As stated previously, one of the key objectives of the SARP reforms is to improve processes and support for victims of sexual offences throughout the criminal justice system. This chapter considers to what extent this objective has been met, based on quantitative data provided by Wraparound agencies and consultations conducted with representatives from these agencies.
Agency stakeholders agreed that the SARP reforms had, to varying degrees, improved the processes and support for victim/survivors as they progressed through the criminal justice system. However, because of the length of time it takes for many cases to be tried in court, it is difficult to assess the impact of the legislative changes. In general, agencies said they were positive about the reforms, although ‘time will tell’ (Consultation with ACT Policing) how they will affect victim/survivors in the long term once more cases progress through the courts.
Stakeholders commented that, when talking to their counterparts in other jurisdictions, it appeared the ACT is ‘dealing with victims better’ because it engaged CRCC throughout the process and used specialist sexual offence investigators (Consultation with ACT Policing). It was also noted that the type of services victim/survivors want can influence the experience they have within the criminal justice system (Consultation with ACT Policing).
Broadly speaking, the victim/survivors interviewed for this preliminary evaluation had positive experiences with the ACT criminal justice system. Where appropriate, comments from victim/survivors interviewed are included throughout the remainder of this report.
Reporting to police and Wraparound services offered to victim/survivors of sexual offences
Central to the reforms are the services provided by Wraparound agencies. Obtaining evidence via interviews soon after the offence was considered a critical part of the reforms, as this is important for the victim/survivor’s recollection and memory of the event (Consultation with CRCC). How and when Wraparound agencies contact victims can therefore affect the overall level of service and support that is provided.
First contact and referrals to Wraparound
The following information was obtained from the Wraparound database. Some of these data may not capture whether Wraparound services were offered, as this would require data to be captured retrospectively, which is not currently possible. It should also be noted that individuals can consent to Wraparound in the first instance and subsequently withdraw from the process.
Wraparound referrals 2008–09
During the 2008–09 financial year, 245 individuals reported sexual offences to ACT Policing, of whom males comprised 11 percent (n=26) and children (individuals aged 17 years or less) comprised 41 percent (n=100)—including children on behalf of whom a report was made. Children ranged in age from three to 17 years: 43 percent were aged 10–14 years, 37 percent were aged 15–17 years and 20 percent were under 10 years.
Slightly more than two-thirds of all individuals who reported a sexual offence to ACT Policing (69%; n=168) were offered Wraparound during 2008–09. Of those offered Wraparound, 135 (80%) consented to the process.
Of the 100 children (aged 17 years or less) who reported a sexual offence to ACT Policing during 2008–09, 68 (68%) were offered Wraparound. Of those 68 children 51 (75%) consented to the process. Of the 145 adults who reported a sexual offence to ACT Policing during that period, 100 (69%) were offered Wraparound. Of the 100 adults offered Wraparound, 84 (84%) consented to the process.
Most of the 245 individuals had their cases finalised by police as at June 2009—that is, the police had completed investigations. For 15 individuals, cases were either continuing, or ACT Policing was unable to provide data to the AIC because the cases were highly sensitive.
Wraparound referrals 2009–10
During the 2009–10 financial year 280 individuals reported sexual offences to ACT Policing, of whom males comprised 14 percent (n=40). Of those individuals whose age is known (n=278) children (aged 17 years or less) comprised 48 percent (n=132). Children ranged in age from one to 17 years. Children aged 15–17 years comprised 37 percent of all children who reported an offence; children aged 10–14 years comprised 41 percent, and children aged under ten years comprised 22 percent.
Slightly more than half of all individuals who reported a sexual offence to ACT Policing (54%; n=152) were offered Wraparound during 2009–10. Of those offered Wraparound, 115 (76%) consented to the process. Of the 132 children (aged 17 years or less) who reported a sexual offence to ACT Policing during 2009–10, 76 (58%) were offered Wraparound, and 62 (81%) of them consented to the process. Of the 146 adults who reported a sexual offence to ACT Policing during 2009–10, 76 (52%) were offered Wraparound, and 53 (70%) of them consented to the process.
Most of the 280 individuals had had their cases finalised by police as at June 2010 (ie police had completed investigations). For 37 individuals cases were either continuing or ACT Policing was unable to provide data to the AIC because the cases were highly sensitive.
In 2010–11, police referred 161 sexual offence victims to the Wraparound program (VSACT 2011). More detail about these cases is not available for inclusion in this report.
CRCC has noticed a marked increase in callouts since the establishment of a MoU in 2008 with ACT Policing and the Forensic and Medical Sexual Assault Care (FAMSAC) services (Figure 1). As Figure 1 illustrates, in 2004–05 only 23 callout requests were made by police or FAMSAC to CRCC. There have been over 100 callouts each year since the 2008 MoU, with a peak of 202 callouts in the 2008–09 financial year.
Source: Canberra Rape Crisis Centre annual reports (2011, 2010, 2009, 2008); consultations with CRCC.
Identifying victim/survivor needs and providing appropriate support
The needs of victim/survivors are complex and may be influenced by many variables. Support services (eg CRCC, VSACT) have identified many challenges to providing appropriate support to victim/survivors of sexual offences.
Law enforcement, the DPP and the victim support agencies consulted for this study recognised that the ways in which they attempt to assist victim/survivors can often conflict, even though these agencies all aim to give the victim/survivor the best outcome. One key area of divergence is that where police engage with the victim/survivor to obtain sufficient evidence to identify and pursue an offender and charge them for the offence, support services like CRCC and VSACT are more likely to promote exploration of the victim/survivors’ feelings. Often the recollections the victim/survivor gives to the police focus on how the offence affected them rather than on the facts and details of the events, which is what is required for the police to pursue a case in court.
While one or two of the victim/survivors interviewed for this study felt that police could have been more emotionally supportive, others recognised that the police have a discrete role to play and ‘are not social workers’. Since engaging in Wraparound, agencies have indicated that their understanding of these challenges has improved and that the Wraparound process provides an opportunity to discuss any potential issues.
Stakeholders also perceived that the SARP reforms have played an important role in improving victim/survivor access to immediate counselling services following a sexual offence. Prior to the reforms, it was at the victim/survivor’s discretion to have a CRCC counsellor contacted to provide assistance. This was problematic as victim/survivors often declined the offer on the basis of not wanting to ‘disturb’ someone else, particularly if it was late at night or before dawn—times when many sexual offences are reported.
There was also concern about whether a victim/survivor has the capacity to give informed consent at the time of crisis. Since the SARP reforms, the current MoU between ACT Policing and CRCC states that CRCC will be contacted irrespective of victim/survivors’ requests, although there is no requirement for the victim/survivor to engage with the counsellor. This removes the onus from victim/survivors to make a decision about counselling, enabling them to access support services immediately. Since this was introduced, ACT Policing has reported that in the majority of cases the victim chooses to talk to CRCC, whereas prior to the reforms only approximately half agreed to speak to a counsellor (Consultation with ACT Policing). This is reflected in CRCC’s callout figures (see Figure 1 above).
One victim/survivor interviewed for this research commented that she did not think to access support from a counsellor while reporting the offence to police. However, this victim/survivor had a counsellor was made automatically available to her, according to Wraparound procedures, and the victim/survivor found this ‘extremely helpful’. This demonstrates the importance of making access to a counsellor an automatic process.
Contact with victim
Some agencies, such as FAMSAC, have a short-term but essential role in the process (ie providing forensic examinations); others have much longer contact with a victim/survivor. Victim service agencies generally participate in every phase of the process. This might have commenced prior to a victim/survivor reporting to police and may continue for years after the case has been finalised. How Wraparound agencies contact victim/survivors is guided by service agreements and/or agency guidelines. These are outlined in Appendix B (Wraparound service terms of reference).
