On 20 January 2017, an offender drove down the Bourke Street Mall in Melbourne killing 6 people and injuring many more. “On November 13, 2018, a jury convicted [the offender] of six charges of murder and 27 charges of reckless conduct endangering life” (Office of the Director of Public Prosecutions (ODPP), Bourke Street case information). The offender is due to appear for a plea hearing in January.
Today’s correspondent was there and responded to the emergency providing first aid to some of the victims. He or she asks:
- I have been asked to submit a victim impact statement, could I consider my statement to be used in court or just filed away with others? Are they regularly used and considered by the magistrate and prosecution? Or are they of little value? What would be of use for the courts to include in my or others statement?
- Could you please give myself and other first responders an idea of what we can reasonably expect to occur in the future – Will there potentially be a Coroners Court inquiry and civil case? And what would such courts generally want from whom? Could a first responder reasonably be expected to attend?
I will necessarily speak in general terms. Specific issues relating to this matter should be addressed to the ODPP or police.
Victim Impact Statements
Victim Impacts Statements are provided for in the Sentencing Act 1991 (Vic). A victim impact statement is made ‘for the purpose of assisting the court in determining sentence’ (s 8K).
A victim impact statement contains particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence… the victim impact statement allows the victim to tell the court about the impact of the offence on the victim… (s 8L).
A copy of the statement is filed in court and provided to the offender or his or her lawyer (s 8N). A person who gives a victim impact statement may be called to give evidence about their statement and may be cross-examined on that evidence (s 8O). A person may request that their statement or parts of it are read aloud to the sentencing court. A sentencing judge may also elect to read aloud parts of the statement (s 8Q). Reading the statement aloud makes sure that the court and the offender are aware of the impact the offence has had on the victim.
In Director of Public Prosecutions v DJK  VSCA 109 Vincent J said (at -):
With respect to those [victim impact] statements, I repeat comments that I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court’s attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.
This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim’s perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation…
Making a victim impact statement is voluntary.
How the court will use a particular statement no doubt depends on what it says and the submissions made by counsel for the Crown and counsel for the prisoner. I can’t say what impact they would have in this matter.
For more information on victim impact statements see https://www.victimsofcrime.vic.gov.au/going-to-court/victim-impact-statements
A death is reportable to the coroner if the deceased appears to have died from a cause that was ‘unexpected, unnatural or violent or to have resulted, directly or indirectly, from an accident or injury’ (Coroners Act 2008 (Vic) s 4(2)(a)). Each of the deaths caused by this offender would be a reportable death. The Coroner must investigate a reportable death (s 15).
A coroner may hold an inquest (that is a formal inquiry). He or she is not required to hold an inquest where ‘a person has been charged with an indictable offence in respect of the death being investigated by the coroner’ (s 52(3)(b)). In this case a person has been charged and convicted so a coroner is not required to hold an inquest.
Section 67 sets out what the Coroner is looking to discover. That section says:
(1) A coroner investigating a death must find, if possible—
(a) the identity of the deceased; and
(b) the cause of death; and
(c) unless subsection (2) applies, the circumstances in which the death occurred; and
(d) any other prescribed particulars.
(3) A coroner may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice.
In the case of the deaths in Bourke Street, given the prisoner has been charged with and convicted of murder one can be sure that the matters listed in s 67(1) have been determined. The Coroner would only hold an inquest if he or she wanted to determine whether there were matters connected with the death that warranted a comment for the purposes of public safety.
In making that decision the Coroner is required to ‘liaise with other investigative authorities, official bodies or statutory officers— (a) to avoid unnecessary duplication of inquiries and investigations…’ (s 7). Given the extensive police investigation that is a necessary prelude to any murder prosecution it may well be that the Coroner will determine there is little value in holding an inquest.
What I can say (reading between the lines, including some lines that have been omitted from the question as it appears above) is that the Coroner is not going to be interested in holding an inquiry to consider how bystanders responded to the emergency and whether or not someone’s CPR was performed according to the textbook. In the emergency services and first aid sector there is constant training by fear – if you follow the book all good but if you don’t do exactly as trained you’ll have to ‘defend yourself in the coroner’s court’ and ‘you’ll be on your own and will be liable for the damage/death’. That training by fear is unhelpful and wrong (see First aid and paramedic care – and coroners are not out to get you (December 1, 2018)). How well first aid was provided is not the issue. The presence or absence of first aid was not the cause of anyone’s death, it was the injuries caused by the offender. The only person responsible for those deaths is the offender.
That is not to say that if there was a coroner’s inquiry a first responder/first aider would not be asked to give evidence. The coroner would want to investigate all the circumstances and make a comment on public safety but that comment would, I suggest, include a commendation for anyone who stepped out of the crowd to help.
Will there be a civil case? Again, I can’t say. Victoria has extensive transport accident compensation (Transport Accident Act 1986 (Vic)) and victims of crime compensation (Victims of Crime Assistance Act 1996 (Vic)). The direct victims, that is those killed or injured by impact with the offender’s car will be entitled to compensation under one or both of those schemes or workers compensation if they were at work at the time. There may be a court case if there is some dispute between a claimant and an insurer as to the extent of payable benefits under a relevant scheme.
Secondary victims, eg first responders who were injured, either physically or mentally, may also be entitled to compensation see “Cop sues offender’s family” (May 22, 2013). Whether that would require court action would depend on the attitude of the Transport Accident Commission, the Victims of Crime Assistance Tribunal or any other potential defendant.
Whether a person who assisted would be required to give evidence would depend on the issues before the court. Courts are not investigative bodies they are umpires. They sit to resolve issues that the parties cannot resolve. To do that they hear evidence that is relevant to the issues that they have been asked to determine (Evidence Act 2008 (Vic) s 55). If the issue is whether the applicant has really suffered the damage complained of, the evidence of a first aider who stepped up to assist someone else will not be relevant. If it is the first aider that is seeking compensation then he or she will have to give evidence (if it gets to court) as to the impact of the event on their physical and mental wellbeing.
If the applicant is the family of the deceased, the evidence of a first aider is not likely to add much. If the applicant is someone who was injured the evidence of the first aider/first responder may be relevant to show that the injury they now complain of is or is not consistent with the injuries that were observed at the time.
Again I can’t say for sure as it does depend on the case being presented to a court but I would suggest that it would be very unlikely that a first responder would have any useful evidence to add.
My correspondent should not be concerned about writing an victim impact statement or subsequent court proceedings. The victim impact statement will help the sentencing court understand the human impact of the offender’s actions.
If there are subsequent court proceedings no-one is going to concern themselves with the minutiae of any first aid response. All that a person is required to do is explain what happened and what they observed.