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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2010-11-24 Daily Xml
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LEGISLATIVE REVIEW COMMITTEE: VICTIM IMPACT STATEMENTS

Mr SIBBONS (Mitchell) (11:06): I move:

That the report of the committee, on Victim Impact Statements, be noted.

In May 2009, the Legislative Review Committee resolved to adopt an inquiry into the effect of victim impact statements. Its inquiry was moved in the Legislative Council by the Hon. John Darley. Its inquiry was in response to a concern that victims of summary offences, often heard in the Magistrates Court, did not have a statutory right to deliver a victim impact statement (VIS) in court. This is despite the fact that the offence may have resulted in serious harm or even the death of a person.

Over the last four years, a number of legislative attempts were made both by the government and by private members to extend the right to deliver a victim impact statement to victims of summary offences in certain circumstances. The inquiry sought to examine in detail the consequences of providing such rights to victims, as well as look at the experience of victims in the criminal justice system and how they might be better assisted.

The inquiry's first term of reference addressed the potential effect on the courts of extending a victim's right to deliver a VIS to summary offences resulting in the death or serious harm of a person. The second term of reference sought to explore the current experience of victims delivering a VIS in the court. The third term of reference inquired as to the types of services and facilities that should be made available to victims to assist them in the criminal justice system.

The committee heard evidence and received submissions from the Chief Magistrate, SA Police, SafeWork SA and the Commissioner for Victims' Rights. The committee noted that a number of pilot programs have been run in South Australia where victims and offenders are able to address one another in a more informal conference setting outside court. These include:

a conference pilot run through the Port Lincoln Magistrates Court for Aboriginal offenders held in 2008;

the adult restorative justice conferencing pilot run in the Adelaide Magistrates Court in 2005; and

family conferences run in the Youth Court.

The conferences allow the offender and the victim to speak freely about the offence and its effect. The outcomes are then reported to the court during sentencing. The committee has recommended the establishment of a victim impact conference, where a victim can speak about the effects of the crime upon them. Such a conference would be available at the recommendation or request of the judge, the magistrate or the victim. Information and support would be provided to victims before, during and after the conference, which would be facilitated by an independent officer.

The committee also recommended that a review be undertaken of all services provided to victims in the justice system. Part of this review should include a survey of all participants in the criminal justice system, including victims, to ascertain their views and experience with a view to further law reform.

On behalf of the committee, I thank all those who made a submission to the inquiry and, in particular, the victims, who told of their very personal and difficult experiences in the criminal justice system after losing a family member. I would like to acknowledge the contribution of former members of the committee who heard the evidence to this inquiry, as well as all members of the current committee who considered the report. I also thank the committee staff, the secretary, Ms Leslie Guy, and the research officer, Ms Carren Walker.

Mr GARDNER (Morialta) (11:11): The issue of restorative justice is important for us to consider, as its effect, and the effect of victim impact statements, on our justice system is a matter for us as lawmakers and as anybody making a contribution to public policy. I commend the report of the Legislative Review Committee, entitled Victim Impact Statements, and particularly the Attorney-General and the shadow attorney. Again, this was an inquiry of the previous parliament's Legislative Review Committee. It is a highlight, I suppose, of the committee structure that this contribution can be made to the public polity.

I know that this is an issue that has occupied the minds of the previous members of the committee. Isobel Redmond (now Leader of the Opposition) was replaced by the member for Davenport on the committee, and the Hon. Robert Lawson QC was also a member, and I am well aware of his interests in the area. While I am not familiar with the personal involvement in this area of policy of the government members, I particularly pay credit to the Hon. John Darley MLC, upon whose motion the committee adopted this review.

Again, I express my appreciation, along with that of the member for Mitchell, on behalf of the government, to Ms Leslie Guy and Ms Carren Walker for their work in producing what is a very worthwhile document that I commend to all members to consider.

The Hon. J.R. RAU (Enfield—Attorney-General, Minister for Justice, Minister for Tourism) (11:13): I want to say a few words in relation to this matter, and I will be very brief because I have not yet had the privilege of reading the report, so I do not know exactly what it says. I was listening to the various members’ contributions, and they indicate that the committee has given very thorough and well-considered attention to this issue. I just wanted to make a couple of general remarks about the issue, and I emphasise to people that, because I have not read the report, these remarks are directed in general and not at any particular reference in the report.

I think it is important for members to appreciate that there is a tension between two, in some respects competing, issues; the first one is the legitimate interest of victims in any criminal case. The victims, obviously, have their own personal anguish they have to deal with. They have a number of different possible ways of reacting to that, and not all victims have a similar response to the crime that has been visited on them. Some victims wish to have nothing to do with the process, they wish to be apart from it; other victims wish to be very much involved and to make a contribution. We need to tailor responses which are broad enough so that they do not inadvertently cause more concern for the people we are trying to assist.

The second thing is that we need to remember at all times that criminal proceedings are not proceedings in personam (as they would say in the legal profession); in other words, personal proceedings like a civil action where, if somebody ran into your car and you decided you were not happy about it, you would sue them. That is a personal action between you and the other person. It does not involve the state at all. That is essentially the definition of a civil matter.

When we are dealing with criminal matters it is a pretty fundamental pillar of a civil society that the state, on behalf of the whole community, enforces compliance with the community's laws. It is not a personal exchange between a victim and an accused. The actual context of the criminal trial is where the state is saying, 'We as a community have made a rule. We expect every member of this community collectively to comply with these rules. If any member of the community decides to depart from these rules we, as a community, reserve the right—and we alone as a collective—to prosecute that person for a breach of our collective rules.' That is sound, and it is a fundamental principle of a civil society and the rule of law.

There is a danger, if we are not entirely careful and vigilant, that we will give victims the impression that, however terrible their personal experiences might be, they somehow have a personal role in the legal process of that criminal trial. That sometimes is a fine line but it is one that we should be very careful not to cross. I will give an example which might assist members in understanding the point that I am trying to make.

A few months ago I saw on television a woman who was the mother of a young man who had been killed in a motor accident. The vehicle in which he had been killed was driven by a friend of his and this friend was being tried for causing death by dangerous driving or some other very serious offence. Ultimately, the young man was convicted because he had been drinking and had done all sorts of crazy things in the car and so forth.

I distinctly remember seeing on television that night the mother of the dead boy saying, 'Look, this fellow has suffered enough, don't send him to gaol.' She is speaking of the friend of her son who had been driving the car. I was immediately struck by the compassion and the sincerity of this woman's plea on behalf of this young man who, in fact, had been responsible for the death of her own son.

However, as much as I respect, understand and admire that, hold it in your mind for a moment and imagine if she had a completely different attitude—that is, 'This person has driven the car and killed my son. I want you to stick him up on the gallows.' Again, not an entirely unreasonable view to have if one is a parent and loses a child, I would have thought; not dripping with as much compassion and Christian charity but perhaps more of a Mosaic Code view of the world.

It does not matter. My point is simply this: if you allow the opinions of the victims into a certain aspect of the criminal process you are going to have inconsistencies because every victim will react to similar circumstances in a different way. It is important for the state to have consistency of sentencing which is managed by the court and not by the victims. That is in the interests of the victims, it is certainly in the interests of the community and it is in the interests of the rule of law that there be consistency and objectivity about the determination of sentences in criminal matters.

As I said, I have not read the report, and these comments are possibly a long way away from the substance of the report, but I wish to place on the record the fact that I am very grateful that the committee has looked into this important matter. If there are ways that I through my office am able to assist, giving victims greater resolution and satisfaction without transgressing that line, I am keen to do so. I will read the committee's report with interest.

Motion carried.

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