ALRAC 2016 Melbourne

ALRAC 2016 Melbourne

Melbourne Law School

University of Melbourne

4 March 2016

Session 5: ‘Big picture’ conceptual references: how appropriate are these for law reform agencies?

The Honourable P.D. Cummins AM

Chair, Victorian Law Reform Commission

I

I warmly commend Professor Croucher upon her excellent, and most comprehensive, Paper, and I look forward to discussion stimulated by it. In symbiosis – a splendid 1970’s word – with her, I would like to apply her analysis to a discrete inquiry: that of the Victorian Law Reform Commission (VLRC) on the Role of Victims in the Criminal Trial Process. Then, in acknowledgment of the most valuable Papers presented at this conference and the thoughtful discussion generated by them, I would like to broaden my remarks to comprehend matters which have arisen in earlier Papers.

II

The VLRC reference certainly meets the criterion of ‘big picture’ conceptual reference: it addresses no less than the nature of the criminal trial process. The reference was received from the Victorian Attorney-General on 27 October 2014 and is due for report by 1 September this year. It is a current reference, with the Commission’s report yet to be finalised and to be delivered to the Attorney-General and thence to be tabled in the Victorian Parliament. Thus this Paper does not express the Commission’s views or conclusions upon the subject matter. They are for the report to the Attorney-General and to Parliament and are yet to come. However, there is much material already on the public record, because the operational philosophy of the Commission is to be transparent. This public material includes substantial published submissions of stakeholders including the courts, the legal profession, victims – many victims – and the public. From this rich lode a coherent analysis on the subject of this session may be mined. I wholly agree with Professor Croucher that it is necessary in an inquiry and report to formulate a proper conceptual framework; and that, to use her words, “The power of using framing principles is the clarity for the public policy reader”.[1]

III

The Role of Victims terms of reference are the following:

The Victorian Law Reform Commission is asked to review and report on the role of victims of crime in the criminal trial process.

In conducting the review, the Commission should consider:

(a)the historical development of the criminal trial process in England and other common law jurisdictions;

(b)a comparative analysis of the criminal trial process, particularly in civil law jurisdictions;

(c)recent innovations in relation to the role of victims in the criminal trial process in Victoria and in other jurisdictions;

(d)the role of victims in the decision to prosecute;

(e)the role of victims in the criminal trial itself;

(f)the role of victims in the sentencing process and other trial outcomes;

(g)the making of compensation, restitution or other orders for the benefit of victims against offenders as part of, or in conjunction with, the criminal trial process; and

(h)support for victims in relation to the criminal trial process.

Three things are immediately apparent. First, the reference is about trials, not summary proceedings.[2] Second, it relates to the court process itself, not to ancillary non-curial procedures important though they are.[3] Third, it does not involve sentence dispositions or outcomes – that is, sentence levels.

Applying Professor Croucher’s methodology, we first identified what the reference comprehended and did not comprehend. We determined that committal proceedings – which still occur in Victoria – were comprehended by the reference so far as these proceedings related to victims: first, because such proceedings are pendant upon and inherently linked to the trial; and second because they are part of the victim’s curial journey. We also concluded, for the same two reasons, that sentence proceedings (but not outcomes) were comprehended by the reference.

Thus at the outset we decided, on a proper reading of the term of reference, what was in and what was out. A necessary analysis in any reference; the more so in a large reference.

The Commission then, as is its method, consulted stakeholder groups, published a Consultation Paper, consulted the public extensively face-to-face, electronically and in print, held roundtable meetings with experts in the field including with victims, published material online and now is writing our final report. But because of the depth and breadth of the reference, the Commission took a further step: we published, at the outset, four Information Papers. This was to assist in disseminating factual data, so that submissions and consultations would be better informed. The Papers were:

• Information Paper 1:History, Concepts and Theory;
• Information Paper 2: Who Are Victims of Crime and What Are Their Criminal Justice Needs and Experiences?;
• Information Paper 3: The International Criminal Court: a Case Study of Victim Participation in an Adversarial Trial Process;
• Information Paper 4: Victims’ Rights and Human Rights: the International and Domestic Landscape. These Information Papers have proved invaluable in their purpose.

