Summary Offences (Interviewing Vulnerable Witnesses) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 20 June 2017.)

The Hon. D.G.E. HOOD (16:23): The Australian Conservatives rise to support this bill to amend the Summary Offences Act 1953 with respect to interviewing vulnerable witnesses. I understand providing enhanced support for vulnerable witnesses who are in contact with the criminal justice system is a key part of the government's Disability Justice Plan; hence this bill before us today. The act defines a vulnerable witness as a child under the age of 14 years or a person with a disability that adversely affects their capacity to provide a coherent account of their experiences and answer questions rationally.

The purpose of this bill is to address a shortcoming under the current act which arguably limits the operation of the provisions relating to vulnerable witnesses. Currently, such provisions are potentially only enlivened where a matter involves a serious offence against the person, such as murder, manslaughter, sexual and violent offences, breaches of intervention orders, breaches of restraining orders and stalking.

Where vulnerable witnesses give evidence in relation to such matters, the act allows the prescribed interviewer to make special arrangements to facilitate the giving of evidence by the witness, which includes allowing the witness to be accompanied by a communications assistant, parent, spouse, guardian, friend or carer. To avoid limiting part 17, division 3 of the act, this bill will, in clear terms, allow for interviews with vulnerable witnesses to be videorecorded as evidence for all matters and not simply matters relating to a serious offence against the person in line with those that I have just outlined.

There is no reason to limit the application of the division, and for that reason we support this aspect of the bill. Providing evidence or testimony under a formal court setting and in the presence of others can be overwhelming for many people, but especially so for vulnerable witnesses, regardless of the matter being dealt with by the court. It will have a significant impact on people who are not vulnerable or not seen to be vulnerable, and it is not unreasonable to expect that it would have a greater impact on someone who may be deemed vulnerable.

It is important not to automatically discredit or disallow their testimony and evidence, as in a lot of cases vulnerable witnesses are able to provide relevant and probative evidence. Importantly, the accused's right to a fair trial is maintained through existing safeguards, including the cross-examination of witnesses in court by the defence and the trial judge's discretion as to whether or not evidence is admissible. With those very few words, I indicate that Australian Conservatives supports this very sensible bill.

The Hon. K.L. VINCENT (16:26): As the Dignity Party was one of the key voices in the development and eventual implementation of the Disability Justice Plan to which this bill pertains, I am sure it will be no surprise to anyone in this chamber or beyond that we support this amendment bill, which seeks, essentially, to clarify who can be deemed a vulnerable witness, under which circumstances and what supports they are to be given when they are deemed to be a vulnerable witness appearing in a court case.

I understand the bill addresses a potential gap that was identified in the existing vulnerable witnesses act, noted in a recent Supreme Court decision. This amendment provides explicit admissibility of, for example, a video interview with a so-called vulnerable party, which, as other speakers have said, is a child up to the age of 14 years or a person with a disability whose disability makes it difficult for them to give evidence without the right settings or support. Importantly, this bill ensures that that assistance is available in all offences, not just the particular ones other speakers have outlined.

We note that the Law Society has some concerns about this bill, but they must also note, I believe, that far too often people with disabilities and other conditions or concerns that might make them more susceptible to abuse in particular, do not see justice done through the justice system. This is particularly the case for victims, but it is also an issue for alleged offenders. In fact, we have seen cases where people with disabilities were wrongly convicted of a crime that they still very strongly argue they did not commit. They may well have been proven innocent if they had had the right support to give evidence, so we certainly do not want to see that happening on either end of the spectrum, whether that be as a victim or as an alleged offender or even a witness. Everybody participating in the justice system has the right to do so.

As other speakers have pointed out, the witnesses who are deemed vulnerable under this legislation are very often capable of giving very important and coherent evidence, as long as they have the right settings and supports around them, be that giving evidence via pre-recorded video or video link or other options. As I have said many times before, but I think it is worth saying again: no-one is truly voiceless, there are only those people to whom we have not yet learned to listen.

I hope that this further amendment to this important piece of legislation will help us to do that because—particularly as we lead the nation with the Disability Justice Plan, and I know other states are looking to copy what South Australia has done in this respect—it is really important that we do not accept the status quo and that we improve the plan and the legislation associated with it where it needs to be improved. We can learn from our findings so far. With those words, we very strongly commend the bill.

Debate adjourned on motion of Hon. T.T. Ngo.

At 16:30 the council adjourned until Tuesday 26 September 2017 at 14:15.