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Complainants sometimes decide not to proceed with their complaint. This could be for a range of reasons — including factors associated with the court process itself such as the length of time the complainant is likely to be in the witness box during the committal or trial hearings and the likelihood of the complainant ha ving to see the defendant in court.17

The experience of the committal hearing may also discourage a truthful complainant from proceeding, or the trial date may change many times and this may lead the complainant to feel disillusioned with the process and to no longer be willing to participate. If it is considered important to punish guilty offenders, ho wever, consider ation of the rights of victims is vital to the successful progression of matters through the criminal justice system.

A fundamental feature of criminal trials in Australia is that the accused person is regarded as innocent until the Crown can prove beyond a reasonable doubt that they are guilty of the particular offence in question. In order to ensure that innocent people are not convicted, the criminal justice system dictates that the right of an accused to fairness during the investigation phase, the course of the trial and during any subsequent appeals is essential (OPM 2002, Chapter 2.12.1). This notion of fairness does not tr aditionally involve separate consideration of fairness to anyone else, such as the complainant (QPS 2001, p. 30). It is sometimes said that victims are often the forgotten element within the criminal justice system: instead of being treated as an integral part of the criminal justice process, victims often complain that they are made to feel like mere witnesses to a crime. In the Australian criminal justice system, complainants are not a party to criminal proceedings — even though their cooperation and participation are essential to it.18 _{As a result, complainants may often participate in the} criminal justice system without feeling fully engaged in or fully respected by it. In 1995, the Queensland Government responded to increasing concerns about the position of victims in the criminal justice system by passing the Criminal

Offence Victims Act 1995 (COVA). The purpose of this Act was twofold:

1 To advance the interests of victims of crime by stating some fundamental principles of justice that should be observed in dealings with victims of crime (see s. 4[2] of COVA).

These principles are based on the 1985 United Nations Declaration of Basic

Principles of Justice for Victims of Crime and Abuse of Power, which was

adopted b y the Queensland Government prior to the enactment of COVA. 2 To relocate (and amend) the provisions governing the making of victim

compensation claims against defendants and the Queensland Government from the Criminal Code.19

24 C H A P T E R 3 : S E X U A L O F F E N C E L E G I S L A T I O N

The term ‘victim’ is defined quite broadly: it is not limited to a person who suffers harm directly as a result of a crime. Section 5 of COVA defines the term ‘victim’ as a person w ho has suffered harm from a violation of the State’s criminal laws:

a) because a crime is committed that involves violence committed against the person in a direct way;

b) because the person is a member of the immediate family of, or is a dependant of, a victim mentioned in paragraph (a); or

c) because the person has directly suffered the harm in intervening to help a victim mentioned in paragraph (a).

The 12 fundamental principles of COVA are listed on the next page.

Who has obligations under COVA?

COVA imposes obligations on ‘public officials’ and ‘public entities’.20 A ‘public official’ is defined in COVA to mean:

• a police officer

• a prosecutor in a criminal trial • an officer of the QPS or the ODPP

• an officer or employee of a public entity, or

• (for some purposes only) a corrective services officer.21 A ‘public entity’ is defined to mean:

• the QPS • the ODPP

• a government department

• the administrative office of a court or tribunal, or • any entity prescribed under a regulation.

It does not include a government-owned corporation (more commonly known as a GOC) and certain other bodies.

The three public entities in Queensland primarily responsible for responding to the needs of sexual offence victims, and which have significant obligations under COVA, are the QPS, the ODPP and Queensland Health.22_{In November} 2001, these three agencies released the Interagency Guidelines for Responding to

Adult Victims of Sexual Assault (Queensland Government 2001). The guidelines

provide a best practice framework for responding to adult victims of sexual assault and help staff from the three agencies understand one another’s roles and responsibilities towards victims. A number of recent government reports

(Queensland Government 2000a; 2000b; 2002b) have highlighted the need for increased interagency cooperation and coordination in the area of victim services: the guidelines are an initial attempt to respond to this issue.

Under section 8 of COVA, each agency is required to issue internal guidelines explaining how its officers and employees are to ‘put the 12 fundamental principles of justice into effect’. The November 2001 interagency guidelines are intended to complement these indi vidual ‘section 8 guidelines’. The two internal documents that identify how ODPP officers and employees are to comply with COVA are the draft procedures for implementing the fundamental principles of justice for victims of crime as stated in the Criminal Offence Victims Act (DPP Qld 2000a), and the Director of Public Prosecutions Guideline No. 2 of 2000 (DPP Qld 2000b, currently under review).

25 C H A P T E R 3 : S E X U A L O F F E N C E L E G I S L A T I O N Part 2 of COVA sets out these 12 fundamental principles of justice for victims of

crime:

1. A victim should be treated with courtesy, compassion and respect for personal dignity; and in a way that is responsive to age, gender, ethnic, cultural and linguistic differences or disability or other special need (s. 6).

2. A victim should be given access to the State’s system of justice (s. 7).

3. A victim should be given, on request, information about ways to prevent crime (s. 9).

4. A victim’s privacy should be protected and any property held for an investigation or as evidence should be returned to the victim as soon as reasonably possible (s. 10).

5. A police officer investigating a crime should make a report of a victim’s version of the circumstances as soon as reasonably possible after the crime happens (s. 11). 6. A victim should be afforded all necessary protection from violence and

intimidation by a person accused of a crime against the victim (s. 12).

7. The welfare of the victim should be considered at all appropriate stages of the investigation and prosecution of a crime, without prejudice to anyone who is being investigated for the crime or who has been charged with the crime (s. 13). 8. During sentencing of the offender, the prosecutor should inform the court of

appropriate details of the harm caused to the victim, but it is not a requirement for a victim to give the prosecutor details of the harm, and the fact that the victim does not provide any such details does not of itself give rise to an inference that the crime caused little or no harm to the victim (s. 14).

9. A victim should, on request, be given information by a law enforcement officer about the investigation of the offence and any resulting charges and proceedings, for example:

• the name of the person charged;

• the reasons for anyone’s decision not to proceed with the charge or to amend the charge or to accept a plea to a lesser charge;

• an order releasing the defendant on bail;

• the fact that the defendant has absconded before trial; • details of the place and date of hearing of the charge; • the outcome of any proceeding, including appeals;

• the date of the start and length of sentence imposed on the defendant; • the fact that the defendant has escaped from custody while under sentence; • eligibility dates for the defendant to have staged release into the community,

parole and final discharge for the sentence for the offence (s. 15).

10. A victim of a crime who is a witness in the trial for the crime should be informed by the prosecution about the trial process and the victim’s role as a prosecution witness (s. 16).

11. A victim should have access to information about available welfare, health, counselling, medical and legal help responsive to their needs. A victim should also have access to information about victim–offender conferencing services (s. 17). 12. A victim of a crime should have access to information about how the victim may

obtain compensation or restitution for injury, loss or damage caused to the victim by the crime (s. 18).