For example, once VSACT receives a Wraparound referral, it is required to establish contact with the victim/survivor within five working days—and will aim to do so as soon as possible (Consultation with VSACT). This contact must be followed up within seven days. However, it can be a struggle to meet such commitments as VSACT provides services to victims of all types of crime, not only sexual offences.
When the DPP receives a case, the Witness Assistance Service (WAS) initiates contact with the victim/survivor by issuing a letter detailing the type of support it offers and what to expect in the process. The DPP indicated that it tries to meet with victim/survivors at various stages of the criminal justice process to keep them informed. If an accused person enters a plea of not guilty, the DPP (via WAS) will usually meet with the victim/survivor before the case management hearing. Not all cases proceed to case management hearing; if the accused pleads guilty, no case management hearing is needed; and the DPP will offer to meet with the victim before sentencing takes place.
The DPP’s contact with victim/survivors is not restricted; it can meet with them at any time, in particular when the matter has been committed or when the trial date is close (Consultation with DPP). The timing of a meeting depends primarily on when the victim would like to meet with the prosecutor. Staff have found that victim/survivors sometimes do not want to meet with the prosecutor too many weeks before the trial, so as to limit the potential for re-traumatisation. This was considered particularly the case for children.
The DPP indicated that witnesses greatly appreciate WAS, as its staff often develop good relationships with victim/survivors. The DPP attributed this to the fact that WAS staff are not the prosecutors and can therefore appear ‘more human’ to them. For example, while the DPP has to be engaged with the evidence and details of the administration of the case, staff from WAS or one of the other support agencies are able to focus on addressing the emotional needs of victims.
As described above, CRCC can have contact with a victim/survivor at the time an offence is reported to police. The centre also provides support and counselling services through a crisis hotline and often has a long-term support role for victim/survivors. This also includes support for victim/survivors who have not entered the criminal justice system or who have already left but require ongoing assistance. Unlike VSACT, CRCC is not restricted in the number of counselling sessions it can offer to victim/survivors.
Stakeholders consulted for this study also noted that victim/survivors enter the services of support agencies such as VSACT and CRCC at a faster rate than they exit them. Victim/survivors considered ongoing contact to be an important part of the services they received—one victim/survivor noted that she had called CRCC 68 times since her contact with the service began. A number of the victim/survivors interviewed for this research also sought counselling for members of their families (eg parents, siblings, children) in the aftermath of the offence. Thus an additional onus is placed on these agencies to provide support to a growing number of clients without a corresponding increase in resources. Despite this, all agencies believe they are adhering to the requirements set out in the service charter.
Reasons that support is not accessed
As outlined above, not every victim/survivor who accesses support or reports a sexual offence consents to the Wraparound process. Some victim/survivors withdraw from the process after commencing. Reasons for withdrawing include:
- deciding, on reflection, that they are not yet ready for help; and/or
- genuinely not having understood what they were consenting to (Consultation with VSACT).
Although stakeholders considered it important for victim/survivors to have access to the appropriate support services as soon as they reported an offence to police, they recognised that victim/survivors did not always want them. However, it is not uncommon for victim/survivors to change their minds regarding contact with support services, and this can occur at any stage of the criminal justice process, or even years after the event.
One agency commented that ‘a lot of people don’t realise the importance of victim support until they are in it or through it and don’t understand the importance of an advocate’ (Consultation with VSACT). In addition, many victim/survivors were unaware of the importance of a ‘champion’ until the court case drew closer, believing that having a supportive family member or friend would be sufficient support. However, support services are still available at any time throughout the process, even if an individual previously declined an offer of support.
Stakeholders also indicated that victim/survivors do not often realise that court support may be useful not only during court hearings but also during the lead-up to hearings (eg with preparing victim impact statements and/or preparing for other aspects of the hearing). Different agencies can provide support to an individual at various times, depending on need. For example, VSACT and WAS will often liaise with each other prior to a court case to determine who will support the victim/survivor if s/he is attending court. This is done in consultation with the victim/survivor.
Victim/survivors do not always have the same supporter each time. One client requested the WAS representative when giving pre-trial evidence, and was supported by their case worker for cross-examination. The decision is made on a case-by-case basis. The improved collaboration promoted by the SARP reforms has enabled this cooperation among agencies, giving victim/survivors more options to suit their needs at each stage of the process (Consultation with VSACT).
Each agency has a different protocol for contacting victim/survivors who withdraw from Wraparound or who did not consent to the process when first approached. Some victim/survivors are referred to agencies at a later stage in the process if they have declined Wraparound (Consultation with VSACT). If victims have not consented to the process or have withdrawn, VSACT lets them know that it will recontact them in approximately one month to see if they feel the same way. This follow-up is done with the client’s consent and at a time agreed with the client. It was pointed out that this was done because there is often a big difference between what they might think they need initially and what they might need in the longer term. One agency noted that demonstrating what support services provide rather than just asking if the victim/survivor wishes to talk to a counsellor can be a key factor in an individual consenting to support.
Flow of information to victim/survivors
Most information on court processes and the criminal justice system is provided to victim/survivors by VSACT and WAS. VSACT will talk through what they are participating in well before the trial, including a discussion of support options available during the process and preparing the victim/survivor for both good and bad outcomes. This is considered an important strategy to ensure that the victim/survivor has enough information about the criminal justice process and what they are participating in—including defendants’ rights—to make an informed judgement about their participation in the process (Consultation with VSACT).
WAS is the ‘first port of call’ in a victim/survivor’s contact with the DPP (Consultation with DPP). WAS assists victims to take part in, and navigate their way through, the prosecution process without causing unnecessary distress. Within reason, this includes many things, such as:
- providing information on the court process and the progress of criminal matters (usually calling or writing to the victim/survivor after every court appearance to let them know the result and next court date);
- providing information on the victim/survivor’s rights and responsibilities;
- arranging for the victim/survivor to visit the courtroom before the hearing date;
- sitting with and providing support for victim/survivors when they meet with prosecutors and while giving evidence;
- providing referrals to support agencies for counselling and other assistance;
- assisting the victim/survivor with writing a victim impact statement;
- consulting with the victim/survivor on the defendant’s bail applications;
- providing support letters where requested; and
- generally advocating on behalf of victims around the court process (Consultation with DPP).
The DPP noted that by providing these services WAS takes the pressure off prosecutors and allows them to focus on the trial and ‘what they do best’ (Consultation with DPP).
VSACT hosts the Wraparound website, which was developed in consultation with the other Wraparound agencies. Established in 2007, the website offers information to victim/survivors and their families about the criminal justice process, victims’ rights, and support and assistance available to the victim (see http://wraparound.victimsupport.act.gov.au/category.php?id=1). VSACT has expanded the website to include resources for both sexual offence victim/survivors and victim/survivors of other offences.
A booklet was initially developed that outlined VSACT’s services, but this has since been replaced by a set of factsheets (Consultation with VSACT) titled Understanding the criminal justice system. The factsheets outline the different stages of the criminal justice system and were developed in collaboration with other Wraparound agencies. VSACT indicated that it was better to provide victim/survivors with a great deal of information at the start rather than leave them ‘in the dark’ later on (Consultation with VSACT).
The victim/survivors interviewed for this research had varied views about the level and content of the information provided to them before their trials. While they were all given information about the court process, most felt unprepared in some way and/or that the provision of information could be improved—as one commented, because victim/survivors ‘need to be able to make informed decisions’ as they progress through the criminal justice system. A number of the victim/survivors found out details of their court cases in the media rather than from criminal justice system staff. One described this as ‘pretty disheartening’. Another was informed very late in the process that she was only one of a number of victim/survivors giving evidence against an offender. This was a vital piece of information for this victim/survivor, as she had very nearly decided to withdraw from the case, but would not have considered doing so had she known there were other victim/survivors.
