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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-02-28 Daily Xml
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STATUTES AMENDMENT (EVIDENCE AND PROCEDURE) BILL

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (18:13): I move:

That this bill be now read a second time.

I seek leave to have the detailed explanation of the bill inserted in Hansard without my reading it.

Leave granted.

This Bill supersedes the Evidence (Miscellaneous) Amendment Bill 2007, which the Government introduced in February 2007 and allowed to lapse when Parliament was prorogued so as to enable wide consultation to take place.

Comments were sought from a wide group of people about that Bill and about its companion Bill (the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill 2007), introduced at the same time and allowed to lapse for the same reasons.

As a result, both Bills have been reintroduced in substantially the same form but with some improvements.

The Statutes Amendment (Evidence and Procedure) Bill achieves two main kinds of evidentiary law reform.

It reforms laws governing the way evidence is taken in sexual offence proceedings. This is part of a package of legislative reforms arising from the Government's extensive review of South Australian rape and sexual assault laws in 2006 that also includes the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill 2007.

It also reforms laws about the special arrangements that may be made for witnesses giving evidence. In particular, it provides for the way in which evidence is taken from vulnerable witnesses (including children and victims of serious offences), the way witnesses may be questioned and the manner in which judges warn or direct juries about the evidence of children. It also restricts access to sensitive material that is to be used as evidence in proceedings. These reforms are made in response to recommendations of the Child Protection Review (the Layton Report) about children and the courts, and also to remove systemic impediments to the reporting and prosecution of serious crime.

The amendments are to the Evidence Act 1929, the Summary Procedure Act 1921, the Criminal Law (Legal Representation) Act 2001, the Supreme Court Act 1935, the District Court Act 1991 and the Magistrates Court Act 1991.

The Bill also makes an unrelated statute revision to s71B (repositioning the penalty clause) and updates s59IQ so that it uses the same terminology as a consequence of the enactment of the Statutes Amendment (Domestic Partners) Act 2006.

Special arrangements for witnesses

Current section 13 of the Act allows a court to make special arrangements for the taking of any witness's evidence so as to minimise the witness's distress and embarrassment. It also identifies witnesses who are likely to find giving evidence particularly frightening, humiliating or stressful. It calls these witnesses 'vulnerable witnesses' and gives them additional support in criminal proceedings. It does so because it is in the public interest for the evidence of all witnesses to be of the highest possible quality and for the prospect of giving evidence not to be so daunting that people are deterred from reporting serious crimes or from assisting in the prosecution of crime.

So as to avoid some of the confusion about witness entitlements to special arrangements that became apparent during the period of consultation, and to clarify the different procedures necessary for vulnerable witnesses for criminal proceedings, the Bill separates provisions dealing with special arrangements for witnesses generally from those dealing with special arrangements for vulnerable witnesses in criminal proceedings. The same special arrangements are available for each group of witnesses, and the Bill, like the Act, lists some examples and permits a court to order any combination of them for a witness.

The Bill, like the Act, does not permit an order for special arrangement to be made if this would relieve a witness from the obligation to give sworn evidence or to submit to cross-examination, or to prevent a judge or jury from seeing or hearing the witness while giving evidence. The Bill also provides that such sight or hearing of a witness giving evidence may be indirect - for example, by live television transmission or replay of a recording of the witness's voice and image – so long as the indirect method of transmission also shows any person who may be accompanying the witness to provide the witness with emotional support. It provides further that a special arrangement must not be made if it would prevent a defendant from seeing or hearing the witness while giving evidence.

The Bill retains the requirement for judges, in criminal trials, to warn juries not to draw adverse inferences from the fact that special arrangements have been made or to allow those arrangements to influence the weight to be given to the evidence. This requirement applies whether the witness is a vulnerable witness or not.

One of the examples of a special arrangement is the taking of an electronic recording of a witness's evidence outside the courtroom to be replayed in the courtroom. The Layton Report recommended that it be possible for all (or some) evidence of a child witness to be electronically recorded outside of the courtroom before the trial proceeds and, in place of the child giving evidence in court, for the recording to be replayed to the court during the trial; an arrangement that is especially useful in cases where the trial takes place several years after the alleged offence. Although available to any witness, this kind of special arrangement is likely to be used mainly for children.

The other example added by the Bill, also recommended by the Layton Report, will allow disabled witnesses to give evidence by unconventional means if that would facilitate the taking of that evidence or minimise the witness's embarrassment or distress. Although a court could already use its inherent powers to do this, conferring authority by statute will encourage disabled witnesses to give evidence by removing any doubt about the court's ability to accommodate the disability.

There is nothing in the current law, which is facilitative and not prescriptive, to stop any of these kinds of arrangements or the use of CCTV already being made for witnesses. The real reason they have not so far been used, or have not been used very often, is that not all courts have the necessary facilities. That is not a defect in the legislation but a matter of court resources. The cost of adding CCTV, remote rooms, separate access and waiting rooms for vulnerable witnesses, and audio visual recording and playback facilities to all courts, is high and, in some courts, not cost-effective.

The Government has taken the sensible approach of installing these facilities in the courts where they are most in demand, with a view to extending them to other courts if need be.

The problem with the current legislation is not so much a lack of authority to make these special arrangements but that they may be made at the discretion of the judge even when the witness is a vulnerable witness in a criminal proceeding (albeit that, for such a witness, the court is obliged to determine whether an order for special arrangements should be made before the evidence is taken). In reaching that determination, the judge may examine the vulnerable witness about the disadvantage asserted in giving evidence in open court and allow argument about whether special arrangements will unduly prejudice the defendant's case. Granting a request for special arrangements for a vulnerable witness in a criminal trial is by no means automatic.

It is possible, therefore, under the current Act, for a judge to deny a child victim in a criminal trial the opportunity to give evidence using special arrangements even when the facilities are available. A case in point occurred in Victoria in May 2005. The Age reported that a child who was the alleged victim of incest tried to commit suicide after a Victorian county court judge, acting under laws similar to those in South Australia, ordered her to appear in open court in front of the defendant, her father, to explain why she did not want to give evidence in his presence and would prefer to testify using CCTV The judge questioned the child in detail in front of her father, despite her obvious distress and even though he had accepted expert evidence that she was especially vulnerable and potentially suicidal.

There is nothing to stop this happening in South Australia. Indeed, our law technically requires it. The South Australian Court of Criminal Appeal, in the case of Question of Law Reserved (No 2 of 1997) has said of section 13:

...the court is not to order that special arrangements be made simply because a request is made, even if such a request is made on behalf of a vulnerable witness. If Parliament had intended to give to a witness the right to have special arrangements made, Parliament could easily have said so. It has not said that.

The Bill will require courts in criminal proceedings to make special arrangements for vulnerable witnesses if the party calling the witness applies for them. It allows a court to dispense with such arrangements for adult witnesses when the facilities necessary for the special arrangements are not readily available to the court and (taking into account the cost, inconvenience and delay involved in procuring them or in adjourning to some other place where the facilities are available and the urgency of the proceedings), it is not reasonably practicable to make the facilities available. The Bill requires the court to give reasons if the court decides to dispense with the making of special arrangements.

