Victim impact statements and judicial sensitivity

The last 24 hours has seen the Herald Sun and affiliated newspapers run an article on the drama that unfolded during the sentencing hearing of Leon Borthwick. The article is available here.

The Facts
On 16 November 2008, Mark Zimmer was killed when he was struck by a van driven by Leon Borthwick. Borthwick was charged with murder and after a trial, was convicted by a jury of manslaughter. Yesterday, Kornelia Zimmer sought to read parts of her victim impact statement. Borthwick's counsel, Carmen Randazzo objected to several lines on the basis of relevance. Justice Katherine Williams agreed and directed that certain passages in the statement be admitted.

Today, Kornelia Zimmer took to the airwaves to share the omitted portions of her statement with 3AW's listeners.

It appears that there were three particular passages that were deleted:

• A statement that Borthwick's threats and aggression prior to Zimmer's death still haunt her,
• A statement that "Mark is blameless, while Leon should take the responsibility of his actions. After all, my three-year-old brother knows the difference between right and wrong", and
• A statement that "There is only one truth that remains, one truth that is certain. Mark Zimmer is dead and he died at the hands of Leon Borthwick".

Editing victim impact statements is always a tricky business. As the Victim Support Agency noted in its report in 2009, most defence counsel avoid the issue, and instead rely on the judge to only use the admissible portions and to ignore the inadmissible portions. It is certainly an approach that is more sympathetic to the victim, and avoids bringing the case to the attention of the Herald Sun. There also are two other matters that reduce the number of objections courts receive to victim impact statements. First, victims in higher courts often receive good support from the Witness Assistance Service and similar organisations to include only relevant information in the statement, to avoid disappointment and embarrassment. Second, if the prosecution shares the statement with the defence before the hearing, the parties can negotiate about any contentious passages and avoid needing to involve the judge.

But, suppose none of those safeguards work in a case. What's the law actually say? Section 95B of the Sentencing Act 1991 states -

(1) 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.

(2) The court may rule as inadmissible the whole or any part of a victim
impact statement, including the whole or any part of a medical report attached
to it.

As I see it, there are three areas where Ms Zimmer fell down on.

First, the deleted passages don't relate to the impact of the offence. The first statement relates to the impact of events that occurred before the offence and, given the jury's acquittal of murder, are not causally related to the murder. Whether Borthwick knows right from wrong is a question for the sentencing judge, not the victim.

Secondly, the statement must concern the impact on the victim. Fortunately, courts in Victoria have recognised that in homicide cases, the right to make a victim impact statement needs to be extended to relatives of the deceased, and that a narrow definition of victim is not in the interests of justice. Even so, the statement is still about the impact of the offence on the person making the statement. The relative isn't making a surrogate statement for the deceased. It's the relative's voice, not the deceased's voice.

Thirdly, descriptions of harm must be suffered as a direct result of the offence. Ms Zimmer's third statement is purely advocacy and a statement of fact. It isn't describing the trauma she suffered as a direct result of the offence.

What this shows is the value of thorough preparation by the prosecution, good support services for victims and sensitive handling of the issues by the defence. Its far better to sort out these sorts of arguments outside court, then to have victims storm out of court declaring "I can't even read how it affects me".