By Joshua Brown, Associate, McNamara and Associates Solicitors
In August 2009 the Victims of Crime Assistance Act 2009 came into effect which created a scheme whereby victims of violent crime in Queensland have access to financial assistance and recovery of loss. The scheme provides assistance for not only the primary victim but also a secondary victim such as a parent of the primary victim, another related victim or a witness to the violent event.
On 1 December 2016 the Queensland Government introduced the Victims of Crime Assistance and Other Legislation Amendment Bill 2016. The Bill was passed by Parliament on 22 March 2017 but the commencement date is yet to be confirmed.
Criminal Proceedings Aspect
The intention of the Bill was to enact changes to the Criminal Code, the Evidence Act 1977, the Victims of Crime Assistance Act 2009 and other Acts so that sexual assault victims have better protection for their privacy when discussing the assault with their counsellor, and to provide for giving evidence in court in a pre-recorded form, from a remote witness room, or behind a screen, therefore protecting the victim from the offender.
Changes will be implemented to the legislation, with the insertion of a new section: Protected counselling communications.
The prosecution will not be required to give the accused person a copy of a document if the prosecution reasonably considers the document is a protected counselling communication.
Once the changes to the Act come into force victims should feel much more comfortable discussing the assault with their counsellor.
The introduction of this new protection for victims will enable the prosecution to refuse to provide all relevant evidence to an accused person. For persons who are contesting criminal charges any counsellor’s records that contain something controversial will not be disclosable. If a person makes a personal injuries claim for a sexual assault against an accused, the accused may find it very difficult to obtain copies of the Claimant’s medical records.
Victims of Crime Aspect
The proposed changes to the Act also include allowing access to financial assistance for domestic violence, including the violence that is not physical such as a psychological injury.
Amendments were made to section 5 of the Victims of Crime Assistance Act 2009 which mean that a victim will now also include a person who has suffered harm:-
(a) because domestic violence is committed against the person; or
(b) because the person is a family member or dependant of a person mentioned in paragraph (a); or
(c) as a direct result of intervening to help a person mentioned in paragraph (a).
The definition of crime in section 6 will also be amended to include a domestic violence offence, including an attempt or conspiring to commit a domestic violence offence, but the act of violence will only include an act that directly results in the death of, or injury (either physical or psychological) to, 1 or more persons. Simply planning to commit domestic violence that does not cause injury will not be enough to satisfy an application for financial assistance.
A victim can only claim if the act of violence or domestic violence has been reported to a police officer, counsellor, psychologist, doctor, or domestic violence service.
There is a further amendment to section 6 (2)(b) which says “it does not matter whether the person who did the act or made the omission has been identified, arrested, prosecuted or convicted in relation to the act or omission”. On occasion an aggrieved party makes an application for a domestic violence protection order without the support of any evidence. The accused will often consent to a domestic violence order without admitting fault purely with the view of avoiding costly and timely court proceedings to defend the allegations. If this occurs, alleged victims have the right to seek victims of crime financial assistance based on what could be unsupported allegations.
The recovery provisions of the original Act remain unaltered, meaning the State can only recover assistance granted from the convicted persons. This means that an accused would only be pursued for the financial assistance if a Court found beyond all reasonable doubt that the offence had been committed.
Other amendments include:-
- an increase for funeral cost assistance from $6,000 to $8,000;
- an increase in the special assistance (the lump sum payment on top of the financial assistance and recovery of loss) and removal of a range of payment:-
- For a Category D act of violence from a range of $130 to $650, now fixed at $1,000;
- For a Category C act of violence from a range of $651 to $1,300, now fixed at $2,000;
- For a Category B act of violence from a range of $1,301 to $3,500, now fixed at $3,500;
- For a Category A act of violence from a range of $5,000 to $10,000, now fixed at $10,000; and
- removing the pool of assistance for secondary victims (under the original act all related and family victims could only receive a total of $100,000. Once the amendments come into effect all secondary and family victims will be able to apply for up to the maximum of $50,000 each, regardless of how many related or family victims apply).
Domestic violence offences fall within a Category D offence, unless an assault occasioning bodily harm, or more serious injury, occurs from the domestic violence.
Domestic violence is broadly defined and can range from physical abuse, down to something like withholding a credit card, or taking a mobile phone.
The maximum assistance available to primary victims remains at $75,000.00 plus an additional grant of $500 for legal costs incurred in applying for assistance under the Act.
It is important to remember that strict time limits apply to applications for assistance. In Queensland a victim has three (3) years from the incident to commence their application unless exceptional circumstances prevent such application or the victim is under a legal disability, for example a child who is under the age of eighteen (18).
For more information if you are a victim of a crime please contact Joshua Brown on (07) 3812 2300.