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

Second Reading

Adjourned debate on second reading.

(Continued from 25 October 2007. Page 1468.)

Mrs REDMOND (Heysen) (12:00): I indicate that I will be the lead speaker on behalf of the opposition in relation to this bill. This is a reasonably technical bill in terms of the changes it seeks to make. As the title might suggest, it deals with evidence law, in particular two areas of evidence law—first, the way evidence is taken in sexual offence cases, and that of course is hand in glove with the bill we dealt with in the last sitting week, the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill.

So the amendments to the evidence law in this particular bill relating to that area, as I said, go hand in glove with it and really arise out of the same Liesl Chapman report of 2006 into rape and sexual offences, and sexual assault law generally. The second thing this bill does is deal with the way evidence is taken from vulnerable witnesses in court and the way in which witnesses may be questioned. A lot of that, of course, arises out of the 2003 Layton report into the protection of children.

Here we are in 2008, just on five years since the Layton report was delivered to the government, and I think five years in March since the government tabled that report. My recollection is that Robyn Layton (eminent QC, now a judge of the Supreme Court, and an extremely able practitioner and thoughtful person, who spent a lot of time and energy preparing her report) came up with something like 106 recommendations, and I am pleased to see that the government is at last getting around to doing something about some of them at least.

The government said it wanted to expedite the passage of these bills but I think it said that when it first introduced the bills at the beginning of last year. Originally we looked at this bill when it was introduced by the Attorney in February 2007—it might have been before that, but I prepared my first briefing paper on it in February 2007. So, one year later, here we are getting around to it. But, as I said, it is fairly complex in terms of what it seeks to do, and I intend to go through what I hope is a reasonable summary of the legislation, and I will have some questions, of course, when we get to the committee stage.

In the case of evidence in sexual offence cases, generally most people would be aware that courts cannot accept hearsay evidence. Normally a court requires a person who has actual knowledge of events to give that evidence first-hand. It counts as nothing in terms of evidence for me to say to a court, 'Well, the member for Fisher told me that such-and-such occurred.' That does not add anything in terms of evidence as to whether or not an event occurred. It is only if the member for Fisher saw events himself and gives evidence, usually sworn evidence under oath, to the effect of what he saw.

So, generally you cannot have hearsay evidence. However, there is a slight exception to that in respect of sexual offences in that a court may admit evidence of a person's report of an offence to someone else made out of court, if that report was given at the first available opportunity after the offence occurred: it is what is known as 'evidence of recent complaint'. So, there is that minor exception to hearsay so that someone (for instance, a police officer or a person in a sexual assault referral centre, or someone like that) could give evidence of someone attending upon them to say, 'I've just been raped,' and that would be admitted. However, in that circumstance, if that evidence is admitted, the judge has an obligation to tell the jury that it may not treat that evidence as bearing on whether or not the event occurred; rather, that the jury can treat it as bearing on the credibility or consistency of conduct of the victim or the complainant.

If there is some delay between the alleged offence and when the complainant reports it, the out-of-court report of it cannot be admitted, and the judge has to tell the jury that the delay in reporting it has to be taken into account when the jury assesses the victim's credibility and the consistency of conduct.

These two elements of the law of evidence have been given particular names because of the cases under which they originally arose. The first area (that is, the exception to the rule about hearsay, where evidence of recent statement as to the occurrence of an event can be given by someone who received that statement) is known as a Crofts direction, and a Kilby direction is where the judge has to tell the jury that the delay in reporting the offence must be taken into account when it assesses the victim's credibility and consistency of conduct. There is a third area, which is known as a Longman warning, and that is that, if there is a long delay in reporting, the judge must warn the jury that it is dangerous to convict the accused because the delay has put the accused at a forensic disadvantage.

Liesl Chapman, in her report, identified that a number of these things were leading to problems. It is fair to say that we have for a long time in this and other jurisdictions had considerable difficulty in getting the level of conviction in sexual assault cases up to the level which applies in other areas of the criminal law. It is also clear that many, many people do not report sexual assault, so it is considered likely that there is, in fact, a far greater prevalence of sexual assault in the community than the prosecutions would lead us to believe.

Liesl Chapman, in her report, raised the issues that are created by these various things: the Crofts direction, the Kilby direction, and the Longman warning. Essentially, it is the case that there could be a variety of reasons why someone who has been subjected to a sexual assault may not report that assault immediately. In fact, it is far more likely in the case of someone who has suffered sexual assault that it will not be reported—

The Hon. R.B. Such: They often blame themselves.