The Layton Report recommended that the law:

... allow the court to permit expert opinion evidence to be given in any civil or criminal proceeding in which abuse or neglect of a child is alleged...That such amendment specifically permits evidence to be given regarding any capacity or behavioural characteristics of a child with a mental disability or impairment.

The Bill makes an amendment to this effect that has a wider application than contemplated by the Layton Report. It provides that a court may, if it thinks expert evidence would help the court to determine what special arrangements should be made for taking the evidence of a witness (whether vulnerable or not), receive such evidence in civil or criminal proceedings. It also allows a court in civil or criminal proceedings to receive expert evidence about any additional difficulty that may be caused by a witness (whether vulnerable or not) giving evidence through an interpreter where the witness's native language is not English and the witness is not reasonably fluent in English. Some Aboriginal languages, for example, do not translate easily into English, and vice versa, because they do not describe a concept familiar to the English language. It is important that the court and the jury appreciate this when listening to the witness giving evidence.

This amendment is not designed to allow the admission of expert evidence to challenge the credibility of the witness or to change the law on this topic as expressed by Chief Justice King in the case of R v C in 1993. Nor is it designed to allow or facilitate the admission of expert evidence as to the ultimate issue (for example, of whether a child has been abused or not).

Vulnerable witnesses

Under the current Act, a vulnerable witness includes a witness who is under the age of 16 years, a witness who suffers from an intellectual disability, a witness who is the alleged victim of a sexual offence to which the proceedings relate and witnesses who are, in the opinion of the court, at a special disadvantage because of their circumstances or the circumstances of the case.

The Bill expands the class of vulnerable witness and its entitlements.

In the definition of a vulnerable witness, the offences to which the proceedings relate, and of which, to be a vulnerable witness, a person must be the alleged victim, will no longer be confined to sexual offences. These offences will now be called 'serious offences' and will include offences of abduction, blackmail, stalking, unlawful threats to kill or endanger life, causing serious harm, and attempted murder or attempted manslaughter. A victim of a serious offence will be considered a vulnerable witness in civil as well as criminal proceedings relating to that offence.

A witness who has been subjected to threats of violence or retribution in connection with the proceedings (whether civil or criminal) or who has reasonable grounds to fear violence or retribution in connection with the proceedings will also now be classified as a vulnerable witness, as will a witness who, in the opinion of the court, is at a special disadvantage because of their circumstances or the circumstances of the case, other than those already described.

The Bill provides that if a witness is vulnerable:

he or she may not be cross-examined in person by an unrepresented defendant in criminal or civil proceedings;

a criminal court may take an audio visual record of his or her evidence, and must do so, if the vulnerable witness is a child of 16 years or less and has not already had that evidence pre-recorded;

a civil or criminal court may admit an official audio visual or written record of his or her evidence given in an earlier criminal proceeding and relieve him or her of the obligation to give oral evidence in the current proceedings.

Warnings about the uncorroborated evidence of children

The Layton Report made several recommendations about judicial warnings about the uncorroborated evidence of children.

At present, the Act does not prohibit warnings about lack of corroboration. Instead it says that, except where an Act requires it, the judge is not obliged to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the complainant, and, that a judge in a criminal trial is not obliged to warn the jury that it is unsafe to convict on the uncorroborated evidence of a child if the child gave sworn evidence.

One recommendation was for the law to be changed to say that corroboration is never to be required of the evidence of a child witness, whether sworn or unsworn. But that would produce an unacceptable result; it would give greater credibility to the sworn or unsworn evidence of children than to the sworn or unsworn evidence of adults, for which corroboration may sometimes be required.

Instead, the Bill amends the Act to stop judges warning juries that it is unsafe to convict on the uncorroborated sworn evidence of a child except where the warning is warranted in the particular case and a party has asked for the warning to be given.

The Layton Report also suggested that judicial warnings about the reliability of the evidence of a particular child be permitted only under strict conditions, along the lines of a recommendation of the Australian Law Reform Commission Report (No. 84).

The Bill takes this up by providing that, if a judge does warn a jury about the risks of convicting on the uncorroborated evidence of a child, or otherwise comments on the evidence, that warning must be the same as if for evidence given by an adult; that is, the judge must not say or imply that the evidence of the child is inherently less reliable than the evidence of an adult.

Together, these amendments will prevent juries from being warned to scrutinise the evidence of young children generally with special care or from being told that young children generally have tendencies to invention or distortion. The Bill will permit a judge to warn about the reliability of the uncorroborated sworn evidence of a child only where the defendant requests the warning and can show good reason, other than the fact that the witness is a child, why the warning is needed.

Cross-examination of victims of certain offences

A defendant may choose to represent himself or herself at trial, and will then question witnesses in person instead of through counsel. Sometimes unrepresented defendants cross-examine their alleged victims with personal animosity and in a confrontational manner that would not be acceptable if adopted by counsel. Indeed, the opportunity to intimidate a witness may sometimes be the reason for a defendant choosing not to be represented at trial.

In such cases, the court, in allowing cross-examination in person, can appear to be giving the defendant free rein to settle a grudge or gratify a desire to cause or prolong distress, and can seem itself to be an instrument of injustice. Often, a defendant will see a judge's attempts to constrain his or her efforts at cross-examination as compromising judicial neutrality and may appeal the verdict on this ground.

A notorious Australian example is the Skaf case in New South Wales where the defendants in a rape trial discarded counsel so that they could cross-examine the complainant personally, with the aim of humiliating and intimidating her. This resulted in the enactment of laws preventing the cross-examination in person of complainants in sexual cases (section 294A of the New South Wales Criminal Procedure Act 1986, as amended by the Criminal Procedure Amendment (Sexual Offence Evidence) Act 2003).

Since then, Victoria has enacted special rules for the cross-examination of complainants in sexual cases and members of their families or the family of the accused in such cases (section 37CA Evidence Act 1958 (Vic), inserted by the Crimes (Sexual Offences) Act 2006).

Laws in Australia, New Zealand and the United Kingdom restricting or prohibiting the rights of unrepresented defendants to cross-examine in person share many features but are not identical. In the UK, the court must first determine whether denying the right to cross-examination in person will affect the quality of the witness's evidence, while the Australian and New Zealand models assume a positive effect on quality.

This Bill takes the best features of comparable laws elsewhere, conforming with the Australian and New Zealand approaches. In doing so, the Government endorses the reasoning of the Victorian Law Reform Commission, that:

...provided there are other ways in which the complainant's evidence can effectively be tested (as the Commission believes there are), there can be no justifiable reason for subjecting the complainant to cross-examination by the accused. Confrontation with the accused and cross examination are distressful enough without adding the element of direct personal (verbal) attack. Judicial control of cross-examination cannot provide systematic protection because of the inherent nature of the proceedings and the need for judges to remain neutral. And, even where judicial discretion is exercised to prevent abusive or improper questioning, it cannot protect the complainant from the effects of direct confrontation with the alleged offender who wishes to cross-examine personally.

