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University of Technology Sydney Law Research Series |
Last Updated: 16 May 2017
REFLECTIONS ON BORTHWICK: THE INTEGRATION OF CRIME VICTIMS IN
SENTENCING AND THE REQUIREMENT OF
FAIRNESS
Abstract
Integrating victims and their victim
impact statements in sentencing proceedings is a contemporary challenge for the
court. It is
argued that the requirement of fairness means that the sentencing
court should consider and respond to the interests and concerns
of both the
defendant and the victim.
INTRODUCTION
Incorporation of victim
participation in the sentencing process through victim impact statements (VISs)
has been a prominent feature
of penal policy in Australian jurisdictions for
more than two decades. VISs are mechanisms designed to provide victims with a
voice
in the hearing and space in which to express their feelings about the
impact of the crime. While research suggests that VISs have
generally had little
impact on sentencing outcomes or patterns more generally, VISs remain a
contentious feature of contemporary
criminal
justice.[1] In particular, the
integration of victims in courtroom proceedings is emerging as a challenging
issue for the court. Questions are
raised about the role of VISs in an
adversarial legal framework and the requirement of fairness in the conduct of
the proceedings.
Fairness is a ‘core value in the administration of
justice’ and is usually associated with the defendant’s right
to a
fair hearing.[2] Nonetheless, the High
Court has made it clear that the requirement extends to the interests of all
parties to the matter as well
as to victims and the community at
large.[3]
The distress and
anger expressed by victims in relation to their experiences in the sentencing
court in recent cases in Victoria[4]
and South Australia[5] have received
widespread media coverage. This article reflects on the handling of the VISs in
the Victorian case of Borthwick and argues that the requirement of
fairness means that the sentencing court should consider and respond to the
interests and concerns
of both the defendant and the victim. To do so does not
detract from the defendant’s entitlements; instead the fairness of
the
hearing overall will be enhanced.
BORTHWICK
In 2010,
Leon Borthwick was charged with murder and convicted at trial of the
manslaughter of Mark Zimmer in Victoria. The Sentencing Act 1991 (Vic)
enabled members of the deceased’s family (the ‘family
victims’) to submit VISs to the sentencing court providing
details 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”.[6] According to s
95A(1) the purpose of VISs is to assist the court in determining sentence.
At Borthwick’s plea hearing in September, 2010, the family victims
submitted VISs to the court wanting to read them
aloud.[7] The defence objected to
content of the statements because sections addressed matters other than the
impact of the offence on the
family as required by law and were thus irrelevant
and inadmissible. The objection was upheld and the court engaged in a very
lengthy
and public process of editing the statements. Amended versions were then
handed back to the family victims who appeared appalled
at the
outcome.[8] Further conflict occurred
in the sentencing hearing in December when the family victims were not permitted
to sit in the body of
the courtroom with the family of the defendant and were
relegated to the public gallery upstairs.
Members of the deceased’s
family subsequently gave media interviews about their distress and anger at
their experiences in the
courtroom. In their view, the family had been treated
unfairly. Three issues have been identified as the key sources of the conflict:
the contentious nature of the VISs, lack of notice and preparation for the
objections and the treatment of the family victims in
the process.
The
contentious nature of the victim impact statements
Sections of the VISs
published after the hearing contained inadmissible material. The
deceased’s father told the Law Report
on Radio National about one deleted
section of his VIS: ‘Well ... I wrote in my statement that Leon Borthwick
brutally ran
down and killed my son, and that was too harsh and I'm not allowed
to say that he brutally ran down and killed my
son’.[9] During an interview on
Radio 3AW, the deceased’s sister read out three parts of her statement
that had been deleted.[10] In
summary these sections covered the following matters:
While it is evident that these sections do not
relate to the impact of the death on the family and are therefore inadmissible,
interestingly
the Prosecutor saw nothing untoward about the victim impact
evidence. She said:
I didn't see anything out there, so to speak, in their victim impact statements. I mean most defence don't take the point. They might acknowledge that there are words in a victim impact statement...that technically might be objectionable. But it's often said to the judge that from defence's point of view, that there are inadmissible parts, '...but we're not taking the point, Your Honour, but we ask Your Honour to ignore those parts or give little weight to those parts'. That's been the usual practice. That wasn't what happened here.[11]
This more flexible approach to the content of VISs reflects the position that has been advocated by the Victorian courts. In Dowlan,[12] the Victorian Court of Appeal said that making rulings with respect to each part of the statements subject to objection was not ‘necessary, or even desirable’. Further,
It would be quite destructive of the purpose of these statements if their
reception in evidence were surrounded and confined by the
sorts of procedural
rules applicable to the treatment of witness statements in commercial cases. The
reception of victim impact statements
must, it seems to me, be approached by
sentencing judges with a degree of flexibility; subject, of course, to the
overriding concern
that, in justice to the offender, the judge must be alert to
avoid placing reliance on inadmissible matter. If objection is taken,
on a
matter of substance, to any part of the statement, the judge should either rule
it inadmissible or make it clear, during the
plea or in sentencing reasons, that
no reliance would be, or was being, placed on that part of the
statement.
