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Legislative Council - Fifty-First Parliament, Second Session (51-2)
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STATUTES AMENDMENT (EVIDENCE AND PROCEDURE) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 28 February 2008. Page 1957.)

The Hon. R.D. LAWSON (15:24): I rise to indicate that Liberal members support the second reading and the ultimate passage of this bill. The government, in the time in which it has been in office, has made a number of announcements about its intentions in connection with the law relating to rape and sexual assault, and it has taken the government an inordinate length of time to bring forward this measure.

I remind the council that the government commissioned an extensive report from Robyn Layton QC, as she then was, the so-called Layton report entitled A State Plan to Protect and Advance the Interests of Children. That massive report was delivered to the government in March 2003, and it made a number of recommendations, some of which are only now in this bill being brought forward by this government.

The record of the Rann Labor government in relation to the implementation of reforms of this kind is appalling. I remember that, in the middle of 2005, an anomaly in our law was revealed as a result of the celebrated Skaf rape case in Sydney, where a retrial had been ordered and the victim of the offence refused, on perfectly reasonable grounds, to attend court and go through once again the trauma of having to relive the vile experience that she had suffered. As a result, the trial could not proceed. However, the New South Wales government grabbed the bull by the horns and passed special legislation to enable the testimony presented by that witness to be presented in written form to a new trial.

I introduced a private member's bill to enable a similar situation to occur in South Australia if that precise set of circumstances occurred again. The Attorney-General, whilst not disputing the validity of the principle underlying my bill, said it was the government's intention to move quickly and to produce its own measure on this subject. Needless to say, it has taken almost three years for the government to do anything about that. It is only a matter of good fortune, so far as I am aware, that the Skaf situation has not been repeated in this state and we did not have to put a South Australian rape victim through the trauma of either abandoning the proceedings or testifying again.

Many of the recommendations come out of the discussion paper prepared by Ms Liesl Chapman which was put out for circulation in the middle of 2006. Once again, it has taken overly long for the government to either implement or not implement the recommendations of the Chapman report. As has been announced, and as is obvious, this legislation is complementary to the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill that passed through this place earlier this week. However, one might as well say better late than never, because this legislation makes some attempt to address a number of the issues that have been concerning the legal profession and advocates for victims of sexual crime for quite some time.

The claim is that this legislation will reform the laws governing the way in which evidence is taken in sexual offence proceedings. It is perhaps not as comprehensive as that. Once again we see the government seeking to take credit for expansive reforms which may, in the way in which they operate, not be as expansive at all.

In the case of this legislation, we will see a number of provisions that were previously inserted into, for example, the Evidence Act, which were passed by this parliament with the best will in the world but which, for various reasons, have not been found to be operational in the criminal courts. I will come to some of those as I run through the legislation, although I think that a good example is section 34CA of the Evidence Act, which provides:

....where the alleged victim of a sexual offence is a young child, the court may, in its discretion, admit evidence of the nature and contents of the complaint—

that is, the complaint originally made by the child—from a witness to whom the child complained at the time. The court is given that discretionary power. It was obviously designed to relieve a child of the obligation to testify before the court, although the provision contains the important proviso that the evidence could not be admitted at the trial unless the alleged victim was called as a witness or available to be called as a witness. Of course, if the child was available to be called as a witness, the child could be questioned by the representative of the accused person.

That provision was passed by parliament but rarely used. In fact, I am personally not aware of any circumstance in which it has been used, and I ask the minister to indicate today whether or not the provision has ever been used. What we are now doing in this bill is replacing section 34CA with a more extensive provision dealing with the same subject matter.

I mention this to illustrate that very often, especially in this area of the law, the parliament (that is, the government of the day and members of parliament) passes legislation that it conscientiously believes is effective and will address the issue but, in fact, it proves not to be effective. Very often the courts simply do not use provisions because, for some reason or other, they are unworkable or the legal representatives of victims or the prosecution do not believe that it is in their interest to use them.

We are certainly in favour of any measure to make it easier for vulnerable witnesses, child witnesses and the victims of sexual assault to give evidence in the best possible way—a way that does not intimidate them, traumatise them or re-victimise them. It is incumbent upon us as members of parliament to ensure not only that the laws facilitate those objectives but also that the legal profession and the judiciary are sensitive to community concerns in this regard.

