The role of alternative processes in accounting for the interests of victims

Abstract

The 2017 New Zealand Supreme Court decision in Osborne v Worksafe New Zealand illustrates that there may be an inherent lack of fit between the adversarial system and the place of victims. Given the rise of the victims’ status in domestic and international law, it is important that the interests of victims are accounted for. Although the victims in Osborne wanted prosecution, they also did not have their needs or interests met in any alternative way once the prosecution was dropped. This paper considers how victims’ interests in similar cases might be met by the use of alternatives to trial. Additional benefits of alternative processes, as well as potential challenges, are also examined. It is proposed that the availability of alternative processes should change in two ways. Firstly, there should be increased availability of alternative processes within the criminal justice system. Secondly, alternative processes should be available outside the criminal justice system when there is a decision not to prosecute or where the victim does not want to go through the formal system. These changes will ensure victims’ interests, including the right to information, participation and having accountability from the offender, can still be met in some cases.