I commend Information Papers as a process if you have the capacity to do them.

As you would expect, in consultation the Commission has been scrupulous to respect the feelings of victims and astute to provide them with appropriate support. Many deeply felt, intimate and stressful stories have been placed before us.

The courts, and the law, have a proud tradition of securing the legitimate rights of accused persons. Accused persons have legitimate and important rights: the prosecution bearing the onus of proof, notice of and testing of evidence, the right of silence, and a fair trial. These rights should not be deflected or diminished. But there is no inconsistency, and no necessary alternative, between securing the legitimate rights of accused persons and the securing of legitimate rights of victims. In 2002 in England, Lord Steyn spoke of “the familiar triangulation of interests of the accused, the victim and society”.[4] It certainly is not familiar in Victoria. It is time that it is. This reference goes to that matter. That is the conceptual framework, to use Professor Croucher’s correct analysis, of this reference. It is the function of the Commission to articulate, affirm and propose the implementation of the rights, needs and proper role of victims in the criminal trial process. What is the proper role of victims? Participants? Bystanders? Invisible? One senior and responsible victim – whose daughter had been violently murdered and whose body has never been found – described how he and his wife were treated by the court as ‘annoying tourists’.

In the Consultation Paper published in July this year, in order to guide submissions to the central question of the role of victims rather than other matters, the Commission posited three potentials: the victim as a protected witness, as a participatory witness, and as a prosecuting witness. There are of course victims who are not called as witnesses, and their rights are important. It is plain that victims need, and deserve, information. It is plain that victims need, and deserve, respect. Witness victims should be tested; but they should never be bullied, abused, demeaned, or treated with sarcasm or offence. Nor should they be the subject of stereotype – usually male. This reference thus far has revealed a gulf between what some of the judiciary and the legal profession, on the one hand, and an overwhelming mass of victims, on the other, consider is a just trial. And what respect means.

V

I would like now to broaden my remarks to some issues of general application and which have arisen during the Conference. Again, I use the experience of the VLRC as a fulcrum through which the issues may be viewed. I am conscious that the VLRC is a well-established, well-resourced entity with the benefit of eight distinguished Commissioners, who are part-time, a skilled full-time staff of eight, and specialist staff retained on a contract basis for appropriate references.

As Chair, I now lead all references. When I became chair, Dr Ian Hardingham QC, the distinguished Victorian silk, was Specialist Commissioner leading the succession reference; and he was subsequently appointed a part-time Commissioner, much to the benefit of the Commission. Dr Ian Freckelton QC was appointed Specialist Commissioner for the Medicinal Cannabis reference in 2015 because of its short timeframe. While warmly acknowledging the value and contribution of Specialist Commissioners,I think the Chair leading all references has the benefit of producing consistency of values and unity of method.

The Commission seeks to have an approximate equality of criminal and civil references. That is appropriate.

Importantly, the Commission is committed to completing references on time and on budget. Government is entitled to this.

The Commission should, and does, have general regard to the likely costs of its recommendations. This is part of being responsible. In a handful of references the Commission has specifically been asked to consider cost. While occasionally such a request is apposite given the nature of the particular review, I think that generally it is better for government rather than the Commission to examine likely constituent and total costs of recommendations. That is because cost analysis is not a specific area of expertise of the Commission, whereas it is a specific area of expertise of government. Further, cost inevitably will depend on which recommendations, and to what extent and in what sequence, are to be implemented. That is a matter for government. However, I firmly consider that the Commission should be cost-conscious generally in its recommendations, without derogating from the integrity of its conceptual analysis or from the honesty of its recommendations.

