VCE Legal Studies (Year 12) · Criminal Justice System · 12m read

Rights of the Accused and Victims

Ever wonder what actually protects you if you're accused of a crime—or if you're the one harmed by it? The criminal justice system tries to balance two competing needs: protecting people's freedom and safety when they're accused, while also supporting victims who've suffered real harm. You'll explore how laws guarantee both groups fair treatment, from a defendant's right to a fair trial to a victim's right to be heard, and why getting this balance right is crucial for a justice system people can trust.

Learning objective: Describe the key rights of the accused and victims in criminal proceedings and how they are protected.

By the end of this lesson you can:

• I list the rights of the accused (silence, trial without delay, trial by jury).
• I list the rights of victims (dignity, information, confidentiality).
• I evaluate whether these rights are adequately protected.

Rights are shields for both sides. The accused is shielded by the presumption of innocence; victims are shielded by rights to information and support.

Accused and victim rights

Rights of the accused (protected in the Victorian Charter of Human Rights and Responsibilities Act 2006 and through criminal procedure):

• Right to silence — no adverse inference from silence in most cases.
• Right to trial without unreasonable delay — balances rehabilitation, memories, psychological strain.
• Right to trial by jury for indictable offences (s 80 Constitution for Commonwealth indictable offences).
• Right to a lawyer, including via Victoria Legal Aid if eligible.
• Right to be presumed innocent until proven guilty.

Rights of the victim (Victims' Charter Act 2006):
• Right to be treated with respect and dignity.
• Right to information about the investigation and prosecution.
• Right to confidentiality of personal details.
• Right to make a Victim Impact Statement at sentencing.
• Protections when giving evidence (screens, pre-recorded evidence, support persons).

Tension: the accused's right to confront witnesses can conflict with the victim's need for protection. Procedural rules (alternative arrangements in Criminal Procedure Act 2009) balance both.

Rights summary

• Accused — silence: Cannot be forced to testify.
• Accused — jury: Indictable offences.
• Victim — information: Updates on prosecution.
• Victim — VIS: Can address the court at sentencing.

Quick reference

| Accused rights | Victim rights |
|---|---|
| Presumption of innocence | Give victim impact statement |
| Trial without unreasonable delay | Be informed of progress |
| Trial by jury (indictable, not guilty plea) | Protection from accused |
| Right to silence | Support services |

Worked example (Medium)

A child victim of assault is called to give evidence against the accused. Identify which rights are engaged and one mechanism that protects both.

1. Accused. Right to confront/cross-examine witnesses under fairness.
2. Victim. Right to be protected from further trauma.
3. Mechanism. Alternative arrangements: evidence via CCTV link, screens, pre-recorded, support person present.

Answer: The accused's right to fair cross-examination and the child victim's right to protection both apply. Alternative arrangements under the Criminal Procedure Act 2009 — e.g. evidence via CCTV or pre-recording — allow examination to proceed while protecting the child from direct confrontation and further trauma.

Worked example (Hard)

During a high-profile sexual assault trial, the media publishes the victim's name and photographs before the trial concludes. Evaluate how this affects the rights of both the accused and the victim, and discuss the tension between open justice and protection.

1. Victim's rights affected. The victim has a right to privacy and protection from trauma. Publishing identifying information re-traumatises the victim and may deter future victims from reporting. Victorian law prohibits identifying sexual offence complainants (Judicial Proceedings Reports Act 1958).
2. Accused's rights affected. Publication may prejudice the jury — if jury members see media coverage, they may form opinions before hearing all evidence. This threatens the accused's right to a fair trial and the presumption of innocence. A stay of proceedings or jury direction may be needed.
3. Open justice tension. Open justice (public hearings, media reporting) is a fundamental principle ensuring transparency. But it must be balanced against protecting vulnerable parties. Suppression orders restrict media reporting to protect victims and fair trial rights.
4. Resolution. Courts use suppression orders (Open Courts Act 2013 Vic) to restrict identifying information when necessary. The court must balance open justice against the specific harm that publication would cause. In sexual offence cases, victim identification is prohibited by default.

Answer: Publication breaches the victim's right to privacy and may prejudice the accused's fair trial. Courts resolve this tension through suppression orders — restricting specific details while maintaining general open justice principles. The Judicial Proceedings Reports Act 1958 prohibits identifying sexual offence complainants.

Common mistakes

• Only discussing the rights of the accused without mentioning victim rights (or vice versa) VCE Legal Studies requires students to analyse BOTH sides. The criminal justice system must balance the rights of the accused with the rights and interests of victims — discussing only one side is incomplete. Fix: Always discuss both perspectives. Structure your answer: "The rights of the accused include... The rights of the victim include... The tension between these rights is managed by..."
• Confusing the right to silence with the right to a fair trial The right to silence (not self-incriminating) is one specific right. The right to a fair trial is broader and includes the presumption of innocence, right to legal representation, right to be heard, and right to appeal. Fix: Be specific about WHICH right you are discussing. Don't use "fair trial" as a catch-all. Name the specific right: "The accused's right to silence means they cannot be compelled to give evidence against themselves."
• Stating that victims have a right to see the offender punished Victims have a right to make a Victim Impact Statement (VIS) and to be informed about proceedings, but sentencing decisions are made by the judge according to the purposes of sentencing — not according to victim wishes. Fix: Victims' rights include: right to be informed, right to make a VIS, right to privacy, right to be treated with courtesy. They do NOT include the right to determine the sentence.

The Presumption of Innocence — Why It Matters More Than You Think

The presumption of innocence is perhaps the most fundamental right of the accused in the criminal justice system. It means that every person charged with a criminal offence is legally innocent until the prosecution proves their guilt beyond reasonable doubt.

What it requires:
- The burden of proof rests on the prosecution — the accused does not have to prove anything.
- The standard of proof is beyond reasonable doubt — the highest standard in law. This means the jury must be satisfied that there is no reasonable alternative explanation consistent with innocence.
- The accused has the right to silence — they cannot be compelled to testify, and no negative inference should be drawn from their silence.

Why such a high standard?
The criminal justice system accepts that some guilty people will go free in order to minimise the risk of convicting innocent people. As Blackstone's ratio states: "It is better that ten guilty persons escape than that one innocent suffer." The consequences of criminal conviction — imprisonment, criminal record, social stigma — are so severe that the system demands near-certainty before imposing them.

Threats to the presumption in practice:
- Pre-trial media coverage can create public assumptions of guilt before trial.
- Bail refusal may give the appearance of guilt (though legally it should not).
- Mandatory sentencing provisions can undermine judicial discretion and proportionality.

VCE application: When evaluating any aspect of the criminal justice system, always consider whether the presumption of innocence is being upheld. This analysis is relevant to questions about bail, juries, suppression orders, and trial procedures.

Practice questions

1. The Victims' Charter Act 2006 grants victims the right to:

   1. Be informed about the prosecution
   2. Determine the sentence
   3. Reject plea bargains
   4. Refuse to give evidence

   (2 marks)

2. The right to silence protects the accused from:

   1. Being compelled to answer questions or testify
   2. Being charged with a crime
   3. Being convicted
   4. Having their house searched

   (2 marks)

3. Evaluate ONE mechanism protecting the accused's right to a trial without unreasonable delay.

   (4 marks)

Summary

• List the rights of the accused (silence, trial without delay, trial by jury).
• List the rights of victims (dignity, information, confidentiality).
• Evaluate whether these rights are adequately protected.