Independent Victims' Lawyers

In May 2019, since writing my Honours Thesis on the Victorian Law Reform Commission's (VLRC) 2016 report on the Role of Victims in Criminal Trials, another report by the Centre for Innovative Justice (CIJ) was released, highlighting the disappointing reality of victims' experiences during the trial process.

The results are as unfortunate as those of the VLRC's in 2016 - Victims felt uninformed throughout the trial process, neglected, rarely consulted in prosecutorial decisions and generally forgotten. The fact that this CIJ report was commissioned by the Office of Public Prosecutions (OPP) themselves is promising. It suggests a commitment by the OPP to reconsider the role of victims' during the trial process as more than just the forgotten individual behind an affidavit or one of many potential witnesses but rather as an individual with a vested often painful interest in the outcome of the trial, deserving of consultation and respect.

However, as I noted in my Thesis and as was pointed out in the VLRC's report, there is an inherent limit to the extent with which a prosecutor may empathise, consult with or listen to a victim. A crucial aspect of our adversarial criminal process is a prosecutor who acts impartially on behalf of the State. With this in mind, it is easy to see how a prosecutor's and victim's interests may diverge.

For example, a prosecutor has to assess the credibility of a victim's evidence and the likelihood of a successful conviction before embarking on a trial - a necessary aspect of an efficient criminal justice system. However, consider the difficulty of this experience for a victim who visits a prosecutor with the expectation that the prosecutor will be their fighter for justice, only to come face-to-face with a prosecutor who is required to remain impartial and even critical of the victims' experiences.

Enter the VLRC's recommendation for an Independent Victims' Lawyer (IVL) - unattached to any potentially conflicting responsibilities - the IVL is free to act unabashedly and solely in the victims' best interests. Though the VLRC described a relatively limited role for IVLs in their report, I envisage IVLs in all trials for serious indictable offences, where they will act as publicly-funded go-betweens for the victims when speaking with the prosecution and at times even the defence. They will be able to, among others, relay victims' concerns throughout the trial, explain, justify and sometimes argue against prosecutorial decisions, defend victims' rights as they relate to evidence admittance or witness accommodations and above all else ensure that victims are not forgotten throughout what should effectively be their trial.

The move would admittedly require a bold rethinking of our two-party process, while still ensuring that it is the defendant who is afforded every benefit at trial. However, I believe the IVL would do no more than help victims' enforce the rights they currently have and access the evidentiary concessions available to them.

There are then of course the financial concerns but I find these minimally persuasive when I consider what's at stake. At the very core of a functioning democratic system is a belief in the efficacy of our processes. Every time a victim walks away from a trial feeling forgotten, neglected or disappointed, cracks begin to emerge in the very foundation of our criminal justice system.

Since the VLRC's report, there still seems to have been no movement on the idea of introducing an IVL. However, it is my hope that the CIJ's report helps add more fuel to the fire for this recommendation.