The Bill takes an approach that is similar to the Victorian legislation, although it has a wider application. It will prohibit a defendant from questioning in person a witness who is the alleged victim of an offence to which the proceedings relate. An offence to which the proceedings relate is an offence of contravening or failing to comply with a restraining order or a domestic violence restraining order, or a serious offence against the person. A serious offence against the person is defined as an offence of attempted murder or attempted manslaughter, a sexual offence, an offence of causing serious harm, an offence involving an unlawful threat to kill or endanger life, an offence involving blackmail, an offence involving abduction, an offence of stalking, or an attempt to commit, or assault with intent to commit any of these offences.

The prohibition on cross-examination in person will apply not only in criminal cases but in civil cases related to the offence of which the witness is the victim or alleged victim. Without this extended application, a defendant who has been prevented from cross-examining the alleged victim in person in a criminal trial may cross-examine him or her in person in later civil proceedings, such as criminal injuries compensation proceedings.

An unrepresented defendant who wishes to cross-examine an alleged victim of a relevant offence in a criminal trial must do so through counsel.

An unrepresented defendant who wishes to cross-examine an alleged victim of a relevant offence in a civil proceeding may do so either through counsel or by submitting questions to the judge in writing, after which the judge or the judge's delegate (for example, the judge's associate) will ask the witness those questions that the judge determines are allowable in cross-examination.

In a criminal trial, the court must warn an unrepresented defendant of these limitations on his or her trial entitlements, inform him or her of his or her statutory rights to legal assistance, and ensure that he or she has had a reasonable opportunity to engage counsel before the evidence is taken.

The Bill requires the court, in a criminal trial where an unrepresented defendant obtains the assistance of counsel to cross-examine, to explain the reasons for such assistance and warn the jury not to draw any inferences adverse to the defendant from it.

The Bill also makes related amendments to the Criminal Law (Legal Representation) Act 2001 so that an unrepresented accused who wishes to cross-examine an alleged victim is entitled to legal assistance for counsel, subject to the same conditions and cost-recovery procedures as a person granted assistance under that Act. Importantly, the amendments will ensure that an unrepresented defendant who refuses or declines legal assistance to cross-examine a vulnerable witness cannot later challenge the fairness of the trial for lack of legal representation.

These provisions will not remove a defendant's right to represent himself or herself, nor remove a defendant's right that prosecution witnesses be cross-examined. They simply stop the accused person from conducting such cross-examination in person.

Court's power to make an audio visual record of the evidence of vulnerable witnesses

In South Australia, written transcripts are the only record of a person's evidence in a trial.

Vulnerable witnesses may give evidence remotely by CCTV, but no audio visual record is kept.

A written transcript is not generally as effective a representation of a witness's evidence as an audio visual record. In cases where the witness has given evidence for many days or weeks, the written transcript will run to many hundreds of pages and be difficult for a jury in later proceedings to which that transcript is admitted as evidence to read and assimilate.

Written transcripts can rarely capture a witness's demeanour, and demeanour can be a good indicator of credibility. A court that admits a written transcript as evidence of what a witness said in a previous proceeding may be more inclined to do so if it can also hear a record of the witness saying it. In the Skaf case, where the witness was not prepared to give evidence in person in the retrial, a refusal to admit the written transcript would have destroyed the prosecution case.

Criminal courts need authority to take an audio visual record of evidence in appropriate cases so that this record can form part of the official record, along with the written transcript, that a later court can admit as the evidence of that witness in its proceedings.

The Bill allows a court in the original criminal proceeding, on the application of the prosecutor, to order that an audio visual record be taken of a vulnerable witness's evidence, as well as a written transcript, if it has the facilities available to do so and it is otherwise practicable to do so. The aim is for this contemporaneous record to be available to be used as the witness's evidence in a later related proceeding.

The Bill also obliges a court to take a contemporaneous audio visual or audio record of the evidence of a vulnerable witness if that witness is a child (of or under the age of 16 years) complainant in a sexual offence proceeding and the child's evidence has not already been pre-recorded before trial by special arrangement. This means that there will always be an audio visual or audio record of the evidence of an alleged child victim, whether he or she gives that evidence to the court in a separate hearing before the trial began or whether during the trial itself.

This part of the provision aims to minimise the impact of trial delay on children who are the alleged victims of sexual offences. It is part of a Government initiative under which courts will have two options for managing sexual offence proceedings when the alleged victim is a child: either to fast-track the trial or to pre-record the child's evidence. The Bill also includes provisions that requires the Supreme, District and Magistrates Courts to give priority to criminal trials of sexual offences involving children.

It is expected that courts will deal with applications for taking audio visual records to be made at the same time as applications for special arrangements.

The Government intends to equip selected courts with an audio visual recording capacity both for use during a trial and for pre-recording, depending on demand.

The audio visual record is to be kept in the custody of the court and access to it restricted to the court officials responsible for its custody. Otherwise, the court may authorise a person to take custody of it or have some other form of access to it if they need to use it in a related proceeding that has commenced or is in contemplation.

Access to an audio visual record taken under this section is to be governed by this section alone. The accessibility of evidence provisions in the Supreme Court Act 1935, the District Court Act 1991 and the Magistrates Court Act 1991 do not apply.

Court's power to admit evidence taken in earlier proceedings

The Bill allows a court to admit as evidence an official record of a witness's evidence that has been given in an earlier criminal trial and to allow the court to relieve that witness from the obligation to give evidence in person in the later proceedings. The provision applies only to witnesses who have died, or who have become too ill or infirm to give evidence, or have not, after diligent search, been found, or who are vulnerable witnesses.

This amendment will ensure, among other things, that prosecutions do not fail and that people who have committed crimes do not escape liability because a key witness is not available or prepared to give evidence again at a retrial.

The example of a vulnerable witness was given publicity in the Skaf case in New South Wales. Two brothers successfully appealed a rape conviction on the ground that jurors had acted improperly by independently investigating the scene of the alleged crime. The complainant declined to give evidence again because she had suffered such distress while giving evidence in the original trial. She had every right and reason to decline but, without her evidence, the case against the accused would have collapsed. The New South Wales Parliament enacted legislation to allow a record of the victim's evidence at the original trial to be substituted for her oral evidence at the retrial. The legislation applied retrospectively to prevent those particular accused from escaping prosecution.

This Bill will let a later court admit as evidence in proceedings before it an official record of any relevant evidence given in an earlier criminal trial by a vulnerable witness or by a witness who, by the time of the later proceedings, has died or become too ill or infirm to give evidence or cannot, after diligent search, be found.

When the later court admits an official record, it may relieve the witness, wholly or in part, of the obligation to give oral evidence.

The later court may be a civil or criminal court. It may be conducting a retrial or proceedings that have no such link to the original proceedings. What is important is that the evidence constituting the official record is relevant to those proceedings.

Before admitting that official record, the later court must have it edited to exclude material that is irrelevant to or is inadmissible in the proceedings before it for some other reason.

These provisions are not restricted to proceedings for sexual offences. A vulnerable witness in other kinds of proceedings may be under extraordinary stress giving evidence at that trial and as disinclined to give that evidence again at a retrial as the alleged victim in a rape trial.

Disallowance of improper questions

The Bill also changes the way courts can protect witnesses from inappropriate questioning by counsel.

