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Criminal Procedure Amendment (Sexual and Other Offences) Bill
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Page: 3404
Second Reading
Debate resumed from 18 October 2006.
Mr CHRIS HARTCHER (Gosford) [10.00 a.m.]: The Criminal Procedure Amendment (Sexual and Other Offences) Bill follows on from a task force established by the present Attorney General in 2004. The principal findings of the task force were released to the media in January 2006, which carried them at the time, and the report was made public in April 2006. A timeline has been prepared by one of those commentators. It is an extremely interesting document. It states that in December 2004 the Attorney General, the Hon. Bob Debus, assembled a special task force to consider major reforms that would revolutionise the way sexual assaults are dealt with by the legal system. The move followed 63 fresh reports of gang rape in the previous financial year and the additional revelation that, out of 9,532 reports of sexual and indecent assault, only 216 convictions were recorded. It is an extraordinary figure.
In December 2005 more than 300 victims responded to a landmark survey that found the legal system was failing complainants in just about every area. The task force used the study to help complete its submission. In January 2006, the task force, comprising judges, barristers, police, counsellors and academics and the Director of Public Prosecutions, delivered its final recommendations to the Government and there were newspaper reports about it in January 2006. In April 2006, the extraordinary cases involving some gang rapes in Sydney had been heavily reported in the media, and Tegan Wagner walked from court and proudly spelt her name out loud to reporters after seeing the conviction of the brothers who had so disgracefully raped her. Sexual assault counsellors hailed her courage and the resulting publicity as a major turning point. I mention the excellent book by Paul Sheehan that dealt with the case and was a best seller earlier this year. I congratulate Paul Sheehan on the extraordinary work he has done in highlighting this issue of major public concern.
In October 2006 the New South Wales Rape Crisis Centre reported a huge surge in calls from complainants, including a 28 per cent increase from people who were sexually assaulted in the previous seven days. The New South Wales Government announced major law reforms that would allow these cases to be heard in an environment that provides comfort and support. Accordingly, this legislation is now presented to the Parliament.
The original task force report, produced in April, contained 70 recommendations to the Government. They were designed to ensure that victims were better treated by the system, and that conviction rates were increased and victim trauma was reduced. In welcoming the report, the Attorney General at the time—again the Hon. Bob Debus—announced that he would implement many of the major legislative reforms it recommended. The report recommended a number of matters that are not capable of legislative action, such as education programs for judges and for court staff. Its principal recommendation was the establishment of a one-stop sexual assault centre for victims, because at present victims must attend up to six different locations seeking help. That is arguably the principal reform recommended. As I said, that is not capable of legislative action; that is an administrative matter to be developed by the Government and to be funded by the Government. Unfortunately, to date the Government has not made an announcement on when that one-stop sexual assault centre will be established, how it will be funded and who will staff it. One hopes that the Attorney General will address that issue as this bill progresses through the Parliament.
Not only was there a 28 per cent increase in first-time callers in October, there was a 131 per cent increase in all calls for the first quarter of the financial year. The New South Wales Rape Crisis Centre reported a 41 per cent increase in callers who had been sexually assaulted as children. The whole dark area of sexual assault has had many lights turned upon it in recent years. The New South Wales Rape Crisis Centre report is another one of those, but the reaction of government, including this Government, is slow and it is painful to see the very slow progress that has been made even in the legislative response to this task force report. Some months ago, through the shadow spokesperson for women, the Hon. Catherine Cusack, and the Leader of the Opposition, the Coalition called for urgent action for the implementation of the task force report. The Hon. Catherine Cusack will be speaking on this issue when the matter comes before the Legislative Council.
The report also recommended that there be consideration of establishing a special sexual assault court as there is for gun crimes. The Government stated, according to media reports, that this was being considered. Again, the Government has not made a statement about it. The task force was established in November 2004 and the report was subsequently released. But there has been no statement made by the Attorney or by the Government that such a court will be established. In 2004, before the release of the report, the New South Wales sexual assault and court conviction statistics, which were released in November, revealed that 11,000 people contacted NSW Police in the past financial year to report a sexual assault, which included the figures of 63 gang rape offences and 320 child sexual assaults. A further 3,352 cries for help were received by the New South Wales Rape Crisis Centre, the State's only 24 hour rape counselling service.
Together with all honourable members, I commend the wonderful work done by the New South Wales Rape Crisis Centre in assisting so many women who are tragically victims of sexual assault. Those at the centre display enormous patience and compassion in endeavouring to assist victims. The media reports stated at the time that the historic reform of a sex crime court would be a first for Australia and would be a successful implementation of intensive lobbying by the New South Wales Rape Crisis Centre. The centre manager, Karen Willis, who attended a meeting with the Attorney General, his senior policy advisers and the State Government's law reform section, said:
We spoke at length about a place where everybody from the judge to the cleaner would be trained to deal specifically within this area; the idea being that victims get treated with greater dignity, respect and, of course, that justice is served.