I note that it is suggested in the second reading explanation that the Attorney-General's Department and the judiciary are (or at least were in October 2007) working on a program of judicial education about children in court. I ask the minister to indicate to the council the progress of that program, that is, what is happening in relation to it and what funds the government has allocated to facilitate the delivery of the program of judicial education.

It is all very well to say that we are working on judicial education, but if resources are not devoted to the task it is unlikely the measures will be effective. This bill not only makes some reform to the way in which evidence is taken in sexual offence proceedings but also reforms the law about the so-called 'special arrangements' that may be made for witnesses giving evidence. Members are aware that the existing law provides that, in certain circumstances, the court has the power to make an order, for example, that a victim or witness in a sexual assault case can give evidence out of the direct line of sight of the accused person.

Countless reports, including the Layton report, have emphasised that for some victims the trauma of having to face their attacker in court is a revictimisation of a terrible offence. So, these provisions already exist and have existed for some time. Members would also be aware in the general sense that closed circuit television is used from time to time when taking evidence from witnesses. Whilst all these measures have been the subject of amendments in recent years, we are finding it necessary to refine those provisions to ensure that the intentions of the legislature are met and that any unnecessary impediments are removed.

The first provisions on which I wish to comment are amendments to the Evidence Act relating to these special arrangements. These provisions are in section 13 of the Evidence Act and are to be replaced by two very lengthy sections—section 13 and proposed section 13A. Section 13 will enable the court, if certain conditions are met, to make special arrangements for protecting witnesses from embarrassment and stress when giving evidence. This section appears to apply to both non-criminal and criminal cases, but the difficulty of section 13 is that it provides in subsection (1)(a) that one of the conditions for the use of these special arrangements is that there are, in the particular court, readily available facilities and, unfortunately in South Australia, whilst we have special facilities in a number of courts—certainly in Adelaide, Mount Gambier and Port Augusta—these facilities are not available in every court, notwithstanding the government's promise that they would be made available and assurances that they are being made available.

It is interesting that this section enables the court to make an order on its own initiative in relation to these particular special arrangements. The usual provisions in relation to matters of this kind are that one party or the other must make the application to the court, but in this particular case the court has the power, on its own initiative, to order that special arrangements be made for the taking of the evidence.

In this particular clause, there are provisions for the receiving of evidence from witnesses whose native language is not English, and where the witness is not reasonably fluent in English; evidence may be given about that. But I should interpose here that the services of translators in our courts are overstretched, certainly and especially in relation to translators of various Aboriginal languages, in particular, the Anangu language. This is a matter of ongoing difficulty and one the government has not satisfactorily resolved.

There are, unfortunately, all too many Aboriginal defendants in our court cases, and there are, unfortunately, all too many Aboriginal victims, especially victims of violent crimes and sexual crimes, who themselves need the support of translators. There is a balancing act, and there will always be debate about where the balance should be struck between the rights of victims and witnesses and the important right of an accused person to receive a trial that is fair. It is easy these days, I think, to jump on the bandwagon of victims and witnesses—we ourselves are guilty of it—but we should never lose sight of the fact that, as horrendous as many of these crimes are, it is a horrendous thing to convict wrongly of an offence a person who is not guilty of committing that offence.

An order cannot be made under section 13 if the effect of it is to relieve a witness of the obligation to give sworn evidence. We still do believe that it is important that witnesses whose evidence is presented to courts have verified and placed their own stamp upon the evidence and that we do not get to the situation where merely a written statement of police officers or anyone else can be handed up, unless, of course, there is no objection taken to that course.

An order cannot be made under this particular provision (section 13A) if it relieves the witness from the obligation to submit to cross-examination, or it has the effect of preventing the judge or the jury from observing the demeanour of (in other words, having within their direct sight) the witness. However, that sight may be direct or it may be by live transmission both of the voice and of the image of the person giving the evidence.

Section 13A is a rather more limited section relating to special arrangements for protecting vulnerable witnesses when giving evidence in criminal proceedings; it applies only to criminal proceedings. In the case of vulnerable witnesses the court, on application, must make an order that special arrangements be made. Once again, facilities have to be readily available for the court to be able to make these orders.