Victim/survivors also felt that the information provided to them should not be ‘paternalistic’ or ‘sugar-coated’. For example, most felt insufficiently informed about the probability of delays in the trial process. This suggests that, while service providers try to balance the information they provide to victim/survivors by ensuring it is adequate without alarming victim/survivors unnecessarily or causing them to withdraw from the process—victim/survivors made the point that they greatly appreciate honest and realistic information.
Some gaps in the provision of information were also identified by stakeholders. For example, when court delays occur, it is not always known if the victim/survivor is made aware of or consulted about why they occur (Consultation with DPP). One agency indicated that victims should be kept informed throughout the process beyond the minimal standard specified in the ACT Victims of Crime Act 1994 (Consultation with VSACT). It was suggested that to increase the likelihood of a victim/survivor consenting to the Wraparound process, agencies need to demonstrate why it is preferable to the alternative option of not participating.
Determining the level of information provided to guardians of victim/survivors under 18 years of age has also been problematic. Technically, everyone aged under 18 years is deemed legally incompetent and his/her guardian has a right to access relevant records (such as medical records), but this does not always occur in practice (Consultation with VSACT). In some cases, parents might also control access to the young person, and it can therefore be unclear who is being served—the victim/survivor or the parent(s) (Consultation with VSACT).
It was proposed that parents also need an information guide, because they too can have difficulty understanding and participating in the criminal justice process. This should, however, be balanced against maintaining the dignity of the young person who was offended against. VSACT indicated that it can be complicated when the young person and parent/guardian have different views about whether to proceed with a prosecution, and balancing the needs of both can be difficult. To overcome this, it was proposed that there needs to be a legal framework about informing parents and what information parents can receive (Consultation with VSACT).
Factors that influence the length of time cases spend in the criminal justice system
Reducing the length of time sexual offence cases spend in the criminal justice system was considered by stakeholders to be an essential part of providing better services to victim/survivors. However, it was universally acknowledged that evidence of SARP reforms making the process shorter for victim/survivors appears to be limited. Instead, stakeholders believe that the process now takes as long, if not longer, to be finalised. Due to the data limitations described above, however, this was not able to be examined empirically.
It was estimated that the time between a complaint and finalisation of a case in court is on average approximately two years, and it is rare for cases to be resolved within a shorter time (Consultation with ACT Policing). Although no data were available to review the average time for a matter to be heard in court, the DPP estimated the following timeframes:
- Magistrates Court:
- from first appearance to committal: three to four months
- Supreme Court:
- from post-committal to delivering pre-trial evidence: six to 12 months
- from post-committal to trial date: 18 to 24 months (note that the six to 12 months for pre-trial evidence is included in this estimation).
The time it takes for a case to be finalised is influenced by contextual factors such as whether the offender is a stranger or is known to the victim, whether the victim is a child and how long ago the offence occurred. The stakeholder consultations revealed that the following factors had a direct influence on the length of time a case spends in the criminal justice system:
- the age of victim/survivor (ie whether child or adult);
- whether the victim/survivor lives in the ACT (this can affect access to support and reporting to police);
- when the offence occurred (ie whether a historical or recent offence);
- whether the offence occurred over a long period or was a ‘one-off’;
- when support is wanted and/or accessed; and
- court processes.
These factors are considered in detail below.
Age of victim/survivors
Some agency stakeholders noted that the age of victim/survivors when they were offended against could affect their experience of the criminal justice system and could also influence the expediency of the process. Given the differences noted among children, teenagers and adults, the SARP reforms are unlikely to have an equal impact on every victim/survivor.
Police processes for adult victim/survivors of sexual offences are determined on a case-by-case basis. Police have contact when victim/survivors report to them directly or are referred by CRCC or FAMSAC. In general, the process involves talking to and explaining the process to the victim/survivor.
The majority of reported sexual offences against children are family related. The police process for interviewing and dealing with child victims of sexual offences differs slightly from that for adults. For instance, it is unlikely that children themselves will approach the police or counselling services; police usually receive reports from family members, Care and Protection Services or the school. Who the offender is and how the interview is conducted can influence the eventual progression of a case through the criminal justice system.
Police action and response to a complaint can be influenced by any possible contact a child may have with the alleged offender. In cases that involve children being exposed to family violence, protocols allow processes to move much faster, given the risk posed to the child (Consultation with ACT Policing). For example, in cases in which there is a high likelihood of contact (eg father to child), police require an immediate response. However, an offender is almost always restricted from having contact with the victim via bail conditions.
The interview process also depends on the incident. It may be easier to interview a victim/survivor who has been offended against once by a stranger than a victim/survivor of continual sexual abuse, as children who have suffered repeated abuse may ‘shut down’ emotionally (Consultation with ACT Policing).
How children are interviewed
Interviewing children can be a multistage process involving many meetings to develop rapport between the child and police officer. This can include play-based interactions prior to discussing the offence. Sessions are taped using video and audio and then transcribed. However, in the event of a victim/survivor ‘shutting down’ emotionally, numerous attempts at recording an interview can transpire. This can be problematic as each interview can have slight variations and SACAT is unsure how these will be interpreted when heard in court and whether the variation will affect the credibility of the interview (Consultation with ACT policing).
Teenage victim/survivors were considered by stakeholders to often fall through the gaps that exist in sexual offence services and also to be vulnerable to the ambiguity in sexual offence legislation and reforms. The level of disclosure by teenagers can be influenced by who is present when they are being interviewed. Police indicated that, whereas young children usually talk openly with a parent in the room, teenagers can become embarrassed if they had been engaged in activities prior to the offence that the parents may not approve of (eg smoking marijuana). This can affect the length of time it takes to conduct an interview and potentially the credibility of the victim/survivor’s story if there have been inconsistencies in their story during the report to police. Thus, one-on-one interviews are preferable in these circumstances (Consultation with ACT policing).
Defining age and its impact on available services
The age of victim/survivors can be problematic in applying and interpreting various aspects of the SARP reforms. SACAT points out that there are definitional issues in how to proceed with cases. For example, the age of sexual consent in the ACT is 16 years, yet legally a child is classified as being anyone younger than 18 years. Consequently, in cases of sexual offences, the Crimes Act 1900 considers a young person to be under 16 years and the offence is classed differently from similar offences against victims aged between 16 and 18 years who in other legal matters are considered legally a child. However, 16 to 18-year-olds may still make video recordings of their evidence-in-chief.
This definitional issue can make it difficult to refer victim/survivors to the appropriate support services—particularly, as was raised by some stakeholders (Consultation with CRCC, ACT policing), available services tend not to cater for victim/survivors in this ‘in-between’ age group. This has the potential to affect attrition rates and the victim/survivor’s overall satisfaction with the process—given the importance of appropriate support to victim/survivors remaining in the criminal justice system (Consultation with CRCC, VSACT). It is also yet to be resolved whether a victim/survivor who turns 18 during the trial may use recordings of evidence-in-chief made when they were under 18 or whether they are required to go before court (this issue will be explored in more depth later in this report).
Historical compared with recent sexual offences
Agency stakeholders pointed out that historical offences often take much longer to be resolved in the criminal justice system than recent offences. As explained earlier, sexual offences are often not reported to the police immediately. To reiterate, some factors that can affect reporting include fear of reprisal, not knowing how to report, considering the matter ‘too trivial’ and protecting the offender (see Table 1 for other identified factors). Due to the comparative lack of urgency of these cases with recent offences, they may not be addressed immediately and may not be followed up until an investigator is made available (Consultation with ACT Policing).
