Victim legal representation and the adversarial criminal trial: A critical analysis of proposals for third-party counsel for complainants of serious sexual violence
| DOI | 10.1177/1365712720983931 |
| Date | 01 January 2021 |
| Published date | 01 January 2021 |
| Author | Tyrone Kirchengast |
| Subject Matter | Articles |
Article
Victim legal representation
and the adversarial criminal
trial: A critical analysis of
proposals for third-party
counsel for complainants of
serious sexual violence
Tyrone Kirchengast
The University of Sydney, Sydney, New South Wales, Australia
Abstract
The past several decades have witnessed a shift toward victim interests being considered and
incorporated within adversarial systems of justice. More recently, some jurisdictions have
somewhat contentiously considered granting sex offences complainants’ legal representation
at trial. In Australia, the Royal Commission into Institutional Responses to Child Abuse (2017),
the Royal Commission into Family Violence (2016) and the Victorian Law Reform Commission
(2016) considered the potential role of legal counsel for complainants in the criminal trial
process. While contrasting quite significantly with the traditional adversarial framework—
which sees crime as contested between state and accused—legal representation for com-
plainants is not unprecedented, and victims may already retain counsel for limited matters.
Despite broader use of victim legal representation in the United States, Ireland and Scotland,
and as recently considered by the Sir John Gillen Review in Northern Ireland, legal repre-
sentation for sex offences complainants is only just developing in Australia. Notwithstanding
recent reference to legal representation for complainants where sexual history or reputational
evidence may be adduced, there exists no sufficient guidance as to how such representation
may be integrated in the Australian criminal trial context. This article explores the implications
of introducing such counsel in Australia, including the possible role of non-legal victim
advocates.
Keywords
complainant, Gillen Review, rape shield, sexual violence, victim legal representation
Corresponding author:
Tyrone Kirchengast, Sydney Law School, The University of Sydney, NSW 2006, Sydney, New South Wales, Australia.
E-mail: tyrone.kirchengast@sydney.edu.au
The International Journalof
Evidence & Proof
2021, Vol. 25(1) 53–72
ªThe Author(s) 2020
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DOI: 10.1177/1365712720983931
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Introduction
Numerous recent inquiries and Royal Commissions have examined various matters affecting victims of
crime and their recourse to justice in Australia. The Victorian Law Reform Commission (‘VLRC’)
(VLRC, 2016),
1
the Royal Commission into Institutional Child Abuse (Cth) (‘RCCA’) (RCCA, 2017)
and the Royal Commission into Family Violence (Victoria) (‘RCFVV’) (RCFVV, 2016)
2
focus attention
on the rights of complainants in an attempt to enhance protection, standing and access to justice. These
inquiries have considered the role of victim complainants in criminal proceedings and whether standing
ought to be enhanced by the availability of legal counsel. Despite legal representation for victims having
some precedence in the pre-trial criminal process,
3
complainants are not presently afforded representa-
tion and party standing in the criminal trial. The situation in Australia may be generally compared to
similar adversarial jurisdictions, where complainants are not ordinarily afforded representation, despite
certain jurisdictions offering limited representation or proposing reform, mos t often in the pre-trial
phase. The Sir John Gillen Review, Report into the Law and Procedures in Serious Sexual Offences
in Northern Ireland, Parts 1–3, offers some indication as to the appetite for reform, around meeting the
needs of vulnerable complainants of serious sexual violence in particular (Gillen, 2019).
4
A stronger
case for representation and third-party intervention may be made for specific needs groups, such as sex
offences, intimate partner and child victims, than for the representation and standing of victims generally
(Bowden et al., 2014; Garkawe, 1994). Unlike most inquisitorial jurisdictions, there seems to be limited
scope for granting complainants standing as accessory or subsidiary prosecutor in adversarial, common
law jurisdictions.
Prospects for reform are very much centred on the discrete needs of particular victim groups, and the
offering of appropriate protections to strengthen the evidence required from those victims, in order to
ensure the victim does not withdraw their complaint out of fear of secondary victimisation (Kennedy
et al., 2012). The proposal for legal representation for victims is therefore supported by the need to
protect complainants against adversarial court processes, and aggressive cross-examination in particular,
strengthening the veracity of the evidence of the victim in court. Fairness to the accused remains a key
concern. The path forward is therefore to acknowledge the evidentiary risks faced by these discrete
groups, in particular when giving evidence in open court, rather than to proceed to reform the criminal
trial out of a general desire to enhance victim participation and agency as stakeholders of justice. The
proposition that representation be granted in order to enhance therapeutic justice outcomes is thus an
important but secondary consideration. Finding an acceptable role for victim legal representation may
mean that victim counsel is granted a specific role in the criminal process , to protect the victim’s
capacity to testify with integrity, without detracting from the accused’s right to ask relevant questions
and test the prosecution case. While this is always a difficult balancing act, addressed in European
human rights jurisprudence as one of ensuring ‘proportionality’ and ‘fairness’ between trial partici-
pants,
5
the better course may be to develop the role of victim legal representation as focused on
particular phases of the criminal process where secondary victi misation risks the delivery of clear,
precise and probative evidence. This would ordinarily include discrete pre-trial phases where the Crown
1. See Justice Victims and Other Legislation Amendment Act 2018 (Vic) and Justice Legislation Miscellaneous Amendment Act
2018 (Vic) for passage of recommendations into law.
2. Also see House of Representatives Standing Committee on Social Policy and Legal Affairs (2017).
3. See sexual assault communication privilege s. 299A of the Criminal Procedure Act 1986 (NSW); Div 1B Evidence Act 1995
(NSW). Also see Braun (2013).
4. See preliminary report, Gillen Review (2018). Also see https://www.justice-ni.gov.uk.
5. Dooson vThe Netherlands (1996) ECHR 20524/92. Also see Lord Steyn in Attorney-General’s Reference (No 3 of 1999)
[2001] 2 AC 91, 118, ‘The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to
person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted.
There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves
taking into account the position of the accused, the victim and his or her family, and the public.’
54 The International Journal of Evidence & Proof 25(1)
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