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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-12-03 Daily Xml
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Evidence (Vulnerable Witnesses) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 12 November 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (12:37): Labor supports the Evidence (Vulnerable Witnesses) Amendment Bill. We acknowledge the particular challenges faced by certain people in the community when they encounter the justice system. For children and people with a disability who are called to give evidence at a trial, being in a courtroom may present particular barriers. They may find it extremely difficult to give evidence in a trial without experiencing trauma or practical difficulties. We must keep the justice system accessible and supported for anyone.

Labor has and will continue to support equitable measures for children and persons with a disability to participate in the justice system. While balancing the rights of a defendant to a fair trial, we must also support people who may be vulnerable while they give evidence in criminal proceedings. This bill amends the current Evidence Act by giving effect to things that occurred for the canine court program, by clarifying the law around pre-trial special hearings for vulnerable witnesses and the admission and admissibility of pre-recorded evidence. In the Evidence Act vulnerable witnesses are defined as young children or people with a disability that adversely affects their capacity to give coherent accounts of their experiences or respond rationally to questions.

First, this bill seeks to remove doubt around the use of canine court companions. South Australia's famous canine court companion is a service dog called Zero. Zero is trained to assist distressed or vulnerable witnesses who are called to give evidence by calming them while they may be recounting a highly traumatic experience. The pilot canine court program with the DPP also allows Zero to attend witness proofings at DPP offices. However, Zero cannot accompany witnesses while they give evidence in court.

This bill amends section 4 of the Evidence Act to define a canine court companion as a dog accredited by Guide Dogs SA/NT to ensure they are certified therapy dogs. It allows canine court companions like Zero to enter courtrooms and accompany witnesses in trials by amending sections 13 and 13A of the act. Sections 13 and 13A currently allow a court to order that a witness can be accompanied by a relative or friend for emotional support.

Section 13 relates to orders that a court can make to protect a witness from embarrassment, distress or intimidation, and section 13A covers orders that a court can make for vulnerable witnesses in a trial. This bill amends these sections so that a court can make an order that a canine companion can accompany a witness who is giving evidence during a trial. To avoid prejudicial effects on a trial, the bill proposes that the canine companion should not be visible to a jury or on video recordings.

Next, the bill amends section 12AB to expressly allow for canine court companions and their handlers to accompany witnesses in pre-trial hearings. More significantly, this bill amends section 12AB of the act to address tensions between section 12AB and section 13BA. Presently, section 12AB allows a court to arrange for a vulnerable witness to give evidence at a pre-trial special hearing for a serious offence against a person or for offences such as contravening intervention orders.

Pre-trial special hearings must be recorded and can facilitate a less stressful way for witnesses who have a physical disability or cognitive impairment to give evidence. At present, section 13BA enables the court 'in the trial of a charge of an offence' to order that recordings of investigative interviews under the Summary Offences Act or of evidence given in pre-trial special hearings can be admissible as evidence. However, section 13BA only empowers the court to admit recorded evidence at trial and not at a pre-trial hearing.

Issues can arise after a vulnerable witness gives evidence at a pre-trial special hearing because the court must determine later, when at trial, whether the evidence is admissible. If a court finds the recorded evidence inadmissible when at a trial much later after the pre-trial hearing, the vulnerable witness may be called to retestify, defeating the purpose of the protective pre-trial hearing provision in section 12AB.

The bill seeks to limit vulnerable witnesses from having to retestify at trial by amending section 12AB(9) to state that, at a pre-trial special hearing, the court may make orders about recorded evidence at a pre-trial special hearing and/or the admission of recorded evidence of an investigative interview under the Summary Offences Act. The bill amends section 13BA so that a court can order the admission of an audiovisual record of the witness examination at a pre-trial special hearing while at the special hearing.

It also clarifies that recordings of pre-trial special hearings and investigative interviews under the Summary Offences Act can be admitted by the court if they are satisfied of the witness's capacity and give the respondent a reasonable opportunity to view the recording. The bill inserts new section 12AC, which states that orders may be made by a court at a pre-trial special hearing about the admission of a witness's evidence recording, subject to certain conditions.