The sorts of orders that can be made are not limited by this section but they include, and are not limited to, taped evidence, closed circuit television evidence, an audiovisual record, and evidence, for example, that the defendant be excluded from the place where the evidence is taken or prevented from otherwise seeing or hearing the vulnerable witness while giving that evidence. One element of this particular section is the provision that the court may, if it receives expert evidence on this point, determine the appropriate special arrangements. This was a recommendation made in the Layton report, and it is supported.

New section 12A of the bill will remove an existing section and replace it with a new provision relating to the warning that must be given regarding the uncorroborated evidence of a child in criminal proceedings. The common law position was that the judge had to warn a jury that it was unsafe to convict on the uncorroborated evidence of a child, and that was an invariable warning given. However, formulae of this kind, which are given in every circumstance, may or may not be appropriate to the particular circumstances of a particular child, and warnings of that kind are probably one of the reasons there are so few convictions in cases where the victims are children or where the evidence of children is crucial to the prosecution case.

The judges now, by new section 12A, are required to give such a warning only where the warning is actually warranted; not on the basis of some generalised notion of the unreliability of children's witness but where there are, in the particular case, reasons (apart from the fact that the witness is a child) to doubt the reliability of that child's evidence. Furthermore, a party to the proceedings (who would usually be counsel for the accused person) has to actually make a specific request that the warning be given. In those circumstances, of course, the person making that request will be asked by the judge to actually point out whatever cogent reasons there might be to doubt the reliability of a particular child's evidence.

We cannot and should not generalise but there will, of course, be cases where the children may be coached to give evidence in a particular way by one or other parent, or by a grandparent; we can never overlook the fact that experience (for example, in the Family Court) has clearly shown that to be the case. However, what is now being required is a warning in relation to children's evidence that is not simply based upon the preconceived perception that children's evidence is inherently unreliable. There is, indeed, a specific provision in new section 12A that the judge is not to make any suggestion that the evidence of children is inherently less credible or reliable, or that it requires more careful scrutiny than the evidence of adults.

I turn now to section 13B which deals with cross-examination of victims of certain offences, these being serious offences against the person, offences of contravening or failing to comply with a domestic violence order, or failing to comply with a restraining order under the Summary Procedures Act. In a criminal trial, these provisions provide that the cross-examination must be conducted by counsel, and there are provisions in the section to facilitate obtaining of counsel. It is regarded as offensive, in many cases, for the accused person, who may have been a regular abuser of the victim, to be given the opportunity to terrorise the victim further by cross-examining or cross questioning the victim directly. There have been a number of cases where accused persons, especially those who have been in a violent and bullying relationship with a victim, have obviously relished the opportunity to harass the victim further by cross-examining very often in an offensive and aggressive way.

There are special provisions about the way in which an unrepresented person is dealt in civil proceedings. In these cases, where the unrepresented person does not have an entitlement to counsel, the person unrepresented must actually put the questions that he or she proposes to have asked of the witness to the judge in writing, and the judge (or the judge's delegate) actually asks those questions where the judge deems those questions are appropriate. I am not entirely sure where these particular provisions, which have been embraced in section 13B, have come from, and I do ask the minister to indicate whether these provisions are modelled on the provisions of any other jurisdiction.

The provisions of sections 13C and 13D are designed to overcome the issue that I addressed in opening these remarks; namely, the requirement that the court make an audiovisual record of evidence of vulnerable witnesses in criminal proceedings. This is for the purpose of enabling that evidence to be used in subsequent proceedings if, indeed, there are subsequent proceedings—perhaps a retrial after an appeal. We know that all too often these days there are retrials. Juries have to be discharged by reason of inappropriate publicity, illness, or other incapacity, and it is deeply disturbing for victims, especially of sexual crime, to have to come back and again repeat that evidence.

Currently, in section 25 of the Evidence Act there is a rather short provision relating to the disallowance of scandalous and insulting questions. It is a provision of about eight lines. This section has been repealed and it is now replaced by 40 lines of text which define what is an improper question and which empower the judge to determine that an improper question cannot be put. One of the improper questions is outlined in new section 25(1)(b); namely, a question 'based on a stereotype, including sexual, racial, ethnic or cultural stereotype or a stereotype based on age or physical or mental disability'.

