• DIRECTOR’S POLICY •
VICTIMS AND PERSONS ADVERSELY
AFFECTED BY CRIME
11 August 2015
Quick Reference
Overview
This policy sets out how the Director of Public Prosecutions expects the public
prosecutions service to treat victims and persons adversely affected by crime.
It aims to ensure that the public prosecutions service complies with its
obligations under the Victims’ Charter Act 2006 and other relevant legislation.
Summary
Victims and persons adversely affected by crime should be treated with
courtesy, respect and dignity and provided with timely information and
assistance.
1
Contents
Quick Reference ................................................................................................. 1
Definitions .......................................................................................................... 3
General obligations ............................................................................................. 4
Protection of victims and witnesses’ personal information and privacy ............ 4
Communication generally................................................................................... 5
The provision of information and assistance ...................................................... 5
Investigations ...................................................................................................... 7
Charges ............................................................................................................... 7
Bail...................................................................................................................... 7
Court process ...................................................................................................... 8
Pleas of guilty and discontinuances .................................................................... 8
Hearing dates ...................................................................................................... 9
Hearing outcomes ............................................................................................... 9
Appeals ............................................................................................................... 9
Obligations to victims at court.......................................................................... 10
Victim impact statements ................................................................................. 10
Restitution, compensation and financial assistance for victims ....................... 13
Victims and witnesses’ property....................................................................... 17
The Victims’ Register ....................................................................................... 17
Review .............................................................................................................. 17
2
Definitions
1.
In this policy:
‘Victim’ means –
a)
b)
c)
d)
a person who has suffered injury as a direct result of a criminal
offence; or
if a person has died as a direct result of a criminal offence
committed against that person, a family member of that person;
or
if the person referred to in paragraph 1(a) is under 18 years of
age or is incapable of managing his or her own affairs because
of mental impairment, a family member of that person;
or
a person who is a family member of a child who is a victim of
an accused person who is charged with or convicted of an
offence against s.49B Crimes Act 1958 (Grooming for sexual
conduct with a child under 16 years).
‘Injury’ means—
a)
b)
c)
d)
e)
actual physical bodily injury; or
mental illness or disorder or an exacerbation of a mental illness
or disorder, whether or not flowing from nervous shock; or
pregnancy; or
grief, distress or trauma or other significant adverse effect; or
loss or damage to property.
‘Person adversely affected by crime’ means—
a)
b)
c)
a victim; or
a family member of a person who has suffered injury as a
direct result of a criminal offence; or
a witness to a criminal offence.
‘Public prosecutions service’ means—
a)
b)
c)
d)
e)
f)
g)
the Director of Public Prosecutions;
the Chief Crown Prosecutor;
Crown Prosecutors;
Associate Crown Prosecutors;
the Solicitor for Public Prosecutions;
employees of the Office of Public Prosecutions (‘OPP’); and
counsel briefed by the Solicitor for Public Prosecutions.
3
General obligations
2.
In the performance of its functions, the public prosecutions service must:

have regard to the need to ensure that the prosecutorial system gives
appropriate consideration to the concerns of the victims of crime1

treat all persons adversely affected by crime with courtesy, respect
and dignity,2 and

take into account, and be responsive to, the particular needs of
persons adversely affected by crime, particularly needs relating to
differences such as:
o race or indigenous background
o sex or gender identity
o cultural or linguistic diversity
o sexual orientation
o disability
o religion
o age.3
Protection of victims and witnesses’ personal
information and privacy
3.
The Victims’ Charter Act 2006,4 Privacy and Data Protection Act 2014,
Criminal Procedure Act 20065 and the Judicial Proceedings Reports Act
19586 all contain provisions on the protection of victims and witnesses’
personal information and privacy. The following rules aim to ensure that
the public prosecutions service complies with those provisions.
4.
The public prosecutions service must:

not disclose a person adversely affected by crime’s address,
telephone number or email address (‘contact details’) except:
o in accordance with the Director’s Policy on disclosure
and upon the instructions of the Director or a Crown
Prosecutor;
o in accordance with the Privacy and Data Protection Act
2014 and upon the instructions of the Director or a
Crown Prosecutor; or
o where a court otherwise orders;
1
Public Prosecutions Act 1994 ss 24(c), 36(3), 38(2), 41(2) and 43(3).
Victims’ Charter Act 2006 s 6(1).
3
Victims’ Charter Act 2006 s 6(2).
4
Section 13.
5
Sections 48, 114, 131 and 186.
6
Sections 3 and 4.
2
4

ensure that all victims and witnesses’ contact details are deleted from
all statements, exhibits and any other documents in the police brief
and depositions, unless a court otherwise orders;

inform a person adversely affected by crime if their contact details
have been disclosed;

inform victims and witnesses that they are not obliged to state their
address in open court, unless the court otherwise orders; and

never disclose the name or contact details of an informer or a
protected witness to any person.
Communication generally
5.
Prior to and when communicating with a victim, the public prosecutions
service should have regard to:

whether the victim wishes to be kept informed about the progress of
the prosecution;

the victim’s preferred method of contact;

the particular circumstances of the victim, for example their age,
capacity to understand English and whether they have a disability or
cognitive impairment;

the sensitivity and complexity of the case;

the information to be communicated; and

the urgency of the information to be communicated.
6.
All communication by the public prosecutions service with persons
adversely affected by crime should be in plain language.
7.
Where English is not a person adversely affected by crime’s main
language, communication between the public prosecutions service and
the person should take place via an interpreter.
The provision of information and assistance
OPP publications
8.
Information should be provided to persons adversely affected by crime
through OPP publications such as Pathways to Justice, Now You Are A
Witness, Taking the Next Step: A guide to the Victorian court system for
bereaved families and Prosecuting Mental Impairment Matters.
5
Entitlements and support services
9.
The OPP must provide clear, timely and consistent information about
relevant support services, possible entitlements and legal assistance
available to persons adversely affected by crime.7
10.
In all matters conducted by the OPP, the OPP should inform all victims
and witnesses that they may contact the OPP Witness Assistance Service
(‘WAS’) to receive information, support and assistance.8
WAS referrals and conferences
11.
If appropriate, the OPP must refer persons adversely affected by crime to
relevant support services and to entities that may provide access to
entitlements and legal assistance.9
12.
As early as possible in the prosecution process, the solicitor with conduct
of the prosecution should refer the matter to WAS if it involves:
13.
14.

a death;

a child victim;

a victim with a disability or cognitive impairment;

a sexual offence; or

family violence.
The solicitor with conduct of the prosecution should offer a precommittal and a pre-trial WAS conference to the following types of
persons adversely affected by crime, if the person is required to give
evidence for the prosecution:

a child witness under 16;

a complainant in a sexual offence case; and

a victim or witness with a disability or cognitive impairment.
In all cases involving a death, the solicitor with conduct of the
prosecution should offer a pre-committal and a pre-trial WAS conference
to family members of the deceased.
7
Victims’ Charter Act 2006 s 7(a).
This information is contained in Pathways to Justice and Now You Are A Witness.
9
Victims’ Charter Act 2006 s 7(b); Such as WAS, the Victims of Crime Helpline on 1800 819
817 or the Law Institute of Victoria.
8
6
15.
In all cases involving family violence, the solicitor with conduct of the
prosecution should consult WAS to determine whether a WAS
conference would be appropriate.
16.
In all other cases involving persons adversely affected by crime, the
solicitor with conduct of the prosecution should consider whether it
would be appropriate to refer the matter to WAS and do so when
appropriate in their discretion.
Investigations
17.
The public prosecutions service should not provide persons adversely
affected by crime with information about investigations. All queries
from persons adversely affected by crime about investigations should be
referred to the relevant investigatory agency.10
Charges
18.
From the date of the first committal mention, the solicitor with conduct
of the prosecution must ensure that victims are informed if:

any new charges are filed;

any charges are withdrawn; or

any charges are substantially modified.11
Bail
19.
Where the solicitor with conduct of the prosecution perceives that there
may be a risk to the victim if the accused is granted bail, the solicitor
with conduct of the prosecution should ensure that, prior to the bail
application, the victim is informed that a bail application has been filed.
20.
From the committal mention onwards, on request by a victim, or in any
case where the victim has indicated that they wish to be informed of the
outcome of any bail applications, the solicitor with conduct of the
prosecution must ensure that the victim is informed of:

the outcome of any application for bail by the accused; and

if bail is granted, any special conditions imposed to protect the
victim or family members of the victim.12
10
Victims’ Charter Act 2006 s 8.
Victims’ Charter Act 2006 ss 9(a) and 9(c).
12
Victims’ Charter Act 2006 s 10(1).
11
7
21.
Where bail is granted, this information should generally be
communicated to victims verbally as soon as practicable, especially
where the victim’s safety is a concern.
Court process
22.
The solicitor with conduct of the prosecution must ensure that victims are
informed about the court process and their entitlement to attend any
relevant court proceedings, unless the court otherwise orders.13
23.
If a victim is to appear as a witness for the prosecution, the solicitor with
conduct of the prosecution must ensure that the victim is informed about
the trial process and the victim’s role as a witness for the prosecution.14
24.
The solicitor with conduct of the prosecution should ensure that all
victims who are to give evidence for the prosecution are offered the
opportunity to attend a WAS conference prior to giving evidence during
which the court process and their role as a witness is explained.
Pleas of guilty and discontinuances
25.
The solicitor with conduct of the prosecution should ensure that victims
are consulted prior to any decision:

to substantially modify the charges;

not to proceed with some or all of the charges; or

to accept a plea of guilty to a lesser charge.
26.
Victims’ views should be taken into account in making such a decision,
but are not determinative.
27.
The solicitor with conduct of the prosecution must ensure that victims are
informed of any decision:

to substantially modify the charges;

not to proceed with some or all of those charges; or

to accept a plea of guilty to a lesser charge.15
13
Victims’ Charter Act 2006 s 11(1).
Victims’ Charter Act 2006 s 11(2).
15
Victims’ Charter Act 2006 s 9(c).
14
8
Hearing dates
28.
The solicitor with conduct of the prosecution must ensure that the victim
has details about how to find out the date, time and place of the hearing
of the charges against the accused.16
29.
The solicitor with conduct of the prosecution must ensure that victims are
informed of the date, time and location of the following hearings:

contested committal;

trial;

plea; and

sentence.17
Hearing outcomes
30.
The solicitor with conduct of the prosecution during the applicable phase
must ensure that victims are informed of the outcomes of the following
hearings:

committal mention;

contested committal;

initial directions hearing;

trial;

plea; and

sentence.18
Appeals
31.
If an appeal is lodged, the solicitor with conduct of the appeal must
ensure that victims are informed:

that an appeal has been lodged;

about the appeal process;

about how to request a copy of the grounds of appeal;
16
Victims’ Charter Act 2006 s 9(d).
Victims’ Charter Act 2006 s 9(d).
18
Victims’ Charter Act 2006 s 9(e).
17
9

of the hearing date once the appeal is listed; and

of the outcome of the appeal.19
Obligations to victims at court
32.
So far as is reasonably practicable, the public prosecutions service
should, during the course of a court proceeding and within a court
building:

minimise a victim’s exposure to unnecessary contact with the
accused, defence witnesses and family members and supporters of
the accused; and

protect a victim from intimidation by the accused, defence witnesses
and family members and supporters of the accused.20
33.
During any court hearing at which a victim is present, the public
prosecutions service should endeavour to ensure that victims are not
waiting around court unsupported in areas which may place them at risk
of unnecessary contact with the accused, defence witnesses and family
members or supporters of the accused. Victims should be offered the
support of Court Network and shown rooms in the court building where
they can wait privately if they wish.
34.
If a victim is present in court for any hearing, the solicitor with conduct
of the matter should ensure that the judge or magistrate is informed that
the victim is present, unless the victim requests otherwise.
Victim impact statements
What is a victim impact statement?
35.
If a court finds a person guilty of an offence, a ‘victim’ may make a
victim impact statement for the purposes of assisting the court in
determining sentence.21
36.
A victim impact statement may be made:

in writing by statutory declaration; or

in writing by statutory declaration and orally by sworn evidence.22
19
Victims’ Charter Act 2006 s 9(f).
Victims’ Charter Act 2006 s 12. This obligation is also imposed upon the court.
21
Sentencing Act 1991 s 8K(1) and Children, Youth and Families Act 2005 s 359(1).
22
Sentencing Act 1991 s 8K(2) and Children, Youth and Families Act 2005 s 359(2).
20
10
Who may make a victim impact statement?
37.
A victim impact statement may be made by a ‘victim’ as defined by the
Sentencing Act 1991.23 The Sentencing Act 199124 defines ‘victim’ to
mean a person who, or body that, has suffered injury, loss or damage
(including grief, distress, trauma or other significant adverse effect) as a
direct result of the offence, whether or not that injury, loss or damage
was reasonably foreseeable by the offender.25
38.
A victim impact statement may also be made by another person on behalf
of a victim:

who is under the age of 18 years;

who the court is satisfied is incapable of making the statement
because of mental illness or for any other reason; or

that is not an individual.26
Contents of a victim impact statement
39.
A victim impact statement contains particulars of the impact of the
offence on the victim and of any injury, loss or damage suffered by the
victim as a direct result of the offence.27
40.
A victim impact statement may include photographs, drawings or poems
and other material (including video) that relates to the impact of the
offence on the victim or to any injury, loss or damage suffered by the
victim as a direct result of the offence.28
41.
A written statement on medical matters concerning the victim may be
attached to a victim impact statement.29
Role of the public prosecutions service in relation to victim impact
statements
42.
The solicitor with conduct of the prosecution should ensure that victims
are informed of their entitlement to make a victim impact statement.
23
And the Children, Youth and Families Act 2005.
And the Children, Youth and Families Act 2005.
25
Section 3.
26
Sentencing Act 1991 s 8K(3) and Children, Youth and Families Act 2005 s 359(3).
27
Sentencing Act 1991 s 8L(1) and Children, Youth and Families Act 2005 s 359(4).
28
Sentencing Act 1991 s 8L(2) and Children, Youth and Families Act 2005 s 359(4A).
29
See Sentencing Act 1991 s 8M.
24
11
43.
Sections 8K and 8N of the Sentencing Act 1991 make it clear that the
preparation of a victim impact statement is the responsibility of the
victim. Further, s 13(2) of the Victims’ Charter Act 2006 provides that if
a victim expresses a wish to make a victim impact statement, a
prosecuting agency should refer the victim to an appropriate victims’
services agency for assistance in preparing the victim impact statement.
Accordingly, the public prosecutions service has no formal role in
assisting in the preparation of a VIS. However, the OPP should inform
victims that the Guide to Victim Impact Statements and Victim Impact
Statements Made Easy published by the Department of Justice provide
guidance in drafting a victim impact statement and also refer victims to
the Victims of Crime Helpline on 1800 819 817 for assistance in drafting
a victim impact statement.
44.
It is a matter for the sentencing judge to determine the admissibility of
the material in a victim impact statement. However, where a prosecutor
has possession of a victim impact statement and identifies clearly
inadmissible material, he or she should bring it to the attention of the
court to prevent sentencing error.
Reading aloud of victim impact statements
45.
On request, a victim impact statement may be read aloud at a sentencing
hearing by the victim, the prosecutor or another person chosen by the
victim.30
46.
Alternative arrangements may be made for the reading aloud of a victim
impact statement.31
47.
Where a victim wishes to request that a victim impact statement be read
aloud or that alternative arrangements be made for the reading aloud of a
victim impact statement, the request should be made by the prosecutor on
the victim’s behalf unless the victim wishes to make the request
themselves.
48.
Where a victim impact statement is to be read aloud by the victim or their
representative and the statement contains material likely to be regarded
as inadmissible, except where the material is scandalous, the prosecutor
should submit that the victim or their representative be allowed to read
the statement out in full. It should be submitted that the court should
then decide what parts of the statement it considers to be admissible.
Where the prosecutor considers that parts of the victim impact statement
are likely to be regarded by the court as inadmissible, the defence and the
court should be put on notice of the prosecutor’s view. The prosecutor
should not engage in editing or vetting the victim impact statement as it
is the court’s role to determine the admissibility of the victim impact
statement.
30
31
See Sentencing Act 1991 s 8Q and Children, Youth and Families Act 2005 s 359(12).
See Sentencing Act 1991 s 8R and Children, Youth and Families Act 2005 s 359A.
12
Relevance of victim impact statements to sentence
49.
50.
In sentencing an offender a court must have regard to:

the impact of the offence on the victim;

the personal circumstances of any victim; and

any injury, loss or damage resulting directly from the offence.32
To the extent that a victim impact statement is relevant to those factors,
regard must be had to it in sentencing. However, the assessment of the
extent to which a victim impact statement is relevant to those factors is a
matter for the sentencing judge.33
Disclosure of victim impact statements
51.
A copy of the victim impact statement must be provided to the accused
along with a copy of any medical report attached to the victim impact
statement.34
Restitution, compensation and financial assistance for
victims
What compensation is available to victims?
52.
Under the Sentencing Act 1991, if a court convicts or finds a person
guilty of an offence, it may order the person to pay reparation to the
victim in the form of:

Restitution for goods stolen;35

Compensation for pain and suffering;36 and

Compensation for property loss.37
53.
Further, victims may be eligible to apply for financial assistance under
the Victims of Crime Assistance Act 1996.38
54.
Victims may also be able to seek compensation through civil
proceedings.
32
Sentencing Act 1991 s 5(2)(daa)-(db).
For further information on this, see the Judicial College of Victoria’s Sentencing Manual.
34
Sentencing Act 1991 s 8N(b).
35
Sentencing Act 1991 ss 84-85.
36
Sentencing Act 1991 ss 85A-85M.
37
Sentencing Act 1991 ss 86-87.
38
See Victims of Crime Assistance Act 1996.
33
13
Restitution for goods stolen
55.
56.
If goods have been stolen and a person is found guilty or convicted of an
offence connected with the theft, the court may order that:

the person who has possession or control of the stolen goods restore
them to the person entitled to them;

the offender deliver or transfer to another person goods that directly
or indirectly represent the stolen goods; or

a sum not exceeding the value of the stolen goods be paid to another
person out of money taken from the offender's possession on his or
her arrest.39
An application for such an order must be made as soon as practicable
after the offender is found guilty, or convicted, of the offence.40
Compensation for pain and suffering
57.
58.
If a court finds a person guilty or convicts a person of an offence, it may
order the offender to pay compensation of such amount as the court
thinks fit for:

any pain and suffering experienced by the victim as a direct result of
the offence;

some or all of any expenses actually incurred, or reasonably likely to
be incurred, by the victim for reasonable counselling services as a
direct result of the offence;

some or all of any medical expenses actually and reasonably
incurred, or reasonably likely to be incurred, by the victim as a direct
result of the offence; or

some or all of any other expenses actually and reasonably incurred,
or reasonably likely to be incurred, by the victim as a direct result of
the offence, not including any expense arising from loss of or
damage to property.41
An application for such an order must be made within 12 months after
the offender is found guilty, or convicted, of the offence.42
39
Sentencing Act 1991 s 84(1).
Sentencing Act 1991 s 84(5)(a).
41
Sentencing Act 1991 s 85B(1)-(2).
42
Sentencing Act 1991 s 85C(1)(a).
40
14
Compensation for property loss
59.
If a court finds a person guilty of, or convicts a person of, an offence it
may order the offender to pay to a person who has suffered loss or
destruction of, or damage to, property as a result of the offence any
compensation (not exceeding the value of the property lost, destroyed or
damaged) that the court thinks fit.43
60.
An application for such an order must be made as soon as practicable
after the offender is found guilty, or convicted, of the offence.44
Role of the public prosecutions service in relation to
compensation and financial assistance
61.
The solicitor with conduct of the prosecution should ensure that victims
are informed of their possible entitlement to restitution, compensation or
financial assistance.
62.
While victims may apply for restitution and compensation orders
themselves, the Director has the discretionary power to apply on their
behalf.45
63.
The Director will only apply for a restitution or compensation order on
behalf of a victim if:

The offender pleads guilty to or is found guilty of an offence which
caused the pain and suffering or property loss, or which was
connected with the theft (as the case may be;); and

There is sufficient evidence46 to justify the application; and

The quantum of compensation or restitution can be readily
determined; and

The application is not opposed by the offender; and

There is reason to believe, on the basis of materials or information
concerning the offender’s financial situation, that there is a
reasonable prospect that the order could be wholly or substantially
enforced. When assessing this factor, regard should be had to the
value of property owned by the offender which may be the subject of
a restraining order; and
43
Sentencing Act 1991 s 86(1).
Sentencing Act 1991 s 86(5)(a).
45
See Sentencing Act 1991 ss 84(5)(b), 85C(1)(b) & 86(5)(b).
46
For example, in the depositions, trial testimony or victim impact statement.
44
15

If the application is made on behalf of a child or a person incapable
of managing their affairs, a suitable person is available to act as a
litigation guardian pursuant to s 85E of the Sentencing Act 1991.
64.
If one of these criteria is not satisfied and the victim still wishes to apply
for restitution or compensation, the solicitor with conduct of the
prosecution should ensure that the victim is referred to an appropriate
external organisation47 for assistance.
65.
If a victim wishes to apply for financial assistance under the Victims of
Crime Assistance Act 1996, or wishes to pursue civil proceedings, the
OPP should refer the victim to an appropriate external organisation48 for
assistance. The public prosecutions service should not give legal advice
to victims about possible entitlements to financial assistance under the
Victims of Crime Assistance Act 1996 or possible civil causes of action.
Quantum of compensation for pain and suffering
66.
The public prosecutions service should not give advice about quantum of
compensation for pain and suffering. The calculation of quantum of
compensation for pain and suffering is a matter for the victim.
Restraining orders for the purposes of compensation
67.
Subject to the applicable statutory criteria and the Director’s instructions,
property may be restrained for the purposes of satisfying a future
compensation order. Further information on this can be found in the
Director’s Policy in relation to Confiscation Applications.
Effect of appeal on restitution and compensation orders
68.
If an appeal against conviction or sentence is filed, any restitution or
compensation orders made under the Sentencing Act 1991 are stayed
until the appeal is determined, unless the court otherwise directs.49
69.
If a restitution or compensation order is stayed pending appeal, and the
conviction is set aside on appeal, the restitution or compensation order
does not take effect unless the Court of Appeal otherwise orders.50
70.
If an appeal against conviction is filed, the solicitor with conduct of the
appeal should ensure that any victims are informed that any restitution or
compensation orders are suspended until the appeal is determined.
71.
If a conviction is set aside on appeal, the solicitor with conduct of appeal
should ensure that any victims are informed that any restitution or
compensation orders will be ineffective.
47
Such as the Victims of Crime Helpline on 1800 819 817.
Such as the Victims of Crime Helpline on 1800 819 817 or the Law Institute of Victoria.
49
Sentencing Act 1991 s 311(1) & (2).
50
Sentencing Act 1991 s 311(3); see also definition of ‘appeal period’ in s 3.
48
16
Relevance of compensation to plea negotiations
72.
Plea negotiations should not be influenced by indications from accused
that restitution or compensation applications will not be opposed.
Relevance of compensation to sentence
73.
Except when a court is considering the imposition of a fine,51 restitution
and compensation orders should be regarded as irrelevant to sentence.
Victims and witnesses’ property
74.
Except when tendering exhibits into evidence at court, the public
prosecutions service must not come into possession of victims and
witnesses’ property. Any property of victims and witnesses tendered into
evidence must be returned to the informant.
The Victims’ Register
75.
Victims may be placed on the Victims’ Register52 which entitles them to
receive information about a prisoner, including information about parole
and release date. Victims may also make submissions to the Adult Parole
Board concerning a prisoner’s release on parole.
76.
The solicitor with conduct of the prosecution should ensure that victims
are informed of their entitlement to apply to be included on the Victims’
Register and their entitlement to make a submission to the Adult Parole
Board.
Review
77.
51
52
This policy will be reviewed and updated as necessary.
See Sentencing Act 1991 s 50(3).
See Corrections (Victims Register) Regulations 2004.
17