Flatman, Michael; Bagaric, Mirko --- "The Victim and the Prosecutor: The Relevance of Victims in Prosecution Decision Making" [2001] DeakinLawRw 12; (2001) 6(2) Deakin Law Review 238

The Victim And The Prosecutor: The Relevance Of Victims In Prosecution Decision Making

The Hon Justice Geoffrey Flatman[*] And Dr Mirko Bagaric[**]

I INTRODUCTION

The victim occupies an uncomfortable position in the criminal justice system. In one sense, the victim is the central agent in this process. He or she is the party most directly affected by the criminal act. The justification for a system of criminal liability, however, almost totally marginalises the role of the victim in the criminal justice system. On one view, the reason that the state conducts criminal proceedings is that criminal conduct is regarded as being so morally offensive and socially and economically damaging that it is injurious to the entire community. On this basis, the victim is effectively relegated to mere witness status.

The responsiveness of the criminal law towards victims, however, is slowly changing. This has occurred primarily as a result of grass roots victims' movements in the 1970s and 1980s which were sparked by concern that the balance in the criminal justice system was too heavily skewed in favour of the accused.[1] At the broadest level, this has culminated in a United Nations Declaration (The Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power (1985)) which sets out basic standards for the treatment for victims, including, the standard that victims should be treated with both compassion and respect for their dignity. It also provides that the criminal justice system should allow the views of victims to be `presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system'.[2]

At the domestic level, in many jurisdictions, the victims' movement has resulted in greater procedural rights being accorded to victims. For example, at the sentencing stage of proceedings victims are now given the opportunity to inform the court of the effect that the crime has had on them and there is an increasing trend towards restorative forms of punishment. Thus, the victim is beginning to have a well-defined role at the end of criminal proceedings. One area that has received very little consideration, however, is the role of the victim at the commencement, and during the course of, criminal proceedings. This is despite the fact that it has been observed that the `ultimate goal of the victim's movement is to achieve greater input into the central decisions affecting the outcome of the prosecution'.[3] This paper discusses what influence, if any, the victim ought to have in the decision to commence (or continue) proceedings and the plea negotiation process.

How much say victims should have in the conduct of criminal proceedings is a particularly acute problem for prosecution officials. On the one hand, they have a duty to be impartial and independent and to make decisions on the basis of what is in the interests of the community as a whole. On the other hand, victims are- with the exception of accused- the most important stakeholders in the criminal justice process. The crime often has stripped them of much that is meaningful in their lives and they, understandably, feel that a grave injustice has been perpetrated on them. Hence they often have very strong and forceful views on broad matters relating to the progress of the criminal proceedings.

As the situation currently stands, victims are typically the central witnesses in criminal proceedings and in this capacity sometimes have an opportunity to vent their sentiments to prosecution officials on how they feel the case should proceed. This leads to the possibility of at least a perception that the views of victims weigh too heavily on prosecution decisions. There is a fear that if victims are given a say regarding important prosecutorial decisions:

[They] would often pressure the prosecutor for a more serious charge and stiffer penalty. As a result, the prosecutors would be less ready to grant concessions leading to more contested cases and a greater volume of trials. An overburdened system would labour under an increasing strain.[4]

Providing victims with greater input into key prosecution decisions risks perpetuating and heightening such concerns. Any change in the participatory rights of victims should only occur following a consideration of the victim’s place in the criminal justice system as a whole, including the role and function of prosecution officials.

The next section of the paper briefly details the expanding role of the victim in the criminal justice system. This is followed (in section III) by a discussion of where the victim fits into this system when viewed from the perspective of the objectives of the criminal law. In section IV, it is argued that the aim of the criminal law is essentially incompatible with expanding the rights of victims. In section V, it is contended, however, that such rights can be grounded in the prosecutorial duty of fairness and we make some remarks about how the prosecutorial duty to victims should be discharged.

II THE INCREASING SENSITIVITY OF THE CRIMINAL JUSTICE SYSTEM TO VICTIMS

A Victim Impact Statements

1 The objective of Victim Impact Statements

It is in the area of sentencing that the criminal justice system has become most responsive to the interests of victims. Through victim impact statements, victims in many western countries including Australia, England,[5] and Canada have the opportunity to detail to the court how the crime has affected them. A similar trend has emerged in the United States. Forty-nine of the fifty states have enacted legislation or state constitutional amendments which permit the reading of a victim impact statement at the sentencing stage of criminal proceedings.[6] The United States Supreme Court initially held that information about the victim was inadmissible in capital sentencing proceedings[7] to avoid the `unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner'.[8] This decision, however, was overruled four years later in Payne v Tennessee,[9] where the court held that victim information was admissible even in capital sentencing cases because it serves to inform the court of a relevant consideration in sentencing, namely the harm caused by the offence.