Will the minister indicate whether there is any evidence that South Australian judges have allowed such cross-examination, that is, questions based on racial and ethnic stereotypes, and so on? Frankly, in my experience, questions of that kind would be ineffective and, so far as I and my colleagues who practise in the criminal courts know, questions of that type are not ordinarily put and it is not thought to be in the interests of those being represented to make assertions of the kind suggested. I ask the minister to indicate whether this provision is addressing an actual problem or a theoretical problem that might arise.

I turn now to the issue of directions which a judge must give. Regrettably, in cases relating to sexual offences there is a large number of directions. I think the New South Wales court has suggested that there are eight separate directions that a judge is required to give in a trial of a sexual offence. These may be required in certain circumstances. It has been described (as Liesl Chapman wrote in her report) as the judge being faced with a 'formidable task to sufficiently direct a jury in this category of case'. Two of those eight directions are known as the Longman direction and the Crofts direction, those names being based upon the cases which laid down these principles. The Longman direction is a direction to the jury that it would be unsafe or dangerous to convict on the uncorroborated evidence of a complainant alone, unless the jury scrutinising the evidence with great care is satisfied as to its truth and accuracy.

So this is a direction about the necessity for corroboration in a particular type of case. You do not have to give a direction as to corroborated evidence in murder, robbery or the rest of the calendar, but it was thought appropriate (and has been thought appropriate for a long time) that special directions of this kind be given in sexual cases.

Another is the so-called Crofts direction, and this is a direction to the jury that a delay in a complaint does not necessarily indicate that the allegation is false and that there may be good reasons why a victim of sexual assault may hesitate in making a complaint about it. The judge then would also inform the jury that the absence of the complaint or a delay in making the complaint may be taken into account in evaluating the evidence of the complainant.

It has long been the case, even before this particular provision came into operation, that juries were warned about the fact that a delay in a complaint of a sexual case tended to weaken the strength of that case. Once again, directions of this kind are based upon not particular circumstances but the male prejudice, perhaps, in relation to these matters or stereotyping victims of sexual crime. These issues are now dealt with specifically in sections 34L, M and N. Section 34L will now provide that in sexual cases:

no question may be asked or evidence admitted—

(a) as to the sexual reputation of the alleged victim of the offence;

That is an existing provision. The section continues:

or

(b) except with the permission of the judge—as to the alleged victim's sexual activities before or after the events of and surrounding the alleged offence (other than recent sexual activities with the accused).

The judge has the power to grant permission but, in considering whether to do so, the judge must give effect to the principle that alleged victims should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence concerning their prior sexual experience. The judge must be satisfied that evidence of this kind in the particular case is of substantial probative value or would, in the circumstances, be likely material to impair the confidence in the reliability of the evidence of the alleged victim so that the admission is required in the interests of justice. This provision is an improvement on the existing law.

The Crofts direction, to which I referred previously, is effectively abolished in section 34M, which provides that the common law relating to recent complaint in sexual cases is abolished, and goes on to provide that no suggestion or statement may be made to the jury that a failure to make or a delay in making a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct. This section gives recognition to the fact that it is now accepted that there are many and often good reasons why the victim of a sexual assault does not report the offence—indeed, in many cases, does not report the offence for many years. Those circumstances are now understood, and it is appropriate that juries not be prejudiced against complainants by being told that, as a blanket rule, their credibility is undermined by not making a complaint immediately after the offence.

Section 34N contains a provision that complements the amendments recently made to the substantive criminal law relating to consent in sexual offences. It reinforces what the substantive law is by providing that the judge shall direct the jury that the victim is not to be regarded as having consented to sexual activity merely because (a) the victim did not say or do anything to indicate that he or she did not freely and voluntarily consent to the sexual activity; (b) the person did not protest or physically resist the sexual activity; or (c) the person was not physically injured in the course of that activity, or one or more of the following circumstances: the person freely and voluntarily agreed to sexual activity of a different kind; the person freely and voluntarily agreed to sexual activity with the defendant on some other occasion; or the victim had on that particular occasion of the alleged offence or on some other occasion freely and voluntarily agreed to sexual activity with another person. Consent in relation to sexual activity is defined as having the same meaning as in the Criminal Law Consolidation Act as recently amended.