We must ensure equity of access for children and people living with disability when they interact with the court system. In providing support to this bill, the opposition still places on record its concern and questions why the government has repeatedly, over a number of budgets now, cut services and supports to victims by stripping funding from contracts with community organisations such as the Victim Support Service and notes that these sorts of provisions would be much more useful if victims were supported through the court process by those methods.

The Hon. C. BONAROS (12:44): I rise also to speak in support of the Evidence (Vulnerable Witnesses) Amendment Bill 2020, which aims to benefit vulnerable witnesses in two important but quite different respects. The first element of the bill is a very welcome and innovative expansion of the DPP and Guide Dogs SA/NT Canine Court Companion Program into its third stage, from assisting vulnerable witnesses being interviewed and proofed as witnesses to accompanying those witnesses in court.

I am really excited that South Australia is the first jurisdiction to legislate to expressly provide for canine court companions to accompany these witnesses while they give their evidence in court, although I do note that Victoria, New South Wales and the ACT have had well-established canine court companion programs for some time, and of course we have had our very own beautiful black labrador court companion, Zero, in our South Australian courts for over a year now.

New South Wales has therapy dog teams currently visiting 10 courthouses on a daily basis. If you are supportive of this bill, the hope certainly is that Zero is soon part of a larger team. I was especially pleased to learn that Victoria has Connie, the 24-month-old golden labrador who is currently in training for court work. She is known to lead her handler to people in emotional distress around the Shepparton court facility in regional Victoria and, as I would expect from a Connie, the Victorian court staff commented that she was 'born for this work'. It comes naturally to her.

Vulnerable witnesses are clearly defined in several parts of the Evidence Act, but within the act the court has, on application, considerable discretion to provide assistance to any witnesses the court determines need additional support. This legislation is potentially of benefit to vulnerable witnesses and those in need of those additional supports who find themselves in what are often hostile, confronting and challenging environments.

There are sensible provisions in the bill to ensure the canine companion dog is not prejudicial to the administration of justice—that is a really important point—avoiding distraction and of course the potential for a jury to be influenced in any way from the support being provided to vulnerable witnesses. For many people, giving evidence and attending court, even if behind a screen or in a videoconference, is absolutely one of the worst and hardest days of their lives. Victims and witnesses tell us that recounting their experiences to the police and then to the courts and to counsellors is to relive that incident, that abuse, that injury or that trauma over and over again. That is why companion animals like Zero and Connie are so important.

Recommendation 61 of the Royal Commission into Institutional Responses to Child Sexual Abuse recognised the value and importance of support and detailed measures that should be available to vulnerable witnesses. These include:

…allowing the witness to be supported when giving evidence, whether in the courtroom or remotely, including, for example, through the presence of a support person or a support animal or by otherwise creating a more child-friendly environment.

We all know about the special therapeutic calming and anxiety-reducing effects dogs can have on people. If you are a cat lover, I am sure the same can be said for cats. This has been highlighted during the COVID-19 pandemic, when the demand for rescue dogs and puppies in particular has outstripped supply. Scientific research has shown canine companions trigger some neural pathways to the parent-baby bond and that dogs have an ability to recognise and respond to positive and negative human emotions with great sensitivity and effect.

The beautifully trained, accredited Guide Dogs SA/NT companions like Zero, again, are especially in tune with human emotions and needs. They are able to provide just the response required at just the right time. This could be the wag of a tail, close-up eye contact, a head on the lap, a nuzzle to your hand for a pat, or simply lying on or at your feet. In the case of autistic or highly agitated and upset people, the comforting effect of a dog that has been expertly trained to gently apply their body weight on the person has been shown to provide immediate and soothing effects that benefit cognition, memory and focus.