At present, a court may disallow or forbid in cross-examination questions that are irrelevant, vexatious and not relevant to the proceeding, or are scandalous or insulting, even though the question may have some bearing on the case before the court. Such questions may not be disallowed or forbidden if they are about facts in issue, or about matters necessary to be known in order to determine whether or not the facts in issue existed. The court may also disallow or forbid questions that are indecent; and questions that are intended to insult or annoy, or are needlessly offensive in form, notwithstanding that the question may be proper in itself. These laws apply to both civil and criminal proceedings.

There is evidence that these laws are not working to protect children and vulnerable witnesses. The Skaf case, in New South Wales, which, at that time, had similar laws to those in South Australia, highlighted this. The Layton Report noted that many of the submissions to it about child witnesses in criminal trials:

...referred to the trauma of cross-examination by defence counsel and made the point that such court processes can result in further abuse, betrayal and powerlessness.

The Layton Report referred to examples in South Australian courts of very young children being cross-examined for up to five hours, and to bullying tactics, trick questions and the deliberate use of legal jargon or language that is too sophisticated for children to understand.

The Attorney-General's Department and the judiciary are working on a program of judicial education about children in court. The problem for judges, however, is not so much a lack of appreciation of the difficulties children experience in giving evidence but a concern that judicial intervention can so easily be the ground for a successful appeal, leading to a mistrial or retrial, which may have even worse consequences for the child than a failure to intervene.

New laws about the kinds of questions counsel may ask in a criminal trial came into effect in New South Wales in June 2005 (in the Criminal Procedure Further Amendment (Evidence) Act 2005) and in Victoria in 2006 (s 41F Evidence Act 1958 (Victoria)). These laws were designed to meet observations by advocates for child witnesses and alleged victims that judges are too often loath to check wayward counsel, and that prosecuting counsel may sometimes decline to object to improper questions for fear that it may, wrongly, give the jury the impression that the prosecution is trying to hide something.

In July 2005, the Australian Law Reform Commission (ALRC) and the Law Reform Commissions in New South Wales and Victoria jointly recommended that the uniform Evidence Acts should set out, as in the New South Wales legislation, a more comprehensive and detailed list of questions that are inappropriate; and that the laws should apply not only to criminal but to civil proceedings; maintain the court's discretion to disallow improper questions when they are asked of ordinary witnesses; and oblige the court to disallow such questions when asked of child witnesses and witnesses with a cognitive impairment and, further, disallow confusing or repetitive questions and questions structured in a misleading or confusing way.

On 17 October, 2007, the model for new uniform evidence laws was introduced to the NSW Parliament as the Evidence (Amendment) Bill 2007 (NSW). It amends the recent NSW laws on improper questions.

This Bill amends our Act in a similar way.

It replaces current section 25 of the Act with a provision that will apply to any court proceeding. It requires a court to disallow an improper question put to a witness in cross-examination and to inform the witness that the question need not be answered. If, however, the court fails to disallow an improper question or tell a witness an improper question need not be answered, and the witness answers the question, the answer may still be admissible.

The Bill defines an improper question as one that is misleading or confusing, or that is apparently based on a stereotype, or that is unnecessarily repetitive, offensive or oppressive, or is one of a series of questions that is unnecessarily repetitive, offensive or oppressive, or one that is put in a humiliating, insulting or otherwise inappropriate manner or tone.

The Bill also includes safeguards against the inhibition of rigorous and relevant cross-examination carried out properly. It provides that a question is not disallowable through impropriety simply because it challenges the truthfulness of the witness or the consistency or accuracy of any statements made by the witness, or because it requires the witness to discuss a subject that he or she considers distasteful or private.

When determining whether a question is improper, the court may take into account not only relevant characteristics of the witness (such as age, personality, education, disability, ethnicity and culture) but the context in which the question is put.

Statement of protected witness

A court will not usually admit evidence from a person of what another person has said out of court as the evidence of that other person if it is possible for that other person to give oral evidence about it directly to the court. What person A says to person B, out of court, is hearsay if the court hears it from person B. A person charged with an offence is entitled to have the charge proved by the best evidence available, and the direct evidence of person A is better than person B's recollection of what person A said.

If a court makes an exception to this rule and allows A's evidence to be given by means of B telling the court what A said to B, it will usually require A to be available to be cross-examined on that statement. The principle is that a defendant should be able to test a witness's evidence through cross-examination however that evidence may have been given.

Some time ago, the Act was amended to codify that exception for complaints of young children about alleged sexual offences. The aim was to facilitate the proof of sexual offences against children. Current section 34CA allows a court hearing a charge of a sexual offence against a young child to admit a record of the child's complaint about the alleged offence to another person, out of court, to prove the truth of the facts stated in the complaint without the child having to give that evidence at trial, so long as the child is available for cross-examination.

Unfortunately, section 34CA is rarely used. The courts have held that if a young child 'cannot remember making [the complaint] or is inarticulate in the witness box', he or she is not, for the purpose of this section, available for cross-examination, and the complaint cannot be admitted into evidence. Without that child's evidence, the charge may be impossible or difficult to prove. By the time of trial, a very young child may have forgotten the incident or, if it was traumatic, have been therapeutically encouraged to forget it. In these cases, although the child's out-of-court statement immediately after the event will be the best record of the child's memory of it, that statement cannot be admitted into evidence, and the very inability to remember the events that prevents the child's out-of-court statement being admitted into evidence will also prevent the child giving evidence directly. In these circumstances, a court determining a charge of abuse of a young child may never hear the child's account of it. Indeed, these cases may not even come to court.

The Bill deletes section 34CA and replaces it with a provision that allows a court to admit evidence of the nature and contents of an out-of-court statement made by a 'protected witness' from the person to whom it was given, so long as the protected witness has been called or is available to be called as a witness and the court will allow him or her to be cross-examined on the matters arising from the evidence. A protected witness is defined as a young child or a person with a mental disability that adversely affects his or her ability to communicate effectively with the court. 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 evidence. The new section also clarifies the current position in relation to the use that may be made of such evidence; that is, that the out of court statement may be admitted to establish the truth of the facts contained in it (Corkin (1989) 50 SASR 580) 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 aim of this provision is to make section 34CA work as originally intended, so that the court has the best possible available evidence before it, even if that is hearsay evidence. It does not, of course, derogate from any discretion the court may have to exclude evidence that is admissible in this way.

These amendments are needed so that, where possible, people who commit crime do not escape liability simply because the youth or mental disability of the victim or a key witness stops them being available, in the technical sense, to give evidence in person. The ALRC recently identified this topic as needing uniform treatment in Australia. It pointed out that:

...the admission of a child's out-of-court statement can preserve the child's account at an early stage, making it a reliable form of evidence, and could reduce the stress and trauma on the child of testifying in court.

In section 34CA, South Australia had attempted to achieve this. The Bill should remedy the defects in that section.

Direction relating to delay where defendant forensically disadvantaged

When there is a long delay in reporting a sexual offence, and that delay has caused a forensic disadvantage to the defendant, that fact should be pointed out to the jury. However, the current law goes further than that.

In the case of Longman, the High Court held that where delay between an offence and the defendant's awareness of the charge may put the defendant at a forensic disadvantage, the judge should warn the jury to scrutinise the evidence against the defendant with particular care in the light of that disadvantage, to prevent a perceptible miscarriage of justice.