Mrs REDMOND: —than, for instance, if it was an ordinary assault, where someone has been bashed up in the street. As the member for Fisher says, they often blame themselves. People can get into situations where they may not even fully appreciate that they have, for instance, been raped if there are issues of consent, what they consented to and when they consented, and so on and so forth, and Liesl Chapman raised these issues.

There had been an earlier attempt to overcome the problem by inserting a new provision in the Evidence Act. That provision provided that, if there was a suggestion that the victim failed to report or delayed reporting, the judge had to warn the jury that that failure or delay did not necessarily mean that the allegation was false and that the victim could have valid reasons for the failure or delay. So, there was that earlier attempt to address that part of the problem, but it did not solve it, so the current amendments are directed to going further than that original attempt.

Because section 34I(6a) of the act confines the admissibility of out of court reports of sexual offences to recent reports, that is, immediately after the event, those directions, known as Kilby directions and Crofts directions, are too often given without the jury having heard evidence from the victim as to why it was reported when it was and to whom it was reported or why it was reported at a particular time and not at an earlier time. In practice, the defence can make a tactical decision to ask the complainant when he or she reported the offence but not to ask further questions about it, so the complainant has no opportunity to explain any delay. That might be overcome by a re-examination, but an impression can be left with the jury that this person's evidence is not acceptable or not to be relied upon simply because of the delay, when in fact there could be numerous and quite valid reasons why someone has not reported an offence immediately.

If the defence did that and asked when it was reported without asking anything further, it could leave the jury wondering why the prosecution had offered no evidence to explain the delay when it hears the defence in its address talk about the delay, and then they hear a warning from the judge that the delay may have significance to the complainant's credibility. The effect, almost inevitably, will be to encourage a belief that the prosecution has something to hide and that the complainant or victim for some reason should not be believed. It is the case that a number of other jurisdictions have expressed concern about those Crofts directions in particular, as encouraging 'a stereotypical view that delay is invariably a sign of the falsity of the complaint'. So, we are not the first jurisdiction to recognise the problem nor the first to seek to legislate to overcome the problem.

In the Attorney's second reading explanation he asserted that the principles should be (and I agree with him):

That it should not be assumed or suggested to a jury that a delay in reporting a sexual offence necessarily means that the complainant is lying and that indeed juries should understand that there are often legitimate reasons for not reporting a sexual offence for some time.

The bill seeks to address that by deleting what we had previously put in (section 34I) and replacing it with section 34M, which expressly abolishes the common law on the admissibility of recent complaint in sexual cases, including the Kilby and Crofts directions. It goes on to forbid any suggestion or statement to a jury that the timing of the reporting of a sexual offence has an inherent significance for the complainant's credibility or consistency of conduct, and it allows the admission of evidence of a complainant's initial report of a sexual offence, if relevant, whenever that occurred. That evidence may include evidence about when the report was made and to whom, its content, how the complaint was solicited, why the complainant reported the alleged offence to that person at that time and why the complainant did not report the alleged offence to someone else at an earlier time, if relevant.

In giving direction subject to the new clause, judges will not be constrained as to the particular form of words that they use, and I think that that is a good thing, because it is unhelpful to dictate too closely the method of communication to be used by judges. I think they need to be given a fair bit of discretion about the best way to express particular issues to a jury. But they must direct the jury that this is hearsay evidence and that, as such, it is not evidence as to the truth of the matter but it may be evidence as to how the allegation first came to light, that there could be any number of reasons why it was reported to a particular person at a particular time, and that it is the jury's job to determine what significance, if any, should be given to the circumstances of the report of the offence and its timing.

As to a Longman warning, that must be given regardless of whether, in fact, the delay has put the defendant at a forensic disadvantage. There is no settled authority about what constitutes a delay long enough to involve a Longman warning, but it is considered that, after such a warning, which will include the words 'unsafe or dangerous to convict', a jury is highly unlikely to convict. The bill abolishes that Longman warning as it applies to sexual cases, and instead the judge must first consider the length of the delay and whether it has in fact caused the defendant a forensic disadvantage, and, if it has, to explain to the jury the likely nature of that disadvantage and direct the jury to take that disadvantage into account when scrutinising the evidence. The judge has to avoid generalised warnings and now will not be able to use the phrase 'dangerous or unsafe to convict'.

I guess it is important also, although it seems self-evident, to point out that these rules will apply to judges sitting alone as well as to judges sitting with juries in jury trials. Clearly, it would not make any sense if different rules applied when juries are deciding the very things that judges have to decide when they are sitting alone.