A key problem with historical sexual offences is determining when the offences occurred. ACT policing indicated that it is difficult to get information on events that have gone on for years, as investigators need timeframes to interview alleged offenders. Police also noted that child victim/survivors of ongoing sexual abuse often remember the first time and the last time and ‘something in the middle’. This is often also true of adults reporting historical abuse.
It is difficult to report specific events and their dates if the abuse happened on many occasions. This can make a case difficult to pursue and can increase the time it takes to develop a case against an offender (or offenders) (Consultation with ACT Policing). In addition, it is common for victims of long-term offending to talk to the police about how this affected them but not the actual event(s) (Consultation with ACT Policing). Despite the extra time it can take to investigate these cases compared to recent sexual offences, there is no difference in delays or processes between the two once they proceed to court (Consultation with DPP).
Agency stakeholders (CRCC) also noted that it is not uncommon for victim/survivors of sexual offences to not identify as having been raped. As a result, they may not seek counselling or wish to pursue the matter via the criminal justice system. As described above, it can take years before the victim/survivor seeks out professional counselling or police assistance, and this can affect the length of time it takes to investigate and pursue a matter in the courts.
Offences that occurred over a long period compared with ‘one-off’ incidents
As mentioned, victim/survivors who have been offended against once by a stranger can be much easier to interview than victim/survivors who have suffered repeated abuse over a long period (Consultation with ACT Policing). Children who have suffered long-term sexual abuse are considered to be more likely to emotionally ‘shut down’ and may not have the communication skills or support mechanisms in place to make a statement (Consultation with ACT Policing). As with historical offences, it can be difficult to determine dates of the offences (see above) (Consultation with ACT Policing).
The police interview process
Interviewing victim/survivors is often a long and complicated process. ACT Policing indicated that, when an individual reports a sexual offence to the police, as a rule they consider the report to be genuine. One of the more difficult aspects of the process is when the investigator starts ‘testing’ the story. Maintaining a rapport with a victim/survivor becomes difficult, as police questioning can be viewed by the victim/survivor as a cross-examination, particularly as the police, in the course of trying to establish what happened, ‘start picking the story to pieces’ (Consultation with ACT Policing).
If inconsistencies exist, it can take hours or days before investigators are able to identify them. In some cases a victim/survivor may have lied about one part of the story to protect another person. This can become problematic and reduce the credibility of the victim/survivor, which may result in their story not standing up in court. With the improved relationship between the police and CRCC, the police stakeholders consulted for this research noted that they have scope to discuss openly with CRCC counsellors any concerns they or CRCC may have about any inconsistencies in a client’s story and to negotiate the best path forward with that client.
Stakeholders unanimously agreed that most delays are the result of trial processes. It is important to note that the court cannot always influence the reasons behind delays, as these are often directly related to trial processes. Agencies identified the following factors as some of the key reasons behind delays:
- The time it takes to set a trial date—This is influenced by many factors, including (but not limited to) the defence or prosecution not filing the correct documents on time; negotiations between the prosecution and defence over charges and possible pleas; delays in a defendant obtaining representation, particularly if legal aid entitlement is a factor; and pre-trial application matters (eg applications by co-defendants for separate trials, or the defendant applying to have separate trials for multiple matters).
- Judge-alone trials—the delay in judge-alone trials is the result of many verdicts being reserved, which can sometimes take months. Nonetheless, the courts indicate that jury trials appear to run longer than judge-alone trials.
- Trial dates are vacated (ie original date has changed).
- Numerous adjournments can be requested by the defence.
- Verdicts are delayed in being handed down.
- Documents are subpoenaed by the defence team immediately before the trial date set (thus postponing the hearing date).
- Counsel and witnesses are not always immediately available.
- Split cases—two or more charges are being contested where the more serious charge progresses to the Supreme Court and the other/s remain in the Magistrates Court. (This is the result of current sentencing law and not current court processes).
- There are case backlogs in the Magistrates and Supreme Courts (which will be explored in more depth in the subsequent section). and
- Judges call in sick (although this is not common).
Even if an offender has been convicted, aspects of the trial process may still affect the victim/survivor, particularly if an appeal is lodged or a judgement is reserved (Consultation with VSACT). These can lengthen delays in justice faced by victim/survivors, even when cases appear to have been finalised in court.
ACT Human Rights Act 2004
A few respondents indicated that the ACT’s Human Rights Act 2004 can contribute to more lengthy delays in sexual offence cases. In 2004 the ACT was the first Australian jurisdiction to legislate on human rights, basing its Act on United Nations guidelines. The Act covers 17 rights, outlined in Table 7.
|Recognition and equality before the law||Freedom of expression|
|The right to life||The right to participate in public life|
|The right not to be subject to torture and cruel, inhuman or degrading treatment||The right to a fair trial and rights in criminal proceedings|
|The right not to be subject to medical treatment or experimentation without consent||The right to compensation for wrongful conviction|
|The right to privacy and reputation||Protection against double jeopardy|
|Rights of the family and children||Protection against retrospective criminal laws|
|Freedom of movement||Freedom from forced work|
|Freedom of thought, conscience and religious belief||Rights of minorities to enjoy their culture.|
|Freedom of peaceful assembly and association|
There is a perception that the human rights of victim/survivors are being superseded by the rights of the offender in ACT sexual offence trials (Consultation with ACT Policing, VSACT). Police representatives explained that the legislation itself is not the problem; rather, it is the way defence lawyers and other court representatives have applied the Act. Stakeholders perceived that for sexual offence cases the Act has been an advantage primarily for the defendants and is seen to be worded in favour of defendants (Consultation with ACT Policing).
Another agency was concerned about whether the human rights of a victim (eg speedy, impartial processes) are considered when the court is deciding whether to allow an adjournment. The DPP reported that it would strenuously oppose any application for adjournment made by the defence unless there was a valid reason based in law. Overall, it was observed that the number of adjournments in sexual offence cases was comparable to other case types, although adjournment delays can often have often a more negative effect on sexual offence victim/survivors than on victims of less serious crimes (Consultation with DPP).
Delays a global, not SARP-specific problem
Delays were not considered unique to sexual offences, as other cases in the criminal justice system are similarly affected (Consultation with Courts). Therefore, it was proposed that procedural and legislative changes are required across the court system within the ACT to address the underlying causes of the delays. Until this occurs the SARP reforms will have only a modest impact on the length of time sexual offence cases spend in court (Consultation with Courts). The process of change has already commenced, with the introduction of a number of strategies, including:
- the appointment of acting judges in the 2010–11 financial year for nine months to assist in clearing the backlog of cases in the Supreme Court;
- changes to legislation (eg civil matters legislation and bail laws) to streamline court processes and minimise delays where possible;
- a review of case listings; and
- building an additional jury courtroom in the Supreme Court (now totalling three) so that more cases can be heard.
More recently, following a review of case management and listing practices in the ACT, a ‘Supreme Court Blitz’ was announced (on 16 December 2011) to clear case backlogs in the Supreme Court. Short-term additional resources will be used for the ‘blitz’ on current trial listings, which should result in earlier hearing dates for most trials scheduled from mid-2012. (http://cdn.justice.act.gov.au/resources/uploads/Supreme/Practice_Direction_Docket_System.pdf). The docket system will subsequently be introduced and matters not addressed by the ‘blitz’ will become part of the judges’ dockets. The long-term impact of these actions and any court reform has yet to be established. It was noted that the appointment of acting judges was effective in increasing the clearance rates for new cases during this time, but not the current backlog of cases in court (Consultation with Courts).
While it is not possible for the victim/survivors interviewed for this research to comment on overall delays in sexual offences progressing through the ACT criminal justice system, it is important to note that delays were a key concern for all victim/survivors interviewed.