A broader rationale for allowing victims a say at sentencing was outlined in Dowlan:

[The purpose of victim impact statements is] to give victims of crime an opportunity to place before the courts their own statement of the impact a crime has had upon them and their families and in doing so both to involve victims in the workings of the criminal justice system and to ensure that judges are educated as to the consequences of the crimes with which they are concerned in sentencing.[10]

2 The relevance of Victim Impact Statements to sentencing

From the perspective of the objectives of sentencing law, the relevance of victim impact statements has been criticised. It has been argued that the admissibility of victim impact statements `smacks of mere vengeance'[11] and may result in sentence disparity due to the concentration of the effect of the offence on the victim.[12]

Such criticisms appear to be misguided. First, there is little evidence that victims simply seek revenge (in contrast to proportionate punishment).[13] Secondly, the information disclosed in victim impact statements more fully informs the court regarding perhaps the most important principle of sentencing: the principle of proportionality,[14] which prescribes that the punishment should fit the crime. It operates to `restrain excessive, arbitrary and capricious punishment'[15] by requiring that punishment must not exceed the gravity of the offence.

Proportionality has two limbs. The first concerns the seriousness of the offence, and here the level of injury caused to the victim is a central consideration. For example, in Billam it was observed that rape is aggravated where the effect upon the victim, whether physical or mental, ‘is of special seriousness'.[16] The second focuses on the severity of the punishment. The principle then prescribes that these limbs should be in equilibrium.

The information provided by victims at sentencing enables the sentencer to more fully appreciate the harm caused by the offence. This information is often not fully disclosed to the court during the course of a trial - especially where a guilty plea is entered. As was noted by Chief Justice Jeffrey Miles of the Supreme Court of South Australia (writing extra-curially):

The assumption may be too lightly made that the sentencing court will be in the possession of all relevant information about the effect on the victim, sufficient to enable the court to impose a just and appropriate sentence. This became particularly obvious to me over a number of years when I was required often to sentence on the basis that the offence had little effect if any on the victim, only to be required later, sometimes years later, to hear an application for compensation by the victim which clearly established that the effect had been almost catastrophic.[17]

3 The impact of Victim Impact Statements

In terms of the actual effect that victim impact statements have on penalty, one recent English study suggests that they seldom influence sentencing in any direction.[18] The authors were, however, mindful to note that their study had a small sample size and that `discovering how far [victim impact statements] actually affect sentencing is ... virtually impossible in most cases'.[19]

Surveys in the United States have shown, however, that victim impact statements seem to have a greater influence on sentencing. In a survey ranging across thirty six states, eighty per cent of judges who responded said that victim impact statements had either some or a substantial impact on the penalty.[20] Even if ultimately victim impact statements do not have a significant bearing on sentence, this does not necessarily mean that they have been a failure. Perhaps it is simply a sign that victims are not prone to exaggeration and are realistic in their assessment of the suffering the crime has caused them. Alternatively, it may be that the greater information provided to sentencers by victim impact statements does affect penalty, but not the overall level of sentencing severity because the greater penalties arising from additional information in some cases are balanced by greater leniency in other cases.[21]

In some states in the United States, victims are permitted to go beyond merely informing the court about the impact of the crime on them, as they can also make a submission regarding sentence.[22] Even where there is no formal mechanism for this, the attitudes of victims regarding sentencing are still sometimes tendered as part of the plea in mitigation where victims express a desire for the accused not to be harshly punished.[23]

4 The questionable `success' of Victim Impact Statements

Although victim impact statements are doctrinally sound from the perspective of sentencing process objectives, ironically it has been suggested that they may be objectionable because they further victimise the victim. Almost a decade ago, Andrew Ashworth noted that:

For victims the balance of advantages is unclear. It is sometimes claimed

that making such a statement can have a cathartic effect for victims, but on

the other hand it may create or increase the fear of reprisals from the

offender's family or associates, and may raise the victims expectations

about the sentence.[24]

His words may have been prophetic. There is little evidence to suggest that victim impact statements have assisted in increasing the level of victim satisfaction with the criminal justice system.[25] A suggested explanation for this phenomenon is that many victims perhaps do not want to participate in the criminal justice system in the first place.[26]

B Restorative Theories of Punishment

The role of victims has also been expanded as a result of a resurgence in restorative theories of sentencing, which prescribe that the aim of the sentencing system should be reconciliation and reparation,[27] as opposed to simply inflicting punitive measures on offenders. Pursuant to sections 67 and 68 of the Crime and Disorder Act 1998 (UK), offenders under the age of 18 may be required to make direct practical reparation (such as a letter of apology or a defined period of practical activity that benefits the victim)[28] to their victims.[29] A restorative approach to sentencing is also emerging in Victoria, in the form of a diversion program, which aims to keep offenders out of the court system. A central aspect of the program is victim mediation.

Despite the contemporary popularity of such schemes, there is at least one serious problem with restorative theories of justice and permitting victims to have a say on sentencing: it makes sentencing too arbitrary. As is noted by Wasik:

Reparation turns both upon the differing practical abilities of offenders, and the differing predilections of victims ... [and] allowing victims to influence the form that reparation should take can lead to inconsistency and injustice.[30]

This was a point acknowledged by the English Court of Appeal in Nunn,[31] where it was observed that the opinions of victims (in this case the relatives of the deceased asked for a reduction in sentence) cannot be a guide to the appropriate sentence, as this would impair consistency in sentencing.

