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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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STATUTES AMENDMENT (EVIDENCE AND PROCEDURE) BILL

Committee Stage

Adjourned debate in committee (resumed on motion).

(Continued from page 2218.)

Clause 10.

Mrs REDMOND: I have one other question about clause 10. At the very bottom of the amending section is the definition of 'vulnerable witness', and it goes through people such as persons under 16, someone with a mental disability, and so on; we were exploring that before the lunch break. Paragraph (d) provides that a vulnerable witness means:

(d) a witness who—

(i) has been subjected to threats of violence or retribution in connection with the proceedings; or

(ii) has reasonable grounds to fear violence or retribution in connection with the proceedings;

Given the inclusion of blackmail into the serious offences category, does the wording of that paragraph mean that any person who was in a proceeding for blackmail would by virtue of that be classified as a vulnerable witness?

The Hon. M.J. ATKINSON: It would be a very rare case where a person who is alleged to be a victim of blackmail was not subject to a threat of violence or retribution. I think it is a wholly appropriate inclusion.

Mrs REDMOND: Is the Attorney saying that the expectation from these amendments is that, if there is a prosecution of an alleged blackmailer, the subject of it or any other person who was a relevant witness to the proceedings is likely to be classified as a vulnerable witness and thereby entitled to the protections given to vulnerable witnesses?

The Hon. M.J. ATKINSON: No, not a probability; they can be.

Clause passed.

Clause 11 passed.

Clause 12.

The Hon. M.J. ATKINSON: I move:

Page 7, lines 5 to 7 (inclusive)—

Clause 12, inserted section 12A(1)—delete 'If, in a criminal trial, a child gives sworn evidence that is not corroborated, the judge must not warn the jury that it is unsafe to convict on the' and substitute:

In a criminal trial, a judge must not warn the jury that it is unsafe to convict on a

I introduce this amendment on the advice of the Chief Justice to clarify the application of section 12A. Section 12A describes the warnings that may be given to juries in criminal trials when sworn evidence is given by a child and that evidence is not corroborated by other evidence.

The section prevents a judge warning the jury that it is dangerous to convict the accused on the uncorroborated sworn evidence of the child simply because the witness is a child. It requires the child's evidence to be treated in the same way as the evidence of an adult—that is, to be subject to a warning only if there are cogent reasons, apart from the witness's being a child, to doubt the reliability of his or her evidence. It also prohibits such warnings suggesting that children's evidence is inherently less reliable or credible than the evidence of adults.

The Chief Justice pointed out that the first part of section 12A(1) wrongly assumes that the judge will know whether the jury has decided whether the child's evidence is corroborated when he or she comes to direct the jury about that evidence. I agree that there is no need for any such requirement; the section was not intended to say this, and my amendment removes it.

Mrs REDMOND: I am sorry. I did not quite follow that because when I read the original section 12A inserted by the bill I could not see what in essence was the difference except for the removal of a phrase, being a semantic change by removing 'If, in a criminal trial, a child gives sworn evidence that is not corroborated, the judge must not warn the jury that it is unsafe to convict on the child's uncorroborated evidence'. All that seemed to happen was that the amendment removed the reference to a child giving sworn evidence that is not corroborated at the beginning of the sentence but it left it in at the end. So, it seemed to me to be just a semantic, minimalist approach to the wording rather than an actual change. I would appreciate it if the Attorney could give me a bit more of an explanation on what, if any, is the reality of the difference between what was originally proposed and what this new amendment proposes.

The Hon. M.J. ATKINSON: The member for Heysen is right to think it is a grammatical amendment because the words are wrong the first time they are used and they are correct the second time they are used, for reasons that the member for Heysen now understands and that I understand.

Mr HANNA: I am wondering what the point of the new section 12A(1) is if it includes paragraph (b). The new section is suggesting that a judge must not warn a jury that it is unsafe to convict on a child's uncorroborated evidence, but there is an exception where a party asks that the warning be given. Wouldn't we all expect that defence counsel in every case will ask for such a warning because it cannot do any harm to their client's case and it could only help by planting a seed of doubt in the jury's mind? If that be so, I would have thought you either do not have anything about that or you delete paragraph (b) dealing with that possibility of an exemption arising when 'a party asks that the warning be given' because then it would have some meat to it.