In some sexual cases, judges have used this principle to warn juries to treat the evidence of the complainant with caution when there has been a long delay in reporting a sexual offence, regardless of whether that long delay has caused a forensic disadvantage to the defendant, and regardless of whether in every other respect the evidence of the complainant requires no special scrutiny. In effect, some courts have assumed that a long delay in reporting a sexual offence will have an adverse forensic effect in every case and indicated some unreliability on the part of the complainant.

Whenever a Longman warning is given, the jury hears that it would be unsafe or dangerous to convict the defendant. If a jury hears a warning in those terms it is highly likely to acquit, especially if it follows a Kilby/Crofts warning in a sexual case where no evidence has been given to explain the delay.

There is no settled judicial authority about what constitutes a delay long enough to invoke a Longman warning about the dangers of conviction because each case is different, but the average threshold appears to be about four years.

This Bill abolishes the Longman warning not just as it applies to sexual cases but to any criminal case. In the words of the ALRC and Victorian Law Reform Commission in their report on the Uniform Evidence Laws:

The forensic disadvantage which may be occasioned to an accused by delay arises independently of the nature of the proceedings, and accordingly the courts have held that a Longman warning may be required in any case where the conduct of the defence has been affected by delay. The nature of sexual assault prosecutions is such that delay is more likely to arise in this context, however it is clearly not confined to such cases. Although some of the authorities discussed earlier in this chapter conflate the issue of delay with the reliability or credibility of sexual assault complainants, the ALRC and VLRC are of the view that this is erroneously done.

The Evidence Amendment Bill 2007, introduced in October 2007 to the New South Wales Parliament, applies to any criminal proceeding. The provision in this Bill is along similar lines.

The Bill requires a trial judge, if of the opinion that the period of time that has elapsed between the date of the alleged offending and the date of trial has caused the defendant a significant forensic disadvantage, to explain to the jury the nature or likely nature of that disadvantage and direct the jury to take that disadvantage into account when scrutinising the evidence.

In giving this direction, the trial judge may caution the jury about the specific effects the disadvantage had on the ability of the defendant to mount a defence in this case but must avoid generalised and non-specific warnings and, in particular, must not use the phrase 'dangerous or unsafe to convict'.

The provision does not refer to a delay in complaint, because that is not the proper focus of the jury in these cases. This amendment, together with the amendments as to evidence relating to complaint in sexual cases, will stop the jury being warned that a delay between the offending and trial makes the complainant's evidence inherently unreliable, whether the proceedings are for a sexual offence or any other criminal offence.

Evidence in sexual cases generally

The Bill renames section 34I of the Act, renumbers it to become section 34L, and makes minor revisions to its language. It also deletes subsection (6a) from that section and includes it, in a slightly different form, in new section 34M (Evidence relating to complaint in sexual cases).

Evidence relating to complaint in sexual cases

The hearsay rule is that a court may not admit, as evidence of the truth of what a person said, evidence from someone else about what that person said to them out of court. For sexual offences, however, a court may admit evidence of a person's report of the offence to someone else that was made out of court if that report was made at the first possible opportunity after the alleged offence occurred. This is called evidence of 'recent complaint'.

If admitted, the judge must tell the jury that it may not treat this evidence as bearing on the truth of the matter, but rather as going to the credibility or consistency of conduct of the complainant. This is known as a Crofts direction.

If there was some delay between the alleged offence and when the complainant reported it, and the court may not admit evidence of the complainant's out-of-court report of the offence because it was not sufficiently 'recent', the judge must direct the jury that the delay must be taken into account when they assess the alleged victim's credibility and consistency of conduct. This is known as a Kilby direction.

Also, if there is a long delay in reporting the offence and giving notice of that report to the accused, the judge must warn the jury that is it dangerous to convict the accused on the evidence of the complainant because the delay has put the accused at a forensic disadvantage. This is known as a Longman warning (see the discussion above).

The law of recent complaint, with its implications for a victim's credibility, is based on outdated notions of the behaviour of victims of sexual assault, particularly child victims. The directions that a court is required to give the jury, of themselves and together, can be confusing, may be unrealistic because juries may still treat the evidence as going to the truth of the matter, are applied inconsistently because judges identify delay in different ways, and may encourage juries to acquit.

South Australia tried to overcome problems with warnings about the significance of a delay in reporting a sexual offence by legislating that if, in a trial of a sexual offence, there is a suggestion that the alleged victim failed to report it or delayed reporting it, the judge must warn the jury that that failure or delay does not necessarily mean the allegation is false, and tell the jury that the alleged victim could have valid reasons for failing to report the offence or delaying reporting it (see current section 34I of the Act).

Section 34I does not stop a judge making a Kilby direction when an alleged victim does not make what is regarded as a 'recent' complaint of a sexual offence. In such cases, the judge must tell the jury that the delay in reporting the offence is a matter to which they can have regard when assessing the alleged victim's credibility.

Because section 34I(6a) of the Act confines the admissibility of out-of-court reports of sexual offences to 'recent' reports, Kilby/Crofts directions are too often given without the jury having heard evidence from the complainant as to why and to whom he or she reported the offence and why he or she reported it at that particular time and not earlier.

The defence may make a tactical decision to ask the complainant when he or she reported the offence but not to ask further questions about it, so that the complainant has no opportunity to explain any delay. That leaves the jury wondering why the prosecution has offered no evidence in explanation when it hears the defence address on delay followed by a warning from the judge that the delay has a significance to the complainant's credibility. The effect must be to encourage a belief that that the prosecution has something to hide and that the complainant should not be believed.

As Ms Chapman pointed out in her discussion paper, section 34I(6a) of the Act does not 'challenge the underlying rationale for the common law approach to complaint evidence in sexual assault cases. Many people, including members of the judiciary, have expressed disquiet about that rationale.'. There is a need for reform of this law.

In October 2006, the Tasmania Law Reform Institute recommended that the law prohibit trial judges from giving a direction that a delay in complaint 'may be indicative of fabrication'. In doing so it referred to a similar approach adopted by the ALRC and the Victorian, New South Wales Law Reform Commissions, and cited the New South Wales Legislative Council Standing Committee on Law and Justice's criticism of the Crofts direction as encouraging 'a stereotypical view that delay is invariably a sign of the falsity of the complaint'.

Australian States and Territories and law reform commissions have recommended various ways of replacing these warnings because, taken one by one or together, they are not achieving their aims. The principle behind those reforms is clear - 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.

This Bill deletes section 34I of the Act and replaces it with a new provision (section 34M) that expressly abolishes the common law on the admissibility of recent complaint in sexual cases, including the Kilby/Crofts directions. It forbids 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. It allows the admission of evidence of a complainant's initial report of a sexual offence, if relevant, whenever that occurred. That evidence may be given by any person 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).

When admitting such evidence in a trial before a jury, the judge must give the jury specific directions about how to treat the evidence, but is not bound to use a particular form of words in doing so. The judge must direct the jury that the evidence is admitted to inform the jury as to how the allegation first came to light and to show consistency in the conduct of the alleged victim; that it may not be used as evidence of the truth of what was alleged; that there may be any number of reasons for the alleged victim of a sexual offence reporting the allegation to a particular person at a particular time; but that otherwise it is the jury's job to determine what significance, if any, should be given to the evidence of that report in the circumstances of the particular case.