It is clear that victims are getting more recognition in the criminal justice system. The purpose of this article is not to evaluate the desirability of victim impact statements or restorative sentencing schemes. We believe, however, that enough has been said to illustrate that any additional involvement by victims in the criminal justice system is not necessarily desirable, either from the perspective of victims or the integrity of the criminal justice system. Appropriate reform in this area can only occur following an understanding of the victim's role in the context of the purposes and functions of the criminal justice system and the role of the prosecutor. Before considering the desirability of permitting victims to have greater input into prosecution decisions, the practical reasons for the disassociation between victims and the conduct of criminal matters is briefly discussed.

III PRACTICAL REASONS FOR DISASSOCIATION BETWEEN VICTIMS AND PROSECUTION DECISIONS

It is important to note that victims have a choice whether or not to report an offence. Hence at this very basic level they have always had a significant amount of control in the decision to charge to a person. Once they decide to report an offence, however, the decision is traditionally removed from them and placed in the hands of the prosecution authorities. Victims, as with other members of the community, can in some jurisdictions also file charges alleging the commission of an offence for the benefit of the public at large.[32] Due to complexity and expense involved, however, few victims elect to pursue private prosecutions. Victims do not have a legally recognised right to have input into the decision of the prosecutor regarding the commencement or conduct of criminal proceedings. Thus, they do not have standing to challenge prosecutorial decisions. In a practical sense, the main reason for the disassociation between the victim and prosecution decisions is because prosecutions are conducted by the state. Apart from the sizeable obstacles associated with leaving victims to run their own prosecutions, there have been several justifications advanced for placing criminal prosecutions in the hands of the state.

Theoretically, the main reason that criminal offences are prosecuted by the state is that criminal conduct is regarded as being so heinous that it constitutes a threat to the proper functioning of society in general, and hence requires a community response. This justification is not beyond criticism, given that many criminal offences (especially regulatory offences) relate to conduct that is not necessarily morally offensive and is not destructive of the fabric of society. This justification for state-run criminal prosecutions is supplemented by the financial burden that crime imposes on the community - the full scale of which is only starting to emerge. For example, the cost of crime to England and Wales in the 1999/2000 financial year is estimated at £60 billion (which is over £1,000 per citizen).[33] This figure does not include costs such as low-level disorder and undiscovered fraud. Approximately £19 billion of the total cost related to property stolen or damaged. £18 billion of the total was the direct emotional and physical impact on victims of crime. The response to crime by the criminal justice system was in the order of £11.6 billion. Identifiable costs in anticipation of crime – security expenditure and insurance administration costs – came to over £5 billion. Over £3 billion worth of productive output was foregone as a result of crime in 1999/00 - with over £2.5 billion of this due to time off work recovering from the effects of violent crime. A further £1 billion or more was borne by health services dealing with the effects of violent crime. In this respect, it is not difficult to see why, despite the immediacy of the victim to the criminal wrong, the victim has traditionally been almost totally marginalised in the criminal justice system.

Although there may be sound reasons for placing the conduct of criminal matters in the hands of the state, this does not necessarily entail that victims should not have a large degree of input into prosecutorial decisions. The appropriate level of involvement by victims in this process can only be determined following an understanding of the purpose of the criminal law and the function and duties of prosecutors. These are considered in that order below.

IV VICTIMS AND THE JUSTIFICATION FOR PROSECUTING AND PUNISHING OFFENDERS

A Utilitarianism

There are two main theories concerning the justification for a system of criminal prosecution and punishment. The utilitarian theory provides that the only justification for a system of criminal prosecution and punishment is the common good.[34] Traditional utilitarian punishment theory stipulates that the good effects of punishment come in three different forms: incapacitation, rehabilitation and deterrence (specific and general). There is, however, insufficient evidence to support the efficacy of punishment to achieve the goals of marginal general deterrence (which provides that there is a link between heavier penalties and the crime rate) or incapacitation. The same applies in relation to specific deterrence. The evidence that is available supports the view that the recidivism rate of offenders does not vary significantly depending on the form of punishment or treatment that they are subjected to.[35] Rehabilitation is also a flawed rationale. There are no rehabilitative techniques which have been shown to have far-reaching success.[36] Even more telling is the fact that the goals of punishment and rehabilitation may be internally inconsistent: the rehabilitative techniques which seem to work best are more akin to social service measures (such as cognitive-behavourial programs which focus on the needs of offenders),[37] rather than practices designed to harm offenders.[38] The only verifiable good from punishment and the criminal justice system as a whole is that it deters a great many people from committing crime.

While there is considerable uncertainty concerning the types of sanctions which provide the most effective deterrent, one thing that is clear is that the certainty of punishment is a far more effective deterrent than the severity of punishment. Thus while marginal general deterrence does not work, absolute general deterrence (which provides that there is a connection between some penalty and the crime rate) does. On this view, the best method for satisfying the objectives of the criminal law is to prosecute and punish all those who breach the criminal law. Accordingly, the sentiments of victims who are reluctant to have their cases proceed are irrelevant - each offender that avoids prosecution diminishes in the eyes of other potential offenders the risk of prosecution and punishment.