The next aspect in this area is the amendment of the Evidence Act, and that really is to complement the amendments to the Criminal Law (Rape and Sexual Offences) Bill. This particular bill requires a judge in a jury trial where consent is an element to direct the jury that a person is not to be regarded as having consented just because the person did not say or do anything to indicate that he or she did not consent, or just because they did not physically resist, or did not sustain a physical injury.

Similarly, the jury has to be directed that it is equally irrelevant that on another occasion a person had consented to a sexual act with the accused or with someone else. The aim of the amendments in this regard is to ensure that the jury can not misinterpret evidence about the conduct of the alleged victim to infer consent when none was actually given. Members would recall from the discussion last week about the rape and sexual offences legislation that this issue of consent is at times somewhat vexing but, according to my understanding of the law as confirmed by the Attorney during last week's debate, consent may be withdrawn at any time, and consent must be basically a full and informed consent, so that people who lack the ability to give informed consent, for instance, may now be more protected by the law.

There is then an extensive change to the act in relation to sensitive material. At the moment the law provides—and I am pretty sure it is in the Evidence Act—that a defendant can see (and generally have a copy of) any material that the prosecution intends to introduce at trial unless the material is pornographic. Therefore, evidence which is sensitive but not actually pornographic is still included in the material that a defendant is entitled to access and obtain a copy of. If bruising or damage was relevant, photographs of genitals would currently be available in evidence and, because they are available in evidence, they would be made available to the defendant.

It is obvious when you stop to think about it that that could be distressing to the complainant, if one imagines the complainant having to be aware that a defendant now had copies of photographs of the complainant's genitals, and there is nothing to stop the defendant from not only keeping such photographs but also from displaying, copying or circulating (or whatever) those images. For obvious reasons, that presents something of a problem. The bill aims to deal with that problem by restricting access by a defendant or anyone else to sensitive material created or obtained as part of a criminal investigation or trial.

In fact, it is being broadened so that it does not just include sexual offences but also so that this particular provision will apply generally. Sensitive material is defined as a person engaged, or apparently engaged, in a private act. The decision on whether something is sensitive is to be made by the prosecuting authority, and the prosecuting authority (normally the DPP) may restrict access to sensitive material but must allow access by a court or public official who reasonably needs to see it, and the DPP (or other prosecuting authority) can impose conditions on access and, indeed, the bill introduces penalties—a maximum of $8,000 or two years' imprisonment—for breach of the provisions or any condition imposed on the access.

Another aspect that the bill deals with in terms of evidence is the peculiar situation where someone is seeking to cross-examine a witness in a sexual offence case. A new clause 13B is inserted into the Evidence Act. In most criminal trials it is possible for defendants to represent themselves. In the case of a criminal trial relating to a sexual offence, it could lead to distress and embarrassment for witnesses if the victim is to be subjected to a cross-examination by the very person who is accused of having committed the offence against them.

So, the law is to be changed to ensure that, generally speaking, the person will be given legal aid—and there is a definitive requirement in terms of the legal representation act—to ensure that, when it comes to a cross-examination of a witness in a sexual assault case, those who represent themselves cannot undertake the cross-examination themselves but must be given legal aid so that a legal aid officer does the cross-examination. Various other regulations are put in place around that particular provision.

I want to clarify the major changes to this bill resulting from the consultation after the earlier bill. Originally, a bill with this title was introduced in February 2007. That bill lapsed because it had not been proceeded with when the parliament was prorogued prior to our sesquicentenary celebrations last year and the recommencement of the parliament as a result. The original bill having lapsed, the government did at least consult in the meantime and made a number of changes. I will run through a couple of those. One of the things which was requested by the courts in their consultation was that cases involving proceedings for sexual offences against children have priority over less urgent criminal cases, and be given priority and be dealt with as expeditiously as the proper administration of justice will allow.

There is no doubt in my mind that every criminal who is charged with an offence would see their case as being urgent, especially if they are being held in remand, but I think it is sensible that these cases—particularly involving children and their memories and the problems we have already identified about children giving evidence—proceed as quickly as possible. Interestingly, there is another policy change whereby the offence of blackmail is included as a serious offence against the person. I find that a little odd because most of the serious offences against the person involve physical aspects, whereas blackmail is clearly in another realm. Nevertheless, the government wants to treat blackmail as a serious offence against the person, and having looked through the implications of that, it did not seem to me to do any great harm.