Directions relating to consent in certain sexual cases

The Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill 2007 introduces a definition of consent to sexual activity that applies to any sexual offence of which consent is in issue. The definition includes a non-exhaustive list of examples of circumstances in which a person is to be taken not to freely and voluntarily agree to sexual activity; in other words, circumstances in which the victim has apparently consented but the consent is not a proper or real consent.

This Bill complements those provisions by requiring a judge in a jury trial of a sexual offence in which consent is an element, and to the extent that it is relevant to the circumstances of the case, to direct the jury that a person is not to be regarded as having consented to a sexual act just because the person did not say or do anything to indicate that the person did not consent; or the person did not protest or physically resist; or the person did not sustain a physical injury; or on that occasion or an earlier one, the person had consented to engage in a sexual act (whether or not of the same kind) with the accused person or someone else.

By defining consent in this way, and requiring the judge to direct the jury so that it cannot misinterpret evidence about the conduct of the alleged victim to infer consent when there was none, the amendments to the Criminal Law Consolidation Act 1935 and the Evidence Act 1929 send a clear message about the limits of lawful sexual conduct.

Sensitive material

As a general rule, a defendant is entitled to see and have a copy of any material that the prosecution will adduce as evidence in his or her trial, unless the material is pornographic, in which case the defendant may inspect it but may not have a copy of it. In this way defendants can be fully informed of the case against them and in a position to defend it.

Some images that are used as evidence in criminal proceedings, although not pornographic, are highly sensitive, in the sense that their subjects might feel distressed if anyone other than those investigating, prosecuting or trying the case had uncontrolled access to them. An example is a photograph of a sexual assault victim's genitals taken by the sexual assault unit of a hospital for use as prosecution evidence. That is not a pornographic image, but the victim may not want the system to allow or require the prosecuting authority to give the alleged offender a copy of it: that would be to add insult to injury. Other examples are a photograph of a person taken after the person's death, an innocent image of a young child that has been displayed on a pornographic website to lure other pornographers to the site, or a facial photograph of an alleged victim of a stalking or sexual offence.

None of the images described in these examples is pornographic. Under the current law, there is nothing to stop the defendant from obtaining and keeping a copy of that material, from displaying it in his prison cell, from taking further copies or from sending it or showing it to others. Requiring the prosecuting authority to give unrestricted access to this material is a perverse outcome of rules that were designed for fair play.

This Bill applies to any criminal proceeding, not just proceedings for sexual offences, and to all stages of such a proceeding. It restricts access by a defendant, or anyone else, to sensitive material created or obtained as part of a criminal investigation or prosecution. Anything that contains or displays an image of a person is sensitive material if the image is of a person engaged or apparently engaged in a private act, or is of the victim or alleged victim of a sexual offence or an offence of stalking, or the image is taken after the person's death.

A 'private act' means a sexual act or one involving an intimate bodily function, or an activity involving nudity or exposure of sexual organs, pubic area, buttocks or female breasts.

The decision about whether something is sensitive material is made by the prosecuting authority. In criminal proceedings, the prosecuting authority is the Director of Public Prosecutions or delegate, a police officer or anyone acting in a public official capacity who is responsible for commencing and conducting the proceedings. In criminal investigations, the prosecuting authority is a police officer or any other person acting in a public official capacity who is responsible for conducting a criminal investigation.

The prosecuting authority may restrict access to sensitive material. It cannot, however, restrict access to sensitive material by a court or by a public official who reasonably requires access to it for purposes connected with his or her official functions. A public official is a police officer, a public servant or a person classified by regulation as a public official.

When restricting access to sensitive material, the prosecuting authority may set conditions of access. These conditions will let the material be examined under supervision. The Bill establishes notice procedures similar to those in the New South Wales Act. It is an offence to fail to meet those conditions of access.

The Bill provides that the court's decision about access to sensitive material that is in its custody is administrative and final and not subject to any form of review. The court may also charge a fee, fixed by regulation, for inspection or copying of sensitive material. These provisions are identical to those in the Supreme Court Act 1935 regulating public access to evidence.

The Bill also contains consequential amendments to the provisions dealing with access to documents that are in the custody of the court (section 131 Supreme Court Act 1935 and its equivalents in the District Court Act 1991 (section 54) and the Magistrate Court Act 1991 (section 51)) so that there can be no public access to sensitive material under these sections.

The Bill also contains further consequential amendments to the provisions in the Summary Procedure Act 1921 that make an exception to the requirement for full disclosure of material that the prosecution intends to adduce as evidence in cases where that material is pornographic. These amendments replace the references to pornographic material with references to sensitive material, and refer to the sensitive material notice procedures to be established by the insertion of Part 7, Division 10 of the Evidence Act 1929.

In Summary

This Bill reforms the way judges warn and direct juries in sexual offence proceedings, reforms criminal procedures to reduce the impact upon children of delay in giving evidence of sexual abuse, and substantively reforms the law of recent complaint and of the effect of delay in sexual offence cases.

This Bill will protect witnesses, especially children and alleged victims of sexual offences of serious offences of violence, from undue distress when giving evidence in court, and so improve the quality of their evidence. It puts into place some important recommendations about children and the courts by the Layton Child Protection Review. It will ensure that appropriate special arrangements for taking evidence can be made when a witness is vulnerable. It will ensure that evidence is not treated dismissively or differently simply because it comes from a child. It will make it easier for a disabled witness to give evidence. It will let courts hear evidence that is of the best possible quality because it is not contaminated by fear or distress, and, when this is the best evidence available, admit hearsay evidence of what a young child or mentally-disabled person has said about an alleged offence and, sometimes, allow them to be exempted from having to give evidence in person.

The Bill will shield alleged victims from pernicious personal cross-examination by unrepresented defendants and give greater authority to the court to protect witnesses from improper questions by counsel. It will let a court admit as the evidence of a vulnerable witness, without that witness having to give the evidence in person, an official record of the evidence given by that witness in an earlier criminal proceeding in some circumstances. It will let a criminal court take an audio visual record of a vulnerable witness's evidence so that it can be used in later proceedings as an official record of that witness's evidence. It will ensure that access to sensitive prosecution material is restricted to protect the privacy and dignity of the subject of that evidence. The Bill will also preserve the accused person's right to a fair trial and ensure that these provisions work in a way that will not prejudice a jury against an accused person.

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 Criminal Law (Legal Representation) Act 2001

4—Amendment of section 4—Interpretation

It is proposed to insert a new definition of an assisted person so as to include a person for whom legal assistance is, or has been, provided in connection with the cross-examination of a section 13B witness. A section 13B witness is a witness who is the alleged victim of an offence to which section 13B of the Evidence Act 1929 applies.

5—Amendment of section 6—Entitlement to legal assistance

It is proposed to amend this section of the principal Act to provide that if a defendant who is not legally represented in a trial applies to the Commission for legal assistance for the cross examination of a section 13B witness in the trial, the Commission must (subject to the qualifications listed in the section) grant such legal assistance.

6—Amendment of section 9—Representation of certain defendants

This proposed amendment makes it clear that section 9 of the principal Act does not apply to a defendant in a trial who is only represented by a lawyer for the purposes of the cross-examination of a section 13B witness in the trial.