Court and legislative reforms
Although the reforms delivered by the courts are perceived to have only limited impact on court delay, they are perceived to have had a positive influence on the victim/survivor experience of providing evidence both to the police and when a case goes to trial.
On 30 May 2009, new SARP legislation came into force via the Sexual and Violent Offences Legislation Amendment Act 2008 (ACT). These reforms altered how evidence can be given by children, victims of sexual and family violence and other vulnerable witnesses. The primary objectives of this legislation are to provide an unintimidating, safe environment for vulnerable witnesses (including sexual offence complainants) in which to give evidence and to obtain prompt statements from witnesses to best capture evidence (DPP 2009: 13). The legislation incorporated the following changes, accompanied by equipment upgrades to facilitate them:
- a broader range of witnesses being allowed to use remote witness facilities;
- pre-trial recording of evidence given by children, intellectually impaired witnesses and other vulnerable complainants in sexual offence proceedings;
- use of police interviews as evidence-in-chief for child complainants in a range of sexual and personal violence offences;
- prohibition on cross-examination of a range of prosecution witnesses by unrepresented defendants;
- permission for certain groups of witnesses (eg children and witnesses with a disability) to have a support person with them while they are giving evidence (see Part 48, 81C); and
- complainants in sexual offences no longer being required to give evidence at committal hearings.
In March 2012, further amendments were made to the Evidence (Miscellaneous Provisions) Act 1991 (ACT). In particular, amendments have been made to insert existing provisions of the Evidence Act 1971, into the Evidence (Miscellaneous Provisions) Act 1991, which need to be saved when it is repealed. Amendments have also been made to provide that the court is not bound by the rules of evidence and may inform itself as it considers appropriate when making certain determinations. An overview of the key SARP changes are summarised in Box 1. Not all victim/survivors are entitled to all three provisions (Consultation with DPP).
|Closed-circuit television (CCTV)|
|What is it?||Some people are entitled to give their evidence using closed-circuit television, which will link them to the courtroom using cameras and television screens. They will be able to hear, see and speak to the Judge/Magistrate, Prosecutor and defence lawyer but will not see or hear the defendant. (CCTV was already used for children and victim/survivors of sexual offences before the change in legislation but now extends to others, listed below).|
|Who is entitled to it?||
|Pre-trial evidence (PTE)|
|What is it?||A person has their evidence recorded early and this recording is then played at the trial to minimise the risk of trauma to the victim/survivor. The evidence is still given using CCTV and the person still gives evidence-in-chief and is cross-examined. All participants are present in the courtroom except for the jury.|
|Who is entitled to it?||
|Evidence-in-chief interview (EIC)|
|What is it?||A person (usually a child under 18) gives an interview to police that is video recorded. This is then played in court (and to the witness in the remote room) as their EIC to remove the need to give evidence on multiple occasions. The person may still have to answer additional questions from the prosecution, and will still be cross-examined by the defence. The majority of people entitled to an EIC interview are also entitled to CCTV (with the exception of intellectually impaired witnesses in a sexual offence). Similarly, some people giving evidence using an EIC interview do this by using pre-trial evidence.|
|Who is entitled to it?||
Only child witnesses and victim/survivors in sexual offences and intellectually impaired victims in sexual offences are entitled to all three provisions.
Source: Personal communication with ACT DPP, January 2012.
Effectiveness of the legislative changes
The changes to the legislation were considered of benefit to victim/survivors of sexual offences and vulnerable victims of other offences. The evidence-in-chief provisions allow a police interview to be tendered in a trial as a witness’s evidence-in-chief so that the time a vulnerable witness spends giving evidence is limited. However, even where evidence-in-chief recordings are used in a trial, the witness can give further evidence-in-chief and will usually still be cross-examined by the defence during the trial or pre-trial hearing (Consultation with DPP).
In addition, judges have the authority to order recorded pre-trial evidence to be edited before it goes to trial to remove any information a judge deems is not relevant (Consultation with Courts). In 2011, there were 175 requests to use the CCTV equipment. Of these requests, 10 were granted for a pre-trial hearing and 77 for the trial (Courts data). The remaining applications did not result in the use of the CCTV equipment for a number of reasons, including:
- The CCTV equipment and facilities were booked for other cases. In some instances, the equipment is booked for longer than the period for which it is ultimately needed as it is difficult to predict the length of trials;
- Matters were adjourned; and
- Defendants changed their plea to guilty on the day of the pre-trial hearing.
It was noted that not every victim/survivor wishes to use the CCTV facilities at trial (Consultation with VSACT), although it is still very rare in the ACT for a victim/survivor to appear in the courtroom as opposed to the remote witness facility (Consultation with DPP). The DPP will let the victim/survivor decide whether they wish to use the CCTV (Consultation with DPP). One concern with the changes in the laws was whether victim/survivors are able to give evidence at the pre-trial stage, as the legislation imposes restrictions on this entitlement. Clarifying issues such as these was considered best achieved by a revived SARP Reference Group.
There was also criticism about victim/survivors being able to elect to use pre-trial evidence rather than having to prove to the courts that they are vulnerable (Consultation with VSACT). In addition, ACT Policing indicated that the legislation still has gaps regarding children (eg age disparities) and intellectually impaired witnesses. Despite these concerns, all agencies interviewed indicated that the legislative changes were an improvement for sexual offence victims/survivors.
Pre-trial hearings are used to enable child witnesses and vulnerable witnesses in sexual offence matters to give their evidence prior to the trial date proper. It is recorded and then played back at trial (which may be held some months later) (Consultation with the DPP). Pre-recorded evidence and the increased number of witnesses who are able to give their evidence via CCTV have been supported by two additional remote witness rooms (one situated on the court premises, and the other at an offsite location).
The experience of using the pre-trial hearings so far has been considered beneficial for victim/survivors, as it allows them to give evidence earlier in the process than was previously the case, thereby minimising potential trauma. However, the DPP, pointing out that this option is limited to children, intellectually impaired witnesses, and witnesses who could become distressed by the delay, has proposed expanding the provision to allow all victims of sexual offences to give evidence prior to the trial if they wish.
Currently, adult victims have to make a special application to the court, which can be stressful. It should also be noted that not all eligible victim/survivors would opt to have their evidence recorded at a pre-trial hearing. One of the victim/survivors interviewed for this research was given the option of a pre-trial hearing but opted instead to give evidence in court via CCTV, as she felt this would give her ‘more control’. This victim/survivor felt that police supported her decision to do so as it may have made her evidence appear more valid.
Remote witness facilities
The remote witness facility was singled out as being a very positive aspect of the SARP reforms (Consultation with DPP, VSACT). One of the advantages of the facility is that it is located offsite. Not being in the same building as the courts (Consultation with VSACT) reduces the chance of the victim/survivor encountering the offender during the trial. Victim/survivors of a sexual offence also do not need to ask to use the remote witness facility, as it is automatically made available to them (Consultation with VSACT). Most victim/survivors use the offsite facility rather than the witness rooms located onsite. The only time this would not occur automatically is if the room is already booked for another case, although this has not happened to date (Consultation with Courts).
The remote witness facility room is equipped with a hearing loop for people with auditory disabilities and is considered comfortable to use. In particular, it is large enough to have a support person and the SARP technology officer present during the pre-trial hearing (Consultation with Courts). Having the SARP technology officer on hand during the trial in case any technological difficulties arise also streamlines the process. During pre-trial recording, the victim/survivor’s image is projected into the courtroom via audiovisual link to enable the jury and defendant to see the witness while s/he gives evidence. The victim/survivor sees the judge and the bar table on a split screen, but not the defendant (Consultation with Courts). This technology also allows the defence or prosecutor to display evidence to the victim via a ‘document camera’, which is considered an essential part of the court process. The document camera technology was funded outside of the SARP reforms, but has nevertheless contributed to the improved remote witness room facilities the reforms introduced.
