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Criminal Offence Victims
CRIMINAL OFFENCE VICTIMS BILL
1995
EXPLANATORY NOTES
PURPOSE OF LEGISLATION
The need for this Bill arises out of concern both nationally and
internationally about the position of the victim in the criminal justice
system.
The primary purpose is to advance the position of victims of crime in the
criminal justice process. This occurs in two ways. First, the Bill enshrines
Fundamental Principles of Justice for Victims of Crime. These constitute a
set of guiding principles for public officers dealing with victims of crime.
Second, the Bill contains provisions governing the making of compensation
claims against offenders and the State. These have been relocated from the
Criminal Code and contain several reforms including permitting payments
to the families of homicide victims and simplification of the process of
applying for criminal compensation.
STATEMENT OF POLICY OBJECTIVES
The basic aim is to ensure that the role of the victim in the criminal
justice system is sufficiently recognised.
Fundamental Principles of Justice for Victims of Crime
There has been international recognition of the special needs of victims of
crime, for example, the United Nations Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power.
The purpose is to advance the position of victims of crime by the
articulating in legislative form the principles by which they can expect to be
treated by public officers and to improve the delivery of justice to victims of
crime. The principles so stated constitute guiding principles for police,
prosecutors and other officials dealing with victims of crime. They will also
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serve an educative function, in informing victims of crime in easily
understood terms of the principles which they can expect will underlie the
treatment given to them by police, prosecutors and other officials.
Criminal Compensation
A long-recognised right, conferred by the current Criminal Code, is that
of access by the victim of personal violence or sexual offence to a criminal
injuries compensation scheme.
These provisions will be relocated to the specific legislation for victims
of crime.
The principal reforms are:
a. To permit for the first time compensation to be paid to
dependants of a victim of murder or manslaughter, or for funeral
or other expenses of a victim of murder or manslaughter, where
the victim has no dependants;
b. Court applications will be dealt with informally;
c. Amounts will be assessed according to a `Compensation Table'
with the objective of simplifying the process and reducing the
inconsistencies in the awards made.
The system for compensation is intended to provide some measure of
compensation in a summary way to the victim of a crime without the delay,
costs and formality of a civil action for damages, for example, for assault or
trespass. The amount paid is a solatium only and does not represent the
amount of compensation which would be awarded in a common law action
against the offender for damages.
ACHIEVEMENT OF POLICY OBJECTIVES
The Fundamental Principles represent the minimum standards which
public officers should apply in dealing with victims of crime.
It is intended that they will be complemented by sets of guidelines issued
by particular agencies, which will cause officers to apply the Fundamental
Principles.
The reforms to the system of criminal compensation will ensure that the
compensation to victims of personal or sexual violence is paid according to
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a Compensation Table, so that the awards made are consistent for particular
injuries, and to simplify the procedure for applications. For the first time,
compensation will be available to the survivors of victims of murder or
manslaughter, but the amount will depend on whether the survivor was
dependent on the victim of murder or manslaughter.
ADMINISTRATIVE COST TO GOVERNMENT
It is estimated that the additional cost to the State of these reforms will be
around $2.7 million. The expected increased expenditure results from the
new payments to survivors of victims of murder or manslaughter; the need
to appoint some additional staff to assist victims in bringing their
applications and an anticipation that there will be an increase in the number
of applications given the extra publicity given to the compensation scheme.
The current cost of the scheme is around $4 million.
CONSULTATION
There has been extensive consultation on this proposal with community
groups and interested bodies. In the initial policy development stage, peak
bodies were invited to comment on the Fundamental Principles for justice
for Victims of Crime and on reforms to the compensation system. More
recently, consultation has occurred with numerous groups or organisations
representing or dealing with victims of crime. These consultations have
occurred with groups like the Cairns Victims of Crime Association and the
Townsville Homicide Support Group and Citizens Against Road Slaughter.
Versions of the Bill have also been forwarded to peak bodies, like the
Queensland Law Society and the Queenland Council of Civil Liberties. In
addition the Department of Justice and Attorney-General, in conjunction
with the Australian Institute of Criminology, held a seminar on the
proposal.
PART 1--PRELIMINARY
Short Title
Clause 1 sets out the short title of the Bill.
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Commencement
Clause 2 provides for the commencement of the provisions of the Bill.
Definitions--the dictionary
Clause 3 provides for the dictionary which is Schedule 3 to the bill.