Ms Willis said that the gathering was sparked by statistics, which she argued proved that rape victims were being let down now more than ever. The New South Wales Bureau of Crime Statistics and Research figures show a dramatic increase in the number of sexual assaults reported to police—in 2002-03, 9,151 and to the end of June 2004, 11,000. As well as the staggering number of reported gang rapes and child sexual assault the New South Wales Rape Crisis Centre reported 196 adults stepping forward for the first time to admit they were sexually assaulted when they were children. There were 77 people aged 55 and older who reported being raped. In addition, the bureau report showed that 63 people contacted the service believing they had fallen prey to sexual assault as a result of drink spiking. Ms Willis said:
Sexual assault figures are increasing across the board, but it's impossible to know whether it's the number of incidents that are rising or the number of women deciding to come forward.
The Australian Bureau of Statistics estimates that only 20 per cent of rapes are reported, which means we are looking at a potential figure of approximately 60,000 sexual assaults in New South Wales in the past year. For that same period, there were just 247 convictions. So the gap between reported sexual assaults and convictions is enormous. It is a serious challenge to our society that must be accepted and met if our society is going to afford women the protection and dignity to which they are entitled and the respect and protection that the law must afford all its citizens. A further report in January of this year in respect to the 300 people who responded to the landmark survey of 2005, that I have already addressed, stated that the latest figures showed that 98 per cent of accused sex attackers walked free in 2004. That would equate with a figure that was supplied to me—and I believe is accurate but I cannot find its source—that only 1 per cent of sexual assault complaints result in a prison sentence. Any society in which 98 per cent of sex attackers can walk free is a society that does not adequately address the issue.
I know that members of the Government will support this legislation, and the Coalition does not oppose it. One has to express disappointment with this legislation because it in no way is a comprehensive legislative response to the task force report. The legislation makes limited changes to the legislative system. I acknowledge, as I have earlier, that quite a number of the recommendations in the task force report dealt with matters that are outside the legislative framework, such as: the establishment of the single centre to look after victims; the education programs for judges and court staff; the need for special training for police and medical staff in handling these offences; and the need to further assist and resource organisations like the New South Wales Rape Crisis Centre.
The task force made 70 recommendations and only a few of them are reflected in this legislation. To be fair to the Attorney, he has stated in other reports that this legislation would only address some of the issues and that further consideration will be given to the other issues raised by the task force. I hope that they are. I believe that all honourable members should approach these sorts of matters in a responsible way. They need careful consideration but I would have thought they had received careful consideration by the task force, which included not only judges and academics but also the Director of Public Prosecutions. The Director of Public Prosecutions overwhelmingly handles sexual assault cases that come before the courts. I would have thought that the Attorney would have more readily accepted some of the recommendations of the task force, especially the recommendation for a statutory definition of consent, which is not reflected in this legislation.
Mr Bob Debus: It will be.
Mr CHRIS HARTCHER: I accept the assurance of the Attorney that that important matter will be reflected. I will not say any more other than to quote the Director of Public Prosecutions who is a person with whom I, and the Opposition, have come into conflict on various matters. However, I have always said that we respect his integrity and his ability, and have only ever argued with him on issues of public accountability. In 2006 a media report quoted Mr Cowdrey in relation to the definition of "consent":
But a majority of taskforce members—including the Director of Public Prosecutions, Nicholas Cowdrey, QC—said a definition [of consent] would educate the public, provide consistency and "make it clearer for the community to understand what does and what does not amount to consent".
The task force noted problems in the criminal justice system, including court delays and low rates of conviction. It recommended that sex assault cases receive separate treatment in the system and that lawyers, judges and police be trained in dealing with vulnerable witnesses. I would have thought that almost all witnesses in sexual assault cases are vulnerable. About one third of sexual assault matters take more than two years to complete, which is an extremely disturbing statistic because it means that these victims are in agony for such a long time. It went on to say:
More than 90 per cent of reported rapes do not result in convictions and only 17 per cent end up in court.
Those figures are appallingly low. This legislation is designed to help overcome the low reporting of rapes. I do not wish to go through the legislation. The Coalition has done so and has determined that the legislation should not be opposed and will not seek amendments to it. I am gratified by the assurance of the Attorney General that he is working on a statutory definition of "consent". I understand that it is a difficult matter on which to set good judicial grounding. Such definitions can be argued in court and sometimes become counterproductive, especially as the common law definition of "consent" is well established.