B Retributivism or ‘Just Deserts’

The other main justificatory theory for a process of criminal law and punishment is retributivism. A large variety of retributive theories have been advanced. A key hallmark of most retributive theories, however, is that the justification of punishment does not depend on the possible attainment of desirable goals[39] - punishing criminals is itself just. If one adopts the view that the purpose of prosecuting, and ultimately punishing, criminals is to exact retribution on them, the role of the victim in decisions relating to this process depends on whose behalf we are seeking to exact retribution: the victim or the community as a whole. This depends on which particular retributive theory one ascribes to. Strict retributivists, such as Kant, have argued that it is morally obligatory (not merely justifiable) to punish wrongdoers. According to Kant:

Even if a civil society were to dissolve itself by common agreement of all its members ...the last murderer remaining in prison must first be executed so that ... the blood-guilt thereof will not be fixed on the people because they failed to insist on carrying out the punishment; for if they fail to do so, they may be regarded as accomplices in the public violation of legal justice.[40]

On this view, the views of the community and the victim are clearly irrelevant to the decision to prosecute - we must punish in all cases and at whatever cost.

Other retributive theories are more sensitive to the views of victims. For example, the satisfaction theory of punishment provides that we should prosecute and punish because it satisfies `the feeling of hatred - call it revenge, resentment, or what you will - which the contemplation of such conduct excites in healthy constituted minds'[41] and thereby diminishes the prospect of harmful vendettas by victims, their associates and in some circumstances other members of the public, who may be tempted to exact their own revenge. In Darby it was observed that:

One of the objects of punishment, and by no means the least important object of punishment, is to prevent, so far as possible, the victims of crime from taking matters into their own hands. It is no great step from private vengeance to vendetta, and there is no knowing where the vendetta will stop.[42]

This theory of criminal law and punishment justifies a significant amount of weight being accorded to the views of victims, given that they are the party most significantly affected by the crime and hence the most likely to seek vengeance.

Accordingly, from the perspective of the purposes of the criminal law, the weight that prosecutors should give to the views of victims varies according to the rationale that is adopted for maintaining a system of criminal law and punishment. A utilitarian approach makes the views of victims irrelevant, while the satisfaction theory of punishment allows far more consideration to be given to such views. The satisfaction theory of punishment is not convincing however. It fails to justify a widespread system of criminal law and punishment, since prosecution would only be justifiable where there was a realistic possibility that victims would otherwise seek private vengeance.[43]

Thus, strictly speaking, from a consideration of the purposes of the criminal law, it would seem that victims should have little, if any, say concerning prosecutorial decisions. While ensuring that the criminal law fulfils its objectives is the paramount role of the prosecutor, the prosecutor's role however extends beyond this function. It is in relation to this residual prosecutorial function that victims assume increasing importance.

V VICTIMS AND THE FUNCTIONS AND DUTIES OF THE PROSECUTOR

A Minister for Justice

A prosecutor is a `minister of justice'.[44] As a result, prosecutors must, while acting independently in presenting the public interest in the conduct of criminal matters, in fact take into consideration factors beyond those directly related to promoting the objectives of the criminal law.[45]

In Richardson, the High Court of Australia stated that:

[The Prosecutor] has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it would be subject to cross examination by the Crown, to mention but a few.[46]

The prosecutor's duty of fairness is well settled and defined in relation to accused persons,[47] and entails that the prosecutorial discretion must be exercised in a manner which gives weight to considerations extending beyond those mandated by the adversarial nature of criminal proceedings. The duty of fairness restrains prosecutors from pursuing convictions at all costs, even if this is contrary to the deterrent rationale of the criminal law.

The prosecutor's duty to act fairly is not only relevant to the manner in which the prosecution runs its case, but is also pertinent to the public interest test concerning the decision to prosecute, whereby factors such as the age and health of the accused and a significant delay between the offence and trial can militate against prosecution.[48] The duty stems from the recognition that despite the importance of convicting and punishing the guilty, this goal is subordinate to the higher ideal of fairness - while it is a good thing to punish wrongdoers, it is often even better to ensure that certain standards of fairness are observed.

B Fairness Towards Victims?

It is difficult to place precise parameters on the breadth and depth of the prosecutor's overarching duty of fairness. There is, however, no reason in principle that it ought to start and end with the interests of the accused, and should not also extend to other parties involved in the criminal justice process, particularly victims. Although, in some jurisdictions prosecutors are statutorily required to take into account the interests of victims,[49] and prosecution guidelines concerning the decision to prosecute often advert to the interests of victims,[50] the idea that the interests of the victims can be justified and circumscribed by the same broad notion of fairness that applies to accused persons has not been developed.

