What rights are protected in the criminal justice process for the accused and for victims?
the rights of an accused and of victims in the criminal justice system
A focused VCE Unit 3 answer to the rights of the accused (silence, fair trial, jury for indictable Commonwealth offences) and the rights of victims (information, protection, participation, restitution) in the Victorian criminal justice system.
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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.
Linking rights to the principles of justice
Each right maps onto a principle of justice, and examiners reward that connection. The right to a fair trial and the right to silence uphold fairness, because they keep the hearing impartial and the burden on the prosecution. The right to legal representation and access to Victoria Legal Aid uphold access, by reducing the financial barrier to defending a charge. Special arrangements for vulnerable witnesses uphold both equality (an adjustment so the witness is not disadvantaged) and the victim's effective participation. Framing rights in this way turns a list into an evaluation of how well the system protects the parties.
Exam-style practice questions
Practice questions written in the style of VCAA exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
2023 VCAA7 marksDiscuss the extent to which the rights of an accused and the rights of victims are upheld in the Victorian criminal justice system.Show worked answer →
A 7-mark response needs both sets of rights with their statutory source, real examples, and a balanced judgement.
- Rights of the accused
- The right to silence at common law (R v Petty (1991) 173 CLR 95 and reinforced by the Evidence Act 2008 (Vic) ss 89, 89A). The right to a fair trial (Dietrich v The Queen (1992) 177 CLR 292; Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24, 25). The right to trial by jury for indictable Commonwealth offences (Constitution s 80) and for indictable Victorian offences (Juries Act 2000 (Vic)). Legal aid through Victoria Legal Aid under the Legal Aid Act 1978 (Vic).
- Rights of victims
- The Victims' Charter Act 2006 (Vic) sets out the principles guiding the response of agencies. Victim impact statements admissible under the Sentencing Act 1991 (Vic) s 8K. The Victims of Crime (Financial Assistance Scheme) Act 2022 (Vic) (from 2024) replaced the Victims of Crime Assistance Tribunal scheme with an administrative scheme.
- Extent of upholding
- Both sets of rights are reasonably well-protected on paper. In practice, both are constrained by court delays, victim service backlogs, and underfunding of legal aid. The 2023 Productivity Commission Report on Government Services flagged ongoing waiting times.
Markers reward both sets of rights with specific statutes and cases, and a balanced final assessment.
VCAA 20225 marksExplain two rights of an accused in the criminal justice system, and explain how each upholds a principle of justice.Show worked answer →
A 5-mark explain item rewards two distinct rights, each with its source, linked to a named principle of justice.
Right one: the right to a fair trial. A fundamental common-law right (Dietrich v The Queen) reinforced by the Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24, 25. It includes the presumption of innocence, knowing the charge, and adequate time to prepare. This upholds fairness, because the accused can genuinely participate in an impartial, open hearing decided on the evidence.
Right two: the right to silence. Confirmed at common law (R v Petty) and protected by the Evidence Act 2008 (Vic) s 89 (no adverse inference from silence at trial). This upholds fairness by preserving the presumption of innocence and ensuring the prosecution carries the burden of proof, so the accused is not compelled to assist the case against them.
Markers reward two genuinely different rights, each with a statute or case, and an explicit link to a named principle (fairness, equality or access).