Speech

February 8, 2022

Tania MAXWELL (Northern Victoria) (15:18):

I rise to speak on the Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Bill 2021. I am not going to go through a lot of the bill, as my colleagues Dr Bach, Mr Erdogan and Mr Grimley have already discussed in some length what the bill actually does. However, I will say that the bill amends disclosure obligations as recommended by the Royal Commission into the Management of Police Informants, provides for victims to give remote evidence for family violence matters in some circumstances and allows for personal safety information orders to be made online. All of these are things that Derryn Hinch’s Justice Party gives full support.

The bill provides for a Chief Magistrate to hold a dual commission. The bill also provides the ability to give a sentence indication to an offender in order to encourage more guilty pleas. I know we have a massive backlog in our courts at the moment, and this is designed to speed up that process. Indeed the latest annual report from the Office of Public Prosecutions (OPP) shows that plea offer advisings almost doubled from 2017 to 2019. I note that it is often suggested that plea-bargaining helps avoid further trauma for victims, which is sometimes the case, but often it is not. Victims often tell me that they want their day in court, they want the opportunity for evidence to be presented. So while the plea-bargaining process and encouraging guilty pleas may provide certainty, it is not always the certainty that victims equate with justice.

This bill makes consequential amendments to the Victims’ Charter Act 2006, and I will be putting an amendment forward to require that the Director of Public Prosecutions (DPP) provides a process for review of certain decisions and to notify a victim of this entitlement. This right to review would include decisions to not charge a person with a criminal offence, to substantially modify charges, to discontinue the prosecution of charges or to accept a plea of guilty to a lesser charge.

Enduring feedback from victims of crime is that they felt let down and excluded from the justice process. They have also conveyed that we have a legal system and not a justice system and that this compounds their trauma. The Victims’ Charter Act requires that victims’ views are sought and that they are informed of decision-making; however, victims are often informed of these decisions after they are done and dusted and there is no provision for victims to seek any form of review.

Recommendation 10 of the Victorian Law Reform Commission (VLRC) report The Role of Victims of Crime in the Criminal Trial Process recommended:

The Victims’ Charter Act 2006 (Vic) should be amended to:

(a) establish a right for victims to seek internal review of a decision by the Director of Public Prosecutions to discontinue a prosecution or to proceed with a guilty plea to lesser charges

(b) require the Director of Public Prosecutions, when informing the victim of these decisions, and the reasons for these decisions, to notify the victim of their right to seek internal review and the procedure for doing so.

The recently released report of the VLRC review into improving justice system responses to sexual offences noted that when Sarah was told the OPP would not be going to trial she was devastated:

I couldn’t believe this could happen after all the reassurances I had … It was like living my worst nightmare … It felt like they humored me by meeting with me but they had already made their decision … I felt betrayed by everyone …

Another victim-survivor said in response to news the charges against her offender had been bundled up for a sentence of a community correction order:

I felt very let down by the OPP.

She said she:

… felt that justice had not been served …

The Victims of Crime Commissioner supports a review system akin to the victims’ right to review schemes that are in place in the United Kingdom and Scotland. These recommendations are so important for victims as they deliver rights to them that they do not have now.

For most victims their case is their one chance. Their whole lives revolve around it. They endure lifelong trauma from the offending against them. The independent victims commissioner for London, Claire Waxman, described the United Kingdom’s right to review scheme as an important check and balance and as empowering for victims. Decisions might be reviewed and determined to be correct, to be reasonable, and this process can give reassurance to victims. Importantly a review of the process in Scotland, where a right to review scheme has been in place since 2015, identified that in 11 per cent of applications the original decision was overturned and proceedings raised. That is one in 10; that is a significant number.

My colleague Stuart Grimley has introduced two other amendments that improve rights for victims, including the requirement for a prosecuting agency to notify victims of their right to make a victim impact statement and the requirement notify to victims of their right to make a compensation or restitution order under the Sentencing Act 1991—more important rights for victims of crime.

I encourage members of the Legislative Council to consider these important recommendations of the VLRC and the victims of crime commissioner and deliver these important rights for victims of crime. I cannot imagine why anyone in this chamber would oppose these amendments that mean so much to victims of crime. I would like to also just insert a quote from our Premier made on social media on 18 February 2020. Mr Andrews said:

Victims should always be supported—no matter what.

Anything less simply isn’t enough.

I would like to ask if we could circulate my amendments.

Derryn Hinch’s Justice Party amendments circulated by Ms MAXWELL pursuant to standing orders.

Ms MAXWELL:

I would just like to give a little bit of a briefing and background in relation to these amendments. My amendment inserts a new requirement for the DPP to seek the views of victims before making a decision to agree to or oppose a sentence indication and requires the DPP to give a victim information about the matters taken into account in making a decision to oppose a sentence indication. The VLRC review of victims’ experiences in the criminal trial process found that victims who are dissatisfied with a decision by the DPP to discontinue a matter or proceed with a guilty plea to lesser charges does not have any right to have the decision reviewed by the DPP, and it recommended a structured process of internal review. The commission considered that decisions cannot be reviewed by any other government entity or the courts and that a structured, transparent process should be established for the internal review of decisions. The victims of crime commissioner supported a system of review. Such systems exist in other jurisdictions, as I stated earlier in my speech.

Broadly, this amendment has a similar purpose, which is to give more rights to victims of crime in the criminal justice process, as does the bill, by requiring the prosecuting agency to advise a victim of crime of their right to an internal review of decisions made relating to plea charges which affect sentencing indications. Victims of crime are the most directly impacted by crimes against the person. A common complaint of victims is that they feel let down and excluded from the justice process, that we have a legal system and not a justice system, as I indicated earlier.

I would like to just quickly give some examples. A person charged with 70 offences against the person linked to family violence has the charges plea-bargained into six consolidated charges. Through the appeals process the sentence is reduced to a community correction order. Victims deserve better than that. A person charged with murder for the death of his partner in an act of family violence has it downgraded to a driving offence. This substantially alters the sentence and parole conditions. The family is of the understanding that the charge may be downgraded through plea-bargaining to a charge of manslaughter but are completely blindsided by the plea-bargain that is ultimately negotiated. This offender receives a longer suspension of his drivers licence than he receives as a sentence of incarceration.

Victims who are dissatisfied with decision-making have no recourse, as I said before, to seek a review of a decision of the DPP. I would ask everyone to please give great consideration to this amendment. The outcome we want is to improve situations for victims of crime, something that Derryn Hinch’s Justice Party fights strongly for each and every day. I commend this bill to the house.