The Hon. M.J. ATKINSON: If the member for Mitchell were to read the law reports of cases before the Court of Criminal Appeal, he would see this kind of appeal being made by defence counsel regularly where the point has not been taken at the trial. We are trying to turn the minds of defence counsel to this, and say, 'Please, if you want to take this point, take it at the trial.'

The second point to take is that if you read paragraph (a) you will see that defence counsel, if it is to succeed in its application, must have cogent reasons. That is why taking the application will not succeed in every case.

Amendment carried.

Mrs REDMOND: I have a couple of questions. First, in relation to the new section 13, I am curious about the assessment of subsection(1)(a). This subsection deals with special arrangements for protecting witnesses from embarrassment and distress when giving evidence. I am curious about the assessment of embarrassment and distress, in that what one person finds embarrassing or distressing may be quite different from another. I wonder where the threshold is set. Is it a subjective assessment, or does the judge make an assessment as to the likelihood of embarrassment or distress?

Secondly, I note just down below that, it indicates that, if that is likely, that is, if it is desirable to make special arrangements because someone is likely to be embarrassed or distressed, the court should 'on its own initiative' do certain things. I was puzzled about the use of that terminology in the section. So, it is not on the application of a party seeking those special arrangements; rather, the court apparently makes the assessment without any application 'on its own initiative' and determines in some way the likelihood of the occurrence of embarrassment or distress for that particular witness. I just wonder whether the Attorney could clarify the intention.

The Hon. M.J. ATKINSON: It is a two-part answer. The first part of the answer is that it is on the court's own initiative. The reason for that is that, if there is an application and the court goes into an examination of the reasons for the application and its merits, that in itself might be just as embarrassing or distressing as the main event. There is encouragement here for the court to get on the front foot and for the judge to say, 'Well, we are just doing it this way' without the need for an application from the alleged victim or the prosecution. Indeed, there is a similar provision—albeit not quite as explicit—in the existing act. I think, like the member for Heysen, I do not believe there is such a thing as objective embarrassment and distress; it will always be subjective.

Mrs REDMOND: Turning to section 13(6), as I read the requirement, basically you have a witness and the witness has a right, if they are a vulnerable witness particularly, to be accompanied by a relative or friend to give emotional support. Subsection (6) provides that that person must be visible to the judge and, if there is a jury, also to the jury. But I was puzzled about what then follows. If the consequence of having that person visible to the judge and the jury is that a party is prevented from seeing the person directly while the witness gives evidence, then the court has to ensure that that party is able to observe that person in another way. I am having trouble understanding the point of all that. I take it that when you refer to 'a party' you are not referring to the witness, you are probably intending the defence. Could you just explain what is the intention of subsection (6)?

The Hon. M.J. ATKINSON: The purpose is to ensure that the relative or friend is not impermissibly coaching the witness.

Mrs REDMOND: I will move on to new section 13A, which provides for special arrangements for protecting vulnerable witnesses when giving evidence in criminal proceedings. Subsection (6) provides that if you are going to do that there has to be an application and it must be made in writing and obviously well in advance of the trial. It goes on to provide that the application must be filed in court and, within 14 days of being filed in court, it must be served on the other party specifying why you are claiming that this person should be treated as a vulnerable witness.

All that is fine, but I cannot see any particular provision that then addresses a problem that occurred to me that could arise. What if no application is made prior to the commencement of a trial but it becomes evident to counsel as they approach or even begin the trial that such an application is necessary? I would assume that, therefore, in the interests of justice an application would then be allowed. Has any thought been given to how one would address the problem if there has not been an application in writing to the court, filed at the registry, served on the other side, with a chance for them to respond, particularly with children where there could be changes in the nature of their ability to give evidence? They may have seemed fine in counsel's chambers when they were being proofed and then fallen apart when they got to trial and so on. How does one address that under this provision?

The Hon. M.J. ATKINSON: I think the provision is in that section at the request of the court so as to make the procedure efficient and able to be expedited. If a witness fell apart in the way that the member for Heysen provides in her example, I have no doubt that the court would adjourn so that an application could be made.

Clause as amended passed.

Clause 13 passed.

Clause 14.