On that note, I would like to mention that I recently had the absolute pleasure of inviting to dine with me Mr Jon Lane and his faithful assistance dog, Dexter, in Parliament House on Remembrance Day last month. He was invited here for the Remembrance Day commemoration and then joined us in Parliament House for dinner. If it was not for the occasional brush of fur on my leg I would not have even known that Dexter was at the breakfast because he sat so still under the table. Once I knew he was there, I knew he provided an absolutely vital service to Mr Lane.

When I first met Dexter at the breakfast, as I said, I had no idea that he was there. As a dog owner I can say that it astounds me how a dog can be surrounded with all these things, including food and distractions, and sit there as inconspicuous and as still as Dexter was. But, more importantly, it is the support that he provided to Mr Lane in that scenario which was the most important aspect.

I understand that Zero is also a very welcome staff member at the DPP and the courts, and provides a lot of comfort and joy to a much larger number of people than we know. Of course, Dexter and Zero and, indeed, all accredited service dogs have legislated access to all public places, including restaurants, public transport and courthouses, but this bill provides for their participation in the court process. It is my understanding that, for example, a vision-impaired witness or a person with PTSD and their own support dog would already be approved by the court to be accompanied by the accredited dog while giving evidence, but I will seek to have confirmation of this during the committee stage debate.

I think the second very different provision in this bill is a response to changes originally inserted in the Evidence Act by disability advocate and former member of this place, Kelly Vincent, in 2015. Again, I would like to commend Kelly's extraordinary efforts in terms of reforms in these areas while she was a member of this place. The intentions of those original amendments of Ms Vincent—to minimise adverse impacts on vulnerable witnesses by enabling those witnesses to give their evidence as early as possible in a criminal process, and minimise the number of times they are required to give that evidence—have encountered some unanticipated legislative hurdles that the bill addresses.

Section 12AB of the act provides for courts to conduct pre-trial hearings to take evidence of vulnerable witnesses, and that is something that is being addressed through the bill. But as section 13BA of the Evidence Act currently stands, an application for pre-recorded evidence of vulnerable witnesses must be made at trial. There is therefore a risk that a vulnerable witness will have to give evidence again should an application be unsuccessful at trial. That is absolutely not a good outcome and is something that this bill intends to rectify. It was an unintended consequence that the bill rectifies by enabling courts to make those orders at a pre-trial special hearing admitting recorded evidence and such orders will be binding in the trial court itself.

Following on from the very good work of former member Kelly Vincent, we have the bill now that rectifies an unintended consequence of some of the provisions that were introduced in 2015. Of course, if matters arise or become known between the pre-trial and the trial, the court has discretion to order otherwise. I am sure Ms Vincent will be especially pleased to see that the government has responded positively to ensure the original intentions of her amendments in 2015 are fully realised.

I will also note that the other factor I raised with the Attorney's office during our briefing on the bill was the possibility of these companion dogs not only being used in the case of vulnerable victims but potentially vulnerable people who are charged with offences and appear before our courts. We do not know all the scenarios and all the circumstances that result in someone being charged with an offence and being before the courts, but we do know that overwhelmingly most individuals who find themselves in those situations are likely to suffer from some sort of mental health issue or other health issue, and generally it is mental health. That is overwhelmingly the case.

So you would have to question how useful these dogs would be, used in that setting, and whether there is scope or whether we should be considering scope in the future to extend the program to those charged with offences as well as vulnerable witnesses. It is something that arose during discussion with the Attorney. It is something that I would like us to explore further in the context of further reforms to the bill, and of course it will require more resourcing and funding, because right now we only have Zero.

Again, I think this is a very good step in the right direction, in terms of ensuring that we assist our most vulnerable witnesses and our most vulnerable members of the community. With those words, I offer SA-Best's overwhelming support for the bill and commend the government for this bill.

The Hon. R.I. LUCAS (Treasurer) (12:55): I thank the honourable members for their support of the second reading.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (12:57): I move:

That this bill be now read a third time.

Bill read a third time and passed.

Sitting suspended from 12:58 to 14:15.

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