Victim and Witness Rights

Part 4: Key HR Act rights for victims and witnesses


 Overview

The key human rights relevant to the justice system at all stages of the process including investigation, court and post-court are outlined in this section.

Section 8: Recognition and Equality before the Law

S 8 of the HR Act provides the right to enjoy human rights ‘without distinction of discrimination of any kind.’

S 8(3) provides:

Everyone is equal before the law and is entitled to the equal protection of the law without discrimination

Everyone has the same rights and deserves the same level of respect. This means that laws, policies and programs should not be discriminatory. It also means that public authorities should not apply or enforce laws, policies and programs in a discriminatory way. These include discrimination because of race, colour, sex, sexual
orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status.

Human rights law recognises that just treating everybody in exactly the same way (formal equality) can lead to unequal outcomes and to achieve substantive equality sometimes differences of treatment may be necessary for example measures intended to achieve equality under s. 27 of the Discrimination Act 1991.

Investigation stage
Some relevant considerations for victims when considering the concept of recognition and equality before the law during the investigation stage include:

  • women have the right to be safe from domestic violence and should therefore have the same access to domestic violence services and police assistance
  • police investigators ensuring they provide appropriate support and assistance to people with disabilities to provide statements and to participate in taped records of conversations. Police may need some training to better understand what a person with a disability may require to participate in a formal interview, for example, whether the person may benefit from support during the interview, and whether any technical or other support is needed
  • some examples of extra supports a person with a disability may need are:
    – an AUSLAN interpreter, for a person who is deaf;
    – access to large print documents, for a witness with vision impairment;
    – regular breaks during an interview, for a person with intellectual disability;
    – providing for a support person to be with a person with a disability or an Aboriginal or Torres Strait Islander person to assist them to give a witness statement. This role may include the person asking for breaks and helping the person understand what is being asked or pointing out to police if a person may
    not understand the questions asked.
    – providing for an interpreter to assist a person to make a statement to police when that person does not speak English or for whom English is not their primary language.

At Court
Some relevant considerations for victims when considering the concept of recognition and equality before the law during the court stage include:

  • courts providing appropriate adjustments for victims/witnesses with disabilities such as the availability of support persons, audiovisual link, frequent breaks in proceedings, and other adjustments;
  • providing updates on preparation of cases and information about court processes in accessible formats for people with disabilities;
  • giving consideration to limiting the amount of times people with disabilities and other vulnerable witnesses are required to give their evidence – the number of times proofing occurs should be kept to a strict minimum, especially if evidence has been pre-recorded. Asking a witness to recount their story multiple times may create inconsistencies in their evidence and can cause secondary victimisation [Attorney-General’s Department South Australia, Supporting vulnerable witnesses in the giving of evidence: Guidelines for securing best evidence, 11.].

Example: A witness in a serious criminal matter is a man who has an intellectual disability. He is very anxious about giving evidence, and has significant difficulty concentrating for extended periods of time. A human rights approach to assist him to give the best evidence he can give, would involve allowing him to have a support person sit with him whilst he is giving evidence, taking frequent breaks in proceedings and avoiding the use of long or confusing questions. It may also involve allowing him to give evidence via audiovisual link.

  • providing adjustments to the way in which evidence is given in court, and recognition of the effects of delay. This includes allowing witnesses to give evidence via audiovisual link, as well as allowing an audiovisual recording of a police interview to be admissible as evidence;
  • allowing a right of access to alternative dispute resolution processes – e.g. if referral made to restorative justice, victims have the ability to decide whether they would like to participate in the process and meet face to face with the offender. This may include consideration of whether mediation is a suitable option, taking into account any disabilities or vulnerabilities that may affect this;
  • providing interpreter services for civil matters, including domestic violence and personal protection order applications and hearings, which are currently not usually provided by the ACT court and must be organised by the applicant at their own cost;
  • ensuring early allocation to the prosecutor who will deal with the matter at trial to provide continuity of support.

Case example (right to equality)
A 17 year old girl living in the Philippines who was mute and hearing-impaired alleged that she was raped by a neighbour. She reported the incident to police with her sister interpreting for her using sign language. The affidavit drawn up was in Filipino. However, the education system for the deaf was in English and the complainant could not understand the affidavit, and she was not given an interpreter.

It took almost 5 years for the case to be heard and finalised. Reasons for the delay included: the court’s failure to provide an interpreter, leaving it up to the complainant to arrange, placing the case after the other cases scheduled for the day were heard, leading to many adjournments. The accused was acquitted due to insufficient evidence. The court stated that an ordinary Filipina female rape victim would try to escape or resist and call out, and that the complainant’s demeanour was inconsistent with this casting doubt on her credibility.

The UN Committee on the Elimination of Racial Discrimination found that the court’s treatment amounted to a violation of the State’s obligation to end discrimination in the legal process, and that its attitude towards the complainant and towards women and rape in general revealed gender stereotyping. The Committee noted that the State’s obligations included an obligation to consider the complainant’s disability and age. It found that providing a sign language interpreter was essential to ensure the complainant’s full and equal participation in proceedings to ensure protection against discrimination.

Source: RPB v The Philippines, Committee on the Elimination of Discrimination against Women, Communication No 34/2011 (21 February 2014).

Post Court
Some relevant considerations for victims in the concept of recognition and equality before the law post-court would include:

  • ensuring that the outcome of a matter is explained clearly in an understandable format to victims with disabilities, or people who are culturally and linguistically diverse.