An increased role for courts in Victims’ Charter compliance

Courts can help uphold victims’ rights under the Victims’ Charter

When a case is heard in court, judges and magistrates are well placed to prevent breaches of victims’ rights and entitlements. At an application, or during a hearing or trial, judicial officers have the ability and authority to check whether the prosecution has met its statutory obligations towards the victim.  

The VOCC considers that courts can, and should, proactively ensure that victims’ rights and entitlements under the Victims’ Charter are respected. Checking that a victim’s rights and entitlements have been met would help to ensure that victims’ rights and entitlements are respected throughout criminal justice processes. 

In practice, this might mean, for example, that judicial officers would, at relevant times, ask the prosecution whether: 

• they have provided information to the victim(s) about hearings and/or other court and prosecution processes and the outcome of such notification 
• they have provided information to the victims about their options to attend hearings 
• they have consulted the victim before accepting a plea to lesser charges 
• a victim has been notified about an application to access the victim’s confidential communications, asked whether they wish to be heard on the application, and notified about their right to legal assistance in relation to this application 
• a victim has been advised of the availability of special protections or alternative arrangements for giving evidence 
• the victim wishes to make a VIS and if so, the outcome of this.

Proactively focusing on ensuring that victim’s rights and entitlements are respected before certain proceedings are finalised or progressed would also provide a clear demonstration to victims that they are relevant to criminal proceedings and that their rights and entitlements matter.  

It would enable any failures to be addressed quickly and without significant delay to the proceeding. These preventative steps would provide victims with substantive redress for an agency’s failure to uphold victims’ rights and entitlements without relying on victims to instigate a complaints process. 

Judicial checking would not provide victims with independent standing to commence an action to enforce their rights and entitlements. However, by taking preventative steps, courts could play a critical role in ensuring that victims can exercise their participatory rights and entitlements. This reflects the triangulation of interests in a fair trial and recognises victims as participants in a more meaningful way. 

To ensure that victims’ rights and entitlements are respected throughout criminal justice processes, the VOCC recommends changes be made to the Victims’ Charter – and any other relevant legislation – to require courts to make enquiries that the prosecution has met its obligations concerning victims’ participatory rights at key points in the criminal trial and hearing process.