PART 2--FUNDAMENTAL PRINCIPLES OF JUSTICE
FOR VICTIMS OF CRIME
Division 1--Explanatory provisions
Reasons for declaration and its effect
Clause 4 sets out the need and reasons for the declaration. It also states
the effect of the declaration and guidelines. The clause encourages victims
of crime to assert the Principles in ways that do not involve legal process or
proceedings.
Who is a victim under the declaration
Clause 5 defines who is a "victim" under the declaration.
Division 2--Declaration of fundamental principles
Fair and dignified treatment
Clause 6 provides that victims should be treated with courtesy and
compassion and respect for their personal dignity.
Access to justice
Clause 7 provides that a victim should be given access to the State's
system of justice.
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Guidelines to help response to victims
Clause 8 provides that the responsiveness of public officials dealing with
victims should be assisted by the provision of appropriate guidelines for
putting the principles into effect.
Information to be provided to victim about crime prevention methods
Clause 9 requires that victims should on request be given information on
crime prevention methods.
Privacy of victim to be protected and property returned
Clause 10 provides that a victim's privacy should be protected and any
property taken for an investigation should be returned as soon as reasonably
possible.
Victim's version of events to be reported as soon as reasonably
possible after crime.
Clause 11 provides that a law enforcement officer [a defined term]
should make a report of the victim's version of events as soon as
reasonably possible after the crime happens.
Protection from violence and intimidation from accused person
Clause 12 provides that a victim should be afforded all necessary
protection from violence and intimidation from the person accused of the
crime. Specific amendments to reinforce this principle will be made to the
Bail Act 1980 and to the Criminal Code.
Welfare of victim to be considered
Clause 13 provides that the welfare of the victim should be considered at
all appropriate stages of the investigation and prosecution of a crime.
Information during sentencing of impact of crime on victim
Clause 14 provides that at the sentencing of an offender, the prosecutor
should inform the sentencing court of appropriate details of the harm caused
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to the victim by the crime and that the prosecutor may have regard to the
victim's wishes.
Information about investigation and prosecution of offender
Clause 15 provides for information to be given to victims (on their
request) about the progress of cases. In all crimes, a law enforcement
officer should on request advise a victim of information concerning the
investigation of the case and the prosecution of the offender. A victim of a
sexual crime or a crime involving personal violence should also, on request,
be supplied with details of the sentence imposed on the offender; and other
correctional information.
Victim to be advised on role as witness
Clause 16 provides that the victim who is a witness in a trial, should be
informed by the prosecution about the trial process and the victim's role as
a prosecution witness.
Information about services
Clause 17 provides that a victim should have access to information about
services for victims responsive to their needs including issues relating to
welfare, health, counselling, medical, legal help and victim-offender
conferencing programs.
Information about compensation or restitution
Clause 18 provides that a victim should have access to information about
the availability of compensation or restitution for injury loss or damage
caused to the victim by the crime. A victim should also be entitled, on
request, to have relevant information placed before the court by the
prosecutor in an application for an order for compensation or restitution for
injury or for loss of, or damage to property caused by the crime. Finally the
clause provides that where compensation for injury caused to a victim by a
crime against the victim's person cannot be obtained from the offender or
other sources, the victim should have recourse to a criminal injuries
compensation scheme provided by the State.
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PART 3--COMPENSATION FOR PERSONAL
INJURY FROM INDICTABLE OFFENCES
Division 1--Explanation
Scheme for compensation for injury, death and expenses from
indictable offence
Clause 19 provides for a scheme for the payment of compensation to a
person for injury suffered by the person as a result of a personal offence [a
defined term]; for the death of someone on whom the person was
dependent or funeral and other expenses from the death of a member of a
persont's family, where the death occurs in circumstances constituting
murder or manslaughter. The clause makes it clear that an application
cannot be made for an injury caused to a person by an offence to which the
applicant was a party or an unlawful killing to which the applicant was a
party.
Meaning of "injury"
Clause 20 defines the term "injury" for which compensation may be
paid.
Meaning of "personal offence"
Clause 21 defines the term "personal offence".
Relationship of compensation under this part to rights under common
law or otherwise
Clause 22 describes the relationship between the availability of
compensation and other rights or entitlement a victim may otherwise have
under the common law. The ability to apply for compensation under the
scheme is in addition to, and not in derogation of any rights available under
the common law. The clause makes clear that compensation paid to an
applicant under the scheme is intended to help the applicant and is not
intended to reflect the quantum of compensation to which the victim may be
entitled under the common law. It is made clear that, in determining the
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amount of compensation to be awarded, the maximum amount is reserved
for the most serious cases and other less serious cases are to be scaled
according to their seriousness.
