Abstract
The jury trial has been largely modified by changes to the law of evidence. This chapter focuses on the way vulnerable victims are now protected by a law of evidence that strictly controls the accused’s access to the victim during the trial, including the right to examine the victim in open court, the victim’s right to out-of-court evidence, to court support, for retrials following acquittal, and for rehearing following appeal. This chapter also focuses on sex offences victims and other identified vulnerable groups where the criminal trial process has been significantly modified in order to protect the interests of the victim. This chapter focuses on the criminal trial proper. It covers the period following pre-trial decision-making but before the accused is sentenced. Although the interaction of the jury and victim is negligible in adversarial courts, this chapter covers that phase of the criminal trial where the accused appears before the jury for the determination of guilt.
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Notes
- 1.
The victim may engage with the jury in sentencing hearings in the USA, where the victim may present a VIS to the jury in a sentencing matter. Not all US states retain the jury in the sentencing phase, and this process is not covered in the book.
- 2.
Art. 6 of the ECHR provides: (1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. (2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. (3) Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
- 3.
Art. 8 of the ECHR provides: (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
- 4.
Also see Doorson v The Netherlands (1996) 22 EHRR 330.
- 5.
The position in England and Wales regarding the implementation of 2012 CFU FD and the requirement that member states adopt the framework directive in national or domestic law is now modified by Assange v The Swedish Prosecution Authority (2012) UKSC 22. The Supreme Court of the United Kingdom ruled that, while the ruling will not affect the outcome of Pupino, the UK parliament may continue to legislate as though Pupino has been applied, and was thus not bound to adopt the framework directive. Lord Phillips at par [10] states: ‘I have read with admiration Lord Mance’s analysis of the effect of the decision in Pupino and I accept, for the reasons that he gives, that it does not bind this Court to interpret Part 1 of the 2003 Act, insofar as this is possible, in a manner that accords with the Framework Decision. I consider, nonetheless that it is plain that the Court should do so. This is not merely because of the presumption that our domestic law will accord with our international obligations.’ Assange thus modified the general position regarding the ratification of laws that correspond to EU framework directives, pursuant to Dabas v High Court of Justice in Madrid, Spain (2007) 2 AC 31. Lord Bingham stated at par [5] that: ‘By article 34(2)(b) of the Treaty on European Union, reflecting the law on directives in article 249 of the EC Treaty, framework decisions are binding on member states as to the result to be achieved but leave to national authorities the choice of form and methods. In its choice of form and methods a national authority may not seek to frustrate or impede achievement of the purpose of the decision, for that would impede the general duty of cooperation binding on member states under article 10 of the EC Treaty.’ Thus while a national court may not interpret a national law contra legem, it must ‘do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2)(b) EU’ (Criminal Proceedings Against Pupino (Case C – 105/03) [2006] QB 83, [2005] EUECJ C-105/03, paras 43, 47).’
- 6.
See Youth Justice and Criminal Evidence Act 1999 (UK) ss 23–30. Also see Ministry of Justice (2011) Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures, Ministry of Justice, UK.
- 7.
See generally ss 339–365 Criminal Procedure Act 2009 (Vic); ss 290-306ZP Criminal Procedure Act 1986 (NSW); ss 36B-36BC Evidence Act 1906 (WA). As to current provisions prohibiting the accused from cross-examining a vulnerable witness, see ss 356 and 357 Criminal Procedure Act 2009 (Vic), s 294A Criminal Procedure Act 1986 (NSW), and s 106G Evidence Act 1906 (WA).
- 8.
Criminal Procedure Act 1986 (NSW) s 281B ‘Sensitive evidence-meaning (1) For the purposes of this Part, anything that contains or displays an image of a person (the ‘protected person’) is ‘sensitive evidence’ if: (a) the image is obscene or indecent, or (b) providing a copy of the image to another person without the protected person’s consent would interfere with the protected person’s privacy, or (c) the image was taken after the death of the protected person.’
- 9.