There have been cases where copies of material that is described as sensitive—very often photographs or reports in relation to private acts—have been obtained by an accused person in the course of a trial and misused. Accordingly, there are new and quite extensive provisions in division 10 of the Evidence Act dealing with access to so-called sensitive material and the procedures for giving access to that material, and also for preventing access to the material or improper dissemination of sensitive material, which we applaud.

The Magistrates Court Act is amended by a new provision 48B, which stipulates that trials of sexual offences involving children are to be given priority. There is a similar amendment to the Supreme Court Act. It is all very well to insert provisions of this kind—that the court must give priority to the trial of sexual offences where the alleged victim is a child—but the fact is notorious that the delays in our criminal courts are entirely unacceptable. Under this government, the time between arrest, subsequent charging and the holding of the trial is excessive. We have heard the excuse that there are not enough judges or courts.

There is a stand-off because this government is not prepared to fund new courts. There have been a series of committees, task forces and working groups under various auspices designed to produce a reduction in the time taken for the resolution of criminal trials; however, to date nothing has happened.

From what the Attorney has said, we understand that a budget bid is being made, but the judges are being accused of seeking to have the government fund a new Taj Mahal, whereas all they are asking for are additional resources. So, we are very cynical about provisions of this kind, unless they are backed by resources. We certainly agree with the legislative intent, namely, that priority ought to be given to those cases involving children.

There are other provisions, but I hope that I have covered the major ones. As I have indicated, we will be supporting the provisions. I have posed a number of questions to the minister, and I ask that we receive a response to them either during the committee stage or subsequently, if that is not possible. I conclude my remarks by saying: too little too late but, ultimately, better late than never.

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (16:12): I thank the Hon. Robert Lawson for his contribution to this debate, and I thank other members who have indicated their support for the bill.

The Hon. Robert Lawson raised a number of questions, which I will answer first, and then I will give some further explanation on matters raised in the debate on the bill in the other place. First, I turn to some of the questions asked by the Hon. Robert Lawson, and I clarify a point he raised: the court may make special arrangements on its own initiative under the current act, and that is covered in section 13(8). The bill repeals this provision in new section 13. It is for special arrangements for vulnerable witnesses in criminal trials that the application must be made. I refer the honourable member to proposed new section 13A(6).

The bill does not change the current procedure for witnesses who are not vulnerable in civil or criminal proceedings. No application is necessary under section 13, and there is no pre-trial deadline. The court is under no obligation to order special arrangements for these witnesses as it is for vulnerable witnesses.

Most orders made under proposed new section 13 will be in civil proceedings. Adjournments of civil proceedings do not cause the same disruption as they do in proceedings before juries. In addition, ordinary witnesses in civil and criminal proceedings are unlikely to need special arrangements.

The honourable member asked about section 34CA. I am advised that this section has been used, for example, in R v Corkin (1989) and R v Mill (2002). The honourable member asked about judicial education. I advised that the program of judicial education is still being worked on, but I am unable to say what funds have been allocated; however, we could refer that issue onto the Attorney-General for a response if the honourable member wishes.

The honourable member also asked a question about new section 13B. I am advised that there are similar provisions in other states, and I refer him to my second reading explanation, where I describe the Victorian legislation and refer to models in the United Kingdom and New Zealand.

I will give further explanation on matters raised in debate on the bill in another place. I will speak about the amendments to the Criminal Law (Legal Representation) Act 2001. The member for Heysen wondered whether proposed section 6(1a) of the Criminal Law (Legal Representation) Act 2001 would oblige the Legal Services Commission to grant legal aid to a millionaire so that he could cross-examine an alleged victim in a criminal trial under proposed section 13B of the Evidence Act 1929. The Attorney-General pointed out that the usual qualifications for legal aid would apply and went on to describe how the Criminal Law (Legal Representation) Act prevents people who do not qualify for legal aid successfully applying for stays of prosecution for want of representation. The member for Heysen then said:

The short answer really is that ultimately they miss out on the ability to cross-examine.

