Evidence (Vulnerable Witnesses) Amendment Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (16:52): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr President, it is with pleasure today that I introduce the Evidence (Vulnerable Witness) Amendment Bill 2020. This bill amends the Evidence Act 1929 to provide for canine court companions to accompany witnesses while they give their evidence and to make clearer provisions regarding pre-trial special hearings and the admission of prerecorded evidence.

May I start with the first reason. Since approximately May 2018, the Office of the Director of Public Prosecutions has undertaken a canine court companion project as part of its ongoing work in assisting vulnerable witnesses. It is a project which has been developed in conjunction with the Guide Dogs of SA and NT and has so far involved a special member of the DPP team, Zero (the first canine court companion to be approved), in the proofing of witnesses.

The next stage will involve using canine court companions to give comfort to witnesses in waiting areas of courts prior to them giving their evidence, and the final stage, which is facilitated by this bill, will be the use of the canine court companions in the courtroom while the witnesses give evidence. The presence of animals, particularly dogs, has been shown to provide comfort and support to people dealing with trauma, particularly children. Having a canine court companion present while recounting traumatic events has a range of positive outcomes for vulnerable witnesses, such as decreasing anxiety and heart rate and increasing memory function and mental clarity.

Feedback in relation to the use of Zero has been overwhelmingly positive. The staff of the DPP have reported that witnesses have been more comfortable and willing to talk to them and more focused in meetings. This has resulted in shorter meetings with less need for breaks to quell emotions. They have also reported that there has been reduced negativity surrounding the prosecution process. The parents of child witnesses have reported reductions in anxiety prior to the meetings.

The bill provides that the court may make provision for a witness to be accompanied by a canine court companion for the purpose of providing emotional support while they are giving their evidence. The bill also provides that, where practicable, the canine court companion is not to be visible in any audiovisual record of the evidence or to a jury. This is directed at minimising any possible prejudicial effect that the presence of a dog might have. Most importantly, this initiative has come with the support of the Chief Justice and the judiciary.

The second main aspect of the bill remedies the difficulties relating to the interaction between sections 12AB and 13BA of the Evidence Act. These sections were inserted by the Statutes Amendment (Vulnerable Witnesses) Act 2015. They were designed to facilitate the taking of evidence of vulnerable witnesses as early as possible in a criminal process and to minimise the number of times they are required to give evidence. They are important initiatives, and they had our support, then in opposition, at the time.

Section 12AB gives the court power to conduct pre-trial special hearings to take evidence of a child or a person with a disability for the purposes of a trial involving serious offence against the person or an offence of contravention or failing to comply with an intervention or restraining order. Section 13BA gives the court power to order the evidence be admitted in the form of an audiovisual record of an investigative interview made pursuant to the Summary Offences Act 1953 or evidence given in a pre-trial special hearing.

However, here is the problem. Because under section 13BA the court only has power to admit the recorded evidence in the trial, any application relating to the admission of such evidence cannot be determined at the time of a pre-trial special hearing. This creates practical difficulties, with the effect that the provisions are unable to achieve their original aims. In particular, there is too great a risk that the vulnerable witness may be required to give evidence again at the trial.

This has been brought to the Government's attention in the practical application of this law, and this provision in the bill seeks to rectify this. It will enable the courts to make orders at a pre-trial special hearing admitting the recorded evidence, and enable such orders to be binding on the trial court. The trial court will have a discretion to order that this is not to be the case based on matters arising or becoming known between the pre-trial special hearing and the trial.

This bill, which builds on previous legislative reforms, aims to reduce the trauma experienced by children, people with disabilities and other vulnerable witnesses when participating in the criminal justice system. It also delivers on the Marshall Liberal government's key justice priority to protect South Australians.

I commend the bill to members and I seek leave to insert the explanation of clauses into Hansard without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Evidence Act 1929

4—Amendment of section 4—Interpretation

This clause inserts a definition of canine court companion.

5—Amendment of section 12AB—Pre-trial special hearings

This clause—

(a) provides for canine court companions at pre-trial special hearings; and

(b) provides that an order for a pre-trial special hearing may specify that the hearing include both an initial hearing (for taking evidence, hearing submissions and making rulings as to admissibility of evidence) and subsequent hearings for any required examination, cross-examination or re-examination of the witness to whom the section applies and other matters; and

(c) provides that an order for a pre-trial special hearing may relieve a witness from the obligation to give sworn or unsworn evidence or to submit to cross-examination only where recorded evidence is admitted under section 13BA and permission of the court for further examination, cross-examination or re-examination of the witness is not granted; and

(d) sets out things a court may do at a pre-trial special hearing.

6—Insertion of section 12AC

This clause inserts a new section 12AC which sets out the binding nature of orders made by the court at the pre-trial special hearing as to the admission of a recording of evidence of a witness (being an order under section 13BA).

7—Amendment of section 13—Special arrangements for protecting witnesses from embarrassment, distress etc when giving evidence

8—Amendment of section 13A—Special arrangements for protecting vulnerable witnesses when giving evidence in criminal proceedings

The amendments in these clauses provide for canine court companions as a form of 'special arrangement' for certain witnesses.

9—Amendment of section 13BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings

This clause amends section 13BA to deal with admission of an audio visual record of the evidence of a witness at a pre-trial special hearing.

10—Amendment of section 67H—Meaning of sensitive material

This clause corrects a minor error in section 67H.

Debate adjourned on motion of Hon. I.K. Hunter.