As I have already mentioned, the judicial warnings to which the bill refers are to be given to juries, but equally those same rules will apply to judges sitting alone without a jury. That is really simply clarified, although I would have thought it should be self-evident. The special arrangements for vulnerable witnesses are set out in greater detail, but there did not seem to be any vast change between what was previously there and what will now be there in terms of the actual operation. Most significantly, the grounds for a court dispensing with special arrangements for vulnerable witnesses are changed. There are provisions in relation to vulnerable witnesses, and at the committee stage no doubt there will be some discussion about vulnerable witnesses. Essentially, vulnerable witnesses can come into a variety of categories. They may be someone with an intellectual impairment who is nevertheless an adult. They may be children. They may be people in a range of circumstances.

The new provisions provide that you can only dispense with the special arrangements for vulnerable witnesses where the witness is an adult and only in certain circumstances. Firstly, the facilities for those special arrangements are not readily available to the court and it is not reasonably practicable to make the facilities available. If one were sitting in court, for instance, in Coober Pedy or some outlying area, it might not be reasonably practicable, and I suspect that the most common application of that particular provision will be where a court is in a location remote from Adelaide. The other ground on which dispensation from the special arrangements can be made is that the court is satisfied that the vulnerable witness will be able to give evidence effectively and without significant harm or distress without the special arrangements.

As I understand it, both those things have to apply, although I will clarify that in the committee stage. My understanding is that both those grounds have to be satisfied; that it is basically not practicable to provide special arrangements for vulnerable witnesses, but the court is nevertheless satisfied that they will be able to give evidence effectively and without significant harm, notwithstanding the lack of those special arrangements.

The court is also to have regard to the urgency of the proceedings and the cost, inconvenience and delay involved in procuring the necessary facilities, or adjourning the case to some other place. For instance, if the facilities were not available in Port Augusta, the court would have to take into account whether the cost of moving the entire court down to Adelaide where facilities might be available was worth the effort, the cost, the time, the delay and so on; bearing in mind, of course, that delay is an important factor in assessing whether justice is being served appropriately. Lastly, and this appeared in the previous bill, the court has to give reasons for its decision to dispense with special arrangements for vulnerable witnesses.

A lot of the changes that are made, of course, are simply clarifying as a result of questions and matters that were raised during the course of the consultation. In particular, in relation to the admission of hearsay evidence of a statement made out of court by a protected witness, the emphasis is changed. It now provides that a protected witness may not be cross-examined on matters to which the hearsay evidence about their out-of-court statement relates unless the court gives leave for that cross-examination to occur. Again, that is set out in a fair bit of detail within the bill and I will deal with it in committee.

The court cannot permit the cross-examination of a protected witness unless the court is satisfied that the evidence that comes forth is likely to be of sufficient probative value or whether it is material that would substantially reduce the credibility of the hearsay evidence. Of course, in a criminal trial if a protected witness is not cross-examined on matters to which that hearsay evidence about when they reported the offence relates, the judge must warn the jury that hearsay evidence should be scrutinised with particular care, because it has not been tested in the usual way. The previous bill allowed the court an absolute discretion to exempt the protected witness from being questioned at all; so the situation has been somewhat rebalanced in terms of what is now going to happen. Cross-examination will still take place, but only when the court permits it, and the court will not permit it unless cross-examination is of some real value in the circumstances.

The most significant of the other changes to this legislation, in my assessment, is that a person who is the subject of an image that is sensitive material will have to apply to the prosecuting authority for access to it. In other words, a person whose genitals, or whatever, have been photographed, the person who is the subject of the image, will have to apply for access to it. There is to be no automatic entitlement to access to the image. In the previous bill, the accused might have had unfettered access to it, but it was decided to limit unrestricted entitlement to access to sensitive material to simply courts and public officials. So, other than the courts and the public officials such as the DPP involved in the prosecution of the case, there is now to be restricted access, but obviously if a victim does want copies there is no reason why the DPP would deny them access.

This bill seeks to address a number of issues in terms of evidence law that really go hand in hand with the rape and sexual offences law, which has already passed as a bill through this house and will no doubt be dealt with in the other place in the reasonably near future.

Most of the changes are, in fact, relatively straightforward in terms of evidence, although they are sometimes hard to explain once one gets into the Kilby and Crofts directions and the Longman warnings, and so on, and especially when one has not been a criminal law practitioner. Generally, I am satisfied that the criminal bar in particular has had a chance to examine the originally proposed legislation and to make suggestions mostly directed at clarifying the intention rather than changing the law; although in a couple of cases, like the one just mentioned, where we are rebalancing the right to cross-examine, there have been some policy changes as a result.

