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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-06-04 Daily Xml
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Statutes Amendment (Vulnerable Witnesses) Bill

Introduction and First Reading

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

Second Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (16:47): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Statutes Amendment (Vulnerable Witnesses) Bill 2015

Introduction

The Statutes Amendment (Vulnerable Witnesses) Bill 2015 is an important measure to improve the position of vulnerable parties, namely children and persons with disability, within the criminal justice system, both in and out of court. The Bill extends to victims, witnesses, suspects and defendants.

The Bill preserves an accused person's right to a fair trial, whilst recognising that the South Australian criminal justice system needs to be more accessible and responsive to the needs and interests of victims and witnesses who are children and persons with disability.

The Bill builds on previous legislative reforms and the wider Disability Justice Plan.

The implementation of the Disability Justice Plan and the present Bill was a key policy commitment of this Government. It was subsequently announced that the Government would provide $3.246 million over four years to make the Disability Justice Plan a reality. To support the implementation of the Bill, the Government will be inviting tenders later this year under the Disability Justice Plan for both the specialist training for investigative interviewing of young children and people with disability and the new communication partner model for people with complex communication needs.

The Disability Justice Plan and the present Bill have been formulated in close consultation with the disability sector. The Government is grateful for the keen interest and active involvement of the Hon Kelly Vincent MLC in the formulation and progression of these important reforms, and for the bipartisan support we have received to date.

Bill in Detail

The Bill includes:

(a) To provide for the admission of audio visual records of interviews as the evidence of victims or witnesses who are children aged of or under 14 years or have a disability that adversely affects their capacity to give evidence in cases involving a sexual or violence offence, and to regulate how those interviews are conducted;

The Bill inserts Part 17 Division 3 into the Summary Offences Act 1953 that provides that a statement of a witness who is a young child aged of or under 14 years of age, or has a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions, is to be taken by way of investigative interview and for an audio visual record of that interview to be made. This applies to witnesses of that class in sexual or violence offences. The interview must be conducted by a prescribed interviewer and made and conducted in accordance with the Regulations to be made under the Bill. The detailed operation of the regime for the audio visual recording of an interview with a vulnerable witness will be dealt with in these Regulations.

The Bill provides in s 13BA of the Evidence Act 1929 that the audio visual record of an investigative interview, along with audio visual records of pre-trial special hearings made pursuant to s 12AB that is inserted into the Evidence Act 1929 by the Bill, can be admitted as the evidence of the witness in a trial. The Bill provides that the audio visual record of the investigative interview can be admitted into evidence on application of either party to the proceeding. A pre-condition to the admissibility of this evidence is the availability of the witness during trial, if required, for further examination, cross-examination or re-examination—however any further questioning of a witness can only occur with the leave of the court. This will prevent a vulnerable witness being exposed to irrelevant, unnecessary or inappropriate questioning. A court has a discretion to rule as inadmissible either part or whole of a recording—or before admitting a recording, may order that it be edited so as to exclude evidence that is inadmissible for any reason

The taking of a statement by way of investigative interview, or the convening by a court of a pre-trial special hearing, are provisions available only for witnesses who are young children or have a disability that affects their capacity to give evidence. However, the power to admit the evidence pursuant to s 13AB of the Evidence Act 1929 is available to a court regardless of the age of the person or their capacity at the time a court is considering the admission of the evidence—there is no provision in s 13AB limiting the admission of the evidence to where the witness is a young child or has the requisite disability at the time a court is considering its admission.

The Bill does not seek to preclude the use of examination-in-chief by counsel at trial as there will invariably be scenarios where issues or points will need to clarified, explained or developed beyond the account provided on the video interview. However, it is not contemplated that such questioning should simply allow the witness to repeat the account as provided in the audio visual interview. It is anticipated that the investigative interview will provide a complete and accurate account at the outset of the investigation into the matter. Skilled examination-in-chief may be the only effective way to present the entire prosecution case if an account in an audio visual interview is flawed or plainly inadequate. It may also be that a confident witness, despite their young age or cognitive impairment, does not wish to use special arrangements to testify and may wish to give evidence 'live' as opposed through any pre-recorded interview.