The Attorney-General agreed. I would like to add that this is the combined effect of the amendments to the Criminal Law (Legal Representation) Act 2001 and proposed section 13B of the Evidence Act 1929 and note its limited scope. Proposed section 13B of the Evidence Act provides that an unrepresented defendant charged with a serious offence against the person or an offence of contravening or failing to comply with any kind of restraining order cannot cross-examine the alleged victim unless by counsel.

The judge must tell him this and give him the opportunity to arrange counsel privately or, if he cannot afford this, to arrange for legally-aided representation. That legally-aided representation is made available by the amendment to the Criminal Law (Legal Representation) Act 2001. If the defendant chooses not to take the opportunity to cross-examine by counsel, he must live with that decision. He cannot then appeal the verdict on the ground that he was denied the opportunity to cross-examine the victim or on the ground that this part of the trial was unfair for want of representation.

The member for Heysen also suggested that the amendment to section 10 of the Criminal Law (Legal Representation) Act would allow an unrepresented defendant to avoid paying the costs of an adjournment of the trial to obtain legal representation for cross-examination of the section 13B witness, even if the adjournment could have been avoided or may have been tactical or capricious. The Attorney-General said it was most unlikely that an unrepresented defendant would seek to adjourn the trial to arrange representation for a section 13B cross-examination, other than for genuine reasons, because there was nothing to be gained from it tactically and, besides, he may not be ready to make this decision until after the prosecution had led evidence from the alleged victim.

He explained that it would not be fair to penalise unrepresented people for seeking adjournments for section 13B representation. The member for Heysen then suggested that the section be amended to permit a court to order that a defendant who has applied to adjourn the trial to get legal aid to cross-examine a section 13B witness pay the costs of the adjournment if satisfied that the circumstances justify it. The Attorney-General did not take up her suggestion for the reasons he had already given, and also because the amendment as it stands is consistent with the scheme of both the Criminal Law (Legal Representation) Act 2001 and proposed section 13B of the Evidence Act.

The act sets up a scheme for providing legal representation for a whole trial, under which decisions about legal representation are made before trial of the first directions hearing. At that hearing the court will explain the consequences of deciding not to accept legal assistance and require a written assurance of his decision from a defendant who then chooses not to accept it. That is why a later call for an adjournment to obtain legal representation, should the defendant change his mind, incurs a cost penalty.

An application for the limited legal representation permitted for the cross-examination of one witness only in a trial for which no other legal representation is sought is not subject to these time requirements. That is because in some cases a defendant may not be in a position to decide whether to cross-examine the witness at all until the witness has given evidence. It is also true that interruptions are common in criminal trials where the defendant is unrepresented to enable the judge to clarify matters of evidence or procedure for him. As the Attorney-General has pointed out, it is fairer to grant the adjournment without a cost penalty.

The member for Heysen asked about the procedure for determining whether a witness was vulnerable, referring in particular to mental disability. The Attorney-General explained the procedure by reference to the relevant subsections to proposed section 13A. In asking the question, the member for Heysen said:

I have no difficulty with the need to protect people with a mental disability as vulnerable witnesses, but I foresee the possibility that someone who should be subject to the full rigours of cross-examination could get a protection to which they are not entitled. They may be able to worm out of that cross-examination by asserting that they have vulnerable witness status.

With respect, this statement contains some mistaken assumptions about the entitlements and status of vulnerable witnesses and the meaning of 'special arrangements for the taking of evidence' under the current and proposed law.

Proposed section 13A does not offer vulnerable witnesses any opportunity to escape the full rigours of cross-examination. Indeed, proposed section 13A(4)(b) and the current and proposed section 13(4)(b) specifically prohibit a court from making an order for special arrangements for a vulnerable witness or any witness if the effect of the order would be to relieve the witness from the obligation to submit to cross-examination.

There is a requirement in proposed section 13B for cross-examination to be by counsel for some offences in cases where the defendant is otherwise unrepresented. That requirement is not invoked by a witness being classed as vulnerable but invoked by the witness being the alleged victim of a serious offence or an offence of breaching a restraining order. There is no reference to vulnerable witnesses in proposed section 13B and the characteristics of witness vulnerability, including mental disability, are simply not relevant.

