Stephen Tomsen & Tyrone Kirchengast. Current Issues in Criminal Justice. Volume 31, Issue 2. May 2019.
Introduction: The Marginal Treatment of Victims in Criminal Justice Systems
Modern criminal justice in centralising liberal states evolved with an emphasis on the fundamental importance of individual rights and the protection of accused people. Ensuring the rule of law through guarantees of judicial autonomy and natural justice meant strict limits on prosecution and permissible evidence at fair and public trials. These developments reflected awareness of the repressive potential of an expanding central legal and police apparatus. The ideal vision of a modified liberal state was a political entity that would exercise its power to investigate, prosecute and punish crime in a strictly constrained manner (Doak, 2008; Sebba, 1996). Given this stress on the position and vulnerability of the accused individual there was marginal focus on the situation of the actual crime victim. Unlike some practices in earlier legal systems, modern liberal criminal justice effectively rendered victims marginal in the investigative and legal processes in which the state itself assumed the role of a de facto victim (Edwards, 2004; Holder, 2018; Kirchengast, 2006).
In recent decades, there was wide criticism of established criminal justice systems for this apparent exclusive focus on accused individuals. Also, there was scathing criticism from victim advocates and lobby groups regarding crime investigation and prosecution practices that discounted the needs and experience of actual case victims. In particular, they noted that the pursuit of matters on instrumental decisions about police and legal resources and the ready availability of evidence, left many victims of serious crimes without sufficient voice or acknowledgment (see Rock, 1986). Furthermore, levels of investigation and whether or not a prosecution ever took place, were central to each harmed person’s own potential status as a “legitimate” victim who is recognised substantively as a harmed party and treated in an equal manner to others. The sharpest criticisms of all were reserved for a conventional police focus on matters of public disorder and the regulation of public space in related “victimless crimes” such as offensive language, prostitution, vagrancy, drunkenness and homosexuality (Bergelson, 2013). Critics contrasted this stress on public order with police disinterest and neglect in relation to issues of violence, including widespread domestic assaults and abuse and attacks on individuals with low socio-economic or minority group status.
Uncertainty of Global and Local Measures to Counter Marginalisation
Globally, a range of reform measures that were widespread in police and criminal justice bureaucracies sought to address the concerns of what was described as a nascent victim’s rights movement. These included a more determined effort to encourage reporting and the effective recording of incidents without prior exclusion of supposedly less serious matters; the expansion of victim counselling and legal support; the further acknowledgment of victims in court by such measures as the use of victim impact statements; direct victim participation in restorative justice proceedings that involved less formal dealing with offenders; and public systems of financial compensation for victims in a range of cases that may or may not be prosecuted (as to issues around victim participation generally, see Bottoms, 2010). The criminal justice system in NSW is a typical example of the institutional consolidation of these pro-victim measures, and the strengths and weaknesses that result from them.
Campaigns to expand victim reporting and recording have been successful, but they also generate a subsequent strain on resources and the pressure of apparent increases in crime rates. Counselling and support may alienate rather than console victims seeking resolution from effective prosecution and trial of offenders, impact statements can favour the most mobilised and vocal of all victims, and compensation schemes have fallen into some disrepute with system rorting, financial shortfalls, and publicly difficult to explain calculation of distinctive levels of harm. Furthermore, related adoption of Statements or Charters of “Victim’s Rights” in a range of jurisdictions including NSW (eg. Charter of Rights for Victims of Crime, NSW, 1996 – and subsequently revised and expanded, see s 6, Victims Rights and Support Act 2013 (NSW)) have no substantive or enforceable status in law or police and criminal law processes (Kirchengast, 2016). Despite the good intentions and shift in consciousness entailed in such provisions, these can only be seen as referring to idealised forms of victim treatment and response. In the worst circumstances, they can appear as reminders of the gap between a fair treatment of victims and the actual failure of police and the criminal justice system to ensure justice.
