trial
to become acquainted and comfortable with the environment
At the time of sentencing






All jurisdictions entitle victims to present a VIS.
The use to be made of VISs vary between jurisdictions.
In cases of violent crime, legislation in every jurisdiction entitles victims of crime to
financial assistance.
In relation to appeals
Prosecutors in all jurisdictions appeal against sentences exceptionally.
Only SA entitles victims to request consideration of an appeal. The DPP is obliged to
consider the request, but need not act on it.
Most jurisdictions entitle victims to be informed of matters relating to appeals.
At the time of enforcement


Legisation in each jurisdiction entitles victims to be informed (at their request) of certain
events after an offender has been given a custodial sentence.
Through victim registers, victims in all jurisdictions are entitled to make submissions to
parole boards addressing early-release of offenders.
Question 2
 Australia does not recognise special categories of victims, as such.
 All states recognise particular circumstances where victim protections are available.
At the time of complaint

States generally provide special procedures for interviewing children, Aboriginal or
Torres Straight Islanders and persons with disabilities.
In relation to the trial


If victims fall into variously defined categories of vulnerable victims, special in-court
measures may be available to them.
Vulnerable witness protections allow inter alia witnesses to give their evidence in chief in
written-form, otherwise give evidence via CCTV or hidden from view of the accused and
provide for less aggressive forms of cross-examination.
APPENDIX A: Who is a victim?
ACT
NSW
Person injured as a
direct result of a violent
crime - Primary victim;
Related victim; Eligible
property victim.
Person injured as
consequence of an act of
violence - Primary
victim; Secondary
victim; Family victim.
NT
QLD
Primary victim is a
person who suffers a
compensable injury
resulting from violent
act.
A person (primary,
parent, witness, related
victims) who has
suffered an injury as a
result of an violent act.
Secondary victim is a
person who suffers an
injury from witnessing
or becoming aware of a
violent act.
That happened in Qld.
Family victim, a parent,
step parent, child,
dependent on primary
victim.
Related victim is a
relative or a person in an
intimate personal
relationship with
primary victim
No conviction required.
Injury includes physical,
mental, nervous shock
as a direct result of the
act of violence.
Primary victim;
Secondary victim (parent
or witness of the act of
violence); Parent victim
(parent of a child who is
the victim and is injured
as a direct result of
becoming aware of the
act); Witness victim
(injured as a result of
witnessing the act);
Related victim (close
family member or a
dependent of the
primary victim).
SA
TAS
VIC
WA
Victim is defined as “any
person who suffers
harm as a result of an
offence (except the
offender)”; however, a
narrow definition is
applicable to statutory
compensation.
A person suffers injury
or death as a result of an
offence, OR
Primary victim is a
person who suffers
injury or death as a
direct result of an act of
violence, OR in trying to
arrest someone, OR in
trying to prevent the
commission of an act of
violence, OR in trying to
aid or rescue someone
who is a victim of an act
of violence.
A person who suffers
injury, or who dies, as a
consequence of the
commission of an
offence.
Immediate victim;
Person suffered physical
and/or mental injury
resulting from an
offence that happened in
SA Attorney-General
has absolute discretion
to make ex gratia
payment to victim of
crime outside SA.
Victim includes:
Immediate family (a) a spouse or domestic
partner;
(b) a parent;
(c) a grandparent;
(d) a child (including an
adult child);
(e) a grandchild
(including an adult
grandchild);
(f) a brother or sister);
and ‘Good Samaritan’
provision for people
involved in the
immediate aftermath of
the offence.
in assisting a police
officer.
That happened in
Tasmania.
Injury means any
physical injury or
impairment, mental
health, becoming
pregnant.
Primary victim means a
person against whom an
offence is committed.
Related victim means a
spouse, child, stepchild,
brother, sister,
stepmother, stepsister or
primary victim, OR
parent or stepparent of
primary victim, OR in a
personal relationship
with primary victim.
Secondary victim means
witness of an offence,
OR parent, stepparent,
guardian of primary
victim under 18 years.
Whether or not the act
of violence is actually
committed.
A primary victim if
suffers a significant
adverse effect as a direct
result of an act of
violence.
A person who suffers
injury as a result of
witnessing an act of
violence or becoming
aware of an act of
violence (if a parent of a
primary victim who is
under 18 years).
If the parent is
criminally responsible
for the act of violence
they are not a secondary
victim.
Close family member,
dependent, intimate
personal relationship
with the primary victim
who died.
Not a related victim if
they are criminally
responsible for the act
of violence.
That happened in WA.
APPENDIX B: Is there a provision for interim or emergency payments?
ACT
Where victim requires
ongoing treatment,
injury has not stabilised
or is unable to pay
expenses they may be
able to get an interim
payment.
NSW
Where claimant is in
severe financial hardship
prior to determination
or for family victims
where there are funeral
expenses (expenses to be
reasonable) interim
payment may be made.
If claim rejected the
interim award becomes a
debt owed to the
Compensation Fund
Corporation.
NT
Interim payment
available (primary,
secondary, family).
Max $5000 (out of
pocket expenses).
Director to be satisfied
victim suffered
compensable injury,
financial loss resulted,
the victim is eligible.
No arrest or conviction
necessary.
QLD
Interim assistance max
$6000 for reasonable
expenses that the
assessor is satisfied the
victim would incur
before the general
application is
determined.
Conditions may be
applied.
No submissions from
applicant
required/expected.
Interim to be deducted
from general assistance
if approved.
Excess provided in