Mrs REDMOND: Clause 14 inserts a new section dealing with the court's being able to disallow improper questions. I want to clarify the very last subsection of that. Subsection (1) identifies or defines what is an improper question. Subsection (2) says that a question is not improper only because it challenges the truthfulness of the witness or deals with matters that the witness might find distasteful. Subsection (3) provides that if an improper question is put the court must disallow the question and inform the witness that the question need not be answered. Subsection (4) sets out the considerations which a court will apply in determining whether a question is improper. The disallowance is a discretion which would be exercised by the court. All that said, subsection (5) then goes on to provide:

The failure to exercise the discretion in relation to a question does not affect the admissibility of any answer given in response to the question.

I take it that, if the court, for instance, is not quick enough to say, 'Well, hang on a minute, that is an improper question', and the witness answers—notwithstanding that the court might well say that it falls fairly and squarely in the definitions—the answer will still be accepted in evidence. I want to clarify that that is the intention and the effect of that change.

The Hon. M.J. ATKINSON: The answer is yes, but bear in mind the distinction between the admissibility of evidence and the weight of the evidence, and it may be that the court gives the answer to the impermissible question little weight.

Clause passed.

Clause 15 passed.

Clause 16.

The Hon. M.J. ATKINSON: I move:

Page 16—

Line 10—Delete 'hearsay'

Line 21—Delete 'hearsay'

Line 26—Delete 'hearsay'

Line 27—Delete 'hearsay'

Line 30—Delete 'hearsay'

Line 31—Delete 'hearsay'

I introduce this amendment on the advice of the Chief Justice. It is again a clarifying amendment that does not change the intended purpose of the section. Section 34CA governs the admission of evidence of an out-of-court statement made by a protected witness. A protected witness is a young child or a person whose mental disability severely affects the person's capacity to give a coherent account of his or her experiences or to respond rationally to questions. One of the purposes of section 34CA is to allow evidence of that out-of-court statement to be admitted to establish the truth of what the witness actually said by way of exception to the hearsay rule.

The Chief Justice points out that the description of this evidence as hearsay evidence might suggest otherwise, because hearsay evidence may not be admitted for such a purpose. I agree, and the above amendments remove the word 'hearsay' wherever it appears in section 34CA.

Mrs REDMOND: I utterly concur with the reasoning of the Chief Justice and therefore support the amendments.

Amendments carried.

The Hon. M.J. ATKINSON: I move:

Page 16, line 14—After 'made' insert:

and any other relevant factors

The Chief Justice suggests new section 34CA should require a court when satisfying itself that a statement made outside of court by a protected witness has sufficient probative value to justify its admission to take into account not only the circumstances in which the statement was made but also the manner in which it was made. I agree that the manner in which the statement is made is relevant to that determination and, indeed, the current section 34CA would allow the court to have regard to it in referring to the circumstances in which the statement was made and any other relevant factors. The amendment inserts the phrase 'and any other relevant factors' into the new section 34CA(1)(a) to give the court the same purview that it has now.

Mrs REDMOND: Again I concur with the reasoning expressed by the Chief Justice and will support the amendment.

Amendment carried.

The Hon. M.J. ATKINSON: I move:

Page 16, after line 26—After subsection (2) insert:

(2a) Evidence that is admitted in a trial under this section of the nature and contents of a statement made outside the court by a protected witness may be used to prove the truth of the facts asserted in the statement.

The current section 34CA permits evidence of an out-of-court statement to be admitted to establish the truth of the factors contained in it, although it does not say so in so many words. The authority for this is R v Corkin. In a more recent case (R v Mill), Justice Duggan said that section 34CA provides the court with a discretion in the case of an alleged sexual offence against a young child to allow evidence of a complaint to be admitted to prove the truth of the facts stated in the complaint. The proposed section is intended to have the same effect, albeit on a larger scale, because it will apply to any out-of-court statement, not just a complaint, and to young children and significantly mentally disabled people who are the alleged victims of any offence, not just a sexual offence.

Like the section it replaces, the proposed section 34CA does not expressly say that it permits evidence of an out-of-court statement to be admitted to establish the truth of the facts contained in it. I propose by this amendment to confirm the common law position explicitly in the legislation. The amendment will not change the intended effect of the section.

Mrs REDMOND: In reliance on the Attorney as an honourable man and his statement that what this amendment does is simply reflect what the current law is in any event, but makes it quite explicit, then we will support the amendment.

Amendment carried; clause as amended passed.

Clause 17 passed.

Clause 18.