Specific legislative provision is overdue in South Australia to regulate and provide for the use at trial of the pre-recorded interviews with a vulnerable witness. Any preference for 'live' evidence and blanket opposition to any use of pre-recorded evidence as a substitute for live testimony is outdated and does not have regard to research that has been undertaken in the field. Research does not support any view claimed of higher acquittals.

This part of the Bill will be supported by enhanced specialist training for investigative interviewers in most appropriately and effectively dealing with and questioning children and persons with disability. Such enhanced training should also ideally extend to other parties within the criminal justice system such as prosecutors, defence lawyers and judicial officers (although not necessarily to the same extent as the specialist training for investigative interviewers).

(b) To provide for special hearings for the pre-trial taking of evidence (both evidence-in-chief and cross-examination, and re-examination), in informal surroundings, from children of or under 14 years of age or persons with a disability who are victims or witnesses in trials involving sexual or violence offences

The Bill introduces, by insertion of s 12AB into the Evidence Act 1929, the availability of a pre-trial special hearing in cases involving a sexual or violence offence of witnesses who are young children aged of or under 14 years of age, or persons with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions. Either party in proceedings will be able to use such a hearing. Such a hearing can conduct any supplementary examination-in-chief of the witness beyond that contained in any investigative audio visual interview as well as the cross-examination or re-examination of such a witness.

This part of the Bill aims to improve the quality of the testimony of this class of witness by taking their evidence as near in time as possible to the laying of charges so as to assist memory and alleviate the painful reliving of experiences many months or even years after the event. The Bill anticipates the use of special arrangements for a witness during a pre-trial special hearing and intends that the hearing will take place in informal surroundings that do not, as would a formal trial courtroom, stress or intimidate the vulnerable witness and inhibit communication.

(c) To extend the priority of sexual assault trials where the complainant is a child to those where the complainant has a disability

The Bill makes amendments to s 126A of the Supreme Court Act 1935, s 50B of the District Court Act 1991 and s 48B of the Magistrates Court Act 1991 to extend the priority for hearing of sexual assault trials where the alleged victim is a child to those where the alleged victim has a disability that adversely affects their capacity to give a coherent account of their experiences or to respond rationally to questions.

(d) Clarifying the definition of 'vulnerable witness' under the Evidence Act 1929

The Bill clarifies the definition of 'vulnerable witness' under the Evidence Act 1929 to include 'cognitive impairment'.

The Bill also extends the age of a 'young child' from a child 'of or under the age of 12 years', to a child 'of or under the age of 14 years' in the Evidence Act 1929 (with consequential amendments in the Summary Offences Act 1953 and Summary Procedures Act 1921). This amendment is in response to concerns raised that the present age of 12 years in the Evidence Act 1929 is too young and does not recognise the trauma and stress faced by children in their early teenage years who are confronted by the rigours of a police investigation or the procedures of a criminal trial.

(e) Amending the Evidence Act 1929 to give people with complex communication needs a general entitlement to have a communication assistant present for contact within the criminal justice system to facilitate the obtaining of an accurate and coherent account

The Bill recognises the role performed by communication assistants to facilitate effective communication with persons with complex communication needs and enable them to provide an accurate and coherent account of their experiences. The Bill includes explicit powers allowing the use of communication assistants to support persons with complex communication needs, whether witnesses, victims, suspects, or defendants both in and out of court. The Bill provides that a person with a complex communication need may use a communication device or a communication assistant for both in and out of court statements. The Bill includes provision for Regulations to be made to prescribe who can provide communication assistance, both in court and during an interview with a vulnerable victim, witness, suspect or defendant outside of court. The Bill includes the caveat that it be provided where available. There may be logistical reasons that preclude such assistance.

