Saturday, 8 April 2017

Whether fiancé or live-in-partner of victim can file appeal against acquittal of accused?

The Court further notes that this understanding of “victim” is consistent with
the 1985 United Nations Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power, which was the basis of the 154th Law Commission‟s
report. That Declaration stipulates that “the term "victim" also includes, where
appropriate, the immediate family or dependants of the direct victim.” The term
“where appropriate” indicates that the test is proximity-dependent, and is to apply
on a case-to-case basis.
25. The European Union Council Framework Decision of 15 March 2001, on the
standing of victims, defines “victim” to mean “a natural person who has suffered
harm, including physical or mental injury, emotional suffering or economic loss,
directly caused by acts or omissions that are in violation of the criminal law of a
Member State.” The 2001 Decision was replaced by a Directive in 2012, according
to which “victim” was defined as “a natural person who has suffered harm,
including physical, mental or emotional harm or economic loss which was directly
caused by a criminal offence”, as well as “family members of a person whose death
was directly caused by a criminal offence and who have suffered harm as a result of
that person's death.” “Family members”, in turn, were defined to include “the
spouse, the person who is living with the victim in a committed intimate
relationship, in a joint household and on a stable and continuous basis, the relatives
in direct line, the siblings and the dependants of the victim.”
26. Apart from the fact that the Directive‟s extension to family members is based
upon proximity, the crucial difference between the European Union Council
Framework Decision and Directive on the one hand, and S. 2(wa) on the other, is
the additional use of the word “directly”, to qualify harm and injury. The insertion
of the word “directly” was seen by the High Court of England and Wales as an
attempt to forge a consensus for minimum standards for victims‟ rights across EU,
and to achieve this by “limit[ing] causality.” (R (on the Application of Privacy
International v. The Commissioner for HM Revenue & Customs [2014] EWHC
1475 (Admin) (12 May 2014). This suggests that in ordinary legal discourse,
injuries/harm may be direct or indirect, but in the absence of a specific word or
phrase narrowing their scope down to only the direct, it is the context of the
legislation that must determine the scope of “victim”, in the context of proximity of
27. Similarly, the South Australia Victims of Crime Act, 2001 takes care to
specifically distinguish “immediate victims” – i.e., a person who suffers physical
injury as a result of the commission of an offence, psychological injury as a result of
being directly involved in the circumstances of the offence, or – if the offence is
committed against a person who dies – a member of the “immediate family” of the
deceased – from a “victim” simpliciter, which includes any person who “suffers
harm as a result of the commission of the offence.”
28. On the other hand, the Crime Victims Rights Act 18 U.S.C. § 3771
(“CVRA”) conferred specific roles to crime victims in the criminal justice system.
Similarly, the Criminal Code of Canada defines victim in Section 722 (4) which
nuances out the different possibilities in a manner somewhat similar to Section
2(wa). It inter alia visualizes that when the person suffering injury dies, “ill or
otherwise incapable of making a statement …includes the spouse or common law
partner or any relative of that person, anyone who has in law or fact the custody of
that person or is responsible for the care or support of that person or any dependent
of that person”. R v Emard – 1999 BCJ No. 463 (BCSC) accepts that siblings can
be victims. Canadian courts have ruled that even fiancés, friends, co-employees and
even by-standers (R v W (R) OTR 537 (SC) can be termed victims. American and
Canadian statutes have empowered victims in sentencing proceedings, to intervene
and make submissions. The Court notes that the drafters of the 2008 amendment did
not draw any distinction as in South Australia between “immediate victims” and a
“victim” simpliciter. Consequently, “victim” can possibly also comprehend those
who suffer proximate physical or emotional harm such as fiancés, live-in partners,etc.

Judgment pronounced on: 28.05.2015


Dated;MAY 28, 2015
Read full judgment here: Click here

Print Page

No comments:

Post a Comment