I think it is appropriate for this bill to proceed reasonably quickly to catch up to the rape and sexual offences legislation so that they can go through. As I said, it has been a long time coming given that the Layton report was brought down five years ago and a number of changes reflected in this legislation were in fact recommended by Robyn Layton QC, as she then was, now Robyn Layton, justice of the Supreme Court. In that sense, it is long overdue and, accordingly, the opposition has no difficulty in supporting the bill and wishes it a good passage through both houses.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 4 passed.

Clause 5.

Mrs REDMOND: I just want to clarify the provisions of new section 13B, which is inserted. This clause provides:

If a defendant who is not legally represented applies to the commission for legal assistance, that legal assistance must be given subject to the qualifications that appear below.

I want to clarify what the effect of that is when one reads the qualifications that appear below. I refer to section 6(2), (3) and (4) of the Criminal Law (Legal Representation) Act. The provisions that appear below—as referred to in those subsections—allow the removal of legal aid.

I am just curious about what the effect of those provisions—that is, the qualifications appearing below in section 6 of the Criminal Law (Legal Representation) Act 2001—would be if, for instance, we have a self-represented defendant in a criminal sexual assault case and that person gets to the point of wanting to cross-examine but receives advice that they cannot cross-examine the witness themselves, but that they have an entitlement to legal representation. I presume that they have to apply in the normal way to the Legal Services Commission. The 'must' appearing in that inserted provision we are dealing with indicates that the Legal Services Commission has an obligation to provide the legal assistance.

I wonder, therefore, what would happen, for instance, if the person was a millionaire: will that person be subject to any of the usual provisions? Normally, a millionaire who goes to the Legal Services Commission would not be given legal aid. Assuming the commission finds out all that information, then legal aid would not be given to a millionaire who has the capacity to pay for legal representation. However, if a millionaire decides that he or she is going to self-represent, is the Legal Services Commission, under this provision, going to be obliged to provide legal assistance? What are the consequences if, for instance, they do not comply with conditions that might be put on it? I am just curious as to how, in reality, one compels a defendant to apply for legal assistance, and for the Legal Services Commission to grant legal assistance.

The Hon. M.J. ATKINSON: The usual qualifications for legal aid apply. If the person did not qualify for legal aid they then do not get to ask the questions, because they refused to engage a lawyer. Their next step, I would think, is to apply for a Dietrich application to stay the trial on the grounds that it is not a fair trial. Then, as a result of the legal representation law introduced in the 1997-2001 parliament, the trial would go ahead because it is not a valid Dietrich application, because they genuinely do not qualify for legal aid, and they can afford their own legal representation—if they really want to ask those questions.

Mrs REDMOND: So, I guess the short answer really is that, ultimately, they miss out on the ability to cross-examine.

The Hon. M.J. ATKINSON: On those particular questions, yes.

Clause passed.

Clause 6 passed.

Clause 7.

Mrs REDMOND: This is along the same lines as my previous question. The amendment basically adds onto the provisions of the existing section 10 of the Criminal Law (Legal Representation) Act, which provides that, if a court adjourns a trial to allow the defendant to apply for legal aid, and the adjournment is because they failed to do so earlier (that is, they change their mind once they are in the trial, they start the trial self-represented and it has all had to be thrown away or delayed unnecessarily), they can have costs ordered against them.

I am curious about the effect of the amendment, because it seems to provide that, if this unrepresented defendant decides that they want to apply for legal representation at the point when they are confronted with the fact that they cannot cross-examine their alleged victim themselves (notwithstanding that they may well have known about that), this provision seems to prevent the court ordering costs against them if they are specifically applying for the delay while they seek legal aid for the provision of cross-examination of their alleged victim in a sexual offence case.

The Hon. M.J. ATKINSON: It is as it appears.

Mrs REDMOND: Does that not then lead to a potential problem? Again, if we take the mythical millionaire who is self-represented, say a judge actually warned a self-represented defendant at the beginning of the trial and made clear at the outset, 'You're unrepresented. Do you realise that, when this goes to trial, you will be unable to cross examine?'

I accept what you have already said about the application and so on. However, is the effect not the same sort of problem we are trying to address in section 10 as it appears; that is, it is unreasonable for that person to escape having to pay for the delay if they quite deliberately go into a trial unrepresented, knowing that they will come up against this blockage but then say, 'I've changed my mind. I want to apply for legal aid so that I can have a lawyer represent me in this cross-examination'? What is the policy theory behind not allowing the court to order costs against the defendant in that circumstance, when clearly they seem to fall squarely within the ambit of the ill we were trying to address in section 10 in the first place?