The communication assistant model in the Bill draws on the familiar and long recognised role of a language interpreter and will be similar to that role. However for people with complex communication needs, communication is broader than spoken language. It is only right that persons, be it witnesses, victims, suspects, or defendants, with complex communication needs have the same entitlement of support to communicate effectively and/or understand the relevant proceedings as someone who is unable to speak or understand English. There are augmented and alternative means of communication that can be legitimately used (such as speak-and-spell communication devices or picture book aids), especially with the contribution of a communication assistant, to facilitate and enable effective communication. There are a broad range of disabilities and complex communication needs and the term 'complex communication needs' is not confined to intellectual disability. The precise nature and extent of the role of the communication assistant will depend upon the particular complex communication needs in any case.

The Bill provides for two classes of persons who are eligible to provide communication assistance in court. First, the Bill introduces a role called a 'communication partner'. This is a person, or a person of a class, approved by the Minister for the purposes of providing assistance in proceedings to a witness with complex communication needs. It is contemplated that a communication partner will be a volunteer as part of a specialist scheme who will be trained to facilitate effective communication between members of the criminal justice system and the person with complex communication needs. Secondly, the Bill allows any other suitable person to be appointed by a court to act as a communication assistant in court. The Bill makes it explicit that a person can still play the role of providing communication assistance and be a witness in their own right at a trial of the alleged offending. This scenario may well arise given a communication assistant may be a person who is closely associated with a victim and as a result may be required to give evidence at trial of facts in issue. As with existing language interpreters, any communication assistant will have to swear or affirm in court the impartiality and accuracy of their role.

(f) Amending the Evidence Act 1929 to clarify and increase access to appropriate support persons to provide emotional support for vulnerable witnesses, both in and out of court

The Bill amends the Evidence Act 1929 to clarify and increase access to appropriate support persons to provide emotional support for vulnerable witnesses, both in and out of court. The Bill includes provision for Regulations to be made to prescribe the class of person who can provide emotional support or any other assistance during an interview with a vulnerable victim, witness, suspect or defendant. The role of a support person is quite distinct from the communication assistant.

(g) Amending the Evidence Act 1929 to broaden the special arrangements available to vulnerable witnesses (including defendants) when giving evidence, both at a special hearing or at trial

Section 13A of the Evidence Act 1929 already contains a number of specific powers available to assist vulnerable witnesses in providing evidence. These are often used in practice. The Bill contains further specific powers to support vulnerable witnesses in giving evidence, whether at a pre-trial special hearing or at trial. The specific powers listed in the Bill or already in the Evidence Act 1929 are not exhaustive of the special arrangements that can be made to support or assist a vulnerable witness to testify in the most suitable manner. The courts should not be reluctant to make special arrangements beyond those specifically listed in the Bill or already in s 13A of the Evidence Act 1929 to assist a vulnerable witness who is giving evidence at either a pre-trial special hearing or at trial. A court could, for example, regulate the manner, topics and timing of the questioning of a vulnerable witness.

(h) Clarifying the definition of an inappropriate question under s 25 of the Evidence Act 1929 to include questions that are too complicated for a witness to understand

The Bill clarifies a court's duty under s 25 of the Evidence Act 1929 to control inappropriate questioning. The Bill rephrases an 'improper' question as an 'inappropriate' question. The Bill clarifies the definition of an inappropriate question to include questions that are expressed in language that is too complicated for the witness to understand.

(i) Amending the Evidence Act 1929 to repeal s 34CA and to insert a new provision, s 34LA, to provide for the admissibility as a limited exception to the hearsay rule of out of statements of a young child or a witness with disability in sexual cases where the witness is unavailable to be called to testify about the events in question owing to young age and/or disability.

The Bill deletes s 34CA of the Evidence Act 1929 and replaces it with a new s 34LA. Section 34CA has a long and complex history.

The present s 34CA was inserted in 2008 by the Statutes Amendment (Evidence & Procedure) Act 2008. It replaced the original version of s 34CA that was inserted into the Evidence Act 1929 in 1988 by the Evidence Act Amendment Bill 1988 in response to the 1986 South Australian Government Task Force on Child Sexual Abuse. The present s 34CA has been the subject of varied interpretation by the courts since its commencement and regular judicial calls for legislative reform.

