Activity 1m

Question 1

Arguments in support of the right to give evidence as a vulnerable witness include:

• the requirement of the criminal justice system to vigorously test the testimony of a witness can be onerous on a victim – court processes and facilities support victims who must give evidence in criminal proceedings, and help to protect them from being re-traumatised by this process; so by recognising the special needs of witnesses, court procedures ensure that they are treated equally in a criminal trial, and that the rights of the accused do not predominate
• accommodating the special needs of witnesses such as children or those involved in an alleged sexual offence ensures that such people have appropriate access to give evidence in court – it ensures they are treated fairly by legal procedures such as cross-examination

Arguments against the right to give evidence as a vulnerable witness include:

• providing some witnesses with different conditions in which to give evidence may prejudice a jury in their assessment of the credibility of all witness testimony at trial – a jury may be biased by sympathy in favour of accepting the evidence of a vulnerable witness or they may not believe a witness they have not seen in the courtroom in person/ conversely, a jury may be biased against accepting the oral testimony of other witnesses at trial who gave evidence by conventional cross-examination – these circumstances may impact the fairness of a trial unless carefully managed by the presiding judge
• the courts do not always have the facilities needed for alternative arrangements
• the 2018 ‘Performing Expertise’ study into evidence being given through audiovisual technology found that remote witnesses had a limited ability to gesture and interact with physical evidence exhibits, and were less able to judge juror understanding

Question 2

Arguments in support of the right to be informed about the proceedings and the likely release date of the accused include:

• the participation of victims in criminal trials ensures that the criminal justice system does not become solely focused on the rights of the accused – the recognition that victims are interested and concerned in every stage of criminal proceedings, until the conclusion of an offender’s sanction, ensures equal treatment for victims in the criminal justice process
• the obligation to inform victims about proceedings ensures that the prosecution considers the role of victims in a criminal trial – this enhances access for victims to criminal legal procedures
• section 12 of the Charter says expressly that one of its purposes is to protect a victim from “intimidation” by the accused person and their family or supporters

Arguments against the right to be informed about the proceedings and the likely release date of the accused include:

• these rights may unfairly intrude on the convicted person’s right to privacy after they have served the sanction imposed by the court – this may compromise their right to equal treatment under the law
• section 9B of the Charter allows the prosecution to not inform victims of some decisions if “it is not practical to contact the victim given the speed or nature of the proceeding.” This means that, in some cases, victims may not be aware of charges being dropped or plea agreements being made

Question 3

The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence, that the rights of victims do achieve the principles of justice. In this case, ‘evaluating’ the ability of the rights of victims to achieve the principles of justice requires students to write about relevant strengths and weaknesses. Students should aim to cover all rights of victims, including the right to give evidence as a vulnerable witness, the right to be informed about the proceedings, and the right to be informed of the likely release date of the accused.

Sample arguments may include:

The right to give evidence as a vulnerable witness

• The requirement of the criminal justice system to vigorously test the testimony of a witness can be onerous on a victim – court processes and facilities support victims who must give evidence in criminal proceedings, and help to protect them from being re-traumatised by this process; so by recognising the special needs of witnesses, court procedures ensure that they are treated equally in a criminal trial, and that the rights of the accused do not predominate.

However, providing some witnesses with different conditions in which to give evidence may prejudice a jury in their assessment of the credibility of all witness testimony at trial – a jury may be biased by sympathy in favour of accepting the evidence of a vulnerable witness or they may not believe a witness they have not seen in the courtroom in person/ conversely, a jury may be biased against accepting the oral testimony of other witnesses at trial who gave evidence by conventional cross-examination – these circumstances may impact the fairness of a trial unless carefully managed by the presiding judge.

• Accommodating the special needs of witnesses such as children or those involved in an alleged sexual offence ensures that such people have appropriate access to give evidence in court – it ensures they are treated fairly by legal procedures such as cross-examination.

However the courts do not always have the facilities needed for alternative arrangements. For example, in the 2019 committal for actor Craig McLachlan (on charges of indecent assault) one witness requested a screen for giving evidence in court. She had to be shielded by a portable whiteboard, because the screen was being used in another courtroom for a family violence case. Furthermore, the 2018 ‘Performing Expertise’ study into evidence being given through audiovisual technology found that remote witnesses had a limited ability to gesture and interact with physical evidence exhibits, and were less able to judge juror understanding.

The right to be informed about the proceedings and the right to be informed of the likely release date of the accused

• The participation of victims in criminal trials ensures that the criminal justice system does not become solely focused on the rights of the accused – the recognition that victims are interested and concerned in every stage of criminal proceedings, until the conclusion of an offender’s sanction, ensures equal treatment for victims in the criminal justice process. The obligation to inform victims about proceedings ensures that the prosecution considers the role of victims in a criminal trial – this enhances access for victims to criminal legal procedures.

However, these rights may unfairly intrude on the convicted person’s right to privacy after they have served the sanction imposed by the court – this may compromise their right to equal treatment under the law.

• Section 12 of the Charter says expressly that one of its purposes is to protect a victim from “intimidation” by the accused person and their family or supporters.

However,section 9B of the Charter allows the prosecution to not inform victims of some decisions if “it is not practical to contact the victim given the speed or nature of the proceeding.” This means that, in some cases, victims may not be aware of charges being dropped or plea agreements being made.