Thus, it appears that the ‘usual practice’ has been to
rely on the sentencing judge to disregard those parts of the VIS
that are
inadmissible when formulating the appropriate penalty. This practice however had
developed in the context of the submission
of written VISs but circumstances in
Borthwick differed because the family victims also wanted to read their
VISs aloud to the court. According to media reports, the defence had
sought to
avoid this irrelevant material becoming part of the public record as it
inevitably would have done if the VISs were read
aloud and unchanged in open
court.
Lack of Notice
Although the Crown had provided the
defence with copies of the VISs prior to the hearing, the defence did not object
to content of
the VISs until the hearing. The Crown Prosecutor argued that this
lack of notice was unusual:
[n]ormally what would happen... is that usually defence will ring me, the
barrister, or maybe my instructor and say, 'Look, not too
sure about this bit.
Do you mind?' you know, really some sensitivity in the way that it's done. That
didn't occur
here.[13]
Consequently the
deceased’s family was not warned about the contentious issues in their
statements and came to the hearing unprepared
for what occurred. The
deceased’s father told Radio National:
[we] prepared our victims impact statement well in advance. We submitted it
to the prosecution and the defence. So we came to court
today expecting to have
our day in court and to be able to read our impact statements in front of the
court; only to hear that the
defence had objections to our statements and that
the defence wanted to edit our statements, and ...that it was their right to
edit
our statements. We couldn't tell the court how we felt, it was up to the
defence to be able to edit how we
felt.[14]
The Treatment of the
Family Victims
The defence did not identify which parts of the
statements were contentious or why. Nor did the court clarify the situation for
them
while it spent approximately 90 minutes reviewing the objections, editing
and deleting ‘inadmissible’ material in the
VISs in open court. The
family victims looked on as bystanders angry that they were excluded from this
process of review. When the
editing process was completed, the VISs were
returned to the family victims. The process took so long however that the
hearing was
adjourned part heard and victims could not read their edited VISs
until December. No explanation in relation to what was deleted
or the final
edited versions was forthcoming from the court other than the judge reportedly
remarking: ‘Of course victims can
feel these things, but as we all know
the law governs what can be in a victim impact
statement.’[15] The
deceased’s family was distressed and angered that significant parts of
their statements had been deleted and so publicly
without explanation. In the
deceased’s father’s opinion ‘to have it torn apart in front of
us at the court...they
just didn’t care, they were heartless...and then
they expect us to be quiet about
it.’[16]
Matters were
exacerbated for the family victims when the judge delivered Borthwicks’
sentence in December. Without notice, court
staff decided that the
deceased’s family should be separated from the defendant’s family
while the judge read her sentencing
judgment. Radio National reported that the
Supreme Court said:
[t]here had been a number of disruptive incidents during the trial involving
the parties both within and outside the court. And the
decision to separate the
families was designed to prevent a repetition of earlier incidents. The court
says this decision was not
made
lightly.[17]
On their arrival at
court, the Zimmer family was directed to the public gallery upstairs rather than
in the courtroom where they had
been on previous occasions whilst the
defendant’s family was permitted to remain in the main gallery of the
courtroom. Visibility
and audibility of the proceedings in the public gallery
were poor and the deceased’s father described it ‘like watching
[the
proceedings] from the outside’. The deceased’s sister, having
arrived after her parents, refused to sit in the public
gallery and her ensuing
argument with court staff was heard in the courtroom. She said later: ‘I
was manhandled by the court
staff, told to leave, I couldn’t even
cry...before I was kicked out like the piece of trash that they think we
are.’[18] In the end, the
deceased’s sister left the court rather than watch the proceedings from
the public gallery. The Crown Prosecutor
was unhappy about the court’s
decision: ‘The prisoner's parents were in the body of the court, and who
dictates that
they should be the ones that are allowed there? I think it was
most
unfair’.[19]
THE
RESPONSE OF THE COURT
Calls to review the handling of VISs in the
courtroom followed extensive media coverage of the family’s experiences.