The Hon. M.J. ATKINSON: I move:

Page 19, lines 10 to 22 (inclusive)—

Clause 18, inserted section 34M(4)—Delete subsection (4) and insert:

(4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—

(a) it is admitted—

(i) to inform the jury as to how the allegation first came to light; and

(ii) as evidence of the consistency of conduct of the alleged victim; and

(b) it is not admitted as evidence of the truth of what was alleged; and

(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,

but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.

Proposed section 34M deals with evidence relating to complaint in sexual cases. The Chief Justice has made some suggestions about subsection (4), which governs the directions a judge may give the jury when that evidence is admitted in a trial. He says that there is no need for the judge to say to the jury that this evidence is hearsay evidence as required in subsection (4)(a).

He says that, without an explanation of what hearsay evidence is, at the risk of confusing the jury unnecessarily this direction will not help the jury because the other directions, particularly the one in subsection  (4)(b), make it clear how the evidence is to be treated without having to explain that it is hearsay evidence. I agree that this direction is superfluous and has the potential to confuse rather than assist the jury. The amendment substitutes a revised section 34M, which removes the requirement for the judge to direct the jury in this way. It does not change the substance of the section.

The Chief Justice also says that there is a tension between the requirement for the judge to direct that the evidence is not to be used as evidence of the truth of what was alleged in subsection (4)(b) and for the judge to direct that it is a matter for the jury to determine the significance, if any, of the evidence in the circumstances of the particular case (subsection (4)(e)). He thinks that these directions given together may confuse a jury.

The Chief Justice also suggests that section 4 includes a requirement that the judge direct that the evidence is admitted to establish consistency because that is the main reason for admitting evidence of a complaint. He also wonders whether subsection (4), in the way it distinguishes between the evidence as to the complaint and as to the circumstances in which it was made, may give rise to difficulty. In this amendment, section 34M is reconstructed to solve these problems (we hope), and by doing so justify the removal of a direction that the evidence is hearsay.

The substituted section 34M requires the judge to direct that the evidence is admitted to establish the alleged victim's consistency of conduct. It also says that, although it is a matter for a jury to determine the significance, if any, of the evidence in the circumstances in which it was made, that determination is to be made subject to the preceding directions. I hope that is clear.

Mrs REDMOND: In fact, having read through the amendment it seemed to me to be a clearer way of expressing what was intended. So, I am happy with the amendment. I do have another question on section 34M, which is the precise part of clause 18 with which we are dealing. However, I am happy to leave it until after we have dealt with the amendment, if that is more suitable.

The CHAIR: Yes, that would be convenient.

Amendment carried.

The CHAIR: Does the member for Heysen have further questions on clause 18?

Mrs REDMOND: I have two questions, the first of which relates to new section 34L (evidence in sexual cases generally), and in particular subsection (5) of that section, which provides:

In a trial of a charge of a sexual offence, the judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence.

My question relates to the use of the term 'not required'. On a straightforward reading of that, am I correct in assuming that, were he minded to, the judge is able to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim, but because it is worded as 'not required' he does not have to but he could? I want to clarify that, in fact, that is the effect of the proposed clause.

The Hon. M.J. ATKINSON: The answer is yes, but it is just a replacement of an existing provision. It does not change anything. It does not change the law.

Mrs REDMOND: Moving to new clause 34M (evidence relating to complaint in sexual cases), subsection (2) provides:

In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint is of itself of probative value...

Is the direction contained in subsection (2) about no suggestion or statement being made to the jury a direction that applies only to a judge or does that apply to counsel in their submissions, arguments, summing up and so on?

The Hon. M.J. ATKINSON: Yes, it applies to counsel.

Mrs REDMOND: At the end of the new section 34L there is, I suppose, a part definition. The words 'sexual activities' includes sexual experience or lack of sexual experience. New section 34N(1)(c) provides:

the person was not physically injured in the course of, or in connection with, the sexual activity;

I wonder whether there is a consistent definition of 'sexual activity' appearing anywhere in this legislation and whether the same definition applies throughout all these sections.

The Hon. M.J. ATKINSON: The answer is no.

Mrs REDMOND: What is the definition of 'sexual activity', as it appears in new section 34N(1)(c)?

The Hon. M.J. ATKINSON: At the end of new sections 34L and 34M it states what 'sexual activity' includes, and the definitions are different for the different sections.