The sections dealing with a judge's power to make certain directions to the jury are illuminating. I was not aware that this was a matter of concern. The Act specifically states that a judge must not warn a jury or make any suggestion to a jury that complainants as a class are unreliable witnesses. I would have hoped that would not be a problem. Clearly it was a problem, otherwise the task force would not have felt it necessary to make such a recommendation. The proposed section specifically prohibits the giving of a warning to a jury of the danger of convicting on the uncorroborated evidence of a complaint. Certain matters need to be considered where evidence is uncorroborated, but the task force has clearly considered whether it needs to be expressed as a warning and has found that is not appropriate. I do not believe for a moment that such a provision prevents the issue being raised because, after all, uncorroborated evidence should be considered carefully and deliberately.
The Coalition very much welcomes a number of the proposed sections, particularly the section that provides for the admission of a record of evidence given by a complainant in sexual offence proceedings in a new trial, following the discontinuation of a trial. When a jury is discharged for whatever reason or it fails to reach a verdict and a trial is discontinued, it is in the interests of the public and complainants that sexual assault victims are not required to give their evidence again. Again I commend the excellent book by Paul Sheehan, which drew the public's attention in a very readable fashion to the many problems associated with sexual assault trials.
This important legislation continues the shining of light into the dark world of sexual assault. Significantly, the Parliament is dealing with these issues. I hope that the Government through its Executive deals with other issues in the report, including the establishment of a one-stop centre and education programs. The Coalition welcomes the announcement by the Attorney General about education programs. I assume those matters will be dealt with through the Judicial Commission of New South Wales. This legislation is important and significant and deserves to be acknowledged as such.
Ms LINDA BURNEY (Canterbury—Parliamentary Secretary) [10.23 a.m.]: The House has dealt with the scourge of sexual assault on a number of occasions. The Attorney General and the Government have done an enormous amount of work in legislative reform in relation to sexual assault. It is an ongoing issue that needs to be dealt with carefully. For example, the Criminal Procedure Amendment (Evidence) Bill 2005 is part of a raft of legislation. I acknowledge the presence in the public gallery of Karen Willis, Manager of the New South Wales Rape Crisis Centre. I can assure the House that she is committed to working in this area; it is not just her job. It has been recognised in response to the report that not only legislative changes are needed. Cultural changes are also needed, not only in society but also in the judiciary and the way that justice is served in the interests of victims of sexual assault. The Rape Crisis Centre has talked about this issue for a long time. I briefly point out that cultural change is not particular to New South Wales or Australia. It has been only in recent times that sexual assault and rape have been recognised as instruments of war, as we have seen in the trouble spots of Bosnia and Sudan.
The bill addresses some of the issues associated with the low rate of conviction in sexual offences, including evidentiary matters and the withdrawal of the complainant. It is acknowledged that the attrition rates have been a driving force behind this legislation. Evidentiary matters, including the admissibility and reliability of evidence, have a significant impact on the likelihood that the accused will be convicted. In typical sexual assaults—if any sexual assault can be described as typical—the offence is committed in private with no witnesses to corroborate the complainant's version of events. Many factors such as intimidation, shame, self-blame and uncertainty as to whether an offence has been committed can result in delayed reporting.
The bill amends the directions that judges can give to juries about a complainant's evidence. In particular, it prohibits a judge from warning a jury that it is dangerous to convict on the uncorroborated evidence of any complainant. It also prevents a judge from stating or suggesting to a jury that complainants as a class are unreliable witnesses. Those provisions reflect the motivation behind this legislation, that is, making sure the judiciary is sensitive to these issues and better able to respond to them. The bill amends the directions a judge may give a jury in respect of delay in complaint. In particular, it adds to existing provisions by providing that a judge does not warn a jury that the delay is relevant to the victim's credibility unless there is sufficient evidence to justify it. Honourable members may be amazed that we need such legislation to provide those directions. However, in the past the attitudes of and directions by members of the judiciary in some sexual assault matters have been inappropriate and would have caused great distress to the men, women and children—particularly women and children—who were the victims of sexual assault.
The bill limits warnings about delay to circumstances where the delay is significant and the judge is satisfied that as a result the accused has suffered a significant forensic disadvantage. The withdrawal of a complainant is another significant factor in the low rate of conviction. This often occurs following committal proceedings, as the complainant is often too distressed by the experience to continue and to have to face revictimisation at trial. This is a critically important part of the legislation. It takes into account the emotional distress and physical injury suffered by victims from the long-term effect of sexual assault. The distress can be so great that the complainant cannot continue with the trial.