Payments by State are ex gratia
Clause 23 makes clear that the payments made by the State are made ex
gratia.
Division 2--Application to a court
Court may make an order compensating someone injured by personal
offence
Clause 24 governs the making of applications to a court for
compensation. Such applications lie where a person is convicted on
indictment of a personal offence or is sentenced on indictment and a
personal offence is taken into account.
The application can be made by the person against whom the personal
offence is committed. It is intended to retain the effect of the decision in R v
Moors; ex parte Alex (1994) 2 Qd R 315.
It is made clear that the court may order compensation for the injury
suffered by the applicant because of the offence.
The court is able to make an order for an amount to be paid by the
convicted person to the applicant because of the injury.
What amount may be required to be paid under a compensation
order
Clause 25 limits the amounts which can be awarded in a compensation
order. The intention is to ensure that awards are made by reference to the
injuries and amounts detailed in the compensation table or a regulation and
not by reference to the common law principles of damages assessment.
The total amount ordered shall not exceed the prescribed amount, called
the "scheme maximum". If more than one amount is payable (that is, there
is more than one injury) the amounts are added together but the amount
ordered must not exceed the scheme maximum.
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Where an injury is specified in the compensation table, the court is
limited to making an order for, if there is only one percentage listed for the
injury--an amount up to the amount that is the listed percentage of the
scheme maximum; or, if there is a range of percentages for the injury--an
amount that is within the listed range of percentages.
Where an injury is specified under a regulation, the court is limited to
making an order for the prescribed amount.
Where the injury is not specified in the compensation table or in a
regulation, the court is to decide the amount by comparing the injuries with
those in the compensation table and any regulations and having regard to the
amounts which can be paid for those injuries. The aim is to ensure that,
even where the injury is not in the compensation table or regulation, there is
some consistency in the awards, reached by comparing the injury under
consideration with those in the table or regulation and the amounts for those
injuries. At the same time, the court should always be guided by the
principle that the maximum amount of compensation is reserved for the
most serious cases and the amounts in other cases are intended to be scaled
according to their seriousness.
In all cases, the court is to have regard to everything relevant, including
any behaviour by the applicant that directly or indirectly contributed to the
injury.
Finally, it is expressly stated that a decision on the amount to be ordered
does not involve the application of the principles used to assess common
law damages for personal injuries. It is intended to overcome the decision in
McClintock v Jones (1995). The level of assistance is to be determined by
reference to percentage or range of percentages listed in the compensation
table or regulation, or by comparing an injury with those in the
compensation table or regulations and the amounts awarded for those
injuries.
When single or multiple compensation orders may be made
Clause 26 is designed to indicate whether a single order or multiple
compensation orders are appropriate in relation to an injury or injuries. The
test for whether a single order is appropriate is whether the applicant has
suffered injury from a substantially single incident or a substantially single
state of injury. In making this determination, the court can have regard to
the injuries constituting the state of injury, the time over which the injuries
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were caused, the similarity or connection between the injuries or the events
or anything else relevant. However, where there is more than one convicted
person the court may make a compensation order against each of more than
1 of the persons. It is provided that an order can be made against each of
more than 1 of the convicted persons, but only in a situation where the
involvement of the other convicted persons had a direct and material effect
on the injury suffered.
Order for repayment of amounts paid by State under division 3
Clause 27 allows the State to apply for a court order requiring a person
convicted of murder or manslaughter to pay to the State any amount paid by
the State under Clause 35 in relation to someone's murder or manslaughter.
Provisions about the convicted person
Clause 28 provides for a convicted person to be notified of an application
for a compensation or repayment order. It also permits money belonging to
the offender, which comes into the possession of the police or court during
an investigation or proceedings, to be applied towards the compensation
order. Enforcement of a compensation or repayment order may be as a
judgement of the court in its civil jurisdiction.
Compensation or repayment orders are not part of a sentence of a
convicted person
Clause 29 makes clear that compensation or repayment orders are in
addition to and not part of the sentence.
Application proceeding is civil and strict evidence rules need not apply
Clause 30 governs the proceedings on an application providing that they
are civil proceedings, decided on the balance of probabilities but to which
the rules of evidence need not apply.