The reason that the prosecutor has an overriding duty of fairness to the accused stems from the central role of the accused in the criminal justice process and from the important interests which they have at stake. Similar considerations apply in relation to victims. While their liberty is not at peril, they have other recognisable interests which are affected by the criminal justice process. These vary according to the sentiments of the particular victim in question and the nature of the offence. Given that the criminal law generally proscribes conduct which seriously violates the interests of others, it is understandable that many victims (and many members of the community) have a desire to see that offenders are (i) prosecuted in a manner which reflects the gravity of the offence and (ii) punished in order that a practical disincentive is metered out to them against re-offending or to others who might be tempted to engage in similar conduct.

C Charging and Plea Negotiation

As is noted above, apart from sentencing, there are two other stages of the criminal trial process where the interests of victims are significantly affected. The first relates to the decision to initiate or continue criminal proceedings. While many victims want to ensure that offenders are prosecuted to the fullest extent possible, the reverse also occurs - a significant portion of victims want the case dropped. This can occur for a variety of reasons, such as fear of the accused or a reluctance to re-live the offence in the form of giving evidence and being cross-examined. The second is that victims often have strong views in relation to plea negotiation decisions. The sentiments expressed at this point can be just as divergent as those concerning the decision to prosecute.

Thus, at both the charging and plea negotiation stage, at the extremes there is the enthusiastic victim and the reluctant victim. The former generally presents little difficulty at the stage of deciding whether to initiate charges. The threshold test governing the decision to prosecute is whether there is a reasonable prospect of conviction. Once this is satisfied, there is a strong presumption in favour of prosecution, in which case the sentiments of the victim are harmonious with the probable outcome of the prosecutorial discretion to prosecute.

A difficulty may arise where the evidence satisfies the evidential test (that is, there is a reasonable prospect of conviction) and the victim is adamant that the matter should proceed, but public interest considerations, such as the age and health of the accused, point in favour of non-prosecution. In such cases, the notion of fairness is not one-sided. The sentiments of the victim should be given as much weight as the interests of the accused. A correct decision can only be reached after due consideration is given not only to the nature of the divergent views, but also the intensity with which they are held and the reasons in support of them. Where the evidence, however, discloses a reasonable prospect of conviction and the victim wishes for the matter to proceed, normally compelling circumstances must exist in order for the matter to be discontinued.

Situations also occur where victims are adamant that a weak case should proceed. In such circumstances, the conflict is readily resolvable. Although the entry of nolle prosequi or a plea negotiation for a lesser offence can be an extremely disappointing outcome for an already traumatised person, trials are not run for therapeutic reasons and to proceed in such circumstances would constitute a blatant waste of public resources.

D The Gap Between Victims’ Expectations and the Criminal Trial Process and Outcome

The victim, or relative of a victim, often has high expectations of the criminal justice system. Victims are encouraged to report their complaints to investigating bodies and this raises an expectation that they will be treated sympathetically, and with concern and respect.

Perhaps the most troubling victim-related issue that confronts prosecutors is the gulf that often emerges between these expectations and the reality of the criminal trial process and the outcome of the case. At the trial stage, many victims feel that there is an enormous imbalance in the degree of concern and respect shown to them and the accused. Quite often, the victim is the critical focus of the proceedings, especially in sexual offence cases, where the outcome of the case turns on the credibility of the victim's evidence which is placed under intense scrutiny.

Victims normally pick up on the fact that, by contrast, accused are subject to far less compulsion and examination. While the victim is required to make comprehensive formal statements, disclose intimate details and endure allegations which would be defamatory in other contexts (such as being called a liar), the accused can invoke his or her right to silence. In many jurisdictions the victim undergoes probing cross-examination not only at the trial but also at a preliminary or committal hearing. The accused on the other hand is required to do nothing. The rules of evidence are also seen by many victims as being unduly favourable to the accused. Often logically relevant evidence is excluded on the grounds of prejudice. Where such evidence is received, it is often accompanied by judicial warnings in relation to such matters as identification and delayed complaint. The victim often emerges scarred and angry at the process. In homicide cases, relatives of the deceased also find that the criminal justice system does not live up to their expectations. At the sentencing stage, almost the entire focus of the inquiry is on the accused. Typically, defence counsel spend considerable time detailing to the court the sad predicament of the accused which supposedly culminated in the offence and the crushing effect that certain dispositions would have on the accused.

The tendering of victim impact statements does not even come close to redressing this imbalance - at least in terms of the proportion of time spent on the interests of the various parties affected by the crime. That such problems should arise is not surprising - when the rules and principles of sentencing were formulated, the interests of victims were hardly at the forefront.

The prosecutorial obligation towards victims is best discharged by providing them with thorough information about the criminal trial process at the earliest possible stage of the proceedings. In Victoria this is addressed primarily by the witness assistance service (WAS) which has as its objective to inform and support witnesses throughout the process. A victim’s charter to that end has been adopted. WAS has also assisted in fostering a new culture of openness and concern towards victims among prosecutors. The lawyer for the Crown is also required to assist in keeping the victim informed of relevant issues throughout the conduct of the case. Decisions which may affect the outcome of proceedings are communicated to victims before they are implemented. This ensures that victims have an opportunity to be heard regarding decisions which affect their interests. It must be emphasised, however, that the prosecutor is not an agent for the victim.