Section 34CA has proved difficult in its application since 2008. The Bill addresses some of the difficulties that have arisen in its application by providing a new regime dedicated to the admission of pre-recorded investigative interviews of certain vulnerable witnesses, as well as provisions to admit recorded evidence of that class of witness taken during a pre-trial special hearing. In light of the inclusion of these schemes in the Bill, and the difficulties in application of the section that have been raised by the Court of Criminal Appeal on several occasions, the Government has reconsidered the previous approach to s 34CA of the Act.

The genesis and true purpose of the original s 34CA that emerged from the 1986 Task Force was to admit an out of court statement as an exception to the hearsay rule in relation to child sexual abuse victims when the time, content and circumstances of the statement provide sufficient safeguards of reliability and trustworthiness. The new s 34LA achieves this purpose. Unlike the previous incarnations of s 34CA, it does not require that the maker of the out of court statement be available for cross-examination.

Section 34LA will apply only where the maker of the statement is not to be called as a witness. It provides that a statement that was made out of court by an alleged victim of a sexual offence who, at the time the statement was made, was a young child of or under the age of 14 years or a person with a disability that adversely affects their capacity to give a coherent account of their experiences or to respond rationally to questions, is admissible to prove the truth of the facts asserted in the statement. The section will operate to make statements admissible regardless of the age of the person or the person's capacity to give evidence at the time a court is considering the admission of the statement. This is to take into account the scenario where, for example, a young child makes an contemporaneous complaint of sexual interference, and for whatever reason, there is a delay in the matter proceeding to trial. At the time of trial, the young child no longer falls within that definition, however due to the passage of time or for other reasons, he or she may have no memory or ability to recall or repeat the relevant statement.

The effect of the new section is that a complaint, allegation or account of sexual abuse that is given by this class of witness can be presented to a court by the person to whom the statement is made, or a person who was present when it was made. The vulnerable witness is not required to give evidence about the alleged offending or to be available for cross-examination. The section is a very limited exception to the hearsay rule. If the vulnerable witness is to be called as a witness, s 34LA has no application—however the statement may be admissible as an initial complaint pursuant to s 34M of the Evidence Act 1929. The section does not operate to make admissible a formal investigative interview of a vulnerable witness with a police officer or psychologist. There are other provisions in the Bill to deal with those investigative interviews.

The section is intended to apply in a very rare class of case, where the young child whose cognitive development is not such that they could give evidence, or the person with a disability who similarly does not have the capacity to give evidence, says something out of court that amounts to an allegation of sexual offending. The timing, content and circumstances in which the statement is made bespeaks its reliability. The making of the statement may, for example, be accompanied by sexualised conduct by the vulnerable witness. There may be accompanying evidence that supports the content of the statement—such as eye-witness, medical or forensic evidence like DNA evidence. In this rare class of case, the timing, content and circumstances in which the statement is made can be adequately tested by examining the person to whom the statement was made or the person who witnessed the statement being made. Issues of competence of the maker of the statement under s 9 of the Evidence Act 1929 do not arise—it being assumed in s 34LA(1)(a) that the oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of the matter.

(j) Clarifying the criteria for determining the competence of a witness under s 9 of the Evidence Act 1929 to give sworn or unsworn testimony in court

Where a child is called to testify in court, s 9 of the Evidence Act 1929 applies to determine whether that child can give sworn or unsworn evidence (this will include evidence given at a pre-trial special hearing held pursuant to s 12AB of the Bill). The Bill amends s 9 to provide that it has no application to statements made out of court that may be admitted as evidence in proceedings as an exception to the hearsay rule. Section 9 will still apply to an audio visual record of an investigative interview or pre-trial special hearing admitted pursuant to s 13BA of the Bill as the witness's evidence. In that scenario, it is entirely up to the court how it will determine the witness's competence.