Flaws in the Current Approach to Victim’s Rights
A naïve aspect of this mainstream liberal reformist approach to victim’s rights is the focus on discretely individual and direct personal experiences of victimisation. Forms of secondary and collective victimisation from crime are usually accorded far less importance than other matters (see generally Erez, Kilchling & Wemmers, 2011). Yet this is a critical flaw in relation to major crimes like homicide where indirect victimisation by the killing of a partner, friend or relative is a major and traumatic life event. And this is also the case in ongoing patterns of harmful group intimidation or targeting by perpetrators of the sort that the long-term minority group experience of “hate crime” is a cogent example. Furthermore, this liberal approach sees institutional resource limits, lack of case evidence and poor communication, as the key failings in relation to the police treatment of victims.
The major concern with victim treatment in matters that reach trial, does not reflect back on the possibility of an uneven level of interest or prioritising in investigating different matters, or how criminal justice gatekeepers effectively regulate the classification and recording of certain matters as actual true incidents, that will then necessitate investigation rather than still sit on lists of unsolved crimes. Most critically of all, the individualised frame of understanding victim treatment and responses and a downplaying of collective forms of harm, will disregard historically embedded practices of omission, collective bias, and failure in relation to specific groups that have historically struggled for recognition as legitimate victims (Christie, 1986) in criminal justice. An uncritical trust in the fundamental fairness of police dealings with all victim groups will not address questions about any moral obligations in relation to collective acknowledgment, apology, and making amends with clear explanations of no progress in “cold case” crime investigations or a genuine new resolve to focus on previously neglected matters.
Anti-Homosexual Homicides and a Faltering Police Interest
These flaws regarding the contemporary police and legal initiatives and reforms that were introduced to improve the status and treatment of victims of serious crimes and violence, have become increasingly more evident in one area of criminal justice controversy in NSW. Hundreds of serious assaults and dozens of killings that were overwhelmingly directed against gay/homosexual men and a smaller number of transgender women peaked in the 1980s and 1990s and have persisted at a lower rate since those decades. In fact, the wide extent of that violence in Sydney’s inner city, city suburbs, and the regional cities, towns and outlying parts of NSW, was a key reason for the mobilisation of gay and lesbian social movement lobbying, community publicity and protest about violence, and the subsequent police initiation of novel liaison, victim awareness and anti-violence measures in the late 20th century. In that period, a designated NSW Police employee (the Gay/Lesbian Client Consultant) had senior organisational support for a serious effort to list, record and keep a regular “watching brief” in regard to the investigation and potential prosecution of anti-homosexual/transgender homicides (Thompson, 1997). Information about these homicides was shared with the details of novel University-based research (Tomsen, 1996, 2002), and this estimated that as many as eighty deaths occurring between the 1970s to early 2000s justified close perusal and classification as possible, likely, or factually quite certain, anti-homosexual homicides.
This impressive level of change in relation to the response to victims of anti-gay/homosexual crimes and related initiatives lost much of its momentum in subsequent decades (Tomsen, 2018a, 2018b). NSW Police more generally entered a period of image crisis from scandals relating to corruption and apparent ill discipline, and they ironically reverted to some more traditional styles of command and public relations. The name shift from NSW Police Service back to “Force” in 2006 was a mirror of this new intent (see Chan & Dixon, 2007). Community policing programs that seemed overly responsive to local and minority group needs, became downgraded in favour of more traditional and coercive patterns of public policing, and targeted strategies accompanied by an armed and paramilitary style. NSW Police then even more so promoted the existence of gay and lesbian liaison officers (GLLOs) within its ranks (Dwyer & Tomsen, 2016). But this was essentially a 1990s initiative that at the time sat with a raft of reforms and measures to combat occupational homophobia and lift the organisational response to sexual and gender minority group victims (Thompson, 1997).
