Victims of crime in New South Wales are essentially treated as ordinary witnesses. They make statements to the police and give evidence at any trial, where they are subjected to cross-examination. If the accused pleads guilty the victim will not be further involved in the case, and may never even be informed by the authorities of what happens to the accused. Victims or their families may, however, make victim impact statements which can be used by a trial judge in the Supreme or District Courts for the purposes of sentencing.76 Victims may also make application to an assessor and ultimately to a Victims Compensation Tribunal for compensation and other benefits (eg, counselling) in relation to injuries caused by the criminal acts, although such compensation in New South Wales is limited to crimes of violence and compensation is currently capped at $50 000.77 Any compensation awarded is paid from state funds, but there is a right to recovery of any such payment from the accused, a right that yields very little, it seems.78
Victims in the French criminal justice system may play a significantly greater role. A victim in that system may, during an investigation or at the hearing, apply to be ‘constituted’ a partie civile (civil party) and may even cause a prosecutor to initiate criminal proceedings through an application to an investigating judge.79 The range of potential civil parties is very wide, including the families of primary victims, those claiming interests through victims (eg, insurers, trade unions, employers) and various special interest groups (eg, returned servicemen, conservationists, anti-discrimination groups).80 A civil party is entitled to legal representation during the investigation and at any hearing. Suggestions may be made as to avenues of investigation, particularly to any investigating judge.81 At a hearing the civil party may seek to elicit evidence and make submissions relevant to liability and to sentence.
More importantly, the civil party may claim compensation (dommagesintérêts) in the criminal proceedings for loss and damage caused by the accused in the commission of the offence, relying on the evidence collected by those investigating the offence and on any further evidence adduced at the trial.82 In the cour d’assises any compensation is awarded by the judges alone.83 The level of compensation is the same as in independent civil proceedings. Any compensation awarded is payable by the state which then can seek reimbursement from the accused. It appears that the state proceeds more vigorously towards reimbursement in France than in New South Wales.84
The civil party system in France disadvantages an accused compared with an accused in New South Wales. The French accused is opposed by the prosecution, but may in addition be confronted by the victim of an offence, who may influence questions of liability and sentence and also pursue compensation. This can clearly add to the burden of defence, particularly as the range of civil parties on any one offence can be quite wide. And a French accused with means is very likely to have ultimately to pay any compensation awarded. An accused and defence lawyers in New South Wales would clearly not welcome a French-style civil party system, even if it could well be attractive to victims, enhancing their role in criminal proceedings.
V EXPERTS AND THE ACCUSED
1 New South Wales
In common law systems experts are generally commissioned and called to give evidence by the parties on questions requiring expertise. They are expected to support the case of the party calling them and they thus become partisan. In a criminal justice context experts may be commissioned and called by the prosecution and the defence. As the prosecution is generally better resourced than the defence it is more able to access experts, many of whom anyway will be in government service, with the result that the prosecution will often be better positioned in the battle of the experts. On difficult or complex issues for expertise, more heat is likely to be generated than light in this battle.85 In a jury trial it is the laypersons of the jury who will have to decide those issues and the winner of the battle. As some corrective to this situation the New South Wales Supreme and District Court Rules now contain a Code of Conduct for expert witnesses mandating that their paramount duty is to the Court and not to the person retaining the expert.86 It will be interesting to see what impact this may have on expert partisanship in criminal cases.
The French criminal justice system, by contrast, deals with questions of expertise through court-appointed experts.87 Lists of such experts are maintained by the Cour de cassation in Paris and by the 35 cours d’appel throughout France.88 Persons qualified by training and experience in the various relevant disciplines may apply for appointment to those lists and, after screening as to character and standing in the discipline, may be appointed. Experts are remunerated for their work from public funds. The remuneration is relatively modest, but the social and professional prestige of an appointment is high. Any question of expertise that may arise during a criminal investigation is then referred to an appropriate expert on the list for investigation and report.89 The reports are communicated to the parties who may request a complementary report or a report from another expert.90 The objective is to have any issue of expertise resolved by the end of the investigation and before the case goes to a hearing.91 In the cour d ’assises at least, experts will be required to give oral evidence in support of their reports.92 In exceptional circumstances experts not on the lists may be commissioned.93
How do these differing systems for dealing with expert evidence impact upon an accused in each system? An Australian accused can be seen to be generally at a disadvantage in the battle of the experts. He or she is less well resourced and less well connected in obtaining expert opinion to match that of the prosecution. Unless he or she is on legal aid (which may not pay for the best experts) the expense of the expert will have to be met by the accused. The accused will also have to hope that his or her expert is personally more impressive to any jury than the prosecution’s expert if the jury is out of its depth on the scientific or technical issues. At least, however, the accused should know that his or her expert will be pitching hard for a favourable result, and the prosecution’s expert will have been cross-examined.
A French accused will know that any question of expertise will generally have been resolved before the case goes to a hearing, although if it is going to a hearing it will normally have been resolved against the accused. There will be little opportunity for the defence to cross-examine the expert witness, and in fact any cross-examination is likely to be counter-productive so far as the presiding judge is concerned. The evidence of the expert will tend to be supportive of the law enforcement objectives of the prosecution and the judiciary with whom – and thanks to whom – the expert is working. But at least the accused will not have to pay for the expertise.94
Given the uncertainty of outcomes in our jury trials, contributed to by juries having to resolve battles between experts, an Australian accused may be relatively advantaged over his or her French counterpart as regards expert evidence. The Australian criminal justice system as a whole, however, could hardly be said to be advantaged as against the French; Australian juries have to grapple with battling experts while French courts have the benefit of answers to questions of expertise reached through relatively dispassionate processes of investigation.