(k) Clarifying the operation of s 21 of the Evidence 1929

The proposed amendment to s 21 of the Evidence Act 1929 simplifies the law governing the grant of an exemption to a close relative of an accused from a lawful obligation to give evidence against the accused.

The Bill in summary includes the following changes to s 21.

First, to define or clarify 'obligation' in 21. The 'obligation' to be caught by s 21 is only a 'legal' and not a 'moral' obligation. This particular amendment adopts the view of Stanley J in the recent case of R v G, AP (2014) 119 SASR 125.

Secondly, to provide that a court need not be satisfied itself that a prospective witness who is legally obliged to testify, is either aware of his or her right to apply for an exemption under s 21 or is incapable, by reason of age or cognitive impairment, of understanding his or her right to apply for an exemption under the section. This should be an issue for a judge's discretion.

Thirdly, to clarify that the court's power under the existing s 21(3a) does not require a court to consider exercising the power to exempt a prospective witness who is a young child or is cognitively impaired, regardless of whether an application for an exemption has been made. The power should be only discretionary.

Fourthly, in line with the preferred terminology to use a more appropriate term for 'mentally impaired', namely 'cognitive impairment'.

Finally, to stipulate that a failure to discharge whatever duty or procedure is prescribed by s 21 provides no ground for a convicted person to appeal their conviction.

(l) Clarifying s 34M of the Evidence Act 1929 in relation to initial complaint

The Bill amends s 34M of the Evidence Act 1929 to make it plain that an initial complaint of sexual conduct by an alleged victim, no matter how delayed, can demonstrate a consistency of conduct—though the degree of consistency of conduct will vary from case to case. The amendment adopts the view of Kourakis J (as he then was) in R v H, T (2010) 108 SASR 86, 105]-[106].

The amendment to s 34M clarifies that initial complaint evidence can be used to demonstrate consistency of conduct in any case, even where the complaint is made many years later. The degree of consistency of conduct that is demonstrated in a particular case and the weight to be given to the evidence of initial complaint will be a matter for a properly directed tribunal of fact to determine.

(m) To tighten the restrictions on access to audio visual records and transcripts of interview, involving vulnerable witnesses, especially to legally unrepresented accused

The Bill expands the meaning of 'sensitive material' in s 67H of the Evidence Act 1929 to include the audio visual records of investigative interviews and pre-trial special hearings, along with the transcript of those records, of witnesses in trials of sexual offences or violence offences who are young children or persons with a disability that adversely affects their capacity to give evidence. It provides that access can be given to such material by a court order, but only for proper and approved purposes.

The Bill also amends s 69 of the Evidence Act 1929 to provide that a court must be cleared when an audio visual record of an investigative interview or pre-trial special hearing of this class of witness is being played.

(n) Providing a procedure by which recorded investigative interviews with vulnerable witnesses can be reviewed, assessed or checked for training purposes

The Bill allows Regulations to be made to provide a procedure by which recorded investigative interviews with vulnerable witnesses can be reviewed, assessed or checked for training purposes, including by external specialists, for quality assurance purposes, subject to strict confidentiality and privacy requirements.

(o) Amendment of the Declaration of Principles in s 6 of the Victims of Crime Act 2001 to include specific reference to both physical and intellectual disability

The Bill amends the Declaration of Principles in s 6 of the Victims of Crime Act 2001 to include specific reference to both physical and intellectual disability. The Bill amends s 6 of that Act to provide that the considerations required to be given to a victim include the needs of the victim that arise because of the victim's physical or intellectual ability.

Conclusion

The Disability Justice Plan and the present Bill reflect the Government's commitment to provide a modern and fair criminal justice system that is more responsive to the interests of people with disability, whether as victims, witnesses, suspects or defendants, and to ensure they are better served by the justice system.

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 District Court Act 1991

4—Amendment of section 50B—Certain trials of sexual offences to be given priority

This clause amends section 50B of the District Court Act 1991 to broaden the category of victims that are captured by the provision.