Close monitoring of anti-gay/homosexual homicides disappeared with key staff moves and a round of internal restructuring in the early 2000s. This task became the sole responsibility of a police homicide squad that is now overwhelmed by the sheer number of all unsolved killings in NSW and the resource-draining task of working on selected investigations. There is an inevitable pressure to deal with the burden of many such cases by the reclassification of more incidents as suicides, accidents, or even as “solved” in some manner without any charge or further action to follow. This investigation work is done against a backdrop of tabloid and related media coverage of homicides that depicts these crimes as forms of audience–building cultural spectacle, and could at worst be more directed towards the need to solve those cases with morally unblemished “ideal” (Christie, 1986) victims. Furthermore, the most influential homicide victim advocacy groups in NSW have allegedly been homophobic in their approach, or much less interested in this group of victims than others (SMH, 2002). For many police and victim advocates, gay/homosexual victims who were attacked as they engaged in casual “beat” sex, paid sex work, or sex with non-gay identified and younger partners, may be more readily viewed as illegitimate victims of crime. In the decades of peak moral panic about HIV/AIDS in the 1980s and 1990s, ingrained criminal justice homophobia and moral disgust intermingled with a sense of loathing about the possibilities of infection from gay/homosexual victims and severely injured bodies and openly spread blood at related crime scenes (Tomsen & Sarre, 1997).
The ACON Report and New Public and Media Interest
Despite the early 2000s downgrading of police focus on these homicides, external community and media interest in these crimes never fully disappeared. The NSW Police Force was embarrassed by complaints from assault victims and a public rally criticising their response to these cases (SSO, 2008) and their aggressive behaviour at the 2013 Sydney Gay and Lesbian Mardi Gras parade and festival (Dwyer & Tomsen, 2016). In the last five years a revival of public attention in issues of violence and these homicides prompted the establishment of an ACON Expert Working Group (2015-2016) that pooled sources of information, and further clarified the status of each matter on a shared list of anti-homosexual/transgender killings occurring in NSW before 2000 (Tomsen, 2018a). It also flagged the ongoing need to monitor investigation or lack of progress in relation to seven deaths that occurred in NSW in the period afterwards. The wider public interest in this issue also peaked with a flurry of newspaper, television and other media reports, including the airing of an SBS documentary and a semi-fictional series referring to a string of attacks and homicides that took place at Bondi Cliffs in the 1980s and 1990s. Several media reports raised the issue of unsolved anti-homosexual/transgender killings, as well as questions about police laxity in response to these and even the apparent direct involvement of Sydney police in past serious assaults on gay/homosexual men (SMH, 2015).
ACON gathered more materials to fill gaps in knowledge and appointed a full time officer to steer production of a final research report (In Pursuit of Truth and Justice: documenting gay and transgender prejudice killings in New South Wales in the late 20th century) that was publically released in May 2018. This restated the 1990s vision of effective police and community liaison to foster victim confidence and trust. The criticism of the current approach of NSW Police was carefully measured. Nevertheless, the report did pick up on issues of the collective victimisation of a wider membership of a minority group or community that is especially central to the historical experience of targeted violence and killing. It noted “there has been a lasting impact of violence for LGBTI people living during this period, where repeated exposure to the scourge of violence posed both a direct threat to people’s lives, and a contributor to collective stress as a minority group” (p. 24). In Pursuit of Truth and Justice also drew out the detail of past and lingering police and criminal justice homophobia and the resulting adverse systemic practices in relation to victims. And it called for a more open and public admission to the poor treatment of victims and survivors of extreme violence, and for a clear and high-level apology, as:
To this day, there has not been adequate acknowledgement or recognition of the extent and severity of past hate crimes inflicted upon the LGBTI community in NSW … this process will be greatly assisted by formal public acknowledgment from key figures in the criminal justice and related systems (p.23).
ACON seeks acknowledgement or a formal apology by the NSW Parliament and/or the NSW Police Force to the LGBTI community for the inadequate or slow responses to violence throughout this period (p. 23).
The ACON report demonstrated awareness of the compound effects of targeted serious violence and homicides with minority group victims, especially cases that remain unsolved without substantial progress or explanation. It pushed for greater levels of victim support, broader classification of prejudice-related matters in relation to sexuality and gender identity, and it echoed calls for establishment of a victim’s memorial in Sydney’s Eastern Suburbs (as the Bondi Memorial Project). Despite the muted tone of criticism of the past failings of police and the criminal justice system, the most serious rebuke of all was the Report’s insistence on the current need for an external inquiry in the form of “… an independent investigation into the actions of the various arms of the criminal justice system to fully understand the impediments to justice during this period in history, their relevance to current practices, and to identify opportunities to finalise unsolved cases” (p. 25). The NSW Police Force has for decades rejected proposals for a developed form of independent review of police conduct and investigation of allegations of officer misconduct (SMH, 2016b; The Guardian, 2017a). Its political success in blocking or slowing these proposals has been an impediment to a further means of ensuring that all crime victims are fairly and justly treated.
