the rights of an accused and of victims in the criminal justice system

What this dot point is asking

VCAA wants you to know the rights protected for both parties in a criminal matter and how each set of rights is upheld in Victoria. Expect a 5-8 mark medium response item.

The answer

Rights of an accused

Right to silence

The common law right confirmed in R v Petty (1991) 173 CLR 95. Reinforced in Victoria by the Evidence Act 2008 (Vic) s 89 (no adverse inference from silence at trial) and s 89A (limited circumstances for adverse inference from pre-trial silence in serious indictable offences). The Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(k) protects the right not to be compelled to confess guilt.

Right to a fair trial

A fundamental common-law right (Dietrich v The Queen (1992) 177 CLR 292) and protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24 and 25. Includes the presumption of innocence, the right to know the charge, adequate time to prepare a defence, and the right to legal representation.

Right to a trial by jury

For indictable Commonwealth offences under s 80 of the Constitution. For indictable Victorian offences under the Juries Act 2000 (Vic). A jury comprises 12 jurors; verdicts must be unanimous in Victoria for indictable matters (Juries Act 2000 (Vic) s 46).

Right to legal representation

Not absolute but protected by Dietrich v The Queen (1992) 177 CLR 292 (a trial of a serious offence may be stayed where the accused is unrepresented and would be denied a fair trial). Victoria Legal Aid provides legal aid under the Legal Aid Act 1978 (Vic).

Right to be tried without unreasonable delay

Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(c). Pandemic and post-pandemic delays in the County and Supreme Courts have stretched this.

Rights of victims

Victims' Charter Act 2006 (Vic)

Sets out principles that guide agencies' responses to victims, including respect, information, protection of privacy, and provision of services.

The right to information

Section 7 of the Victims' Charter Act 2006 (Vic) requires investigating agencies to provide victims with information about the progress of the investigation.

The right to be heard

Victim impact statements are admissible at sentencing under s 8K of the Sentencing Act 1991 (Vic). The statement informs the sentence but does not bind the court (R v Slack (2004) 58 NSWLR 552 is the leading NSW comparator and reflects the same principle).

Protection during the trial

The Criminal Procedure Act 2009 (Vic) Part 8.2 provides for special arrangements for protected witnesses (children, complainants in sexual offences and family violence matters). Includes remote witness rooms, screens, and pre-recorded evidence-in-chief.

Restitution and compensation

The Victims of Crime (Financial Assistance Scheme) Act 2022 (Vic) (commenced 1 July 2024) replaced the Victims of Crime Assistance Tribunal with an administrative scheme administered by the Victims of Crime Assistance Tribunal. The Sentencing Act 1991 (Vic) Part 4 allows the court to make restitution and compensation orders against offenders.

Tensions

The rights of the accused and the rights of victims are not always in tension, but some balancing is required:

• the right to a fair trial requires the accused to know the case against them; this can require disclosure of material that may distress the victim;
• the cross-examination of complainants in sexual offence and family violence matters has been progressively restricted by Criminal Procedure Act 2009 (Vic) reforms to protect complainants while preserving fair trial rights;
• victim impact statements give victims a voice but do not bind the court, which must apply ordinary sentencing principles.