Summary Offences (Interviewing Vulnerable Witnesses) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (18:07): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Summary Offences (Interviewing Vulnerable Witnesses) Amendment Bill 2017 amends the Summary Offences Act 1953.

The Bill addresses a potential gap in the Statutes Amendment (Vulnerable Witnesses) Act 2015 arising from the recent Supreme Court decision. In light of this decision and recent changes in SAPOL operational practices, legislative amendment is prudent to provide for the explicit admissibility of a video interview with a vulnerable party in criminal proceedings for all offences, not just as at present a 'serious offence against the person'.

A 'serious offence against the person' in this context is a sexual or serious violent offence or a breach of an intervention or restraint order or stalking but not such other offences as assault or assault causing harm under s 20 of the Criminal Law Consolidation Act 1935. A 'vulnerable party' in this context is 'a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.'

The Bill explicitly authorises the taking and use of a video interview with a vulnerable party for all offences and is not confined, as at the present, to a 'serious offence against the person'. The Bill provides that it is an issue for the investigator's discretion whether to take a video interview with a vulnerable party for other than a serious offence against the person. The Bill extends to those video interviews with a vulnerable party for other than a serious offence against the person conducted between 1 July 2016 when the Statutes Amendment (Vulnerable Witnesses) Act 2015 commended and the date on which the Bill will come into effect.

The Statutes Amendment (Vulnerable Witnesses) Act 2015 (and the supporting Regulations) now require that the account of a vulnerable party for a 'serious offence against the person' to be taken by a specially trained investigator in the form of a video interview. This video is expressly admissible under the 2015 Act at the court's discretion at trial in lieu of examination in chief. There is only express provision in the 2015 Act for the admissibility of a video interview with a vulnerable party for a 'serious offence against the person'. There are no express provisions regarding other offences.

The Statutes Amendment (Attorney General's Portfolio) Act 2016 in its transitional scheme sought to provide that video interviews with vulnerable parties conducted under the old law before 1 July 2016 remained admissible after 1 July 2016 in respect of all offences. This construction was accepted by the Supreme Court, however a potential gap was identified regarding offences other than a 'serious offence against the person'.

Legislative amendment is prudent to make it clear that video interviews with a vulnerable witness to any offence are admissible.

The Bill explicitly authorises the taking and use of a video interview with a vulnerable party for all offences. The Bill provides it is an issue for the investigator's discretion whether to take a video interview with a vulnerable party for other than a serious offence against the person but, if one is taken; any video is explicitly admissible in a court's discretion.

The Bill also provides for the taking and use of video interviews conducted with a vulnerable party for other than a serious offence against the person between 1 July 2016 and the date on which the Bill comes into effect with the Governor's assent. Without such a provision, there is a likelihood that any such video interviews may be inadmissible requiring a vulnerable witness for other than a serious offence against the person to provide their account at trial in the usual way. This is undesirable.

The Bill also supports recent developments in the context and prosecution of cases involving family violence. An example where an interview with a vulnerable party will be explicitly admissible under the Bill is a 10 year old child who witnesses his or her mother assaulted by their father and the resulting charge is assault causing harm, not a serious offence against the person.

The Bill maintains an accused's right to a fair trial. The defence right to cross-examine a vulnerable party is fully retained. Any video interview with a vulnerable party for other than a serious offence against the person is only admissible in the court's discretion and if the vulnerable witness is available for cross-examination.

The Bill provides further support to vulnerable parties, namely children aged under 15 or a person with an intellectual disability, within the criminal justice system.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal. There being no commencement clause, this measure will come into operation on the day on which it is assented to by the Governor.

Part 2—Amendment of Summary Offences Act 1953

3—Section 74EC—Admissibility of evidence of interview

The first 2 proposed amendments to section 74EC are technical and clarify that a 'prescribed person' is a 'prescribed interviewer'. The other proposed amendments are more substantial. Section 74EC of the Act currently provides that the admissibility of evidence of an interview between a vulnerable witness and a prescribed person is, for the purposes of section 13BA of the Evidence Act 1929, restricted to the investigation of a serious offence against the person. The proposed amendments will broaden this to provide for a court to have discretion to admit evidence of an interview between a vulnerable witness and a prescribed person in relation to the investigation of any other offence if the requirements of the section are followed in relation to the conduct of the interview.

Schedule 1—Transitional provision

1—Transitional provision

The transitional provision will make provision for the admission of an audio visual record of a statement of a vulnerable witness to whom the clause applies made to an investigating officer after the commencement of Part 5 of the Statutes Amendment (Vulnerable Witnesses) Act 2015 and before the commencement of Part 2 of this measure as part of a formal interview process in relation to the investigation of an alleged offence (other than a serious offence against the person). The audio visual record of the statement may be admissible under section 13BA of the Evidence Act 1929 as evidence in the trial of a charge of the offence as if the recording had been made pursuant to Division 3 of Part 17 of the Summary Offences Act 1953 in accordance with the requirements of that Division as in force following the commencement of Part 2 of this measure.

Debate adjourned on motion of Hon. T.J. Stephens.