Coronial Outcomes and the Investigations Stalemate
NSW Police have conceded that negative views about homosexual victims or lax investigation of their victimisation were occasional problems in the past. Nevertheless, the extent of these embedded anti-victim practices and a police inability to acknowledge the past harmfulness and ongoing ramifications of homophobia, have surfaced several times in a specific form of legal inquiry regarding unsolved death. The NSW Coroner’s Court has assumed an unexpected central role in shaping public awareness of this issue. In the early 1990s, the NSW State Coroner publicly expressed his deep concern about widespread homophobia and failed inquiries into a series of anti-gay killings (Waller, 1992). In 2005, Deputy State Coroner Milledge [herself a former police officer] voiced scathing criticism of the “shameful” and “lacklustre” original police work in relation to the deaths and disappearances of gay men at Bondi Cliffs (John Russell, Ross Warren, and Gilles Mattaini), and even threw doubt on being able to describe key parts of this as any form of “investigation” (SMH, 2013). The most recent of these episodic Coroner critiques was the final rebuttal of police claims about the death of Scott Johnson – a gay American student whose lifeless body was found at the base of a cliff in 1988.
In the historic third 2017 official inquest concerning Johnson’s fate, police reluctantly agreed that the site of death was a gay beat. They continued to deny that officers had any historical knowledge of regular anti-homosexual violence. Furthermore, they adhered to an absurd claim that the local terrain (a rocky uphill trail) was so awkward, and that local bus services were so irregular, that young groups of perpetrators would be unlikely to ever go there in search of victims (NSW Police 2015). Police contacts were unable to find expert university criminologists willing to attend court and agree to these claims. Before the commencement of the full inquiry, one senior NSW Detective was removed from involvement in the case following an extraordinary media attack on the character and motives of the victim’s family (Star Observer, 2015). During the Coronial proceedings, the Court heard details about the widespread extent of local anti-gay violence, and an unexplained police failure to interview a key suspect whose older brother was a drug dealer with corrupt links to local officers (The Guardian, 2017b).
This high profile Coroner’s hearing was not the equivalent of a criminal case that was overtly structured along adversarial lines. Nevertheless, it reflected an atmosphere of friction, confrontation, obfuscation and denial. It also signalled a failed police performance in relation to fatal targeting of this victim, with an exacerbated sense of harm among partners, friends, family, and the survivors of related attacks. This ongoing victimisation and collective harm has been far removed from the good intentions of the Charter of Rights for Victims of Crime in NSW. The Coroner’s reviewing role in the Johnson case and similar deaths, might well serve public justice by reflecting back on the systemic response in relation to the evidence and related police performance as regards individual victims. But what does this mean more broadly for ensuring committed investigations in matters with minority victims who generally draw less moral sympathy than others? The apparent stalemate around the understanding of Scott Johnson’s death and a lack of NSW Homicide Squad willingness to more deeply investigate this and similar past cases, has dampened hope among the gay/queer community about fair treatment and a more open admission of past criminal justice failings.
There is no systemic mechanism to guarantee case progress and NSW Police have so far (to December 2018) ignored all calls to deliver an apology in relation to the inadequate investigation of this matter and related deaths. This appears even less likely in a situation where police irrationally view an open and general apology to victims as a significant form of occupational threat. NSW Police homicide squad members have regularly expressed frustration with under-resourcing and the apparent very high number of unsolved homicides in NSW. There is evidence for this. As the most populous state, NSW has Australia’s highest annual number of homicides (see Chan & Payne, 2013). However, it is in this context of limited time and staff, and the organisational pressure regarding the overall bulk of these unsolved matters that a precipitous reclassification of cases (as suicides, accidents, natural deaths etc.) may be further encouraged. Furthermore, the contentious designation of different cases as hate crime or not comes into play here. This is a significant matter if political and organisational circumstances mean this label draws critical lobby group and media attention on to a class of unsolved matters, rather than merely leaving them in the general pool of NSW cold case homicides.