Criminal Procedure Act 1986 (NSW) s 298F ‘Complainant may give evidence in chief in form of recording (1) In proceedings for a domestic violence offence, a complainant may give evidence in chief of a representation made by the complainant wholly or partly in the form of a recorded statement that is viewed or heard by the court. (2) A representation contained in a recorded statement may be in the form of questions and answers. (3) A recorded statement must contain the following statements by the complainant: (a) a statement as to the complainant’s age, (b) a statement as to the truth of the representation, (c) any other matter required by the rules.’
- 10.
Criminal Procedure Act 1986 (NSW) s 291 ‘Proceedings must be held in camera when complainant gives evidence. (1) Any part of any proceedings in respect of a prescribed sexual offence in which evidence is given by a complainant is to be held in camera, unless the court otherwise directs. (2) This section applies even if the complainant gives evidence by means of closed-circuit television or other technology or under any alternative arrangements available to the complainant under section 294B or under Part 6. (3) The court may direct that the part of proceedings in which evidence is given by the complainant be held in open court only at the request of a party to the proceedings and only if the court is satisfied that: (a) special reasons in the interests of justice require the part of the proceedings to be held in open court, or (b) the complainant consents to giving his or her evidence in open court.’
- 11.
Criminal Procedure Act 1986 (NSW) s 293 ‘Admissibility of evidence relating to sexual experience. (1) This section applies to proceedings in respect of a prescribed sexual offence. (2) Evidence relating to the sexual reputation of the complainant is inadmissible. (3) Evidence that discloses or implies: (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible.’
- 12.
Criminal Procedure Act 1986 (NSW) s 294 ‘Warning to be given by Judge in relation to lack of complaint in certain sexual offence proceedings. (1) This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest: (a) an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or (b) delay by that person in making any such complaint. (2) In circumstances to which this section applies, the Judge: (a) must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and (b) must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and (c) must not warn the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a warning.’
- 13.
Criminal Procedure Act 1986 (NSW) s 294AA ‘Warning to be given by Judge in relation to complainants’ evidence. (1) A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses. (2) Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant.’
- 14.
Criminal Procedure Act 1986 (NSW) s 294A ‘Arrangements for complainant in prescribed sexual offence proceedings giving evidence when accused person is unrepresented. (1) This section applies to proceedings in respect of a prescribed sexual offence during which the accused person is not represented by an Australian legal practitioner. (2) The complainant cannot be examined in chief, cross-examined or re-examined by the accused person, but may be so examined instead by a person appointed by the court. (3) The person appointed by the court is to ask the complainant only the questions that the accused person requests that person to put to the complainant. (4) Any such person, when acting in the course of an appointment under this section, must not independently give the accused person legal or other advice.’
- 15.
Criminal Procedure Act 1986 (NSW) s 294B ‘Giving of evidence by complainant in prescribed sexual offence proceedings-alternative arrangements. (1) This section applies to evidence given in proceedings (including a new trial) in respect of a prescribed sexual offence. (1A) This section applies (with any necessary modifications) to the giving of evidence in apprehended violence order proceedings (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) by a protected person in the same way as it applies to the giving of evidence in criminal proceedings by a complainant but only if: (a) the defendant in the proceedings is a person who is charged with a prescribed sexual offence, and (b) the protected person is the alleged victim of the offence. (2) This section does not apply to or in respect of the giving of evidence by a vulnerable person if Division 4 of Part 6 applies to the giving of that evidence. (2A) This section applies in addition to Part 4B, if the complainant is a domestic violence complainant. (3) A complainant who gives evidence to which this section applies is entitled (but may choose not): (a) to give that evidence from a place other than the courtroom by means of closed-circuit television facilities or other technology that enables communication between that place and the courtroom, or (b) to give that evidence by use of alternative arrangements made to restrict contact (including visual contact) between the complainant and the accused person or any other person or persons in the courtroom, including the following: (i) use of screens, (ii) planned seating arrangements for people who have an interest in the proceedings (including the level at which they are seated and the people in the complainant’s line of vision).’