In many circumstances, the decision made by the prosecutor will still cause great distress to the victim. In those circumstances the quality of the decision making process will have been enhanced and the trauma to the victim will have been reduced as the result of the procedural fairness which has been observed. This may involve the victim being given an opportunity to see the person actually charged with making the decision. Whilst this is not always the easiest course for the decision maker, there can be no doubt that the victim or relative can take some degree of comfort in the knowledge that their interests have been properly considered and weighed against other, often, competing objectives.

Equally problematic can be the situation of a strong or reasonable case, but a reluctant victim. How much weight ought to be given to victims in such circumstances depends largely on the reason for reluctance. The reasons can range from a fear of giving evidence to a fear of the accused. In both cases, theoretically the prosecutor has in his or her armory the ability to compel the victim to give evidence and the offence of perjury should the victim fail to do so honestly. The simple solution would be to reason that the interests of the community in prosecuting offenders outweighs the concerns of individual victims and hence prosecutors should force victims to testify.

This, however, oversimplifies the dilemma. Victims have already suffered a serious violation and to use coercive legal measures to force them to testify, from their perspective at least, perpetuates this wrongdoing. While it is in the community interest to prosecute criminals, it would not appear to be in the community interest that this is done in a way which involves a further infraction of the interests of innocent members of the community. The way to reconcile these competing objectives is to recognise the concerns of victims, while not losing sight of the important goal of punishing wrongdoers. One way to do this is to implement systems and mechanisms which provide information, assistance and counseling to victims at all stages of the criminal trial process. Such measures have been put in place in most jurisdictions in the form of the Victims Assistance Schemes, or the like, which provide victims with information regarding the trial process and offer counseling to them to deal with the trauma of giving evidence and confronting the accused.

This is unlikely, however, to satisfactorily deal with victims who have a genuine fear of the accused. This is a situation which most commonly manifests itself in the context of abused partners or other relatives of the accused. It also occurs in cases where the accused is a member of an `organised crime syndicate'. A difficult paradox often emerges in such cases. On the one hand, these are often the people which the community has the greatest interest in prosecuting, while on the other hand they are the cases where victims have the greatest reluctance to testify. As a prosecutor, it is particularly difficult to accept that a violent criminal should escape prosecution because of his ability to instill fear into the victim.

A decision not to proceed in such circumstances can be criticised on the basis that it means that the accused, through violence and intimidation, has in fact succeeded in `beating the system'. It is precisely these sorts of people that the community most intensely wants dealt with by the criminal justice system, otherwise they remain at liberty to potentially make victims of other members of the community.

The unfortunate lessons of history, however, have shown us that even in communities that have a strong commitment to the rule of law, victim witnesses sometimes face considerable risks in testifying. It is a difficult balancing process to determine whether the interests of the community in prosecuting a violent offender outweigh the attendant risks to victims in giving testimony. From the perspective of the function of the criminal law, it is clear that whatever means are available to the prosecutor should be employed to compel the giving of evidence. Approached from the broader perspective of fairness, however, the solution is not so obvious.

In all other contexts, people are not required to risk their lives or physical integrity in order to promote the community good. For example, we do not impose a duty even on emergency workers, such as police, fire and ambulance officers to risk their lives to save others. It is difficult to see why victims should be treated differently. In such circumstances, the role of the prosecutor is to inform victims about the protective measures available to them and the likely prospects of conviction and sentence should they testify. Ultimately, the decision whether to testify should, however, be left to the victim.

Where the reluctance to testify stems from other less pressing reasons, such as the distress involved in giving evidence, there is scope for far greater persuasion by the prosecutor. The victim simply has far less to lose by giving evidence and any discomfort experienced in doing so can in most cases be addressed by appropriate counseling. In such cases victims should be strongly encouraged to give evidence.

VI CONCLUSION

The victim has traditionally been marginalised by the criminal justice system. The advent of victims' movements over the past quarter of a century has seen victims accorded defined procedural rights at the sentencing stage of a criminal trial. The relevance of the views of the victims, however, in the plea negotiation process and the decision to prosecute is largely dealt with in an ad hoc manner. This is primarily because a principled justification for according weight to the views of victims on such matters has not been advanced.

We have suggested that the prosecutors’ overriding duty of fairness extends not only to accused persons, but also to victims and that this provides a doctrinally sound basis for according victims greater input into central prosecution decisions and in deciding how much weight should be given to their views.

[*]Justice of the Supreme Court of Victoria; Adjunct Professor, School of Law, Deakin University.



[**] Senior Lecturer, Faculty of Law, Monash University.



[1] See, for example, Ray Whitrod, `Victim Participation in Criminal Proceedings - A Progress Report' (1986) 10 Criminal Law Journal 77; Peggy Tobolowsky, `Victim Participation in the Criminal Justice Process: Fifteen Years After the President's Task Force on Victims of Crime' (1999) 25 Criminal and Civil Confinement 212; George Nicholson, ‘Victims’ Rights, Remedies, and Resources: A Maturing Presence in American Jurisprudence’ (1992) 23 PAC. Law Journal 815; New South Wales Law Reform Commission, Sentencing, Discussion Paper 33 (1996) 411-12; Hon CJ Sumner, `Victim Participation in the Criminal Justice System' (1987) 20 ANZ Journal of Criminology 195.