As a result,
a new practice direction for sentencing hearings in the Victorian
Supreme Court commenced in May 2011.
[20] It provides that the Crown shall
supply the defence with copies of VISs at least 10 days before the hearing and
notify the defence
whether the VISs are to be read aloud to the court. In turn
the defence will notify the Crown of any points of contention in those
statements and, in such cases both parties are expected to confer prior to the
sentencing hearing. The Crown will also inform the
family about “the
process relating to the determination of an issue of admissibility of their
victim impact statement”.[21]
The practice direction therefore explicitly addresses one of the key issues
identified namely, lack of notice in relation to objections
to VISs. In future
the defence will be expected to scrutinise the VISs as they come to hand and
give the Prosecution notice of any
concerns. If there are any contentious issues
in the statements, the parties will discuss these in advance of the hearing.
Although not expressly stated, the prosecution would also have to confer
with the victims in relation to any points of contention,
particularly if the
defence required changes to be made to the statements. Thus, the family victims
would also have notice of the
objections. Prosecutorial guidelines make it clear
that it is the victim who is responsible for the preparation of a VIS and the
prosecutor is not required “to vet or edit the Victim Impact
Statement”.[22] It is the view
of the Victorian Director of Public Prosecutions that the admissibility or
otherwise of the whole or sections of a
VIS is “primarily the
responsibility of the sentencing judge”.
[23] If the victim does not want to make
the changes as directed, then presumably formal objections would be made at the
hearing and the
matter dealt with by the court.
If there are indications
that discussion of the issues in court could be problematic and ‘impact on
the conduct of the plea’
then the parties might request or the judge
direct that a preliminary hearing is conducted on these contested
issues.[24] In this context,
“impact on the plea” mostly likely refers to a situation such as
arose in Borthwick where the handling of objections to the VISs could
produce tension and conflict in the proceedings and derogate from the integrity
of the hearing. Given the complaints of the deceased’s family in
Borthwick, it is striking however that the practice direction does not
address the inter-personal treatment of victims in the
courtroom.
FAMILY VICTIMS AND THE REQUIREMENT OF
FAIRNESS
The treatment that the deceased’s family received in
the hearings was remarkable for its lack of sensitivity and was a major
source
of the ensuing conflict both inside and outside the courtroom. It has been said
that the distress of family victims is an
“underlying condition of their
situation” that “must be borne in mind” because it will shape
and permeate
“almost all their responses and any checks, slights and
obstacles would rankle in
proportion”.[25] Here, the
legal professionals had had ample opportunity to observe the distress and anger
of the deceased’s family during the
trial and sentencing hearings which by
their nature are frequently volatile. In Borthwick however, it appears
the court was not responsive to the ‘affective state’ of the family
victims during the sentencing
process.
Adversarial norms shape both the
topography of the courtroom and the form and practice of the legal proceedings.
The hearing is shaped
by two opposing and partisan parties – the Crown
(represented by the prosecution) and the defendant -and managed by an
independent
and impartial sentencing judge who determines the penalty. Being
parties, the Crown and the defendant have legal ‘standing’
to:
identify the issues in dispute, determine the evidence and make penalty
submissions. Family victims are not parties and cannot
participate in these
processes. Further as non-parties, they are physically excluded from the conduct
of the hearing. The adversarial
form of the hearing configures the courtroom
space into a series of clearly demarcated and hierarchical
zones.[26] The business of the
hearing – taking evidence and making submissions – occurs in the
‘central performance zone’
of the courtroom. Aside from necessary
court staff, attendance in this zone is restricted to the parties and the judge
during the
hearing; ‘outsiders’ many only enter by invitation. Thus
family victims assume the role of bystanders to the hearing
despite the fact
that the death of their family member is a central element of the homicide
offence and they have sustained loss
as a result.