- 16.
Criminal Procedure Act 1986 (NSW) s 294C ‘Complainant entitled to have support person or persons present when giving evidence. (1) A complainant is entitled to have a person or persons chosen by the complainant present near the complainant, and within the complainant’s sight, when the complainant is giving evidence in proceedings in respect of a prescribed sexual offence. (2) The entitlement applies: (a) even if the complainant gives evidence by means of closed-circuit television or other technology or under any alternative arrangements available to the complainant under section 294B or Part 6, and (b) even if the proceedings, or the part of the proceedings in which the complainant gives evidence, are held in camera. (3) Without limiting the entitlement of a complainant under this section, the person or persons chosen by the complainant to be with the complainant when he or she gives evidence may include a parent, guardian, relative, friend or support person of the complainant, or a person assisting the complainant in a professional capacity. (4) An accused person is not entitled to object to the suitability of the person or persons chosen by a complainant to be with the complainant when giving evidence, and the court is not to disallow the complainant’s choice of person or persons on its own motion, unless the complainant’s choice is likely to prejudice the accused person’s right to a fair trial (e.g., because the person chosen by the complainant is a witness or potential witness in the proceedings).’
- 17.
Criminal Procedure Act 1986 (NSW) s 306B ‘Admission of evidence of complainant in new trial proceedings. (1) If a person is convicted of a prescribed sexual offence and, on an appeal against the conviction, a new trial is ordered, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant.’
- 18.
Criminal Procedure Act 1986 (NSW) s 306B ‘Definitions. (1) In this Part: ‘vulnerable person’ means a child or a cognitively impaired person. (2) For the purposes of this Part, a ‘cognitive impairment’ includes any of the following: (a) an intellectual disability, (b) a developmental disorder (including an autistic spectrum disorder), (c) a neurological disorder, (d) dementia, (e) a severe mental illness, (f) a brain injury.’
- 19.
Criminal Procedure Act 1986 (NSW) s 306U ‘Vulnerable person entitled to give evidence in chief in form of recording. (1) A vulnerable person is entitled to give, and may give, evidence in chief of a previous representation to which this Division applies made by the person wholly or partly in the form of a recording made by an investigating official of the interview in the course of which the previous representation was made and that is viewed or heard, or both, by the court. The vulnerable person must not, unless the person otherwise chooses, be present in the court, or be visible or audible to the court by closed-circuit television or by means of any similar technology, while it is viewing or hearing the recording.’
- 20.
Criminal Procedure Act 1986 (NSW) s 306ZB ‘Vulnerable persons have a right to give evidence by closed-circuit television. (1) Subject to this Part, a vulnerable person who gives evidence in any proceeding to which this Division applies is entitled to give that evidence by means of closed-circuit television facilities or by means of any other similar technology prescribed for the purposes of this section. (2) Subject to subsections (4) and (5), a child who is 16 or more but less than 18 years of age at the time evidence is given in a proceeding to which this Division applies is entitled to give the evidence as referred to in subsection (1) if the child was under 16 years of age when the charge for the personal assault offence to which the proceedings relate was laid. (3) A vulnerable person may choose not to give evidence by the means referred to in subsection (1). (4) A vulnerable person must not give evidence by means of closed-circuit television facilities or any other prescribed technology if the court orders that such means not be used. (5) The court may only make such an order if it is satisfied that there are special reasons, in the interests of justice, for the vulnerable person’s evidence not to be given by such means.’
- 21.
Criminal Procedure Act 1986 (NSW) s 306ZB. ‘(2) In such a proceeding, the court must make alternative arrangements for the giving of evidence by the vulnerable person, in order to restrict contact (including visual contact) between the vulnerable person and any other person or persons. (3) Those alternative arrangements may include any of the following: (a) the use of screens, (b) planned seating arrangements for people who have an interest in the proceeding (including the level at which they are seated and the people in the vulnerable person’s line of vision), (c) the adjournment of the proceeding or any part of the proceeding to other premises.’
