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30 Jun 2015

Statutes Amendment (Vulnerable Witness) Bill

The Hon. A.L. McLACHLAN ( 16:20 :17 ): I rise to speak on behalf of the Liberal Party in respect of the Statutes Amendment (Vulnerable Witnesses) Bill. The Liberal Party will be supporting the bill and at this stage has no amendments for the same. This bill is seeking to improve the position of vulnerable parties (that is, children and persons with a disability), whether they be victims, witnesses, suspects or defendants, through the court process.

It is a critical part of our justice system that we have a system that is transparent and based on the accounts of witnesses. The cornerstone of all justice and delivering justice for the community is that the judicial system requires accurate and honest witnesses. The human being gives evidence in a public court in which not only is justice being sought to be done, but justice itself is on trial.

In contemporary society, we do need to pay due regard or closer concern for the situation of witnesses and victims, and this is a good thing and informs the supportive position of the Liberal Party in relation to this bill. We must go as far as we can to reduce the pressures and problems of every single witness, but also of vulnerable witnesses in particular, for this is important in facilitating not only a fair trial but also shows the compassion which the community in general should show to victims of crime.

The bill provides for an admission of audio visual records of interviews as the evidence of victims or witnesses who are aged 14 years or younger or have a disability that adversely affects their capacity to give evidence in cases involving a sexual or violence offence, and to regulate how those interviews are to be conducted. The bill also provides for special hearings for the pre-trial taking of evidence (including evidence-in-chief, cross-examination and re-examination), in informal surroundings, from children 14 years of age or younger or persons with a disability who are victims or witnesses in trials involving sexual or violence offences.

Pleasingly, the bill also makes revisions which are aimed in this context at protecting the right to a fair trial, including that a court must be satisfied that the respondent has been given a reasonable opportunity to review any recording, and that, during the course of the trial, the witness must be available, if required, for further examination, cross-examination or re-examination. A judge must warn the jury not to draw from the admission of evidence in that form any inference adverse to the defendant and not to allow the admission of evidence in that form to influence the weight to be given to the evidence.

An order for a pre-trial special hearing must also not be made if the effect of the order would be to relieve the witness from the obligation to give evidence or relieve a witness from obligation to submit to cross-examination, prevent the judge or defendant from observing the witness’s demeanour in giving evidence, or prevent the defendant from instructing counsel while the witness is giving evidence. These protections are also important to ensure that the defendant can have confidence in the court system that their matter will be heard not only independently but fairly.

The bill also extends the priority of sexual assault trials where a complainant is a child to also include those where a complainant has a disability. The bill clarifies the definition of vulnerable witness under the Evidence Act 1929 to include cognitive impairment. It also extends the age of a young child from a child of or under the age of 12 years to a child of or under the age of 14 years.

This amendment is in response to concerns that have been raised that the current prescribed age of 12 years in the Evidence Act is too young and does not recognise the trauma and stress faced by children in their early teenage years who are confronted by the rigours of a police investigation or the procedures of a criminal trial.

A key part of the bill is an amendment to the Evidence Act 1929 to give people with complex communication needs a general entitlement to have a communication assistant present for their contact with the criminal justice system, both in and out of court, to facilitate the obtaining of an accurate and coherent account. This expands upon the existing right that people have to an interpreter.

The bill provides for two classes of persons to give this assistance in court: a communication partner as approved by the minister—and we understand it is contemplated that a communication partner will be a volunteer as part of a specialist scheme who will be trained to facilitate effective communication—and secondly, a communication assistant appointed by the court. Like interpreters they will be required to swear an oath or affirm in court the impartiality of their statements.

The bill goes on to further amend the Evidence Act to clarify and increase access to appropriate support persons to provide emotional support for vulnerable witnesses, both in and out of court. It is the view of the Liberal Party that these are all admirable endeavours.

There are a number of amendments in relation to the Evidence Act about which the Law Society has raised specific reservations. These are in respect to, in particular, clause 13 of the amending bill which affects section 21, clause 16 which seeks to amend section 34LA, and clause 18 of the amendment bill which affects section 67H.

Whilst the Liberal Party is not contemplating amendments and accepts the explanation for the amending bill provided by the government, the Law Society’s concerns are set out in a letter dated 15 June to the Attorney-General in the other place by the president, Rocco Perrotta. We would seek from the government some response during the committee stage to those concerns which are raised in relation to those sections.

In particular, the bill creates a new section 34LA and repeals section 34CA in the act. Section 34CA has a long history since its first inclusion in 1988. Interpretation of this section by the courts has proven to be problematic. The Attorney-General has responded to concerns raised by the Court of Criminal Appeal in bringing forth this bill.

The new section provides for the admissibility as a limited exception to the hearsay rule of out-of-court statements of a young child or a witness with a disability in sexual cases where the witness is unavailable to be called to testify about the events in question owing to a young age and/or a disability. The evidence will be admissible to prove the truth of the facts contained in the statement. Unlike the previous incarnations of section 34CA, it does not require the maker of the out-of-court statement to be available for cross-examination.

The Law Society has formed the view that, on the current drafting of section 34LA, whilst it does not contest the policy initiative behind it, that there is a risk of miscarriage of justice and has put forward in its letter to the Attorney drafting alternatives. We ask the government to take those on notice and, as I have previously indicated to the chamber, provide a response to the chamber in committee why it believes that its drafting is superior and accommodates those concerns.

The Law Society opposes clause 21(7), which prohibits an appeal against a decision of the court in relation to a section 21 determination. The Law Society’s opposition is based on the importance of the reviewability by appeal of decisions of the court, which may have an impact on the proceedings. Again, I ask the government to put forward its counterviews, I assume, against the Law Society’s submission.

The other significant Law Society submission is in relation to the proposed new section 67H(1) at this stage. With the interview of a witness, they believe that the accused should not be denied the opportunity to consider any material by the unreviewable decision by the prosecutor. Section 67H relates to sensitive material and has been expanded to include further sensitive material, but material that may be relevant to the case being tried. Again, I ask the government in committee to respond to those matters raised by the Law Society.

The Liberal Party supports the policy initiative of the government in relation to protecting vulnerable witnesses. It acknowledges the work in this area of the Hon. Kelly Vincent. It supports the amendments in the bill but seeks clarification around a response to the Law Society, as I have indicated, and commends the bill to the chamber.

Debate adjourned on motion of Hon. G.A. Kandelaars.

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