Mrs REDMOND: I saw both those definitions, but I am puzzled as to why they are different, and also I am puzzled about 'sexual activity'. At the end of new section 34N it simply states that it includes sexual intercourse within the meaning of the Criminal Law Consolidation Act. Therefore, that is not an exhaustive definition of the sexual activity meant to be covered by this section but merely a statement that it does include sexual intercourse. I am curious as to the intention of the section in terms of what sexual activity is meant to be covered by this.

The Hon. M.J. ATKINSON: The first statement of what is included in 'sexual activity'—new section 34L (as the member for Heysen says)—is for the purposes of prior sexual history, the alleged victim's experience, but the statement of what is included in 'sexual activity' in terms of new section 34M is for the purposes of the case before the court.

Clause as amended passed.

Clauses 19 to 22 passed.

Clause 23.

The Hon. M.J. ATKINSON: I move:

Page 24, line 17—Before 'victim' insert 'alleged'.

The reasons for this amendment are the same as for amendment No. 1.

Amendment carried; clause as amended passed.

Clauses 24 to 26 passed.

Clause 27.

The Hon. M.J. ATKINSON: I move:

Page 26, line 7—Before 'victim' insert 'alleged'.

The reasons for this amendment are the same as for amendments Nos 1 and 12.

Amendment carried; clause as amended passed.

Clause 28 passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs) (17:14): I move:

That this bill be now read a third time.

From time to time I criticise the Liberal opposition for not being prepared for our legislation; and that was so in the first week of sitting this year. On this occasion I thank the member for Heysen for being able to deal without much staff support with a very substantial bill. Having completed the bikie bill yesterday, we look forward to completing the public order offences bill tomorrow.

This week the member for Heysen has shown her versatility and application to duty. One of the virtues of the state parliament compared with the federal parliament—and I had occasion to study the federal parliament closely when I worked for three years for the federal minister for immigration—is that there is genuine legislative scrutiny in the state parliament that does not occur in the federal parliament. Also, some state parliamentarians have great skills in scrutinising legislation that most of their federal counterparts do not have. It is one of the unsung virtues and pleasures of this parliament that on many occasions legislation is very carefully scrutinised. I think that, when the meaning of our legislation becomes conjectural in court, the judges, their associates, counsel and the solicitors, by reference to the debates in the House of Assembly, see that our legislation has often been the subject of very careful deliberation. I thank the member for Heysen for her most thorough scrutiny of the bill, and I look forward to her scrutiny of the bill tomorrow.

Mr VENNING (Schubert) (17:16): I thank the Attorney. As the Opposition Whip, I support what he said. It is rather daunting to sit here for three days and see most of the business in this house being handled by one person. I am very pleased that we have such a capable person in the member for Heysen to do that. As lay people, we think that a lot of the discussion is above our heads, and some of us could even be accused of saying, 'What is she doing down there? Is she just keeping this house sitting?' However, the member for Heysen certainly has our confidence. I commend the Attorney for his comments, because we are here to do a job. As Opposition Whip, I am very pleased that the member for Heysen is as dedicated as she is, and I note the amount of work that she has put in this week. Let us hope that she gets a rest next week. I commend the member for Heysen.

Mrs REDMOND (Heysen) (17:17): After those kind words, I feel that I have to respond. I thank both the Attorney and the member for Schubert for their compliments. It has often occurred to me that one of the most useful things I think we could do for new members of parliament would be to give them some more training, in terms of reading and dissecting legislation and being able to question it. Happily for me, all those years ago when I started work—

The Hon. M.J. Atkinson: It was 37, was it not?

Mrs REDMOND: Yes—36 years ago, I think. I may have said it incorrectly as 38 years when I mentioned that it was 14 February 1972 when I started in the Crown Solicitor's Office. I have had the benefit of working with the other Wran government in New South Wales and, therefore, I had the pleasure of working with parliamentary counsel and drafting changes to various pieces of legislation. The committee stage of our bills is something that I really enjoy, and I try not to hold the house too long. However, I think it is a worthwhile exercise, and I am pleased to hear the Attorney's comments about the fact that we probably do it a little better than our federal counterparts. I am pleased that we have managed to get through this bill with reasonable haste but, at the same time, giving it a thorough enough examination to be satisfied that we know exactly what it is we are putting through the house.

Bill read a third time and passed.


At 17:19 the house adjourned until 28 February 2008 at 10:30.

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