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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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EVIDENCE (HEARSAY RULE EXCEPTION) AMENDMENT BILL

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development, Planning and the City of Adelaide, Minister for Tourism, Minister for Food Marketing) (15:47): Obtained leave and introduced a bill for an act to amend the Evidence Act 1929. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development, Planning and the City of Adelaide, Minister for Tourism, Minister for Food Marketing) (15:47): I move:

That this bill be now read a second time.

This bill seeks to repeal section 34CA of the Evidence Act 1929 and replace that section with a new section, section 34LA, following suggestions by the Court of Criminal Appeal that the current section 34CA contains an inbuilt contradiction.

Section 34CA was designed to remove a barrier to the prosecution and trial of sexual offences allegedly committed against very young children and, by later amendment, also persons with a mental disability. For both categories of witness, an inability to fully understand what is happening to them, or to remember and later articulate accurately what they said or did, may make their testimony unacceptable to a court. These are also the very characteristics that make young children and mentally disabled people easy targets for sexual predators. Without some relaxation of the rules of evidence, prosecutions of sexual crimes allegedly committed against the most vulnerable members of our society could rarely be instigated, let alone succeed.

Section 34CA established a special exemption to the hearsay rule that allowed the court to admit evidence from another person of what a young child said to them out of court to prove the truth of what the child said. The exception attempted to strike a balance between the public interest in prosecuting these crimes, the public interest in preserving the right of those accused of such crimes to test the prosecution evidence by cross-examination and the public interest in shielding extremely vulnerable witnesses from courtroom trauma.

Sometime after its enactment in 1988, section 34CA fell out of use. This was because it depended on the child being called, or being available to be called as a witness, as a consequence of which it could not operate when the child was incapable of giving sworn or unsworn evidence, or was exempted from being compelled to give evidence under section 21 of the act, thus excluding from its operation the very cases where the section was most needed. I seek leave to have the remainder of the second reading explanation inserted into Hansard with reading it.

Leave granted.

As one of the evidentiary changes supporting the Government's reform of the rape and sexual assault laws in 2008, that section was substituted by the Statutes Amendment (Evidence and Procedure) Act 2008. The amendments, which were limited, were the subject of extensive public and expert consultation and advice.

In 2009, in R v J, JA and, in 2010, in R v Byerley, the South Australian Court of Criminal Appeal expressed concern that the construction of the substituted section 34CA may operate to defeat its purpose and prevent the admission of the very kinds of statements it was intended to admit.

The Bill seeks to deal with this problem by restoring the original scope of the section and then strengthening the hearsay exception within that policy setting.

Current section 34CA has two main objectives.

The first is to ensure that out of court statements by prosecution witnesses who are young children under the age of 12, or who suffer from a mental (or intellectual) disability that adversely affects their capacity to give a coherent account of their experiences or to respond rationally to questions, can be adduced into evidence in a trial through a person to whom they were made, if of sufficient probative value to justify that admission.

The second is to ensure that evidence of such statements can be admitted without the young child or mentally disabled person being cross-examined on it if questioning him or her would not produce material of any real value to the court. It is the extent to which the section meets this objective that was of concern to the Court of Criminal Appeal.

In his second reading report to the amending Bill in 2007 the then Attorney-General, the Hon. Michael Atkinson, described the second objective thus:

The court may permit such cross-examination only if satisfied that it would elicit material of substantive probative value or material that would substantially reduce the credibility of the hearsay evidence. The provision will therefore sometimes allow evidence of what protected witnesses have said out of court to be admitted even though the protected witness has not been questioned about it in court. Whenever this happens, the court must warn the jury that this evidence should be scrutinised with particular care because it has not been tested in the usual way.

The Court of Criminal Appeal pointed out that a person's testimony about something a young child or mentally disabled person has said but cannot later remember or articulate to a court cannot be admitted into evidence under the current section because one of the criteria for admission of the statement is that permission to cross-examine has been granted. Permission can only be granted if the witness has been called or is available to be called as a witness and if questioning will produce material of substantive probative value or material that will substantially affect the credibility of the evidence. A young child or mentally disabled person who cannot give coherent evidence or has difficulty recalling making the statement or responding to questions about it is unlikely to be considered available to be called as a witness; and even if technically 'available', is unlikely to be able to say anything of any consequence or reliability when questioned. This criterion therefore defeats the purpose of the section in the same way as the single criterion of availability as a witness did the original section.

