escalating violence in our community Become a member of the Sensible Sentencing Trust

Mouseover links or blue arrows above for full page descriptions

1.1     I make this personal submission in relation to the Inquiry into Victims’ Rights

1.2     I request to be heard in support of this submission.

1.3     The address for correspondence in relation to this submission is as follows :

Peter Jenkins
P.O. Box 7651
Wellesley Street
Auckland
Mobile/txt : 0274 338562
Email : laworder@xtra.co.nz

1.4 The Victim’s of Rights Act 2002 requires strengthening and better provision for enforcement of its provisions. Many of the provisions are not mandatory at present, and need to be made so. The good intent embodied in this legislation needs to be put into practice as a matter of course and failure to do so on the part of Justice or Corrections employees or others employed or contracted by the Government needs to attract penalties or at least public condemnation.

1.5 The current terminology is not a great problem per se. The problems lie elsewhere.

1.6 Services available to victims need to be laid out in a leaflet available to anybody who goes to a Police station to lay a complaint, and also online on the websites of the Justice Department, Corrections, Victim Support and all other appropriate bodies.

1.7 Criminals owe their primary debt to the individual(s) against which they have offended. Their debt to society is a secondary consideration. The victim should in most cases be first in line for any compensation and/or reimbursements of costs, much as secured creditors are first in line for any monies recovered in the case of a company insolvency or bankruptcy. See 1.10 for further on this.

1.8 The current court system is not as easy on victims as it could be. Complainants do not have the primacy that should rightfully be accorded to them. Again the principle that victims must come first and foremost (which I will address more fully in 1.10) should be the core philosophy dictating everything from the status of complainants to the layout and facilities of court rooms.

Further to the matter of layout; the actual courtrooms themselves are adequate, but often the complainants and the accused have to share the same waiting rooms prior to their case being heard. This is a matter that does need to be addressed as a matter of urgency, firstly as a component of the primacy of the victim as previously mentioned, and secondly as a simple matter of security. There have been a number of situations I have been made aware of where victims and/or their families have been revictimised by the offender and/or their families prior to trial.

The waiting rooms should be physically separate as a matter of course, with separate entrances if possible. The complainants can enter through the front along with the lawyers and judiciary. The entrance for the accused should be at the back of the building or at least via some secondary entrance at some physical distance from the main entrance..

1.9 Restorative justice does have a place in the criminal justice system – provided that the decision as to whether or not it is entered into is placed in the hands of the victim – and they can abort it at any stage if it is not operating to their satisfaction. Many victims are happy to make use of restorative justice, with good outcomes for both themselves and the offenders concerned. However no victim should ever have to partake of restorative justice if they are not happy to do so.

1.10 The rights of innocent victims must take priority over the rights of all other parties in the criminal justice system. This should be the core philosophy of any justice system that is worthy of the name. I do understand that this may well require a ground-up rebuild and reform of our system as it currently stands – an audacious and far-reaching enterprise, but one that I strongly feel is grossly overdue.

Note also that I have prefixed the word “victim with the word “innocent” – this in itself has a number of implications, and requires further explanation which is to follow. In 1.10.2

To expand on this theme I suggest a hierarchy of rights or priorities within the system, as follows Victims The families of victims Law-abiding society at large The judicial system itself and it’s participants Defendants/ persons accused but not yet convicted Convicted offenders

A secondary hierarchy of rights or priorities could be nested within each category depending upon the severity of the offence and also the degree of provocation that may have been offered by the victim (which is the case upon occasion, see 1.10.2)

Participants in the judicial system for the purposes of this diagram are all those that are involved in a case who are neither accused nor victim nor their families, i.e. the judiciary, lawyers, police, court officials, jury members, witnesses. Of course there is going to be some overlap between this category and those of society at large and the families of victims.

The above hierarchy is a suggestion for a new set of philosophical assumptions underpinning our justice system, and of course practical implementation will be more complex than my simple diagram suggests. There will of course be cases where the boundaries between these layers will be blurry and difficult to define, however in many cases they will be crystal clear, and I would suggest that these will be in the majority.

1.10.1 The reason that the rights of the victim must take precedence is that they are of course the injured party, and not the initiator of the offence. They are the party to whom wrong has been done, rather than the wrong doer. Generally they are the innocent party (with some exceptions as outlined in 1.10.2) They have abided by the rules of society, i.e the law, and therefore deserve the fullest support and protection from that society, and do not deserve to have their rights in any way compromised. The offender, particularly once convicted, has breached the rights of the victim, and infringed the rules of society, and therefore should be accorded a lesser status than the victim.

1.10.2 The matter of innocence of a victim is something I do need to elaborate on as promised. There are some cases where a victim is not entirely innocent of wrongdoing themselves, and indeed have offered considerable provocation. This is where the suggested hierarchy of rights will end up being compromised. Whether this is to happen in a particular case may be able to be established in something along the lines of a depositions hearing. Perhaps the previous track records of both complainant and defendant should be made available to the court at this stage, and may be useful in establishing the standing of a particular victim in a particular case.

However I would envisage that such cases would be in the minority. In most criminal cases the innocence of the victim is abundantly clear and no provocation could reasonably considered to have been offered.

2.    

2.1 I look forward to expanding on the issue of victim’s rights in my verbal submission before the select committee.

2.2 In summary, I feel that the primary issue here is the status of the victim within the system. By working from the core assumption that their rights take precedence, coming to conclusions regarding the terms of reference of this inquiry will in most cases become a straightforward matter.