This bill tightens up the procedures for calling complainants at committal hearings, to ensure that the court is satisfied that there are special reasons in the interests of justice to direct a complainant to attend a committal hearing to give evidence. It also enables the written statement of the complainant to be admitted as his or her evidence-in-chief. Complainants often do not wish to continue after a trial has been aborted or resulted in a hung jury, or discontinued for any other reason, because they cannot face the trauma of giving such evidence all over again. The bill provides for the complainant's previous evidence to be tendered as evidence in the subsequent trial—usually in the form of video recording—so that the complainant will not have to go through that court experience again. There will be a presumption against calling the complainant to give further evidence, although there will be some scope to do so where it is clearly in the interests of justice.
I finalise my comments by saying that the trauma of a sexual assault trial is enormous. This bill addresses not only the sensational issues that are easy to focus upon; it reminds us that sexual assault occurs in all parts of society, often in our homes, and far too frequently. The bill is about all people who have been victims of such horrendous crimes, not just about the sensational cases. I commend the bill to the House.
Mrs JUDY HOPWOOD (Hornsby) [10.31 a.m.]: The Criminal Procedure Amendment (Sexual and Other Offences) Bill 2006 is a bill for an Act to amend the Criminal Procedure Act 1986 to make further provisions with respect to proceedings for sexual and other offences and the protection of certain persons in such proceedings, and for other purposes.
The objects of the bill are to clarify the circumstances in which complainants may be called to give evidence in committal proceedings for certain sexual offences and to make it clear that child complainants may never be called; to provide that witnesses in criminal proceedings who have difficulty communicating are entitled to use a person or a communication aid to assist in giving evidence; to make further provisions with respect to the non-publication of the names of sexual assault complainants and make provision for the non-publication of evidence in relation to certain sexual assault proceedings; to clarify and provide for various jury directions given in certain sexual offence proceedings in relation to complainants; to give lawyers who are appointed in certain sexual offence proceedings to ask questions of a complainant on behalf of an accused person in unity from liability; and to permit the admission of a record of evidence given by a complainant in certain sexual offence proceedings in any new trial that is listed following a trial that has been discontinued. The bill also makes other minor amendments.
I will not enlarge upon the contribution made by my colleague the honourable member for Gosford. He noted that the bill follows the Sexual Assault Task Force report to the Attorney General last January, and also that after nine months the Iemma-Costa Government finally has implemented some of the recommendations of that task force. The Coalition will not oppose the bill. We will support anything that endeavours to facilitate courtroom proceedings with respect to such emotionally charged and very difficult matters as sexual assault and other criminal matters, and to address the difficulties often experienced by the victims and in the conduct of the trial. The failure of the Government to implement all the recommendations of its own Sexual Assault Task Force is noted. I was privileged to be part of a briefing given by that task force.
I commend the contribution to the Sexual Assault Task Force made by the New South Wales Rape Crisis Centre, which is working against sexual violence. This is a statewide, 24-hour telephone and online crisis, support and referral service for women who have experienced sexual violence. It is committed to upholding the rights of women to live in a socially just, equitable and non-violent society. Counsellors work in partnership with women to expand their choices, facilitate healing and encourage personal growth. The fundamental service principles on which the centre operates are that all forms of sexual violence are a crime; all women have the human right to live free of violence; sexual assault is an extreme act of violence; perpetrators of sexual violence aim to terrorise, degrade and humiliate their victim and place themselves in a position of power and control; and sexual assault is indicative of patriarchy. The information that I gathered from the web site of the Rape Crisis Centre states:
In all its practices the Centre asserts that anyone who has experienced sexual violence has the right to be treated with dignity, compassion and respect and be informed of, and have access to, legal assistance, counselling, health and welfare services.
The web site gives statistics of the work of the New South Wales Rape Crisis Centre from 1 July 2005 to 30 June 2006. In that period the centre had 1,433 new callers and 2,177 repeat callers. The most common issues presented by new callers were sexual assault, 574 reports; child sexual assault, 402 reports; calls from supporters, 183 reports; gang rape, 34 reports; and drug and assault related sexual assaults, 41 reports. In relation to the cultural backgrounds of new callers, 824 were Australian, 25 were Aboriginal and Torres Strait Islanders, 105 were European, 27 were Middle Eastern, 7 were North American, 8 were South American, 3 were African, 36 were Asian, and 14 were Pacific Islanders. The age groups of callers were as follows: 0 to 15, 40; 16 to 25, 331; 26 to 35, 251; 36 to 45, 187; 46 to 55, 110; and 55 and over, 53. There were 56 new callers with a disability. It can be seen from those statistics that rape and sexual assault is a widespread issue, occurring amongst communities of all backgrounds and age groups. Obviously this is a very serious problem, and I commend the Rape Crisis Centre on its work and its contribution to the formulation of this bill.