These adversarial norms
shaped the sentencing hearings in Borthwick. As non-parties, the
deceased’s family were practically and physically excluded from the
process. The focus of the hearing
was evidence relevant to penalty and the
conduct of a fair hearing. The court did not have to inform the family of the
nature of
the objections nor consult them in relation to amendment of their
statements.
The principle of a fair trial or the requirement of fairness
is fundamental and extends to virtually every aspect of legal proceedings.
What
is unfair is developed inductively on a case by case basis and involves an
‘undesirably, but unavoidably, large content
of essentially intuitive
judgment’.[27] It is also a
dynamic principle, adapting to and reflecting changing community perceptions and
standards. While the principle of fairness
is generally associated with the
protection of the defendant’s rights, it also extends to the interests of
all parties to the
matter as well as to victims and the community at
large.[28]
As the defendant,
Borthwick had a well established interest in a fair hearing. The objections to
the VISs had raised significant issues
for the court in that the content of the
VISs could introduce potentially irrelevant and prejudicial evidence. Fairness
required
that the defendant be heard, irrelevant and/or prejudicial evidence be
excluded and the VISs appropriately amended if necessary.
The principle of
fairness required however that the interests of family victims also be
respected. In exercising their legal entitlement
to prepare and submit VISs that
they hoped to read aloud, the family victims had interests that were
‘substantially affected’
by the handling of the objections to their
statements. [29] The requirement of
fairness in these circumstances required the court to consider the interests of
the family victims as well as
those of the defendant.
Often this process
is described as the ‘balancing’ of competing interests but the
metaphor of balance is misleading. The
interests of the defendant and the family
victims in the plea hearing are qualitatively different and not mutually
exclusive.[30] The defendant’s
interest lies in preventing unfair restriction on his or her liberty that might
follow consideration of inadmissible
evidence. The interest of the family
victims on the other hand, is to have a voice and be heard on the impact of the
crime. In protecting
the interests of the defendant it is not necessary to
exclude consideration of the interests of family victims.
Fairness to
the family victims in this case did not mean that they should have been heard or
consulted in relation to the objections
and changes to their statements.
Fairness required the court to respond empathically to their situation and
acknowledge their emotional
responses to court events. According to Henderson
empathy is both a “way of knowing” and a “catalyst for
action”.[31] As a way of
knowing, it is the quality of understanding the experience or situation of
another.[32] This involves reading
both verbal and non-verbal cues and being sensitive to the affective state of
the situation.[33] As a catalyst
for action, empathy generates empathic responses to situations such as
communicating a sense of caring or responding
to the situation in a
‘helping and non-judgmental
manner.’[34] Empathic
responses of judges convey dignity and respect in the
courtroom.[35]
With regard to the sentencing hearing, at the very least court staff should have discussed their concerns with the prosecution and the defence beforehand and the family victims given notice of those concerns. Empathic responses in the plea hearing required the court to clarify the defendant’s concerns for family victims and explain why and how the VISs were amended. In doing so, the judge could have emphasised that amending the statements was a matter of law and not personal and this course would not detract from their opportunity to be heard. The judge did not have to speak to the family victims directly; instead these comments could have been directed to the court more generally for all, including the family, to hear. Such sensitivity to the victims’ concerns would not have detracted from the defendant’s entitlements. Indeed arguably, the interests of the defendant might have been enhanced by the reduced emotional tension and conflict during the proceedings. While the family may not have been sympathetic to the defendant’s entitlements or happy that their statements had been changed their interests and concerns would have been acknowledged. Though powerless in the business of the hearing, such empathic responses would have accorded the family respect and dignity and arguably a sense of justice.
CONCLUSION
Courts have a duty to maintain public confidence in public justice through
the integrity of its processes. It is arguable that the
negative publicity
surrounding the Borthwick case in relation to the experiences of the
victims arguably brought the law into disrepute. The law requires the court to
both protect
the interests of the defendant and accommodate the voices of
victims through their VISs in the sentencing process. The principle
of fairness
requires that respect be accorded to the interests of both the defendant and the
victim. It has been shown that to respect
the interests of the victim does not
derogate from the interests of the defendant. Accordingly it is prudent that
sentencing courts
reconsider their modus operandi dealing with victims and
accord fairness to all affected. Like the principle of fairness itself,
courts
will need to be dynamic, adaptive and
reflective.