“Strike Force Parrabell”, the Failure of Denial and a Parliamentary Initiative
These Coroner’s findings both directly and indirectly criticised ineptitude and poor practice in dealing with these probable victims of violent homicide. Yet in recent years, NSW Police have appeared to believe they could weather the storm of official and public concern about these cases with a mixed pattern of denial and tokenism. In 2015 they announced their own review of alleged anti-gay/homosexual and transgender killings with a focus on the veracity of claims made around reports of eighty-eight deaths occurring between 1976 and 2000. Police publicity insisted that this measure would resolve all doubts about the area and wholly reassure the public and minority group members. The dramatically named “Strike Force Parrabell” did not involve new investigatory work on unsolved matters. It was instead conceived as a process of file checking and scrutiny, and possible relabelling of archived materials. Nevertheless, public relations announcements stressed this exercise would approach the topic in a fresh manner and be wholly objective in forming a view of police archival records and assessing the classifications of “hate killings” made by long departed staff (SMH, 2016a).
In reality, the dye was already cast for the findings of this inquiry by the voluminous police submission to the March 2015 NSW Coroner’s Johnson hearing (NSW Police Force, 2015), which failed to convince the Coroner that the case was merely a matter of suicide that did not justify further scrutiny. This four hundred page submission weaved together details from previous inquiry work, dubious claims and excuses about other incidents [particularly the failed investigation of incidents at Bondi cliffs], speculation about the psychological state of Scott Johnson before and up to the time of his death, and even aspects of childhood personal relationships and alleged family dysfunction. Most significantly, it criticised community claims about total possible numbers of anti-gay/homosexual killings across NSW from previous decades, and it asserted that only eight fatal matters remained unsolved in this State. With this detailed blueprint of homicide squad thinking on the issue, the apparent remit of Parrabell was a need to contest the anti-gay “hate/bias crime” label in the most rigid way possible.
Slow progress and a confused and drawn out search for credible academic input made it impossible to present the report to the Coroner in the third Johnson inquest in mid2017 (and thus obviating a likely key original purpose in seeking the report). Police submissions regarding the Johnson case and the Parrabell report applied a reworked FBI schema to record multiple signs of bias in any incident for deciding hate/bias classifications. The precursor of this instrument was evolved to monitor and record the activity of extremist organised hate groups in the United States rather than the sorts of perpetrators that more typically carry out prejudice motivated (and “mixed motive”) crimes in Australia. The report claimed that levels of homicide were drastically lower than claimed by decades of previous research and the ACON report (NSW Police Force, 2018). Many alleged victims were not killed but died in accidents and suicides. According to police, numerous victims were “paedophiles” but no detail was offered to explain this conclusion (p. 28, p. 84). In other cases, where victims were agreed to be gay/homosexual or transgender, they were killed in circumstances that supposedly did not demonstrate sufficient “hate” motive, or where this was clouded by evidence of mixed motive (p. 37, p. 99).
Thus, the final estimate of unsolved matters was absurdly few in number. These were estimated as between 0 – 5 cases overall and therefore well below what might be expected for this hard to solve category of homicide (pp: 25-26). The “mixed motive” exclusion discounted cases of combined violence and robbery of items [wallets, watches, jewellery, motor vehicles] of the sort that has been so regularly directed at these “soft target” minority victims. Other cases in which the victim and perpetrator did have some degree of sexual contact, appear to have been excluded from the hate category in a way that reflected essentialist views about sexual identity: the notion of homophobic “straight” men having willing sex with gay male or transgender victims was taken to be a logical impossibility. Some killings appeared to have been dropped from the list by virtue of a police judgment that a perpetrator’s fatal violent response to an alleged unwanted homosexual advance meant the matter was unrelated to anti-homosexual sentiment. If so, this approach was a remarkable example of recent police disregard for decades of debate and controversy about the status of the “homosexual advance defence” (HAD) and its formal legislative abolition for use in homicide trials in NSW in 2014. Most frustratingly for researchers and activists familiar with NSW anti-gay/transgender cases, the report included perusal of discounted matters such as the murder of a Sydney gay couple over a business conflict, and the death of a youth drugged by two older men in the Newcastle region. Officers tasked with preparing the Parrabell case list relied on a draft list from mid 2013 (p 17). One long overlooked gay victim killed in Wollongong in 1986 [and whose partner afterwards endured poor police treatment] was added after considerable media embarrassment (SBS, 2016). Yet police remained secretive about the overall list and never discussed the selection of matters with the ACON (2015-2016) Expert Working Group.
