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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-04-08 Daily Xml
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VICTIMS OF CRIME

The Hon. J.A. DARLEY (16:57): I move:

That the Legislative Review Committee inquire into and report on:

1. The effects on the court system and its participants of extending the right for victims to deliver a victim impact statement in any court to cases where the defendant has been convicted of a summary offence that has caused serious harm, that being harm that endangers, or is likely to endanger, a person's life, or harm that consists of, or is likely to result in, loss of, or serious and protracted impairment of, a part of the body or a physical or mental function, or harm that consists of, or is likely to result in, serious disfigurement.

2. The current effects and consequences for the court system and its participants of allowing a victim to submit a victim impact statement in the court for an indictable offence.

3. The types of systems, facilities and services that should be in place to aid and assist victims involved in the criminal justice system.

4. Any other relevant matters.

I would like to start by acknowledging the many victims of crime who have contacted my office and the office of my predecessor, the Hon. Nick Xenophon, who had the courage to speak out about their experience with the criminal justice system at a time when they were often still dealing with the shock and grief of the trauma they suffered through the criminal actions of others.

This motion is aimed at inquiring into the best possible way that this parliament can ensure that there are laws and policy directives in place to ensure that victims have, and continue to have, a voice.

Members would be aware of the long and drawn out history of the several attempts to introduce further rights for victims in court, particularly surrounding the issue of who is entitled to present a victim impact statement in court. Most recently, in June 2008, I moved amendments to a government bill which entitled a victim to read a victim impact statement in cases of a summary offence which had caused death or serious harm, serious harm being harm that endangers or is likely to endanger a person's life, or harm that consists of, or is likely to result in, loss of or serious and protracted impairment of a part of the body, or a physical or mental function, or harm that consists of or is likely to result in serious disfigurement.

The government's reason for not supporting this in the past has been that it will open the floodgates and clog up the court system, with too many victims presenting statements in court. I do not buy the argument proffered that my amendments would clog up the court system. That is really what the first term of reference for this inquiry aims to address. I would like to hear from the courts, victims and victim support groups, and practitioners and participants in the criminal justice system in other jurisdictions, both nationally and internationally, where this wider scope of victim impact statements has been in place. We need a clearer picture of how these extended rights have worked or not worked, as the case may be, and whether it is appropriate and feasible to implement them here in South Australia.

I think it is absolute hypocrisy on the Attorney's part not to even try to negotiate an outcome on the issue of victim impact statements for the benefit of victims, especially given the fact that his ministerial website biography makes reference to his having 'authored a bill to allow victims of serious crime to read their victim impact statement to the court before sentencing the offender'. I had previously thought that it was the Hon. Chris Sumner, a former Labor attorney-general, who had authored the victim impact statement legislation. Further investigation by my office and the Library found both statements to be correct.

The Criminal Law (Sentencing) Act 1988 was introduced by the then attorney-general (Hon. Chris Sumner). Section 7 of this act provides that a prosecutor must furnish the court with a report on the impact of injury or loss resulting from the offender's conduct. This report was to be in writing and was the very first victim impact statement in that sense to be tendered to a court in this state, even though the statement was to be delivered by the prosecutor and not the victim. I note that section 7 is still currently in operation. At the time, a victim could only present a statement orally to the court (presumably with the special leave of the judge) if at all.

In 1997, in an attempt to expand the law surrounding the victim impact statement, the then member for Spence, and now the Attorney-General, introduced a private member's bill, the Criminal Law (Sentencing) (Victim Impact Statement) Amendment Bill 1997. The bill aimed to allow a written victim impact statement to be presented orally in court by the victim for sentencing of offenders found guilty of indictable offences. This private member's bill was agreed to by the then Liberal government and was amended in the upper house by the then attorney-general (Hon. Trevor Griffin). This became section 7A of the Criminal Law (Sentencing) Act and commenced in 1999.

I will quote from the second reading speech of the member for Spence, as he then was, on the intent of the operation of victim impact statements because it reveals that the effect on victims is the same today as it was in 1997, and the need for an inquiry such as the one I am proposing. He said:

I do not think that many victims will want to take up this right—

that is, the right to deliver a victim impact statement—

but for those who do I think their participation in the trial in person will be most therapeutic. It would be a stronger, more dignified intervention in the trial by the victim and would give the victim a sense of having played a real role in the trial. The victim would be able to tell his or her story. Of course, the accused would be present in the dock during the oral submission by the victim.

If only the Attorney would stand by his words and the commitment to victims he made almost 12 years ago. These words are even more relevant in 2009, where we have seen a steady development of the law relating to victims and their need to be heard in cases where crime has had a very serious impact on their lives.

I find it astonishing that the Attorney would not entertain a private member's bill introduced by the Hon. Nick Xenophon in 2006 or my amendments to widen the circumstances in which victims are able to give statements, aimed at bringing our law into the 21st century, when he himself attempted to update the law on behalf of victims in 1997 and was supported by the then government.

This government wants to be known as the friend of victims and the champion of their rights when, in actual fact, it has not listened to good ideas and the pleas of victims to get the law right in favour of promoting it own agenda. That is why I believe this inquiry is so important. It will provide an opportunity to look at the specific provisions surrounding victim impact statements and the laws relating to how victims are treated by the criminal justice system in general in a forensic and thorough way, hopefully, without the political grandstanding that has surrounded this issue for so long.

The second and third terms of reference allow for a broader consideration of victims' rights in the criminal justice system, including the police investigation stage. I know that the original intent of section 7A of the Criminal Law (Sentencing) Act, which provides for the right to deliver a victim impact statement, was for the defendant to be present when the impact statement was presented. This was because section 7A applied only to indictable offences.

As honourable members may remember, this is currently not the case in the Magistrates Court, where, for summary offences such as driving without due care or causing death by dangerous driving, a defendant need not be present. Ms Julie McIntyre, whose son Lee was killed in a motor vehicle collision in 2004, was devastated by the fact that she never had the opportunity to read her victim impact statement to the defendant and express to him the devastating impact Lee's death had on her and her family.

Again, I think this issue is important to explore in terms of facilitating victims' participation in the criminal justice system and the government and, indeed, the parliament legislating to ensure that those affected by criminal behaviour are not left out in the cold and forgotten by the system.

In conclusion, the terms of reference for this inquiry are quite simple. The first deals specifically with the effect of extending the circumstances in which victims can deliver an impact statement to the court. The second aims to review the current system of the delivery of victim impact statements in the court, with a view to investigating improvements or alternatives to the status quo.

The third is much broader and aims to consider the way victims are treated by the criminal justice system in general. Often, a victim's involvement in the justice system starts well before anyone enters a courtroom, and I think any inquiry should look at the process as a whole.

I urge all honourable members to support this important inquiry, which will hopefully continue South Australia's tradition of being a leader in victims of crime legislation.

Debate adjourned on motion of Hon. J.M. Gazzola.

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