Part 3—Amendment of Evidence Act 1929

5—Amendment of section 4—Interpretation

This clause replaces the definition of mental disability with that of cognitive impairment and inserts a definition of communication partner for the purposes of the principal Act. It also alters the definition of young child by increasing the age of a young child from 12 years to 14 years and makes other amendments of a consequential nature.

6—Amendment of section 9—Unsworn evidence

This clause amends section 9 to provide that, subject to the principal Act, section 9 does not apply to a statement made outside of a court admitted as evidence in any proceedings under an exception to the rule against hearsay at common law or under the principal Act.

7—Insertion of section 12AB

This clause inserts section 12AB which requires a court to convene a special hearing as a proceeding preliminary to a trial (a pre-trial special hearing) when—

the evidence of a witness to whom new section 12AB applies is necessary for the purposes of the trial of a charge of an offence to which the section applies; and

the facilities necessary to take the evidence of the witness are readily available to the court and it is otherwise practicable to make arrangements for a pre-trial special hearing; and

the arrangements can be made without prejudice to any party to the proceedings.

12AB—Pre-trial special hearings

The clause sets out the various arrangements that must be made by the court for a pre-trial special hearing, including—

that a hearing be convened as a proceeding preliminary to the trial of the charge of the offence for the purpose of taking the evidence of the witness in any setting that the court thinks fit in the circumstances (including an informal setting);

if the witness has a physical disability or cognitive impairment—that the evidence be taken in a particular way (to be specified by the court) that will, in the court's opinion, facilitate the taking of evidence from the witness or minimise the witness's embarrassment or distress (including, if the witness has complex communication needs, with such communication assistance as may be specified by the court);

that an audio visual record of the evidence be made;

that the taking of evidence at the hearing be transmitted to the defendant by means of closed circuit television;

if the defendant attends the hearing in person—that appropriate measures be taken to prevent the witness and the defendant from directly seeing or hearing each other before, during or after the hearing; and

may make provision for the witness to be accompanied at the hearing by a relative, friend or other person for the purpose of providing emotional support; and

may specify that the hearing is convened for any (or all) of the following purposes:

(i) examination of the witness;

(ii) cross-examination of the witness;

(iii) re-examination of the witness; and

may make provision for any other matter that the court thinks fit.

However, the new section seeks to ensure that an order for a pre-trial special hearing must not be made if the effect of the order would be—

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

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

to prevent the judge or defendant from observing the witness's demeanour in giving evidence (but the observation may be direct or by live transmission of the witness's voice and image); or

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

The section sets out special rules that apply in the event that the witness is accompanied by a person for the purpose of providing emotional support or communication assistance and sets out the manner in which an application for a pre-trial special hearing order must be made. The defendant is able to object to any such application on the ground that the witness does not fall into the category of witness who may apply for such special hearing. The section also provides that, subject to proposed section 13BA, an audio visual record of the evidence of a witness made at a pre-trial special hearing is admissible as evidence of the witness in the trial of a charge of an offence to which this new section applies.

The following definitions are included for the purposes of this new section:

trial of a charge of an offence to which this section applies means—

(a) the trial of a charge of a serious offence against the person; or

(b) the trial of a charge of an offence of contravening or failing to comply with an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; or

(c) the trial of a charge of an offence of contravening or failing to comply with a restraining order under the Summary Procedure Act 1921;

witness to whom this section applies means—

(a) a young child; or

(b) a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.

8—Amendment of section 13—Special arrangements for protecting witnesses from embarrassment, distress etc when giving evidence

This clause proposes changes to section 13 to substitute a reference to mental disability with a reference to cognitive impairment.

9—Amendment of section 13A—Special arrangements for protecting vulnerable witnesses when giving evidence in criminal proceedings

This clause amends section 13A to make the language consistent with proposed section 12AB and to enable communication assistance to be provided to a vulnerable witness if required, also consistent with that proposed section.