Justice Kourakis gave a useful description of the problem in his judgement in R v Byerley:

The facts of this case serve as a good illustration of the types of protected statements which Parliament probably intended to be admitted without cross-examination but which are inadmissible on either of the constructions propounded in R v J, JA. The complainant in this case was three years of age when his mother found him fondling his penis. She asked him what he was doing and he replied that 'this is what [the appellant] does to me'. It is inherently improbable that a response like that could be intentionally fabricated or even imagined by a three year old child. The probative value of that spontaneous response, which arises from the circumstances in which the protected statement was made, is very great indeed. Moreover, no cross-examination of the complainant could possibly diminish that weight. If a trial were to take place soon after the alleged offence, a child of just over three is unlikely to satisfy the requirements of section 9 of the Act. Nor would the test proposed by White J in R v J, JA allow for the cross-examination of a child of such tender years. The effect of both a literal construction and the construction given by both the majority and White J in R v J, JA of the cross-examination condition of section 34CA(1) would therefore be to exclude evidence of protected statements. That result would ensue even though the protected statements fell squarely with the purpose of the provision; a result which is completely contrary to the purpose of the section.

This Bill deals with the problem by repealing section 34CA and replacing it with section 34LA. For the reasons set out below, the section is to be relocated in Division 2 of Part 3 of the Evidence Act dealing with miscellaneous rules of evidence in sexual cases.

Section 34LA makes the sole criterion for admission of an out of court statement that the court is satisfied, having regard to the nature of the out of court statement, the circumstances in which it was made and any other relevant factor, that what the young child or mentally disabled person was heard to say has sufficient probative value to justify its admission as evidence. Admission will no longer depend on whether permission has been given for the maker of the statement to be cross-examined, nor on whether the maker of the statement is called or available to be called as a witness.

Indeed, section 34LA will permit the statement to be admitted even if its maker is not available as a witness (for example, because he or she is not capable of giving sworn or unsworn evidence or has been exempted from being compelled to give evidence). The prosecution will be under no obligation to call the maker of the statement to give evidence. In cases where the prosecution chooses to do so, defence counsel will be free to cross-examine him or her without seeking the permission of the court.

Section 34LA will confine this exception to the hearsay rule to the statements of alleged victims of sexual crimes who are young children of or under the age of 12 years or who are mentally disabled (as currently defined in section 34CA—namely people with a mental or intellectual disability that adversely affects their capacity to give a coherent account of their experiences or to respond rationally to questions). It will also be confined to criminal proceedings. This is the setting for which section 34CA was originally intended and the only one in which it has ever been invoked.

If such an alleged victim does give evidence of a statement that has been adduced and admitted under section 34LA through the testimony of someone else, other provisions in the Act will come into play to ensure that he or she does not suffer undue distress in doing so. Examples are the vulnerable witness special arrangement provisions and provisions preventing oppressive and improper questioning.

In addition, section 34LA will restrict the scope of any cross-examination to the content of the statement and the circumstances in which it was made, unless the alleged victim gives evidence of other matters, or unless the judge is of the opinion, despite the alleged victim not having given evidence about other matters, that cross-examination on other matters is necessary to identify which parts of the evidence of the out of court statement are in dispute and why.

Section 34LA will also require the judge to give warnings and directions to the jury when an out of court statement has been admitted into evidence and the alleged victim has not been cross-examined about it. The jury must be warned to treat the evidence of the statement with particular care because it has not been tested by cross-examination of the person who made it. However, if, for example, the alleged victim has given evidence for the prosecution but was not cross-examined on that evidence, the judge may also, if of the opinion that it is in the interests of justice to do so, direct the jury to take into account that the reason for the evidence not being tested by way of cross-examination was that the defendant chose not to do so.

Another part of section 34LA acknowledges the effect that youth or mental disability combined with the passage of time can have on memory. It will oblige a judge, when the making of the out of court statement or its content or context are in issue, and the child or mentally disabled person, when cross-examined about it, fails to remember making it or what it was or the circumstances in which it was made, to explain to the jury that there may be good reason for such failure of memory and to direct it not to take that failure to remember, by itself, as an indication that the statement was not made or was different from how it was described by the person who gave evidence to the court of hearing it. The same obligations will apply when the witness has only a partial memory of the out of court statement or has a recollection that is wholly or partly inconsistent with evidence admitted under section 34LA or with other evidence of the statement relevant to the issue, including evidence of out of court statements admitted under other sections of the Act.

