Contents

Chapter 8
Key issues concerning the alternative process

Public interest

8.26There will be cases which are of such a character that there is a compelling public interest in prosecuting them within the criminal justice system, in order that the conduct can be publicly denounced and the perpetrator punished. These may be cases that involved, for instance, a weapon, multiple perpetrators, or extreme physical violence. Regardless of any measure of the risk of the perpetrator committing another act of sexual violence, the public interest would demand such cases be dealt with through the criminal justice system and precluded from the alternative process.

8.27Therefore, any desire that a victim may have to opt for the alternative process may be legitimately overridden in these sorts of cases.571

8.28It should be noted that the cases primarily envisaged as entering the alternative process are not those cases that engage significant public interest, but those that would not otherwise be reported or dealt with through the criminal justice system. It is more likely that they will involve perpetrators who do not conform to the stereotype of the “real rapist” and thus be less likely to be perceived by the public as in need of denunciation and punishment.

8.29Nevertheless, where there is a compelling public interest, as described above, we accept that certain cases will need to be precluded from entering the alternative process. Again, the question is how this should be determined. The options would be to:

8.30In our view, excluding cases by offence type will catch too many cases. For instance, if cases of “sexual violation” as defined under section 128 of the Crimes Act 1961 were prohibited from going through the alternative process this would cover a huge range of cases, many of which might in fact be appropriate to proceed through the alternative process. Because it is our preference, where appropriate, to provide as many victims as possible with the choice of the alternative process, we do not favour this approach.

8.31The Report of the Centre for Innovative Justice, in making its case for the use of restorative justice in sexual violence at all stages of the court process including pre-court, argues that distinguishing between types of offences suggests that some sexual violence is more serious than others. This may have the effect of denying the subjective experience of victimisation and the harm suffered by each victim, and removing the autonomy of victims to decide on whether to elect the alternative process or court.572 Its view was that there ought to be a case-by-case assessment of whether a case should be permitted to proceed through a restorative justice process. Although we are attracted to this approach, assessing on a case-by-case basis may put too much onus on providers who would be making the assessments (see below) and may risk subjective decision-making.

8.32Our preference, therefore, in cases where the public has a compelling interest in seeing a perpetrator publicly denounced, is to exclude those cases from entry into the alternative process by way of a description set out in the legislation (which we refer to as a “public interest legislative descriptor test”).

8.33We acknowledge that it may not be easy to frame such a description, but ultimately it will be a policy decision as to how it is worded. We would suggest that cases be excluded from the alternative process where the public has a compelling interest in seeing conduct publicly denounced, including where there are factors such as use of extreme physical violence, multiple perpetrators and use of a weapon.

8.34As a matter of practicality, there will still need to be a person or body assessing cases as to whether or not they are excluded based on the public interest legislative descriptor test. We therefore recommend that the providers should conduct the assessment of whether cases meet the legislative descriptor test when conducting the risk assessment.

Recommendations

571It is highly likely that in such a situation that there would be sufficient other evidence for a prosecution to succeed and conviction to result without a victim’s evidence, should a victim not make a complaint to Police.
572Centre for Innovative Justice, above n 567, at 60.