No cost orders on application
Clause 31 prevents the court making costs orders on an application to
government.
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Division 3--Application to the government
Application for payment by State of amount of unsatisfied
compensation order
Clause 32 provides that, where a person is entitled to an amount under a
compensation order, the person can apply to the State for payment and the
State can pay all or part of the amount.
Application for payment by State of compensation for injury from
personal offence
Clause 33 details the cases in which and how a person can apply to the
State for a payment of an amount for an injury because of certain acts
committed against the person and permits the State to make a payment as if
the person who committed the act or offence were convicted on indictment
of the act or offence. In relation to cases where the offender cannot be found
or identified, it is provided that the applicant must show that the act was
reported as soon as possible, having regard to all the circumstances, to a
police officer or for a sexual offence to a police officer, doctor or
appropriate agency.
Application to State for payment for injury suffered when helping a
police officer
Clause 34 allows a person, who suffers injury when helping a police
officer in certain circumstances, to apply to the State for payment of an
amount for the injury and allows the State to make a payment to the person.
Application to State for payments about someone's murder or
manslaughter
Clause 35 allows application for payment to be made where a person
dies in circumstances constituting murder or manslaughter. A dependant
can apply for the payment of an amount up to the prescribed amount and
for an amount up to the prescribed amount for funeral and other expenses.
A member of the deceased's family, who is not a dependant, can apply for
payment of funeral or other expenses caused in the course of the crime's
commission up to the prescribed amount. It is provided that the State can
make a payment up to the relevant prescribed amount.
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How applications are processed
Clause 36 details how the applications are processed and sets out the
matters to which the Governor-in-Council may have regard. A power to
defer a decision on an application is conferred.
Payment from Consolidated Fund
Clause 37 provides that payments are from the Consolidated Fund and
declared to be appropriated from the Fund.
State's subrogation rights
Clause 38 confers on the State, to the extent of any payment made under
the Bill, a right of subrogation to all the rights and remedies the injured
person has for the injury against anyone responsible for the injury. The
clause further provides for those circumstances in which the State decides to
pay an amount to an injured person and the person then becomes entitled to
receive an amount for the injury from the person responsible for the injury.
In such cases, the State has a first charge over the amount, to the extent of
any payment made by the treasurer and the entitlement of the injured person
to receive further amounts as part of the payment from the State stops
unless the Governor in Council directs. Finally, the clause confers a power
on the court, when a person is convicted on indictment for a personal
offence causing injury, to make any order necessary to give effect to the
State's rights under this section.
Governor-in-Council may delegate
Clause 39 contains a power of delegation allowing the Governor-in-
Council to delegate its powers under the division to the Minister.
Time within which applications for compensation must be made
Clause 40 establishes time limits for the bringing of applications for
compensation. Generally, applications to the court should be brought within
3 years of the convicted person's trial or if the applicant was a child at the
time of trial within 3 years after the child becomes an adult. The court has a
power to extend time under clause 41. In relation to applications made to
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the Minister, the time period of 3 years runs from the time of the relevant
offence, murder or manslaughter or if the applicant was a child at that time,
the child has 3 years from the age of majority to bring the application.
Again there is a power to extend the time.
Order for extension of time
Clause 41 applies the provisions of the Limitations of Actions Act 1974,
sections 30 and 31 to applications to the court or to the Minister to permit an
extension of the time for bringing the application in confined circumstances.
PART 4--MISCELLANEOUS
Applications
Clause 42 permits the Director of Public Prosecutions to make an
application under section 24 for a compensation order for an injured person.
Approval of forms
Clause 43 allows the chief executive to approve forms under the Act.
Regulation making power
Clause 44 confers on the Governor-in-Council a power to make
regulations under the Act, including for the process for considering or
dealing with applications under part 3, division 3.
Acts amended in Schedule 2
Clause 45 provides that Schedule 2 amends the Acts mentioned in it.
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PART 5--TRANSITIONAL
Application of Act to previous acts and to subsequent acts and events
Clause 46 provides that the new scheme does not apply to injury
suffered due to an offence which occurs before its commencement and that
in relation to such injury, the Criminal Code, chapter 65A, applies.