- 22.
Criminal Procedure Act 1986 (NSW) s 306ZB. ‘(2) A vulnerable person who gives evidence in a proceeding to which this section applies is entitled to choose a person whom the vulnerable person would like to have present near him or her when giving evidence. (3) Without limiting a vulnerable person’s right to choose such a person, that person: (a) may be a parent, guardian, relative, friend or support person of the vulnerable person, and (b) may be with the vulnerable person as an interpreter, for the purpose of assisting the vulnerable person with any difficulty in giving evidence associated with an impairment or a disability, or for the purpose of providing the vulnerable person with other support.’
- 23.
Criminal Procedure Act 1986 (NSW) s 306ZL ‘Vulnerable persons have a right to alternative arrangements for giving evidence when accused is unrepresented. (1) This section applies to a criminal proceeding in any court, or a civil proceeding arising from the commission of a personal assault offence, in which the accused or defendant is not represented by an Australian legal practitioner. (2) A vulnerable person who is a witness (other than the accused or the defendant) in a proceeding to which this section applies is to be examined in chief, cross-examined or re-examined by a person appointed by the court instead of by the accused or the defendant. (3) If any such person is appointed, that person is to ask the vulnerable person only the questions that the accused or the defendant requests the person to put to the vulnerable person.’
- 24.
Criminal Procedure Act 1986 (NSW) s 306U. ‘(3) If a vulnerable person who gives evidence as referred to in subsection (1) is not the accused person in the proceeding, the vulnerable person must subsequently be available for cross-examination and re-examination: (a) orally in the courtroom, or (b) if the evidence is given in any proceeding to which Division 4 applies, in accordance with alternative arrangements made under section 306W.’
- 25.
Criminal Procedure Act 1986 (NSW) s 306Y ‘Evidence not to be given in form of recording if contrary to interests of justice. (1) A vulnerable person must not give evidence by means of a recording made by an investigating official in accordance with this Division if the court orders that such means not be used. (2) The court may only make such an order if it is satisfied that it is not in the interests of justice for the vulnerable person’s evidence to be given by a recording.’
- 26.
Criminal Procedure Act 1986 (NSW) s 3275B ‘Witness with communication difficulty entitled to assistance from person or communication aid. (1) In any criminal proceedings, a witness who has difficulty communicating is entitled to use a person or persons who may assist the witness with giving evidence, but only if the witness ordinarily receives assistance to communicate from such a person or persons on a daily basis. (2) In any criminal proceedings, a witness who has difficulty communicating is entitled to use a communication aid to assist the witness with giving evidence, but only if the witness ordinarily uses such an aid to assist him or her to communicate on a daily basis. (3) To the extent that the court considers it reasonable to do so, the court must make whatever direction is appropriate to give effect to a witness’ right to use a person or persons, or to use a communication aid, under this section when the witness is giving evidence. (4) The provisions of the Evidence Act 1995 apply to and in respect of a person who gives witness assistance under this section in the same way as they apply to and in respect of an interpreter under that Act. (5) In this section: ‘communication aid’ includes anything, whether electronic or otherwise, that can be used to assist in communication.’
- 27.
Lay judges must be Italian citizens, be between 30 and 65 years of age, enjoy full political and civil rights, be of good moral character, have attained a lower mid-school certificate for the Corte d’Assises, or a higher mid-school certificate for the Corte d’Assise d’Appello (see Di Amato 2011: 28).
- 28.
See, for instance, the processes regarding victim participation in German and French criminal procedure, which affords the victim greater levels of support throughout the policing and prosecution process. While it may not be that victims are afforded greater processes per se, better and more integrated support might mean that by comparison the Italian process is not as inclusive of the victim, despite a criminal procedure to the contrary. See Kury and Kichling (2011).
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Kirchengast, T. (2016). Trial by Jury. In: Victims and the Criminal Trial. Palgrave Studies in Victims and Victimology. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-51000-6_4
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