Victim and Witness Rights

Section 21: Fair Trial

S 21(1) of the HR Act provides for the right to a fair trial.

It states:

Everyone has a right to have criminal charges and rights and obligations recognised by law, decided by competent, independent and impartial court or tribunal after a fair and public hearing.

The right to a fair trial has been found in other human rights jurisdictions to include a ‘triangulation of interests’ which include those of the accused, the victim and his or her family, and the public [Bowden et al, 558; Ragg v Magistrates’ Court of Victoria and Corcoris [2008] VSC 1 (24 January 2008) (Bell J)].

Investigation stage
Some relevant considerations for victims when considering the concept of fair trial during the investigation stage would include:

  • avoiding unnecessary/unreasonable delay in laying charges or investigating a matter if it would be unfair to the victim. A long delay in investigating an incident could impact on the victim’s ability to give accurate evidence and negatively affect their credibility as a witness;

Example: The owner of a petrol station is held up by an armed assailant wearing a mask. Police investigated and attempted to identify the offender. There is a significant delay in receiving material back from the forensic lab. The Governing Principles require an officer to inform the victim of the progress of the investigation at regular intervals (generally not more than 1 month) s4(b).

  • giving consideration to informal resolution mechanisms such as alternative dispute resolution if a young person or an Aboriginal or Torres Strait Islander person.

At Court
Some relevant considerations for victims when considering the concept of fair trial would include:

  • avoiding unnecessary/unreasonable delay if that would be unfair to the victim, if the delay impacts upon their ability to give evidence. This may affect the victim’s credibility as a witness;
  • the DPP ensuring they allow views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected;
  • prohibiting alleged offenders from personally cross-examining the victim in a domestic violence order or protection order applications as is current practice in criminal matters;
  • providing the same right for vulnerable witnesses to give evidence via audiovisual link in civil proceedings as they have in criminal proceedings, particularly for family violence matters;
  • consideration of any other matters concurrently occurring in another court.

Example: A man is arrested and charged with seriously assaulting his ex-partner. The victim attended the ACT Magistrates Court on the following day and obtained an interim domestic violence order. The domestic violence order application went to hearing; the woman was cross-examined extensively by her ex-partner’s lawyer. The domestic violence order was ultimately granted.

The criminal matter went to trial seven months later and the woman was very distressed that she was again cross-examined extensively about the same incident. It would be preferable not to allow a full hearing for a domestic violence order application until the related criminal matter has been completed, to avoid unnecessary trauma for the victim. Legislative amendments should be made allowing an interim order to be put in place during this time to ensure protection for the victim.

Case example (right to a fair trial)
The UK Supreme Court considered two cases where witness statements had been admitted into evidence when the witness was not available for cross examination.

In the first case the victim of an assault died before trial. This statement to police was admitted into evidence.

The second case involved a case of kidnapping, where the victim disappeared one day before the trial citing her fear of attending court. Her statement to police was admitted into evidence. The defendants appealed claiming that they did not receive a fair trial contrary to article 6 of the European Convention on Human Rights.

The Court dismissed the appeal concluding that, provided safeguards and appropriate counterbalancing measures are adhered to, there will be no breach of article 6 of the Convention if the conviction is based solely or decisively on evidence of a statement of a witness without the witness giving evidence.

Source: R v Horncastle & Ors [2009] UKSC 14 (9 December 2009).

Post Court
Some relevant considerations for victims when considering the concept of fair trial post-court would include:

  • providing proper assistance to victims and witnesses to understand the legal process and the outcome;
  • ensuring adequate restitution and compensation for victims as outlined in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. This includes restitution from offenders were appropriate, financial compensation provided to victims who have suffered bodily injury or physical or mental health impairment, and assistance such as medical, psychological and social assistance [United Nations General Assembly Resolution 40/34, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 29 November 1985].