Proposed section 34CA of the bill also refers to cross-examination and requires the permission of the court before a protected witness can be cross-examined about the nature and contents of a statement he or she made outside the court. A protected witness is a young child or someone who suffers from a mental disability that harms her capacity to give a coherent account of her experiences or to respond rationally to questions.

Of course, a protected witness may also be a vulnerable witness and vice versa. A witness may be vulnerable because of a mental disability, but it is only if that disability is incapacitating in the way spelt out in proposed section 34CA that he or she can also be classified as a protected witness. If a witness is classified as a protected witness, proposed section 34CA will protect him or her from cross-examination about one topic (what he or she said to someone outside court) and only then if the judge thinks cross-examination is unlikely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence given by the person to whom the protected witness spoke.

The only other amendment that might be thought to allow a vulnerable witness to avoid being cross-examined is proposed section 13D. It lets a court relieve a vulnerable witness of the obligation to testify in person in related later proceedings, or if he or she has given evidence in an earlier criminal proceeding and an official record of that evidence has been kept and admitted as evidence in the later proceedings. Although a vulnerable witness who has been relieved of the obligation to testify in person in later proceedings will not have to submit to cross-examination in those proceedings, he or she would already have given evidence and been cross-examined in the earlier trial.

If there are relevant matters before the later court that were not raised in the earlier trial and were not, therefore, open for cross-examination in that trial, it is most unlikely that the later court will relieve the vulnerable witness of the obligation to testify in person. If that relief is not granted, the vulnerable witness will be called upon to testify in the later proceedings using whatever special arrangements that are necessary. Hence, the status of 'vulnerable witness' will not allow its holder to escape cross-examination on any relevant matter in a trial. The bill does not allow a person to avoid cross-examination by asserting a 'vulnerable witness' status on the ground of mental disability.

The member for Heysen wondered why blackmail was included as a serious offence for the purpose of defining some victims as vulnerable witnesses. She asked whether the wording of paragraph (d) of the proposed definition of a vulnerable witness (witnesses who have been subject to threats of violence or retribution in connection with the proceedings) meant that any person who was in a proceeding for blackmail would by virtue of that be classified as a vulnerable witness. The Attorney-General answered that it would be rare for an alleged victim of blackmail not to have been subject to a threat of violence or retribution.

To the member for Heysen's next question, 'Is the Attorney saying that the expectation from these amendments is that, if there is a prosecution of an alleged blackmailer, the subject of it or any other person who was a relevant witness to the proceedings is likely to be classified as a vulnerable witness and thereby entitled to the protections given to the vulnerable witnesses?', the Attorney, answered yes.

The Attorney-General understood the question to refer to witnesses who were the alleged victims of blackmail proceedings. However, it may be that the question was about witnesses who were not themselves the alleged victims of blackmail but are witnesses to blackmail proceedings and have been subject to threats of violence or retribution in relation to those proceedings.

A witness in criminal proceedings for blackmail will be a vulnerable witnesses only if he or she is either the alleged victim of the blackmail offence (because blackmail is a serious offence and a victim of a serious offences is a vulnerable witness) or, if not the alleged victim, when he or she is a witness to the proceedings who has been subjected to threats of violence or retribution in connection with those proceedings or has reasonable grounds to fear such violence or retribution in connection with those proceedings; or a witness to the proceedings who is under 16 years of age; or a witness to the proceedings who suffers from a mental disability. In other words, the bill will not treat all witnesses for prosecutions for blackmail as vulnerable witnesses.

Again, I thank the Hon. Robert Lawson for his contribution and other members for their indication of support for this bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.D. LAWSON: Can the minister indicate whether the government has formed any intention as to when it is proposed to proclaim the commencement of this act?

The Hon. P. HOLLOWAY: I am advised that the courts, the judiciary and the legal profession will obviously need some time to familiarise themselves with these provisions. So, the government is still considering that question as to how long those parties will need before we proclaim it.

Perhaps I can also say that, with the rape and sexual offences bill to which this is a companion bill, we are obviously keen to have this bill passed to enable the other bill to be simultaneously proclaimed.

Clause passed.

Remaining clauses (2 to 28) and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.

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HOUSE OF ASSEMBLY
CONTACT