interim to general
application must be
refunded by victim.
If general application
refused victim must
repay interim assistance.
SA
The Attorney-General
has discretion to pay an
interim payment if there
are necessitous
circumstances.
Per section 31(2), the
Attorney-General also
has discretion to pay a
‘discretionary payment’
to assist a victim of
crime deal with a
particular effect. This
section is usually
exercised to purchase
security devices to
alleviate safety concerns
in high risk domestic
violence cases or similar,
as well as to pay for
crime scene clean-up
(homicide primarily).
The Attorney-General
has paid sums to assist
parents of murder
victims travel for
overseas and to relocate
deceased remains.
TAS
Interim award available
at sole discretion of
Commissioner.
VIC
Interim award available
at sole discretion of
Commissioner.
VIC
Interim award available
at discretion of Tribunal.
If application dismissed
applicant Tribunal may
order repayment as a
debt to the State.
If award made the
amount of interim award
must be deducted.
Made if require urgent
financial assistance
which may include:
• Counselling
• Safety needs
• Medical expenses.
WA
If assessor is satisfied
that a person has
incurred or is likely to
incur expenses for loss
that is likely to be
awarded and the making
of an interim award is
warranted an interim
award may be made.
Total interim award
(excluding funeral
expenses) must not
exceed 3% of the max
amount of
compensation available
for a single offence.
Total must be deducted
from any award made If
application rejected any
interim award becomes a
debt owed by the person
to the State.
Funeral expenses/
treatment costs.
APPENDIX C: What are the eligibility requirements?
ACT
Reported to the police.
Suffered physical and/or
mental injuries.
Injury sustained in the
ACT and must be a
violent crime.
NSW
Act of violence:
• Apparently occurred in
the course of the
commission of an
offence
• Involved violent
conduct against one or
more persons
• Has resulted in injury
(actual physical bodily or
psychological or
psychiatric harm) or
death.
Arrest or conviction not
necessary.
• Reported to the police
or relevant health
professional or relevant
agency
• Must cooperate with
investigation by police
or prosecution
• Suffered compensable
injury as set out in
Schedule of Injuries
• Injury sustained in the
NSW
Secondary or family
victim not eligible if
primary victim not
eligible
Secondary not eligible
until 1 year has lapsed
since the act of violence
occurred unless: notice
served on primary
victim, or primary victim
has died, AND no
application has been
made by the primary
victim or relevant family
victim within 3 months
after service of notice or
NT
QLD
Primary victim is a
person who suffers a
compensable injury
resulting from violent
act.
A person (primary,
parent, witness, related
victims) who has
suffered an injury as a
result of an violent act.
Secondary victim is a
person who suffers an
injury from witnessing
or becoming aware of a
violent act.
That happened in Qld.
Family victim, a parent,
step parent, child,
dependent on primary
victim.
Related victim is a
relative or a person in an
intimate personal
relationship with
primary victim.
No conviction required.
Injury includes physical,
mental, nervous shock
as a direct result of the
act of violence.
Primary victim;
Secondary victim (parent
or witness of the act of
violence); Parent victim
(parent of a child who is
the victim and is injured
as a direct result of
becoming aware of the
act); Witness victim
(injured as a result of
witnessing the act);
Related victim (close
family member or a
dependent of the
primary victim).
SA
TAS
VIC
WA
Victim is defined as “any
person who suffers
harm as a result of an
offence (except the
offender)”; however, a
narrow definition is
applicable to statutory
compensation.
A person suffers injury
or death as a result of an
offence, OR
Primary victim is a
person who suffers
injury or death as a
direct result of an act of
violence, OR in trying to
arrest someone, OR in
trying to prevent the
commission of an act of
violence, OR in trying to
aid or rescue someone
who is a victim of an act
of violence.
A person who suffers
injury, or who dies, as a
consequence of the
commission of an
offence.
Immediate victim;
Person suffered physical
and/ or mental injury
resulting from an
offence that happened in
SA Attorney- General
has absolute discretion
to make ex gratia
payment to victim of
crime outside SA.
Victim includes:
Immediate family (a) a spouse or domestic
partner;
(b) a parent;
(c) a grandparent;
(d) a child (including an
adult child);
(e) a grandchild
(including
an adult grandchild);
(f) a brother or sister);
and ‘Good Samaritan’
provision for people
involved in the
immediate aftermath of
the offence.
In assisting a police
officer.
That happened in
Tasmania.
Injury means any
physical injury or
impairment, mental
health, becoming
pregnant.
Primary victim means a
person against whom an
offence is committed.
Related victim means a
spouse, child, stepchild,
brother, sister,
stepmother, stepsister or
primary victim, OR
parent or stepparent of
primary victim, OR in a
personal relationship
with primary victim.
Secondary victim means
witness of an offence,
OR parent, stepparent,
guardian of primary
victim under 18 years.
Whether or not the act
of violence is actually
committed
A primary victim if
suffers a significant
adverse effect as a direct
result of an act of
violence
A person who suffers
injury as a result of
witnessing an act of
violence or becoming
aware of an act of
violence (if a parent of a
primary victim who is
under 18 years).
If the parent is
criminally responsible
for the act of violence
they are not a secondary
victim.
Close family member,
dependent, intimate
personal relationship
with the primary victim
who died.
Not a related victim if
they are criminally
responsible for the act
That happened in WA.
application has been
disposed of within that 1
year.
Not eligible to receive
compensation:
• If victim engaged in
behaviour that
constitutes an offence
• If incident was motor
vehicle accident
• If received court
awarded compensation
• If the victim was a
convicted inmate at the
time of the act
of violence.