[2] Para 4-7.

[3] Tobolowsky, above n 1, 58.

[4] Whitrod, above n 1, 79-80. See also Hon CJ Sumner, above n 1; P [1992] FCA 626; (1992) 39 FCR 276.

[5] England and Wales were one of the last common law jurisdictions to introduce victim impact statements. They were introduced in 1996 through the Victim's Charter: a statement of service standard for victims of crime (Home Office, London, Home Office Communication Directorate, 1996). Prior to this victim impact statements were obtained in an ad hoc fashion at the initiative of the judge or prosecutor: Rod Morgan and Andrew Sanders, The Uses of Victim Impact Statements (Home Office Study) (2000) 5.

[6] See M Stevens, Victim Impact Statements Considered in Sentencing: Constitutional Issues' (2001) Californian Criminal Law Review 3.

[7] The decision did not affect the use of victim impact statements in non-capital cases.

[8] It was deemed that this violated the Eighth Amendment: Booth v Maryland [1987] USSC 153; 482 US 496 (1987) 503, where it was held that information in a victim impact statement regarding the personal characteristics of the victim, the impact of the crime on the victims' family and the family members' opinions of the offender and crime were irrelevant to a capital sentencing decision.

[9] [1991] USSC 131; 501 US 808 (1991).

[10] (1997) 92 A Crim R 305, 323.

[11] NSW Law Reform Commission, Sentencing, Discussion Paper No 33 (1996) 430. Tobolowsky, above n 1, 81, where she notes that another objection to victim impact statements is that they erode the prosecutor's function and control over the prosecution process.

[12] Ibid. The Commission did not find either of these arguments persuasive.

[13] For example, the British Crime Survey 1982 identified a large number of victims of common crimes and in relation to most offences victims did not seem to be more punitive than non-victims: see Nigel Walker and Nicola Padfield, Sentencing: Theory, Law and Practice (2nd ed, 1996) 76. For a good survey of the relevant literature, see Tobolwosky, above n 1,84-5, where she notes the mixed results in this area. There are several differences between the notion of revenge and punishment. For a discussion of these, see Robert Nozick, Philosophical Explanations (1981) 366. Perhaps the most important difference is that in the case of revenge the response need not be commensurate with the seriousness of the wrong.

[14] The High Court of Australia’s decisions in Veen (No1) [1979] HCA 7; (1979) 143 CLR 458, 467 and Veen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 472 pronounced proportionality as the primary aim of sentencing. It is considered so important that it cannot be trumped even by the goal of community protection, which at various times has also been declared as the most important aim of sentencing. In many other jurisdictions the principle of proportionality is also rated highly. For example, in relation to the Canadian sentencing system it has been noted that: `the paramount principle governing the determination of a sentence is that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender for the offence’ (Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987) 154). Similar views are expressed in the White Paper underpinning the Criminal Justice Act 1991 (UK), which declares that the aim of the reforms is to introduce a `legislative framework for sentencing, based on the seriousness of the offence and just deserts’ (Great Britain Home Office, White Paper, Crime, Justice and Protecting the Public (1990) para 2.3. For judicial endorsement of the principle in the United Kingdom, see Skidmore (1983) 5 Cr App R (S) 17, 19; Moylan [1970] 1 QB 143, 147.

[15] Ricahrd Fox, `The Meaning of Proportionality in Sentencing’ [1994] MelbULawRw 1; (1994) 19 Melbourne University Law Review 489, 492.

[16] (1986) 82 Cr App R 347. See also Attorney-General's reference (No 1 of 1989) [1989] 3 All ER 571 - psychological suffering arising from incest.

[17] Jeffrey Miles, `The Role of the Victim in the Criminal Process: Fairness to the Victim and Fairness to the Accused' (1995) 19 Criminal Law Journal 193, 203.

[18] Morgan and Sanders, above n 5. See also A Sanders, Taking Account of Victims in the Criminal Justice System: A Review of the Literature (1999).

[19] Morgan and Sanders, ibid 15.

[20] Susan W Hillenbrand and Barbara E Smith, American Bar Association, Executive Summary: Victim Rights Legislation: An Assessment of Its Impact on Criminal Justice Practitioners and Victims (1989). For the results of a number of other studies in the United States, see Tobolowsky, above n 1, 86-89.

[21] See E Erez and L Rogers, `The Effects of Victim Impact Statements on Criminal Justice Outcomes and Processes: The Perspectives of Legal Professionals' (1999) 39 British Journal of Criminology 216-239.

[22] For further details, see Andrew Ashworth, `Victim Impact Statements and Sentencing' [1993] Criminal Law Review 488; Tobolowsky, above n 1, 70.

[23] As is discussed below, there is little justification for attributing weight to such remarks - See Nunn [1996] 2 Cr App R (S) 136, below.