7—Amendment of section 10—Certain costs may be awarded against defendant personally

Section 10 currently provides that certain costs (such as costs resulting from an adjournment attributed to some failure on the part of a defendant) may be awarded against the defendant personally. The proposed amendment provides that such an order for costs may not be made against the defendant if the adjournment is to allow a defendant who is not legally represented in a trial to obtain legal representation for the purposes of the cross examination of a section 13B witness in the trial.

Part 3—Amendment of District Court Act 1991

8—Insertion of section 50B

It is proposed, by new section 50B (Trials of sexual offences involving children to be given priority) to provide that the District Court will give the necessary directions to ensure that a trial of a sexual offence where the alleged victim of the offence is a child is given priority over any less urgent criminal trial and is dealt with as expeditiously as the proper administration of justice allows. A sexual offence is defined for the purposes of the new section.

9—Amendment of section 54—Accessibility of evidence etc

These proposed amendments are related to the amendments proposed by new Part 7 Division 10 of the Evidence Act 1929 (see clause 20).

Part 4—Amendment of Evidence Act 1929

10—Amendment of section 4—Interpretation

The proposed amendments to this section insert (among others) the following definitions:

mental disability;

serious offence against the person;

vulnerable witness.

11—Amendment of section 9—Unsworn evidence

The proposed amendment deletes the reference to a 'trial by jury' and substitutes 'criminal trial'. The effect of the amendment will mean that the section applies to criminal trials by jury and criminal trials by judge alone.

12—Substitution of sections 12A and 13

12A—Warning relating to uncorroborated evidence of child in criminal proceedings

The substance of current section 12A is restated in new section 12A with a number of additions. The new section provides that, in a criminal trial, a judge must not warn the jury that it is unsafe to convict on a child's uncorroborated evidence unless—

the warning is warranted because there are, in the circumstances of the particular case, cogent reasons, apart from the fact that the witness is a child, to doubt the reliability of the child's evidence; and

a party asks that the warning be given.

In giving any such warning, nothing may be said that suggests that the evidence of children is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults.

13—Special arrangements for protecting witnesses from embarrassment, distress, etc when giving evidence

New section 13 provides courts with powers to make special arrangements for the taking of evidence of a witness to protect the witness from embarrassment or distress, from being intimidated by courtroom atmosphere or for any other proper reason. The arrangements can be ordered if the necessary resources are readily available and if the arrangements would not cause prejudice to any party to the proceedings.

Subsection (2) lists the sorts of orders that may be made, subsection (3) provides that special arrangements may relate to the whole of the witness's evidence or only to particular aspects of the witness's evidence (such as, cross-examination or re-examination) and subsection (4) sets out when such orders may not be made. They may not be made if the effect of the order would be—

to relieve a witness from the obligation to give sworn evidence; or

to relieve a witness from the obligation to submit to cross-examination; or

to prevent the judge, jury or defendant from observing the witness's demeanour in giving evidence; or

to prevent the defendant from instructing counsel while the witness is giving evidence.

If, in a criminal trial, special arrangements are made for the taking of evidence, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence.

13A—Special arrangements for protecting vulnerable witnesses when giving evidence in criminal proceedings

This new section provides for the protection of vulnerable witnesses (as defined in section 4 of the Act). If a vulnerable witness is to give evidence in criminal proceedings, appropriate special arrangements for taking the evidence must, on application by the party calling the witness, be made. The sorts of arrangements that may be made are the same as under proposed section 13.

The section sets out the procedure for the making of the application.

The court may dispense with special arrangements for taking the evidence of a vulnerable witness in criminal proceedings if the witness is an adult and the court is satisfied that—

the facilities necessary for the special arrangements are not readily available to the court; and

it is not reasonably practicable in the circumstances of the particular proceedings to make the facilities available.

13B—Cross-examination of victims of certain offences

New section 13B provides that a defendant is not to be permitted to cross-examine a witness who is the alleged victim of an offence to which this section applies—

in a criminal trial unless the cross-examination is by counsel;

in civil proceedings relating to the offence unless the cross-examination is by counsel or, if the defendant is unrepresented, the cross-examination is conducted in accordance with proposed subsection (2) of this section.

Subsection (2) provides that, following the submission in writing to the trial judge of proposed questions to be put to the witness in cross-examination, the judge (or the judge's delegate) will ask the witness those of the submitted questions that are determined by the judge to be allowable.

The offences to which this new section applies are—

a serious offence against the person; or

an offence of contravening or failing to comply with a domestic violence restraining order under the Domestic Violence Act 1994; or

an offence of contravening or failing to comply with a restraining order under the Summary Procedure Act 1921.

13C—Court's power to make audio visual record of evidence of vulnerable witnesses in criminal proceedings

New section 13C provides that if a vulnerable witness who is a child of or under the age of 16 years and who is the alleged victim of a sexual offence is to give evidence in criminal proceedings, the court must order that an audio visual record be made of the witness's evidence before the court (unless an order has already been made in respect of the witness's evidence under section 13A(2)(b)).

For any other vulnerable witness giving evidence in criminal proceedings, the court may, on application by the prosecution, order that an audio visual record be made of the witness's evidence before the court if the facilities necessary for making an audio visual record of the evidence are readily available to the court and it is otherwise practicable to make such a record.

The record is to be kept in the custody of the court and may only be used and accessed as authorised by the court.

13D—Court's power to admit evidence taken in earlier proceedings

This new section provides that, on application by a party to civil or criminal proceedings before a court, the court has discretion to admit an official record of evidence given by a witness in earlier criminal proceedings if satisfied that the witness—

has died; or

has become too ill or infirm to give evidence; or

has not, after diligent search, been found; or

is a vulnerable witness.

If the court admits an official record into evidence, it may relieve the witness, wholly or in part, from an obligation to give evidence in the later proceedings.

13—Amendment of section 21—Competence and compellability of witnesses

These amendments are consequential.

14—Substitution of section 25

25—Disallowance of improper questions

Proposed substituted section 25 provides that if an improper question is put to a witness in cross-examination, the court must disallow the question and inform the witness that the question need not be answered. A question is improper if—

it is misleading or confusing; or

it is apparently based on a stereotype, including a sexual, racial, ethnic or cultural stereotype or a stereotype based on age or physical or mental disability; or

it is unnecessarily repetitive, offensive or oppressive, or is 1 of a series of questions that is unnecessarily repetitive, offensive or oppressive; or

it is put in a humiliating, insulting or otherwise inappropriate manner or tone.

15—Insertion of heading to Part 3 Division 1

It is proposed to divide Part 3 into 2 Divisions, the first being headed 'Miscellaneous rules of evidence in general cases'.

16—Substitution of section 34CA

Section 34CA is to be repealed and a new section 34CA substituted.

34CA—Statement of protected witness

New section 34CA provides that a court may admit evidence of the nature and contents of a statement made outside the court by a protected witness from the person to whom the statement was made if the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission and—

the protected witness has been called, or is available to be called, as a witness in the proceedings; and

the court gives permission for the protected witness to be cross-examined on matters arising from the evidence.