For like reason, the Commission is, and should be, conscious of the number and practicality of its recommendations: not only as to cost, but equally as to legislative and administrative implications. Excessive and unnecessary recommendations should be avoided. Recommendations should be made only where there is a clear and cogent case for them. Again, this is part of the Commission being responsible.

As with financial calculation, so too with legislative drafting. Drafting is a specialty of government and not specifically a specialty of the Commission. On some few occasions the Commission has been asked to formulate drafting. While such requests were appropriate, again I think the better course is for government to bring its own specialist expertise to this task, after government decides which recommendations to adopt and to what extent. Former Chief Parliamentary Counsel, Victoria, and Law Draftsman, Hong Kong, Eamonn Moran QC is a part-time Commissioner but in a generalist capacity of much benefit to the Commission.

The Commission does, and should, consider the reality that recommendations need to be able to be translated into legislation, and legislation that is consonant with other legislation and is accessible and not dense or convoluted. This is part of our responsibility.

VI

I would like to draw out the themes of independence, cooperation, and mutual respect from the review of the function and work of the Commission. These themes have general application to the work all of us do.

First, independence.

The VLRC is an independent entity, with its Act of Parliament securing and governing it. The Commission is not independent in the appointment of its Commissioners, which is made by government (although once appointed, Commissioners, being Governor-in-Council appointments, have security of tenure for the duration of their appointment); nor in the provision of its funding, which is by Appropriation Acts and the Public Purpose Fund; nor in the provision of its references, which mainly is by government. Each of these limitations is appropriate. The Commission is independent, and fully independent, in its processes as I have described them. We are independent of government, in both its political and its administrative dimensions; of the courts and the legal profession; and of other stakeholders and vested interests. We are not the public relations arm of government, of the courts, or of anyone else.

With independence necessarily and properly comes responsibility. Responsibility includes administrative discipline and financial rigour.

Independence is not only an intrinsic value. It has operational value for government. It is of value for government to have, and be seen to have, an independent source of analysis and recommendation.

Cooperation is an appropriate working value. The Commission actively cooperates with government, and the Victorian Department of Justice and Regulation in particular, within the proper boundary of independence.

Where independence and cooperation might be in tension, the proper resolution of that tension is mutual respect. Mutual respect is a working quality derived from culture and understanding. The Commission in its work and reports seeks to be fair and balanced. Full briefing is provided to government upon delivery of the report. Upon tabling of reports, as Chair I utilise a short window of media communication. This is to explain the report and its recommendations. It is not to promote them or to argue them. The argument (reasons) is contained in the report. It is a good and necessary discipline for the report to speak for itself. And following tabling of the report, the Commission does not, and should not, agitate for implementation, or campaign against delay or non-fulfilment. That is not the Commission’s function; nor should it be.

For its part, government operationally respects the Commission. It does not seek, and in my time as Chair never has sought, to interfere in the work of the Commission or to inquire as to what might be in a forthcoming report. The first that government knows of the contents of a report of the Commission, or its recommendations, is upon delivery of the report to the Attorney-General.

In our relations with Government, I seek to instil and sustain the culture of mutual respect; to work to commonalities; acknowledge differences; understand respective limitations, of power, function, finance and system; be responsible for our own affairs; and act with respect towards each other.

And so my answer to the question posed in the session title is: entirely appropriate, if you have the resources to fulfil the task.

I warmly wish you well in your work. Our positions, our organisations and their structure and resources, indeed our cultures will differ one from the other, but we are joined together in a common, and profoundly significant, cause and journey.

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1

[1]Professor R Croucher, “Conceptualising Law Reform References” (2016), 13.

[2]Criminal Procedure Act 2009 (Vic).

[3] Compensation and restitution by the Victims of Crime Assistance Tribunal (VOCAT) are expressly comprehended by the terms of reference, para (g).

[4]R v A (No 2) [2002] 1 AC 45, 65.