Despite some promising expectations and a high profile Sydney media launch, the final report did not produce a united community view or reduce the level of heat in discussions about its subject matter (ABC, 2018). Its dismissiveness regarding prior research and the obtuse application of hate/bias crime criteria to cut down case numbers had an alienating effect. Victims were angered by results excluding specific cases from the hate crime category or even from consideration by the report itself. These included the partner of a gay victim who was originally suspected of being the likely murderer. That possibility was weighed and discounted in a much earlier Coroner’s report (Inquest into death of Kenneth Brennan, NSW Coroner, 11 September 1996), but for many years police did not pursue any other lines of investigation in this still unsolved matter. Another such victim was the partner of a gay man (Stephen Dempsey, killed 2nd August 1994) who had been murdered and dismembered by a perpetrator who harassed gay men with a loaded crossbow at a well-known Sydney beat. More than two decades after the crime and a successful prosecution for murder, police have moved to re-classify this as a “non-bias” matter and thus remove it from the long list of “gay hate” killings.
Furthermore, the report ignored the ACON recommendations and other calls for apology regarding the past treatment of sexual/gender minority victims. In essence, it was a public relations failure that could have been anticipated by a more astute internal reading of its tone and claims or the political context of its establishment and findings. It is in this current conjuncture of police refusal to acknowledge unfair treatment of victims or issue a collective apology that an unexpected but major initiative has come from the Parliamentary sphere. In September 2018, the NSW Legislative Council (Standing Committee on Social Issues) announced its intention to conduct it own broad inquiry into “Gay and transgender hate crimes between 1970 and 2010”. Soon after, this Committee issued a wide call for public submissions regarding past victimisation from assaults and homicide and it publicised a maximum six-month period for preparation of a final report (NSW Legislative Council, 2018).
This initiative again reflected how concern about an insufficient treatment of victims and their allies in the criminal justice system can unexpectedly flow over into other areas of review within the legal or legislative arms of the state. It is an unexpected but positive outcome. However, it is police officers, detectives, analysts and prosecutors, who are the everyday gatekeepers to criminal justice. Whatever the outcomes of the Parliamentary Inquiry comprise, there is evident need for measures to evolve a more open, less defensive and accountable police organisation that can seriously act on statements about rights such as those expressed in the Charter of Rights for Victims of Crime in NSW. Such measures might engender a more substantive and genuine change of practice within policing along the lines of the commitment towards gay and lesbian community/queer liaison, respect and trust that comprised a major community policing reform three decades ago.
The Way Forward: Reform, Apology, and Victimhood
The 1970s to 1990s were an era where many sexual and gender minority victims in NSW did not report harassment and assaults. Killings were of course, more likely to draw police attention than other attacks. However, when ascribing marginal status to these victims, the criminal justice system failed in its duty to deal properly with very serious crimes. The perpetrators of numerous bashings and apparent killings still remain at-large. This is due in significant part to considerable disinterest in assisting homosexual/gay victims at the time of these offences, and a pattern of denial and reluctance about investigating a large number of incidents. New measures in relation to victim’s rights have taken the criminal justice system some way down the path of seeking to ensure better treatment and fairness for victims. Yet the justice and police response has often been denial or obfuscation rather than acknowledging the full extent of victimisation in this area.
This paper has outlined the long struggle for attaining legitimate victimhood in cases of homicide with victims from sexual and gender minorities in NSW. These events reflect how improvements in the criminal justice system treatment of such victims, and the investigation of related cold case homicides appear to have stalled. Furthermore, the collective mobilisation of these victims is accepted, disregarded or even resented in different criminal justice contexts. A crucial turning point in this NSW history was the eschewing of the ascribed status for partners, family and friends of victims of homicides as passive and dependent on a benign criminal justice system charged with criminal investigations and prosecution. The family of Scott Johnson, for instance, bore heavy criticism by the NSW police for persisting with their now vindicated requests for a further coronial inquest. The persistence and activism of victims and supporters in key cases eventually sparked a wider criticism of the treatment of this victim group and a renewed public, media and political interest in related case outcomes.