The Hon. M.J. ATKINSON: I think we can predict that the great majority of accused in this position will not be trying to thwart the system. Also, at the beginning of the trial they will not have addressed their mind to cross-examining the alleged victim and so they will not have worked out what questions they would ask. So, it just seems fair, at that point in the trial, if they decide to cross-examine, to give them an adjournment to seek legal representation to ask questions—that is after the Crown case has been presented, or during the Crown case—and not to penalise them with costs. It is possible that the hypothetical millionaire mentioned by the member for Heysen may try to do this.

Mrs REDMOND: I accept what the Attorney is saying in terms of most defendants. It seems to me that it might have been more reasonable to say something like: 'however, the court may not make such an order if it is for a section 13B unless the court is satisfied that circumstances justify it', or something like that. It seems to me to be a blanket shut-off of a situation which really would allow a nonsense to be made of the other provision of section 10 as it exists, but it is the government's bill.

Clause passed.

Clause 8.

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

Page 4, line 31—

Clause 8, inserted section 50B(1)—Before 'victim' insert 'alleged'.

The word was mistakenly omitted from the bill. I am introducing identical amendments to equivalent sections in the Magistrates Court Act and the Supreme Court Act in amendments 12 and 13.

Mrs REDMOND: I have no difficulty with the amendment, but since I am on my feet and in order to save time, I will ask two very brief questions in relation to clause 8. In that first subparagraph, just after where the alleged victim of the offence is a child, what definition of 'child' applies there? I have not had time to look it up. What constitutes a child there? It runs through: 'sexual offence means' (a), (b), (c), (d), (e) and then (f):

Any attempt to commit, or assault with intent to commit, any of the offences referred to in a preceding paragraph.

I assume that that is preceding what I would call a subparagraph; that is, (a), (b), (c), (d) appearing above, and I want to clarify that that reference to 'a preceding paragraph' at the very end of the clause is in fact a reference to the subparagraphs (a), (b), (c), (d) and (e) immediately above.

The Hon. M.J. ATKINSON: There is no definition of 'child' in the District Court Act. We will just go with the conventional one of under 18. The member for Heysen is right about (a), (b), (c), (d) and (e).

Amendment carried; clause as amended passed.

Clause 9 passed.

Clause 10.

Mrs REDMOND: I have one question, and it relates to the definition of 'vulnerable witness'. On my reading, it is almost identical to the provisions that currently appear in the act; however, I notice there is a change from 'intellectual disability' in paragraph (b) to 'mental disability', and I want to clarify just what is intended. I note there was also a provision that mental disability includes intellectual disability, and I have no problem with the idea that we can encompass vulnerability on the basis of both intellectual impairment and mental disability, but I wonder what is the definition of 'mental disability'. One may, for instance, have a diagnosed mental illness such as depression, schizophrenia or any number of other things—and could, indeed, present a medical certificate to say that one is so diagnosed—but, of course, a lot of those things are adequately managed by medication and, provided someone is on a regime of medication, I see no reason why they would be considered vulnerable.

It seems to me that there is a difference between mental illness and mental disability but I could not find a definition, and I want to clarify who makes the assessment as to what constitutes a mental disability for the purpose of assessing whether someone is a vulnerable witness, and on what basis they make that assessment.

The Hon. M.J. ATKINSON: We accept that mental disability is broader than intellectual disability. For the purposes of the act it would be a matter of obtaining expert evidence to persuade the court to apply the provisions.

Mrs REDMOND: Would that necessitate, for instance, a voir dire as a preliminary to decide whether or not a vulnerable witness was entitled to the various things that flow from being so classified? I am curious about how it is assessed. As I said, I have no difficulty with the need to protect people with a mental disability as vulnerable witnesses, but I foresee the possibility that someone who should be subject to the full rigours of cross-examination could get a protection to which they are not entitled. They may be able to worm out of that cross-examination by asserting that they should have vulnerable witness status. How will that occur in practice? Will there be an application by the prosecution to have someone classified as a vulnerable witness, and how will that occur? Will there be a trial on the voir dire once proceedings are under way?

The Hon. M.J. ATKINSON: Proposed section13A, subsections (7), (8) and (9), outline the procedure.

Progress reported; committee to sit again.

[Sitting suspended from 13:00 to 14:00]

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