Both stakeholders and victim/survivors suggested that some aspects of the remote witness facilities could be refined. Victim/survivors were generally supportive of the remote witness facilities and the option of giving evidence and being cross-examined via CCTV instead of in the courtroom. Nonetheless, some issues remain. For example, one victim/survivor was pleased she could give evidence via CCTV but was disappointed that this meant she could not follow (or even hear) the rest of the case. Another victim/survivor commented that, as it was not made clear to her when the audiovisual equipment would be switched on, she was unable to prepare herself to be seen in the courtroom. In general, victim/survivors felt that more information about, and perhaps even practice with, the audiovisual equipment would have been helpful.
Similarly, stakeholders supported the remote witness facility and audiovisual equipment but reported a number of remaining issues. For example, the connection between the court and the witness room sometimes drops out, and this can disrupt the flow of evidence being given by the witness (Consultation with DPP). In addition, sometimes the view that the victim sees in the remote witness room is not the correct view (eg only the judge is visible and not the lawyers). Sometimes there is concern that attempting to change the view will result in losing it altogether (Consultation with DPP).
The DPP noted that, even though the judge’s associates are trained in the use of the SARP equipment, there can still be difficulties—equipment malfunction has led to some trials being delayed by a few hours (Consultation with DPP). The DPP recognised the important role that the SARP technology officer plays in ensuring that the equipment functions but noted that it can be difficult for that officer to provide expertise when cases are being heard in separate courtrooms (or a courtroom and the remote witness room) at the same time. The DPP therefore advocates having additional trained SARP technology officers skilled in Information Technology to be on hand to offer the technological expertise that judges’ associates are not always able to provide (Consultation with DPP).
It was suggested that training on the SARP equipment should extend to teaching users of the remote witness rooms how to handle the equipment, including how to adjust the view displayed on the audiovisual equipment, and what the most acceptable view is.
Functional issues with the remote witness facilities have also been identified. It was reported that family or supporters sitting in the waiting room to the offsite witness room could clearly hear the entirety of the evidence given by the victim/supporter. This can jeopardise the case if the family member or supporter is also a witness, apart from the fact that many victims do not want their family members to hear their evidence (Consultation with DPP).
While both stakeholders and victim/survivors believe the new physical and audiovisual facilities leave room for improvement, it should be noted that views about the facilities are largely subjective, and in some cases those consulted for this research made somewhat contradictory comments. For example, while one victim/survivor felt that having the toilet facilities inside the onsite witness facility was convenient and reduced the potential of seeing the defendant or the defendants’ supporters, another commented that it was inappropriate given the small size of the room and non-soundproof toilet doors.
While it was considered positive that the SARP reforms have reduced the number of victims being cross-examined in the witness box (Consultation with ACT Policing), police reported that pre-trial hearings are also becoming increasingly delayed. In one instance a child waited more than 15 months to get a pre-trial hearing set. This is problematic as the delays can be traumatic for a child. Police also noticed that, if pre-trial hearings occur two to three years after the event, children can ‘lose interest’, which can have a negative impact on the case outcome. Again, however, quantitative data were not available to further examine the issue of pre-trial delays.
Whereas ACT Policing noted that giving pre-trial evidence can be beneficial for younger children so that they can have it over with and try to ‘move on with their lives’, VSACT commented that this is not always the case. Instead of being ‘free to go’ and moving on, some child victims often still ‘live in limbo’, the offence having had, and continuing to have, a significant impact on their lives. This is particularly the case if the accused person is still in the community or in the child’s life (VSACT).
Following the reforms to the committal process, many stakeholders perceived a reduction in the time cases spent in the Magistrates Court. However, those reforms had no application to the Supreme Court, where delays continued—although the DPP believes that the 2012 ‘blitz’ has the capacity to significantly reduce them (Consultation with DPP).
The purpose of committal hearings is to determine whether there is enough evidence for a case to go to trial. In a magistrate committal hearing, this could be decided over a day or a few weeks and may require witnesses to attend and give evidence. In contrast, paper committal hearings only require the prosecutor to tender statements on which the magistrate makes a decision to commit the matter—with no need to call witnesses to testify. The benefit is that matters can be committed for trial more quickly; where the evidence needs to be tested in more depth, this now occurs during the trial in the Supreme Court.
Paper committal hearings are now in place for all matters in the ACT, but the prosecution or defence can make an application to have some witnesses give evidence at magistrate committal hearings. However, there is a prohibition on requiring victim/survivors of sexual offences to give evidence at this stage. It is now uncommon for the defence to apply for any evidence to be heard at a committal hearing. Consequently, these cases are moving to the Supreme Court faster, thus providing a superficial change in where trial delays occur, even though the overall delay is approximately the same (Consultation with DPP). Currently, cases are being issued trial dates for mid-2013, although pre-trial hearings can occur a year or so earlier. The proposed Supreme Court ‘blitz’ is expected to have a positive impact on trial delays (Consultation with DPP). A large number of matters are now listed for April to May 2012 and July to August 2012.
The use of pre-recorded evidence is also seen as a key step in providing more of a voice to vulnerable victim/survivors, especially those who have minimal verbal communication. For example, victim/survivors with intellectual and/or sensory disabilities are unlikely to give evidence in court, so the capacity to pre-record evidence is an important tool for them (Consultation with CRCC).
Children’s reactions to recording interviews can vary. Some like the idea and think it is ‘cool’; others find the process very uncomfortable (Consultation with ACT Policing). Stakeholders noted that any type of victim, and regardless of age, can be uncomfortable with this process. A major issue with conducting pre-recorded interviews with victim/survivors—especially if they have suffered long-term abuse—
is getting them to explain the events chronologically and in detail (Consultation with ACT Policing). Police will often record multiple times in order to obtain a usable recording but are then concerned that this could be misconstrued as ‘coaching’ the witness. At the time of the evaluation, this concern had yet to be tested in court.
Number of pre-recorded evidence-in-chief interviews conducted and number of evidence-in-chief interviews used in court
The police do not currently have the means to determine how many children have been interviewed in accordance with the legislation on use of pre-recorded evidence-in-chief. These numbers are not easily captured or monitored, especially since child victims of other offences can also be interviewed according to the same process.
Practical considerations when applying the evidence-in-chief provisions
In practice, there have been some hindrances to applying the provisions of the new legislation for the recording and use of evidence-in-chief provisions. For example, the terminology used in the legislation has made it difficult to adhere to the changes introduced (Consultation with ACT Policing). Other issues include:
- Sharing information with ACT Care and Protection Services.
The reforms have made it more difficult to provide information to other related services, in particular the ACT Government’s Care and Protection Services (CPS) (a service provided by the ACT Office for Children, Youth and Family Support). Prior to the SARP reforms, CPS staff were able to obtain a copy of a young person’s interview from police; under the new legislation, police may no longer provide CPS with a recording of an interview, even if a CPS representative had been present during the interview.
- Interstate interviews.
Interviews conducted with children or vulnerable witnesses interstate often cannot be used as evidence—either because the law requires the interview to be conducted by a ‘prescribed person’ (see below) or because other jurisdictions may not provide copies of the interviews. This could require a child to ‘go into the witness box again’ (Consultation with ACT Policing). If a child is interviewed interstate there might be duplication as the reporting individual might disclose offences in both NSW and the ACT. Police noted that it is common in cases of long-term sexual abuse that some if the incidents will have taken place in the ACT and some in NSW. Best practice would be to get the whole story off the child on tape so that, even if a child makes a report at an ACT police station about events that happened in NSW, ACT Policing can provide the relevant details to NSW Police.