The failure of the criminal justice processes at the investigative phase has also been revisited over the decades through continued insistence that crimes be identified as homicide rather than suicide, through various and repeated coronial inquests, by communitybased research and action, and by the continued and concerted effort of investigative journalists and academics. This positive shift to acknowledgment is also the case with the resolve to establish a high profile public victim’s memorial adjacent to Bondi Cliffs that has now garnered significant local government sponsorship (SMH, 2018a). These unfolding events also reflect how much the illusory nature of the largely unenforceable rights granted to crime victims must be addressed. Victims of past or possible future state abuse of power, especially require substantive rights outcomes in order to build trust and restore faith. In the local circumstance, the obvious first place to start to afford victims substantive reform is the Charter of Rights for Victims of Crime in NSW. Rights already prescribed but which often seem ignored include the cl. 6.1 requirement that all victims be treated with ‘courtesy, compassion … and dignity’. Thus, inserting a direct right to question police investigative decisions and in particular, police inaction, for vulnerable victim groups may be a much-needed inclusion in order to ensure cl. 6.1 is actioned.
Alternatively, the Coroner’s Court of NSW provides a place to revisit cases (see s 27-29 Coroners Act 2009 (NSW)) following an exercise of positive discretion on the part of the Minister or State Coroner to re-open a case. The concerted investigation of anti-gay/ homosexual and anti-transgender killings may also require establishing a specific hate crimes death review team, with a similar remit as presently granted to the domestic violence and child death review teams under Part 9A of the Coroners Act 2009 (NSW). Greater clarity around NSW victim’s legislative rights, a consolidated role for the NSW Coroner, and a newly tasked hate crimes death review team, are all worthy reform goals. Moreover, an open NSW Police apology for past or recent failings in the investigation of cold case homicides and other episodes of violence is now even more timely. Recent and repeated media-event apologies to Mardi Gras “78ers” over the violence and abuse at the initial Sydney Mardi Gras event [24th June 1978] have been easier to offer and manage, but they are a poor substitute for a wider apology to thousands of victims targeted across decades of crime and violence. Such an apology would be a sign of political maturity and not an occupational threat to NSW Police. If it does ever eventuate, it would be a significant milestone towards the goals of healing and justice in this area.
The harms occasioned by a lack of recourse to justice resonate sharply when built on the denial of legitimate victim status. Reclaiming this status in a public way may allow people to ascribe their own story of survival and allow the victim’s narrative to emerge in their testimony. A counter history of individual and collective survival may appear constructive against the dark history of abuse of sexual and gender minorities (on “narrative victimology”, see Maruna, 2015). Furthermore, the move to understanding the victimisation of people who are now regarded as less blameworthy reflects a shifting consciousness in relation to the seriousness of specific crimes such as domestic violence, sexual abuse and targeted violence against minority groups (Meyers 2016).
However, the reclaiming of victim narratives of injustice and any personal healing that follows must go further than the mere reassertion of a story of survival against state neglect and abuse. There is ongoing global research inquiry about the results of expanding the emotional dimension in criminal justice processes (Karstedt, Loader & Strang, 2011), and to what extent this might be truly useful for crime victims. This gives some doubt about whether or not facilitating victims in a very personalised, and therefore individualising way, will resolve trauma, facilitate healing, or inform progressive policy reform and better criminal justice practice (Kunst, Popelier & Varekamp, 2015). The authors note these critical reservations and that any future official apology might be received in mixed ways by victims and their supporters. Nevertheless, we also remain optimistic about the combined potential of detailed pro-victim reforms, a fundamental shift in policing to admit past failures and more thoroughly investigate violence and homicide, and further public opportunities for victims and survivors to speak about their collective experience. If successfully enacted, these could provide a potential means to advance reconciliation between victims and the criminal justice system in this area. Against this backdrop, the 2018/2019 NSW Parliamentary Inquiry now represents an important opportunity to shift criminal justice inaction and highlight and acknowledge the victimisation that has been previously denied.