[1] Edna Erez, ‘Integrating a
Victim Perspective in Criminal Justice through Victim Impact Statements’
in Adam Crawford and
Jo Goodey (eds) Integrating a Victim Perspective Within
Criminal Justice (2000)
[2] Hon
J CJ Spigelman, ‘The Truth can cost too much: The Principle of a Fair
Trial’, (2004) 78 Australian Law Journal 29-29,
33.
[3] Jago v District Court of
New South Wales (1989) CLR 23, Brennan J, 50; Spigelman n1,
33.
[4] R v Borthwick [2010]
VSC 613. M. Iaria, ‘Judge flags new victim statement policy’, The
Age 21/9/10; A. Lowe, ‘Calls for new victim statement rules’
22/9/10; ABC Radio National, The trial of Leon Borthwick, Law
Report: Part one
25/1/11 http://www.abc.net.au/rn/lawreport/stories/2011/3119705.htm, part two
1/2/11 http://www.abc.net.au/rn/lawreport/stories/2011/3125492.htm,
part three
8/2/11
http://www.abc.net.au/rn/lawreport/stories/2011/3130080.htm.
[5]
N. Schultz-Byard, ‘Victims impacted by censored statements’ 891 ABC
Adelaide, 17/6/11
http://www.abc.net.au/local/stories/2011/06/17/3246359.htm?site=adelaide,
Hannah
Silverman, ‘Families share their pain with killer driver’ The
Advertiser (Adelaide)
7/5/11.
[6] Section
95B(1).
[7] Details of courtroom
events in this case have been drawn from media reports and a three part
documentary made in relation to the
case and broadcast on Radio National, see n
3.
[8] It was reported that
deceased’s sister tore her VIS in two pieces and ‘stormed out of the
courtroom’ in tears.
Outside she told media: ‘My heart was on those
pieces of paper and they have just destroyed them.’ Iaria,
n3.
[9] ABC Radio National, The
Trial of Leon Borthwick, Part 3, n
2.
[10] The interview available
from
http://www.3aw.com.au/blogs/3aw-generic-blog/3aw-allows-statement-court-didnt/20100914-159zj.html
[11]
ABC Radio National Part Three,
n2.
[12] Dowlan [1998] 1
VR 123, Charles JA, 140.
[13]
Radio National, The Trial of Leon Borthwick, Part Three,
n2.
[14]
Ibid.
[15] Iaria,
n3.
[16] ABC Radio National, The
Trial of Leon Borthwick, Part three, n
2.
[17]
Ibid.
[18]
Ibid.
[19]
Ibid.
[20] Practice Note 3 of
2011, Sentencing Hearings (Supreme Court of
Victoria).
[21] Paragraph
8.
[22] Office of Public
Prosecutions Victoria, Prosecution Policy and Guidelines – Victims
Eligibility to make Victim Impact Statements, and the role of the OPP and the
Director
therein, 34.4.1 and
34.4.2.
[23]
34.4.2.2,
[24] Practice Direction
n xix,, Paragraph 8.
[25] Paul
Rock, ‘Hearing Victims of Crime’ in A Bottoms and J Roberts (eds)
Hearing the Victim: Adversarial justice, Crime Victims and the State
(2010), 207.
[26] Linda
Mulcahy, Legal Architecture: Justice, Due Process and the Place of law,
(2011).
[27] Jago v District
Court of NSW [1989] HCA 46; (1989) 168 CLR 23, Deane
J.
[28] Brennan J in Jago v
District Court of NSW [1989] HCA 46; (1989) 168 CLR 23, 54; Spigelman n1,
33.
[29] Sam Garkawe, “The
Role of the Victim during Criminal Court Proceedings” [1994] UNSWLawJl 21; (1994) 17(2)
University of New South Wales Law Journal 595-616,
603.
[30] ibid
603.
[31] Lyn Henderson,
‘Legality and Empathy’ (1987) 85 Michigan Law Review 1574,
1576.
[32]
Ibid.
[33] N Eisenberg and J
Strayer, Empathy and its Development (1987),
5-6.
[34]
Ibid.
[35] Goldberg, Judging
for the 21st Century: a Problem Solving Approach (2005) National
Judicial Institute, Canada.
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