- Prescribed person division.
The legislation requires interviews for evidence-in-chief to be conducted by someone trained in the legislative requirements. Consequently, although an experienced officer ‘on the road’ might complete a very good interview, this cannot be used if the officer is not appropriately recognised as a ‘prescribed person’. This could mean that a child or vulnerable witness may need to have more than one interview.
- Length of time between reporting to police and case being finalised in court
At the time of the evaluation, there were no data available to measure the length of time between reporting to police and cases being finalised in court. Data were also not available to measure the length of time each case spent in the Magistrates Court and Supreme Court respectively. This was due to different reporting practices and agency representatives not having sufficient time and/or resources to dedicate to the task. However, the importance of this information was recognised by most agencies; any further monitoring of court delays should investigate these data if practicable. As noted earlier, agency stakeholders commented that it can take at least two years for a case to be heard in court. This does not include the time it takes for victim/survivors to report an offence in the first instance.
Improved court services
Numerous changes have been introduced to support the legislative changes and additional services proposed as part of the reforms. As raised earlier, this included access to a remote witness facility and an additional court person. However, the success of these reforms was considered underpinned by what technology and technical support is available (Consultation with Courts, ACT Policing). In particular, the presence of the SARP technical officer was considered essential to making sure the rooms and equipment run smoothly (Consultation with Courts).The SARP technical officer attends each pre-trial recording to ensure all equipment is working correctly. If the officer is unavailable, a back-up officer is used (Consultation with Courts). This service is also perceived to be facilitated by the good relationship that the SARP technical officer has with the court equipment technicians (Consultation with Courts).
SARP funding was initially provided to fit out two courts with equipment upgrades and provide two remote witness facilities connected by CCTV (Consultation with Courts). At the same time the courts received additional funding from the Court Improvement Project to upgrade facilities in the Magistrates and Supreme Courts. As a result, six courts now have technology upgrades and improved facilities, and there are now four remote witness rooms: two are located in the Magistrates Court building, one is on the Supreme Court premises and the fourth is the offsite witness facility. The combination of these two funding sources means there is now more scope for victim/survivors to access these services than was initially set out in the SARP reforms.
Improved technology and equipment
Agencies recognised that there has been a vast improvement in available technology, resulting in clearer recordings of victim/survivor evidence and greater visual and audio capability. This is due to not only the better audio and visual quality of the equipment but also the support provided onsite by the SARP technology officer if required. This improvement has benefited victims of a broad range of crime, including victim/survivors of serious crimes other than sexual offences (Consultation with ACT Policing).
Before the equipment was upgraded agencies remarked that the sound quality was low and that the victim/survivor would often have to lean into the microphone when giving evidence and speak up to enable the audio equipment to make a coherent recording of the evidence (Consultation with ACT Policing, DPP, Courts). It was also difficult to see the person giving the testimony, as the picture was often blurred. Some stakeholders reported that these issues are no longer present due to the upgrades, whereas others still reported difficulties. In general, victim/survivors felt that equipment worked well.
In a number of cases the equipment has failed or not recorded as a result of a technological or human error (Consultation with Courts). There have been occasions when a victim is ready to give evidence but the technology has failed, and the victim has had to wait hours to begin giving evidence (Consultation with DPP). To reduce the likelihood of this occurring again, the courts have installed a back-up system that records a second copy of pre-trial evidence on a hard drive. This system was funded outside of the SARP reforms (Consultation with Courts). Minor adjournments are also allowed if there is equipment failure, including the capacity for equipment to be moved between courtrooms if necessary (Consultation with Courts).
Availability of equipment and number of people who chose not to use the video equipment
The equipment and witness rooms have been available for all relevant sexual offence cases (Consultations with Courts). It is difficult to determine how many victim/survivors of sexual offences chose to use the video equipment. While the courts do collect information on who uses the equipment, these data include child witnesses, who are entitled to give evidence via an audiovisual link in any matter before the courts—that is, for offences other than sexual offences. However, there have been no recorded sexual offence matters where the victim/survivor has chosen not to use the video equipment.
Number of people who choose to use the one-way screen
To date there is no record of anyone using or requesting to use the one-way screen (Consultation with Courts). As almost all victim/survivors give evidence via CCTV and as the legislation prohibits the accused being in view of the victim/survivor in the CCTV room, the use of the screen was considered by some stakeholders to be relatively redundant (Consultation with DPP). However, others considered it important for victim/survivors to have the option available if required.
Additional support staff in DDP
As part of broader reforms by the DPP independent of the SARP reforms, a new section with specialist prosecutors to deal with sexual offence cases has been created. This has appeared to have a positive effect on SARP processes in a number of ways:
- Since its appointment in December 2009, the section has been in monthly meetings with police. The meetings are thought to be of high quality and usefulness.
- The introduction of the DPP’s new data collection system was considered the result of the Senior Prosecutor having time to develop it due to increased staff capacity (Consultation with DPP).
Specialist prosecutors can build expertise in sexual offence matters, which has resulted in the DPP and other Wraparound agencies developing better and more stable working relationships, which may ultimately benefit victim/survivors (Consultation with CRCC).
Who provides support to victim/survivors?
Besides accessing the support of agencies such as CRCC, VSACT and WAS, victim/survivors also obtain support from friends and family throughout the criminal justice process. Who the supporters are can vary, and this often depends on the relationship between the victim/survivor and offender (Consultation with CRCC). However, it was raised that the supporters of victim/survivors also need to have access to appropriate support networks, as their capacity to deal with the offence and criminal justice processes can have an impact on the victim/survivor’s wellbeing and hence the attrition rate (Consultation with CRCC).
For victim/survivors who have contact with CRCC, supporters are predominantly non-offending mothers. The fact that parent supporters may also be victim/survivors of sexual offending (Consultation with CRCC) limits their capacity to make judgements about what is safe or ‘normal’ for their child.
Supporting the supporters
How supporters react throughout the criminal justice process can also depend on their relationship with the victim/survivor. The low incarceration rates for offenders can be traumatic for the supporters (especially parents) as much as for the victim/survivors, as they often perceive that ‘justice has not been done’ (Consultation with CRCC). It was reported that parents often suffer self-blame for the events, and can have both an offending child and a victimised child, thus further complicating the support needs for both offender and victim/survivor. Although they might encourage reporting the offence, it was mentioned that sometimes non-offending parents feel excluded from the criminal justice process. Moreover, parents can often feel they have failed to protect their child, especially if the offender accessed the child via his/her relationship with them (Consultation with CRCC).
Despite the improvements in providing support to sexual offence victim/survivors, Wraparound agencies identified key gaps in the services that could influence their capacity to remain in the criminal justice system. Some of these gaps have been raised earlier in this report, such as the limited nature of services for victim/survivors who are considered neither children nor adults. ACT Policing identified that male counsellors for young male children are not readily available, which they discovered after a request to access a male counsellor was not able to be accommodated. One male victim/survivor interviewed for this research also commented that, in general, services to support those affected by sexual violence assume the victim/survivor is female. There is also a lack of available Aboriginal and/or Torres Strait Islander counsellors (Consultation with ACT Policing).
Services for victim/survivors with a disability
A key gap in services not addressed by the reforms is the experience of victim/survivors with a disability (Consultation with ACT Policing, CRCC). These individuals were considered ‘very vulnerable’ and often do not progress far through the criminal justice system. (Consultation with CRCC). This was attributed to their being assessed as a potential ‘unreliable witness’ by the police or the DPP, particularly if they are children (Consultation with CRCC).