Any such evidence that is admitted in a trial may be used to prove the truth of the facts asserted in the statement.

In a criminal trial, the judge must, if evidence of the nature and contents of a statement made outside the court by a protected witness has been admitted but the protected person has not, for some reason, been cross-examined on matters arising from the evidence, warn the jury that the evidence should be scrutinised with particular care because it has not been tested in the usual way.

34CB—Warning relating to delay where defendant forensically disadvantaged

This new section abolishes the rule that currently applies in relation to the giving of a Longman warning, and substitutes a statutory scheme in its place. The scheme effectively modifies the Longman warning and replaces it with a requirement that, if a forensic disadvantage caused by a delay in the defendant becoming aware of the charge of an offence that he or she faces has occurred, the trial judge must give the explanations and directions set out in the provision to the jury. Previously, a Longman warning was required to be in the form of a warning to the jury, warning them of the fact that a conviction based on the relevant evidence alone may be dangerous or unsafe. Those (or similar) words or phrases are no longer to be used in the giving of an explanation or direction under the proposed section, reflecting the fact that those explanations and directions may no longer take the form of a warning.

17—Repeal of section 34I

Section 34I is to be repealed (but see new section 34L).

18—Insertion of Part 3 Division 2

This Division deals with miscellaneous rules of evidence particular to proceedings in which a person is charged with a sexual offence.

Division 2—Miscellaneous rules of evidence in sexual cases

34L—Evidence in sexual cases generally

New section 34L is, in essence, the current section 34I relocated and renumbered and with current subsection (6a) repealed. The proposed section also makes some minor changes to the language used in the section to reflect current drafting practice.

34M—Evidence relating to complaint in sexual cases

New section 34M abolishes the common law relating to recent complaint in sexual cases; that is, the rule that currently applies in relation to the giving of a Kilby or Crofts direction, and substitutes a statutory scheme in its place. The new section forbids the making of a suggestion or statement to the jury that a delay in making a complaint etc is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct. This reflects modern perceptions related to the reasons a complainant may choose not to make a complaint at the earliest opportunity. Consequently, the section provides that evidence related to the making of a complaint is admissible in certain trials. However, certain directions and warnings must be given to juries in relation to such evidence of the kind set out in the provision.

34N—Directions relating to consent in certain sexual cases

This new section reflects proposed amendments to the Criminal Law Consolidation Act 1935 to the rape and sexual assault laws and, in particular, those amendments relating to the issue of consent.

Consequent to those amendments, this proposed section makes provisions related to the type of direction the trial judge must give to the jury in relation to the consent given or not given by the victim of the offence. In particular, the judge must direct the jury that a victim is not to be regarded as having consented to the sexual activity the subject of the charge merely because the victim did, or did not do, the things set out in the provision.

19—Amendment of section 59IQ—Appearance etc by audio visual link or audio link

The amendments proposed to this section are consequential on the enactment of the Statutes Amendment (Domestic Partners) Act 2006.

20—Insertion of Part 7 Division 10

It is proposed to insert a new Division after section 67F of the Act. This new Division will make provision for the manner in which defendants and other persons will have access to sensitive material.

Division 10—Sensitive material

67G—Interpretation and application

New section 67G contains definitions of words and phrases used in this new Division, including the definition of a private act. A private act is defined to mean a sexual act, an act involving an intimate bodily function (such as using a toilet) or an activity involving nudity or exposure or partial exposure of sexual organs, pubic area, buttocks or female breasts.

67H—Meaning of sensitive material

New section 67H provides that, for the purposes of this new Division, anything that contains or displays an image of a person is sensitive material if—

the image is of the person engaged or apparently engaged in a private act; or

the image is an image of the victim, or alleged victim, of a sexual offence or the offence of stalking; or

the image was taken after the person's death.

A reference to sensitive material extends to anything in a prosecuting authority's possession that the prosecuting authority reasonably considers to be sensitive material.

67I—Procedures for giving restricted access to sensitive material

New section 67I provides that if, but for new Division 10, a prosecuting authority would be required to give unrestricted access to sensitive material, the prosecuting authority has a discretion to give either unrestricted or restricted access to the material.

A prosecuting authority cannot, however, restrict access to sensitive material by—

a court; or

a public official who reasonably requires access to the sensitive material for purposes connected with his or her official functions.

It is an offence for a person who is given restricted access to sensitive material by a prosecuting authority under this proposed section to contravene a condition of access with a penalty of $8,000 or 2 years imprisonment or both.

67J—Improper dissemination of sensitive material

New section 67J(1) provides that it is an offence for a person who creates sensitive material for a prosecuting authority, or obtains possession of sensitive material from a prosecuting authority, in connection with a criminal investigation, or criminal or civil proceedings, to allow access to the evidence except—

for the legitimate purposes of the investigation or proceedings; or

as may be authorised by the prosecuting authority.

Proposed subsection (2) provides that it is an offence if a public official who creates, or obtains possession of, sensitive material in connection with official functions, to allow access to the evidence otherwise than in the course of official functions.

The penalty for an offence against this proposed section is a fine of $8,000 or imprisonment for 2 years or both.

21—Amendment of section 71B—Publishers required to report result of certain proceedings

This proposed amendment moves the penalty provision from subsection (2) to subsection (1) where it rightly belongs.

22—Transitional provision

This clause provides that the amendments made by this measure to the Evidence Act 1929 apply to proceedings commenced after the commencement of that Part.

Part 5—Amendment of Magistrates Court Act 1991

23—Insertion of section 48B

New section 48B (Trials of sexual offences involving children to be given priority) is substantially the same as the amendment proposed to the District Court Act 1991 by clause 8. New section 48B provides that the Magistrates Court will give the necessary directions to ensure that a trial of a sexual offence where the alleged victim of the offence is a child is given priority over any less urgent criminal trial and is dealt with as expeditiously as the proper administration of justice allows. A sexual offence is defined for the purposes of the new section.

24—Amendment of section 51—Accessibility of evidence etc

These proposed amendments are related to the amendments proposed by new Part 7 Division 10 of the Evidence Act 1929 (see clause 20).

Part 6—Amendment of Summary Procedure Act 1921

25—Amendment of section 4—Interpretation

26—Amendment of section 104—Preliminary examination of charges of indictable offences

The proposed amendments to sections 4 and 104 are related to the amendments proposed by new Part 7 Division 10 of the Evidence Act 1929 (see clause 20).

Part 7—Amendment of Supreme Court Act 1935

27—Insertion of section 126A

New section 126A (Trials of sexual offences involving children to be given priority) is substantially the same as the amendments proposed to the District Court Act 1991 and the Magistrates Court Act 1991. This new section proposes to provide that the Supreme Court will give the necessary directions to ensure that a trial of a sexual offence where the alleged victim of the offence is a child is given priority over any less urgent criminal trial and is dealt with as expeditiously as the proper administration of justice allows. A sexual offence is defined for the purposes of the new section.

28—Amendment of section 131—Accessibility of evidence etc

These proposed amendments are related to the amendments proposed by new Part 7 Division 10 of the Evidence Act 1929 (see clause 20).

Debate adjourned on motion of Hon. D.W. Ridgway.


At 18:14 the council adjourned until Tuesday 4 March 2008 at 14:15.

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