10—Insertion of section 13BA

This clause inserts new section 13BA.

13BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings

Proposed section 13BA gives the court power, in the trial of a charge of an offence, on application by a party to the proceedings, to order that the evidence of certain witnesses be admitted in the form of an audio visual record that has been made pursuant to proposed section 12AB or Part 17 Division 3 of the Summary Offences Act 1953.

The proposed section sets out the circumstances in which an audio visual record may be admitted into evidence and makes it clear that the court's discretion to exclude the evidence is preserved and sets out the range of circumstances in which a witness cannot be further examined, cross-examined or re-examined on the evidence admitted in the trial.

The new section also sets out the explanation that a judge must give a jury when admitting evidence in audio visual form and the nature of the warning that must be given in relation to the admission of that evidence.

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

This clause proposes amendments to section 13C of a consequential nature.

12—Insertion of section 14A

This clause inserts new section 14A.

14A—Entitlement of witness to be given communication assistance in certain circumstances

Proposed section 14A establishes a scheme to enable the court to order that the evidence given by witnesses with complex communication needs may be given with assistance designed to facilitate the taking of evidence from the witness.

In the event that the assistance ordered by the court is to take the form of a communication partner, the partner must be approved by the court and must take an oath or affirmation that the partner will communicate accurately with both the witness and the court.

13—Substitution of section 21

This clause deletes the current section and substitutes a new section.

21—Competence and compellability of witnesses

The substituted section makes certain changes to the process by which a close relative of the accused who is required by law (whether by subpoena or other process) to give evidence against the accused may apply to the court for an exemption from that requirement.

The changes to the new section include an ability for the court to grant an exemption either on an application or on its own initiative in certain circumstances. However, the court will not be required to make any inquiry about whether a prospective witness is aware of his or her right to apply for an exemption or is incapable (whether by reason of age or some reason) of understanding his or her right to apply for an exemption.

14—Amendment of section 25—Disallowance of inappropriate questions

This clause proposes to amend section 25 by substituting references to an improper question with references to an inappropriate question and adding a question that is expressed in language that is unnecessarily complicated to the categories of inappropriate questions that are included in subsection (1).

15—Repeal of section 34CA

This clause deletes section 34CA

16—Insertion of section 34LA

This clause inserts new section 34LA.

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

Proposed section 34LA is concerned with the admissibility of out of court statements made by certain victims of sexual offences. The provision imposes various conditions on the admission of the out of court statement.

The conditions are as follows:

(a) the person who made the out of court statement is the alleged victim of the sexual offence;

(b) the person will not be called as a witness in the proceedings because the judge is satisfied that, at the time the person made the out of court statement, the person was—

(i) a young child; or

(ii) a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions;

(c) the out of court statement was not made by the person to an investigating or other authority as part of a formal interview process conducted in relation to the alleged offence;

(d) after considering the out of court statement, the circumstances in which it was made and any other relevant factor, the judge is of the opinion that the evidence has sufficient probative value to justify its admission.

Subsection (2)(b) applies regardless of the age of the person or the person's capacity at the time the judge is considering whether to admit the evidence of the out of court statement in the proceedings.

Evidence of the out of court statement may be used to prove the truth of the facts asserted in the statement and the admission of the evidence must be accompanied by a warning to the jury to treat the evidence with particular care because it has not been tested by way of examination or cross-examination of the alleged victim.

17—Amendment of section 34M—Evidence relating to complaint in sexual cases

This clause proposes to amend section 34M of the Act to refine the direction required to be given to the jury when evidence referred to in the section is admitted in a trial.

18—Amendment of section 67H—Meaning of sensitive material

This clause proposes to amend section 67H and the meaning of sensitive material for the purposes of Part 7 Division 10 of the principal Act. The amendments accommodate the audio visual record of pre-trial special hearings ordered pursuant to proposed section 12AB and the recording of interviews with certain vulnerable witnesses pursuant to proposed Part 17 Division 3 of the Summary Offences Act 1953.

