KEY POINTS:
Victims of crime are treated appallingly by our adversarial system of justice. The reason for this is that they have no specific role in that system.
The adversarial system pits the prosecutor as the representative of the state against the defence, with the harm done by the offence being regarded as an injury to the community as a whole, rather than to the victim in particular.
Victims may figure in that process as witnesses, but will not be dealt with specifically as victims, and there is no defined place in the process for their families.
Victims are, at a time when they are generally extremely traumatised, thrown into a bewildering system in which no one is responsible for dealing with them. They find it difficult to obtain information, face financial losses and have little access to support.
Rape victims are subjected to a process which provides for specific safeguards for defendants, but few for victims. Domestic violence victims find themselves caught up in a system which will punish them for not giving evidence against a partner, and a partner who will punish them if they do give evidence.
Families who may have lost a loved one in a car accident can be seen regularly at courts, trying to ascertain what is happening to the person charged over the death, and finding that the court process adds to their trauma.
The plight of victims' families was illustrated recently by publicity over the demand by the Legal Services Agency that the partner of Karl Kuchenbecker repay up to $19,000 in legal aid granted in respect of the inquest into his death. Mr Kuchenbecker was killed by Graeme Burton during his rampage in the Wainuiomata Hills in January 2007.
The agency funded the family's representation at the inquest, but then sought repayment of the sum - a demand swiftly cancelled after Justice Minister Annette King recognised a public relations disaster in the making. Keith McNeil, the son of murdered Tokoroa woman, Lois Dear, estimates that his family has paid out $15,000 for funeral expenses, travel between his Coromandel home and Tokoroa for court appearances, and accommodation costs since his mother was killed.
In recent years, however, New Zealand has begun to take some small steps to improve how the system deals with victims.
The Victims' Rights Act 2002 aims to provide rights for victims of offences and improve how they are treated. It provides that victims must, as soon as possible, be given information about court cases.
Prosecutors are required to "make all reasonable efforts" to ensure that information about harm to victims is provided to sentencing judges, and that victims' views relating to bail are put to the court.
The act also states that victims and their family members who have welfare, health, counselling, medical or legal needs arising from an offence should have access to services that are responsive to those needs.
However, another section of the legislation provides that this requirement is not legally enforceable. That epitomises the problems with the legislation - it is vaguely worded, filled with exceptions, and fails to sheet home responsibility for implementing the rights it seeks to confer.
Parliament's justice and electoral committee in December released a report titled Inquiry into victims' rights.
It recommended establishing an agency to co-ordinate victims' issues, introducing a compensation regime, providing comprehensive information to victims about the legal system, and the setting up of services for victims at courts.
Prime Minister Helen Clark in her annual statement to Parliament announced that a charter of victims' rights would be developed, and an 0800 line and information website for victims would be created. The Law Commission has been asked to provide advice on the possibility of a victim's compensation scheme, and victim advocates are to be introduced in family violence courts. Extra money is also to be provided to the Council of Victim Support Groups, and $1.7 million is being made available to establish a central contact point for providing advice and assistance to victims.
The Government last month released its response to the justice and electoral committee report, but it showed little enthusiasm for the committee's suggestions.
Meanwhile, Victim Support has released a paper calling for the development of "parallel justice". This would provide victims with a separate path to justice alongside the criminal justice system, aiming to ensure that victim's rights are not dependent on the apprehension and conviction of the offender.
The report calls for action on five priority areas, including greater standing for victims in the criminal justice system, state-funded reparation, expanded state-funded support, improved restorative justice, and expanded victim assistance schemes. And the National Party has announced that it plans to levy offenders $50 to fund victims' costs.
It is plain that the issue of the treatment of victims will be in the spotlight in election year. However, it is to be hoped that the end result will be a real improvement in how victims are dealt with, rather than simply a bidding war between the parties resulting in little significant change.
* Catriona MacLennan is a South Auckland barrister.