SCHEDULE 1
Schedule 1 contains a Compensation Table setting out various injuries
and percentages of the scheme maximum which relate to the specific
injuries. The contents of the Compensation Table limit the amounts which
can be ordered by the court or awarded by the Governor-in-Council for the
particular injuries specified in the table. Where an injury suffered by an
applicant is not specified in the Compensation Table or a regulation, the
contents of the Compensation Table are to be used by the court or the
Governor-in-Council in setting the amount to the ordered or awarded as
compensation. In those cases the decision-maker must compare the injury
suffered with injuries specified in the Compensation Table and have regard
to the amounts that can be ordered for those injuries (see Clause 25(6)).
SCHEDULE 2
Schedule 2 contains amendments to other legislation, which reinforce the
policy objectives of the Bill.
Criminal Code (1899)--Amendments
Clause 1 omits Criminal Code (1899), Chapter 65A (Compensation for
injury), which presently regulates criminal compensation applications. The
operation of these provisions in relation to injuries which are sustained
because of an offence committed prior to the commencement of the Bill is
preserved by Clause 46.
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Clause 2 inserts a new provision, Clause 695A, Power to protect victim
of violence by prohibiting publication of information about
proceedings, into the Criminal Code (1899). The new clause reinforces the
principle contained in Clause 12 of the Bill, dealing with protection from
violence and intimidation by the accused person. The new Clause 695A will
permit a court to make an order prohibiting, either indefinitely or for a
particular time, the publication of information about the address (a defined
term) of a person against whom the violence is alleged to have been
committed. The new clause further provides that this application can be
brought by the person seeking to have the information suppressed or by the
prosecution and for the procedure on the application. Finally, the clause
provides that the order can only be made where the information, publication
of which is suppressed, is not relevant to the guilt or innocence of the
charged person.
Criminal Code (1995)--Amendments
Clause 1 omits Criminal Code 1995, section 416, Power to prohibit
publication of drugs misuse offence proceedings and inserts new Clause
416, General provisions, Clause 416A, Power to prohibit publication of
proceedings about drugs misuse offences and Clause 416B, Power to
protect victim of violence by prohibiting publication of information
about proceedings and Clause 416C, Saving of other relevant
provisions. The new Clause 416 provides the court with authorisation to
prohibit publication of certain information and governs the procedure for
applying for such an order. Clause 416A regulates the application where the
proceedings are for a drugs misuse offence. Clause 416B permits the court
to order the suppression of the address (a defined term) of a person against
whom violence is alleged to have been committed (but only where the
information is not relevant to the guilt or innocence of the charged person)
and is intended to reinforce the principle contained in Clause 12 of the Bill,
dealing with protection from violence and intimidation by the accused
person. Clause 416C states that the provisions of the division are in
addition and not in substitution for certain other specific provisions, such as
Children's Services Act 1965, section 128, Restrictions on reporting
concerning child.
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Clause 2 inserts into Schedule 2, part 2 of the Criminal Code (1995), an
amending provision which inserts certain provisions in the Criminal
Offence Victims Act 1995.
Bail Act 1980--Amendments
Clause 1 omits section 16(1)(a)(ii) and inserts a new Clause 16(1)(a)(ii),
which repeats the current law, but also requires the relevant decision maker
to refuse bail where satisfied that there is an unacceptable risk that the
defendant if released on bail would endanger the safety or welfare of a
person who is alleged to be a victim of the offence with which the defendant
is charged. The amendment is designed to require the decision maker to
consider specifically the interests of the person alleged to be the victim of
the offence. This amendment reinforces clause 12, dealing with protection
from violence and intimidation by the accused person.
Juvenile Justice Act 1992--Amendments
Clause 1 omits Part 5, division 10 and inserts a new Division
10--Application of Criminal Offence Victims Act 1995, which in new
clause 195 declares that the Criminal Offence Victims Act 1995 applies to
an offence committed by a child.
Penalties and Sentences Act 1992--Amendments
Clause 1 omits section 5(1) and inserts a new clause 5(1) which
provides a new definition of a penalty unit. The purpose of the new
definition is to ensure that where by court order a fine or penalty is imposed
the value of a penalty unit is $75, but that for minor offences prosecuted by
an infringement notice, the value of a penalty unit is $60. The aim of
increasing the value of a penalty unit for court ordered fines is to ensure that
those committing offences contribute to partly offset the cost to the
community of the compensation scheme. It is expected that courts
imposing fines will increase the level of fine imposed to reflect the higher
value of a penalty unit.
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SCHEDULE 3
Schedule 3 contains a dictionary which defines various terms used in the
Bill.
© The State of Queensland 1995