19—Insertion of section 67HA

This clause proposes to insert a new section after section 67H.

67HA—Court may give access to certain sensitive material in certain circumstances

New section 67HA provides that a court may, if of the opinion that giving access to sensitive material of a kind referred to in section 67H(1)(a) that has been or may be admitted as evidence in proceedings before the court would assist a medical practitioner or psychologist to prepare an expert report for the court or provide treatment or therapy to the witness, make the sensitive material available to the medical practitioner or psychologist (as the case may be) subject to such conditions as the court thinks fit.

20—Amendment of section 69—Order for clearing court

This clause amends section 69 of the Act to ensure that the court's power to clear the court extends to occasions where evidence from an alleged victim of a sexual offence is a child and the evidence is admitted in the form of an audio visual record.

Part 4—Amendment of Magistrates Court Act 1991

21—Amendment of section 48B—Certain trials of sexual offences to be given priority

This clause amends section 48B of the Magistrates Court Act 1991 to broaden the category of victims that are captured by the provision.

Part 5—Amendment of Summary Offences Act 1953

22—Insertion of heading to Part 17 Division 1

This clause inserts a new division heading.

23—Insertion of heading to Part 17 Division 2

This clause inserts a new division heading.

24—Amendment of section 74D—Obligation to record interviews with suspects

This clause amends section 74D of the principal Act to update and substitute references to videotape recording and audiotape recording to audio visual record and audio record respectively.

25—Amendment of section 74E—Admissibility of evidence of interview

This clause amends section 74E of the principal Act as a consequence of the separation of Part 17 into Divisions.

26—Insertion of Part 17 Division 3

This clause inserts Division 3 into Part 17 of the principal Act

Division 3—Recording interviews with certain vulnerable witnesses

74EA—Application and interpretation

This clause sets out the category of vulnerable witnesses and the type of offences that the scheme for the recording of interviews applies to in proposed Division 3.

74EB—Obligation to record interviews with certain vulnerable witnesses

This clause sets out the way in which an interview under proposed Division 3 must be conducted.

74EC—Admissibility of evidence of interview

This clause sets out the requirements that must exist in relation to evidence of an interview conducted under proposed Division 3 to prevent the evidence being inadmissible and preserves the discretion of the court to rule evidence inadmissible in its entirety or in part, whether or not those conditions have been met.

27—Insertion of heading to Part 17 Division 4

This clause inserts a new division heading.

28—Amendment of section 74F—Prohibition on playing recordings of interviews

This clause amends section 74F of the principal Act to update and substitute references to videotape and audiotape to audio visual record and audio record respectively

29—Insertion of section 74H

This clause inserts a new clause

74H—Regulations

Proposed section 74H inserts a power to make regulations for the purposes of Part 17.

Part 6—Amendment of Summary Procedure Act 1921

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

This clause amends section 104 of the Summary Procedure Act 1921 to update and substitute references to videotape and audiotape to audio visual record and audio record respectively.

The clause also makes amendments to alter the categories of victims that are captured by the provision.

31—Amendment of section 106—Taking evidence at preliminary examination

This clause amends section 106 of the principal Act to increase to 14 years of age the threshold below which certain considerations need to be made before granting permission to call a witness for oral examination at a preliminary examination.

Part 7—Amendment of Supreme Court Act 1935

32—Amendment of section 126A—Certain trials of sexual offences to be given priority

This clause amends section 126A of the Supreme Court Act 1935 to broaden the category of victims that are captured by the provision.

Part 8—Amendment of Victims of Crime Act 2001

33—Amendment of section 6—Fair and dignified treatment

This clause amends section 6 of the principal Act to provide that the considerations required by the section to be given to a victim incorporate the needs of the victim that arise because of the victim's physical or intellectual ability.

Schedule 1—Transitional provision

1—Transitional provision

This clause makes an amendment of a transitional nature relating to the effect of the amendments by Part 3 of this measure to the Evidence Act 1929.

Debate adjourned on motion of Hon. T.J. Stephens.

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