13. Witness Assistance Service (WAS)

13.1 General

The Witness Assistance Service (WAS) is a unit within the Office of the Director of Public Prosecutions. Its role is to provide support for witnesses, victims and their families while they are engaged in criminal justice processes for indictable crimes and workplace death matters. Upon request to the WAS manager, assistance with other matters such as lower court appeals, death matters in the Magistrates Court or difficult summary matters may be considered.

Primarily, clients come by referral from the prosecutor with conduct of a matter, although referrals can be requested through other agencies. WAS officers should always check with the prosecutor (or if none has been assigned, with a Committee members or the Director) before accepting a person as a client requiring services beyond general process advice. On being given conduct of a matter, prosecutors should immediately consider the engagement of WAS and, if the case is thought appropriate, instigate that engagement.

WAS resources will be allocated according to need, and it may not be possible to meet all requests. Priority will be given to special needs witnesses who include special witnesses defined in the Evidence (Children and Special Witnesses) Act 2001 as children, persons with a disability, indigenous witnesses or those from a non-English speaking background, elderly witnesses and immediate family members bereaved by crime. If there are special needs witnesses involved more than peripherally in a matter, the prosecutor with conduct must discuss the involvement of WAS with a WAS officer. Priority will be given to the relative seriousness of a case. Priority will also be given to persons involved in sexual assault matters, matters involving death, family violence and other crimes of violence. The WAS manager will be happy to discuss with prosecutors any issues arising concerning the availability of WAS.

WAS will have automatic involvement in all sexual assault matters. In these matters WAS will maintain regular communication with complainants to keep them informed of the status of the prosecution unless they have been asked not to be kept informed. The initial notification from police is forwarded to the WAS manager who will allocate the matter to a WAS officer. The WAS officer then has the responsibility of contacting the complainant and will act as the point of contact for any inquiries.

When WAS is involved in a matter there needs to be a clear understanding between it and the prosecutor as to whether ongoing information about a case is to be given to particular witnesses and whose responsibility it will be to pass on that information. In relation to discharges or downgrading of charges, WAS is happy to assist with these discussions provided the relevant legal information is provided by the prosecutor. In more complex cases, there will need to be discussion between prosecutors, clerks and WAS officers as to which witnesses will be dealt with by WAS. The same priorities as those outlined above should be applied so the WAS officer only deals with those witnesses who fit within the guidelines indicated. The same principles should apply to witness briefings.

WAS services include:

• assisting witnesses to understand the court and legal processes
• support during charge selection, negotiation or discontinuance
• showing witnesses the court facilities before they are expected to give evidence
• supporting clients in court or on video link, or while waiting to give evidence
• informing prosecutors and/or court staff as to witnesses' special needs
• referring witnesses to appropriate welfare, health, counselling or other services
• providing victims with information about referral for compensation or damages
• liaising with the court about the location and engagement of interpreters
• identifying who can make victim impact statements (VIS) and assisting in their preparation
• post-court debriefing and assisting to organise ongoing support

As outlined above, although the role of WAS is to assist victims and witnesses through the criminal justice process, WAS officers are employed by the Director of Public Prosecutions, an independent office. It should be noted that WAS officers are not the legal representatives of victims nor do they provide formal counselling services.

13.2 Victim impact statements

13.2.1 General

After a person has been found guilty of, or has pleaded guilty to, an indictable offence the law provides that the victim of the offence can make a victim impact statement (s81A of the Sentencing Act 1997). In respect of a summary offence, a VIS can be provided where death or serious injury has occurred as a result of the offence, or if it is a family violence offence. This is often the only opportunity for the victim to have their say. A VIS is entirely voluntary and if the victim feels it would be more traumatic to go through the process of preparing one then there is no obligation for them to do so. On the other hand, some people find the process of preparing and presenting a VIS therapeutic and want to have a role in the process. The decision whether or not to prepare a VIS can be discussed with a WAS officer who can also assist with the preparation of the document. Victim Support Services can also provide assistance with the preparation of a VIS.

Prosecutors should be aware that a VIS is not evidence to show that a victim is suffering from a psychiatric illness or disorder as a result of the crime. Where necessary, a report should be obtained from a relevant expert.

There are some limitations as to what can be included in a VIS. The statement must be limited to details relating only to the crime of which the offender is convicted. Following are some pointers to assist in the preparation of a VIS.

It should include:

• details of any physical injuries caused by the crime and the impact of these injuries
• details of emotional and psychological damage caused by the crime
• details of any changes in behaviour, thoughts, attitudes, coping skills, social life or relationships with others (i.e. how life was before the crime and how it has changed)
• details of the impact of the crime on employment, education or loss of future prospects
• details of the financial impact of the crime
• relevant medical or psychological reports that support the VIS

It should not include:

• any abusive or derogatory comments about the accused
• any impact that is not the result of the crime concerned
• any conduct of which the accused has not been convicted
• any suggestion as to what the sentence should be

13.2.2 Presenting a VIS to the court

There are three options as to how a VIS can be presented to the court.

The first option is for the written document to be handed up to the judge to read to him or herself. Some people prefer this because no-one else in the courtroom will hear it. However, it must be borne in mind that a VIS is not an automatically confidential document. A copy must be given to the accused's lawyer so the accused will also see it. Also, judges regularly use extracts from a VIS in their sentencing comments.

The second option is for the victim to read their VIS to the court.

The third option is for the victim to nominate another person to read the VIS on their behalf.

The WAS officer can assist with the decision as to which of the above options is preferred. When reading out a VIS it should be addressed to the judge or magistrate, not directly to the accused.

If defence counsel challenge any material in the VIS it will be necessary to discuss this with the victim. It is possible (though very unusual) that the victim may have to go into the witness box in order the prove the material.