However, stakeholders noted that these assessments are not necessarily a reflection of police and/or the DPP’s belief in the credibility of victim/survivors with disabilities; they are often based on the likelihood of the evidence not being accepted within the courts. There is also an acute lack of services available to disabled victims/survivors, particularly if they are children (Consultation with ACT Policing).The use of pre-recorded evidence-in-chief is a key step to overcoming some issues, and it was suggested that it could be worthwhile training SACAT staff on how to interview intellectually disabled victim/survivors, particularly in relation to their use of body language to communicate (Consultation with CRCC).
Needs of CALD victim/survivors
The impact of the reforms on CALD victim/survivors was difficult to determine. CRCC noted that few CALD victim/survivors become clients or report a sexual offence. However, they have observed that a lot of young international students, predominantly women, are sexually assaulted on or around the Australian National University campus. Anecdotally, it appears that CALD victim/survivors are usually concerned about their family’s response to the incident as they are ashamed of the attack (Consultation with CRCC). There can also be language and cultural barriers when providing services to CALD victim/survivors. For example, some may need to use a translator to pursue the complaint. VSACT noted that some CALD victim/survivors may need the support service to help them develop a reason for trusting the processes available to victim/survivors, particularly if they have come from a culture where there is a lack of trust in the police and criminal justice system (see Taylor & Putt 2007).
Services for offenders of sexual violence
It was raised that there needs to also be a focus on offenders of sexual violence, particularly when the offender is a child. It was specifically mentioned that parents of children who offend are the ‘forgotten victims’ (Consultation with CRCC). In addition, there are few agencies that support children who are sex offenders in the ACT after they turn 10 years old (children aged under 10 years can be referred to CARHU). CRCC noted that they do not provide services if the victim/survivor is also an offender unless they are working with families that include both the victim/survivor and offender.
Need for continuity in services provided to victim/survivors
Continuity for victim/survivors was considered an important factor in supporting them throughout the criminal justice processes. Both CRCC and ACT Policing conceded that a key limitation is the turnover of staff in SACAT due to officers being rotated out of the team after three years. Although the possibility of an extension to four years exists, in practice officers are usually moved after two years (Consultation with ACT Policing). This practice is designed to encourage career development across multiple policing areas.
It is recognised that in the area of sexual offending it can take a long time to build up expertise, and that officers often want to stay in the area but are required to rotate to another. As sexual offence cases can sometimes last more than three years, victim/survivors may have to deal with more than one officer in succession, which is not considered ideal (Consultation with CRCC). CRCC and ACT Policing also noted that they have often built a good rapport and collaborative relationship with members of SACAT, and this process has to recommence with each new SACAT member. However, rotation of officers is recognised as being part of ACT Policing’s broader policy and not limited to SACAT.
Victim/survivors stressed the importance of having continuity in the law enforcement and support personnel they deal with. For example, one victim/survivor had the same police officer throughout her case, but three prosecutors in quick succession, which she ‘hated’. Another victim/survivor ‘felt abandoned’ when her VSACT counsellor retired, especially given that she had disclosed so much personal information to that counsellor. Two of the victim/survivors interviewed reported that their detectives maintained contact with them even after being rotated out of SACAT. One victim/survivor saw the detective working on her case as ‘my detective’ and said ‘his case is my case and that is a huge comfort to me’.
Victim/survivor satisfaction with the process/outcomes
Gauging victim/survivor satisfaction with the criminal justice process is essential to any meaningful evaluation of the SARP reforms. As CRCC pointed out, a victim/survivor’s wishes are paramount, but it can be difficult to determine the extent to which these are met. The success of an outcome can be different when measured against the goals of the various parts of the criminal justice system and a victim/survivor’s needs. For example, the primary goal of ACT Policing is to investigate the offence, arrest the offender and collect enough evidence to prosecute the offender in court, while the DPP aims to obtain a conviction against the offender. On the other hand, victim/survivors may only want to report the offence for ‘closure’ or to focus on their own ‘healing’ rather than to pursue the case (often for years) in the courts.
ACT Policing indicated that responses from victims regarding their satisfaction with the outcome of cases are mixed. Police pointed out that the victim/survivor’s satisfaction may depend on their expectations prior to disclosing the offence to police. In other words, did they expect a conviction or did they just want their story to be heard and believed? CRCC noted that many victims—both adults and children—want ‘their day in court’ and ‘to be heard’. However, reporting can be a double-edged sword: while many victim/survivors want legal validation of their experience, the court process may involve delays and uncertainty, even if a conviction is eventually recorded (Consultation with CRCC).
There have been a number of cases in which victim/survivors and their supporters have not been satisfied with the process. In one example the police gained a successful prosecution of an offender, but the family of the victim/survivor were extremely unhappy, as they did not want the case to go to court in the first place. On the other hand, police have engaged in cases in which victim/survivors indicated that the response of investigators and the CRCC went well beyond what they expected (Consultation with ACT Policing). Conversely, CRCC clients often wanted the DPP to proceed with a case, but this was not always followed through.
Police and the DPP indicated that sometimes the victim/survivor may not provide enough information to prosecute or may not understand why a case is discontinued. The DPP indicated that it meets with victim/survivors prior to any decision to discontinue a prosecution (Consultation with DPP). If at this meeting a decision is made not to proceed to prosecution, the victim/survivor is able to ask the prosecutor to explain the decision-making process and to give them the opportunity to ask questions about it (Consultation with DPP).
Overall, key stakeholder agencies found the SARP reforms to be beneficial for victim/survivors because it brought them additional choices for pursuing their cases through the criminal justice system (Consultation with CRCC). The low level of complaints against police from victim/survivors was seen to indicate victim/survivor satisfaction with the process (Consultation with ACT Policing). However, it is unclear how this compares with the level of complaints prior to the SARP reforms.
In general, and as indicated throughout this report, the victim/survivors interviewed were satisfied with the criminal justice process. Indeed, while the victim/survivors had suggestions on how the process could be further improved (as detailed elsewhere in this report), many of their key concerns were not about the criminal justice process per se but about the broader experience of being a ‘complainant’ in a sexual offence trial.
For example, in high-profile cases, some victim/survivors found the presence of the media, and the detailed media reports of their cases, difficult to contend with. Furthermore, coping with social pressure, including from friends, family members and the broader community, was considered by some to be one of the most difficult aspects of the experience. One victim/survivor was physically assaulted by supporters of the offender, and two were pressured not to pursue their cases. One victim/survivor even expressed the new-age sentiment among friends that she subconsciously ‘drew the offence to herself’.
Some victim/survivors reported feeling ‘dropped’ or ‘cut off’ after their trial, particularly by prosecutors. One felt that, particularly in very complex and/or intrafamilial sexual offence matters, guidance from service providers about strategies for managing after the trial would have been helpful. Finally, victim/survivors reported feeling that they lacked control over their cases, and the outcomes of cases. For some, the motivation for pursuing the case (ie wanting the offender to get help) was at odds with the primary purpose of the criminal justice system (ie to secure a conviction). As one victim/survivor commented, a sense of control is critical for victim/survivors of sexual offences, as ‘victims have already had control taken away from them’.
Despite the perceived shortcomings of the current criminal justice process for victim/survivors of sexual offences in the ACT, and the broader pressures placed on victim/survivors who participate in the criminal justice system, all those interviewed for this study (including those whose cases resulted in a verdict of not guilty) said they would report the offence again and would advise others to report sexual offences to police. In line with previous research, victim/survivors said that, despite the delays and difficulties encountered, they would report again because ‘it is the right thing to do’ to ensure that others are not victimised in the future, and/or to ensure the offender is held accountable or receives help. Victim/survivors’ reasons for choosing to stay in the criminal justice process are discussed in more detail below.