The Bill also narrows the scope of the section. At present it is being used to enable the admission into evidence of records of police interviews with the alleged victim to prove the truth of what was said in the interview. That was never Parliament's intention.

Section 34LA will not permit the admission, by this exception to the hearsay rule, of records of interviews of young or mentally disabled alleged victims by investigating police or other authorities. Statements made to police and authorities by way of a report of a crime or in answer to questions about an alleged crime are made with deliberation and premeditation in formal circumstances that cannot justify their admission into evidence by this exception to the hearsay rule.

The primary aim of new section 34LA is to capture utterances of young children or mentally disabled people which, because of their nature and context, the hearer thought significant and remembered, but which the speaker may not later remember at all or in enough detail to recount to a court, having had no appreciation of the significance of what he or she was saying at the time.

The exception to the hearsay rule in section 34CA (and in its proposed replacement, section 34LA) overlaps with another exception known generally as the rule about recent complaint. If a person complains of a sexual offence to authorities, the record of what he or she says may be admitted into evidence as an initial complaint under section 34M of the Evidence Act—that is, not to prove the truth of what was alleged, but rather to show consistency of conduct in the alleged victim and to show when and to whom and in what circumstances he or she first complained of the alleged offence. This is so whether the complainant is an adult, a young person or a young child and whatever the complainant's mental capacity.

When an out of court statement by a young child or mentally disabled alleged victim of a sexual offence would qualify for admission under section 34LA and also as an initial complaint under section 34M, the judge's directions to the jury will depend on how the statement has been admitted. If admitted under section 34LA, then the directions required by that section will apply. If the prosecution, for some reason, decides to adduce the out of court statement of a young child or mentally disabled person as an initial complaint under section 34M, then the directions required by section 34M will apply.

The Government is also exploring additional provisions to govern the admission into evidence of audiovisual records of police or social worker interviews with alleged victims of offences who are young children or mentally disabled people, and to require comprehensive standards and procedures for the conduct and recording of such interviews (including accredited interviewer training).

Finally, this Bill includes a transitional provision to make the new section 34LA apply to proceedings for sexual offences commenced but not yet determined before the amending Act commences and also to any proceedings for sexual offences commenced after the amending Act commences. This means it will not affect orders made under section 34CA that are currently in force and have been made in proceedings commenced before the commencement of the new section. The intention is that if an order has not been made under section 34CA in a trial commenced but not yet determined before this Act comes into effect, the prosecution may apply for an order under the new section 34LA the moment the Act comes into force. Without such a provision there may be argument about whether section 34LA is procedural or substantive and consequent doubt about which proceedings it applies to.

I commend the Bill to Members.

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—Repeal of section 34CA

This section is to be deleted.

5—Insertion of section 34LA

New section 34LA is to be inserted after section 34L.

34LA—Admissibility of evidence of out of court statements by certain alleged victims of sexual offences

This section provides that in a trial of a charge of a sexual offence where the alleged victim of the offence is a person to whom this section applies (that is, a young child or a person who suffers from a mental 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 judge has a discretion to admit evidence from a person of what the person heard the alleged victim say (whether to the person or to some other person) out of court (an out of court statement) if, after considering the nature of the out of court statement, the circumstances in which it was made and any other relevant factor, the judge is of the opinion that the evidence has sufficient probative value to justify its admission.

The exception does not, however, apply to any statement made by the alleged victim (whether or not in answer to a question) to an investigating or other authority as part of a formal interview process conducted in relation to the alleged offence.

Evidence of an out of court statement that is admitted under this section may be used to prove the truth of the facts asserted in the statement.

The section then makes provision for other procedural matters relating to the admission of evidence of the out of court statement, cross-examination of the alleged victim and the warnings and directions to be given by the judge in relation to the evidence.

Schedule 1—Transitional provision

1—Transitional provision

This clause provides that the amendments made by Part 2 of this measure to the Evidence Act 1929 are intended to apply in respect of—

(a) proceedings for a sexual offence commenced but not determined before the commencement of this clause; and

(b) proceedings for a sexual offence commenced after the commencement of this clause.

Any order made by a court under the Evidence Act 1929 as in force immediately before the commencement of this clause will remain in force according to its terms.

Debate adjourned on motion of Mr Pederick.

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