[24] Andrew Ashworth, Sentencing and Criminal Justices (2nd ed, 1995) 310.

[25] See Tobolowsky, above n 1, 89-90. See also New South Wales Law Reform Commission, above n 1, 31.

[26] R C Davis and B E Smith, ‘Victim Impact Statements and Victim Satisfaction: An Unfulfilled Promise?’ (1994) 22 Criminal Justice 1, 10.

[27] For further discussion of restorative theories see Neil Christie, `Conflicts as Property' (1977) 17 British Journal of Criminology 1; M Cavadino and J Dignan, `Reparation, Retribution and Rights' (1997) 4 International Review of Victimology 233; Lucia Zender, `Reparation and Retribution: Are They Reconcilable?' (1994) 57 Modern Law Review 228.

[28] See J Dignan, `The Crime and Disorder Act and the Prospects for Restorative Justice' [1999] Criminal Law Review 48, 52.

[29] Part 1 of the Youth Justice and Criminal Evidence Act 1999 (UK) also introduces a mandatory new sentence of referral to a youth offending panel for most young offenders pleading guilty on their first youth court appearance. For a discussion of this, see C Ball, `Part 1: a significant move towards restorative justice, or a recipe for unintended consequences' [2000] Criminal Law Review 211.

[30] Martin Wasik, `Reparation: sentencing and the victim' [1999] Criminal Law Review 470, 478-9.

[31] Nunn [1996] 2 Cr App R (S) 136. See also Hird [1998] Criminal Law Review 296; Roche [1999] Criminal Law Review 339.

[32] See Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435, 477. Although presentment rules in Victoria prevents the capacity of private citizens to sign presentments.

[33] Home Office Research Studies, The Economic and Social Costs of Crime (2000). Available at <http://www.homeoffice.gov.uk/rds/horspubs1.html> [34] Mirko Bagaric, Punishment and Sentencing: A Rational Approach (2001) Chapter 5.

[35] The Panel on Research on Deterrent and Incapacitative Effects, `Incapacitation' in Andrew Blumstein et al (eds), Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates (1978) 66.

[36] Andrew von Hirsch and Lisa Maher, `Should Penal Rehabilitation be Revived' in Andrew von Hirsch and Andrew Ashworth (eds), Principled Sentencing (2nd ed, 1999) 26, 27.

[37] For a discussion of the features of these programs and some promising results from them, see K Howells and A Day, `The Rehabilitation of Offenders: International Perspectives Applied to Australian Correctional Systems' (1999) 112 Australian Institute of Criminology: Trends and Issues in Crime and Criminal Justice 1.

[38] See Bagaric, above n 34, Chapter 6.

[39] Ibid Chapter 3.

[40] As cited in Chin Liew Ten, Guilt, Crime and Punishment (1987) 75.

[41] J F Stephen, Liberty, Equality, Fraternity (1873) 161-2, as cited in Ted Honderich, Punishment: The Supposed Justifications (1984) 49.

[42] Darby (1986) 8 Cr App R (S) 487, 490; Amituanai [1995] QCA 80; (1995) 78 A Crim R 588, 596.

[43] More generally, retributive theories have also been heavily criticised on the basis that they lead to the unacceptable view that we should punish even if no good comes from it. Even if punishment in fact increased the level of overall crime, because for example it made offenders more hostile and dysfunctional, retributivists would still be committed to punishing offenders: see Bagaric, above n 34, Chapter 4.

[44] See for example, Meredith Blake and Andrew Ashworth, `Some Ethical Issues in Prosecuting and Defending Criminal Cases [1998] Criminal Law Review 16, 17; Miles, above n 17, 195.

[45] See Whitehorn (1983) 152 CLR 567, 663-4:

Prosecuting counsel in a criminal trial represent the State. The accused, the court and the

community are entitled to expect that, in performing his function of representing the cases

against an accused, he will act with the fairness and detachment and always with the

objectives of establishing the whole truth in accordance with the procedures and

standards which the law requires to be observed and of helping to ensure the accused's

trial is a fair one (emphasis added).

[46] Richardson [1974] HCA 19; (1974) 131 CLR 116, 119 (emphasis added).

[47] For example, see Richardson [1974] HCA 19; (1974) 131 CLR 116; Shaw (1991) 57 A Crim R 425; Apostilidies [1984] HCA 38; (1984) 154 CLR 563. See also Richard Read, `Plea Negotiation and the Role of the Prosecution in Victoria' (1996) 8 Journal of Judicial Administration 25; John Willis, `Some Aspects of the Prosecutor's Role at Sentencing' (1996) 8 Journal of Judicial Administration 38.

[48] For example, see Crown Prosecution Service, Code For Prosecutors (1994) s 6.5; Office of Director of Public Prosecutions (Vic) 1996-7.

[49] For example, see Public Prosecutions Act 1994 (Vic) ss 24(4), 36(3), 38(3)(a), 41(2).

[50] For example, see Crown Prosecution Service, Code For Prosecutors (1994) s 6.5; Office of Director of Public Prosecutions (Vic) 1994-95.