I point out that White Ribbon Day is on 25 November. I support the work of Unifem Australia in regard to the elimination of violence against women. The White Ribbon campaign is the first male-led campaign against violence in the world. On 25 November each year, the International Day for the Elimination of Violence against Women, hundreds of thousands of men across the globe will wear a white ribbon as a pledge to help end violence against women. The White Ribbon Day brochure notes that 57 per cent of Australian women will experience an incident of physical or sexual violence by a man in their lifetime; more than 30 per cent of women will experience abuse in a relationship in their lifetime; and young women and girls face a particularly high risk of violence. That both men and women come together in an attempt to address this extremely serious issue is commendable.
I acknowledge the many letters written by women involved with domestic violence, of which sexual assault is only part. My own domestic violence network group, which meets monthly, is doing a fantastic job. Its motto is "No person should live in fear of domestic violence". Obviously that feeds directly into the purpose of this legislation, which is to assist those who have had that experience to have their case addressed. The Hornsby-Ku-ring-gai area has a wonderful domestic violence court assistance scheme. I again pay tribute to Josie Gregory for leading the charge. The scheme is designed to encourage and assist victims of domestic violence to use the justice system to ensure protection from further violence. It is funded by the State Government and administered by the Legal Aid Commission of New South Wales.
As I have already stated, a number of parties have been consulted and the Coalition will not oppose this legislation. However, it is disappointing that not all of the recommendations in the Government's Criminal Justice Sexual Offences Taskforce have been incorporated. I reiterate that it is vital that the New South Wales Government deal with sexual assault, which also affects men. A great deal more could and should be done in this area.
Mr PAUL LYNCH (Liverpool) [10.41 a.m.]: I support the Criminal Procedure Amendment (Sexual and Other Offences) Bill. The law relating to sexual assault has always been a significant issue for legislators. Greg Woods' book A History of Criminal Law in New South Wales: The Colonial Period 1788-1900, for example, refers to lengthy and passionate parliamentary debates in the nineteenth century about what was then called "rape". People such as Sir Alfred Stephen, who was normally a staunch defender of the death penalty, opposed it as the maximum penalty for rape because, among other reasons, there was an increased disinclination on the part of juries to convict if the accused would be likely to be hanged. Legislative attention is often drawn by notorious but atypical incidents that are subject to massive media attention. However, this bill deals with fundamentally more important issues than simply the penalty. It deals with the "attrition process". The report of the Criminal Justice Sexual Offences Taskforce entitled "Responding to sexual assault: the way forward" states:
Evidence derived from past surveys shows that only a small proportion of sexual assaults enter the criminal justice system, and many of these are filtered out or do not proceed to a conviction.
That seems to be a much more important issue than the maximum potential sentence. Of course, the sentence is completely irrelevant unless there is a conviction, and there is no conviction unless there is a report. On the other hand, there are important protection principles that must be defended, such as an accused's right to a fair trial and the prosecution establishing criminal guilt beyond reasonable doubt. Of course, there is the possibility of conflict between these traditional principles and the importance of reducing the attrition rate. We should not establish competing principles, but have a system and set of laws and procedures that adhere to both principles, and this legislation largely manages to achieve that. One of the reasons for that is the way in which the bill was developed.
The bill arose out of the Criminal Justice Sexual Offences Taskforce report, which was published in April 2006. The task force was established in December 2004 and was chaired by Lloyd Babb, who was then the Director of the Criminal Law Review Division of the Attorney General's Department. Some of us in this place came to know him through the debate on the State terror laws. The task force included a significant range of participants with very different perspectives. I note that Karen Willis, the manager of the Rape Crisis Centre, is in the gallery today. That process has resulted in a useful report which has attracted a fair degree of consensus and which has adhered to both sets of principles to which I referred a moment ago.
The evidence about attrition in the report is stark. It refers to a crime and safety survey which states that only one-third of respondents notified police about the most recent incident of sexual assault. Australian Bureau of Statistics data suggests that only 10 per cent to 30 per cent of adult female sexual assault victims report their victimisation to police. One of the reasons is a fear of re-victimisation once the report has been made. The report also suggests that most women are sexually assaulted by someone known to them, and by one rather than many perpetrators. One study reports that alcohol was involved in approximately 40 per cent of incidents. Referring to those factors and some others, the report states:
It is important to keep these characteristics in mind when considering issues relating to attrition. Often atypical cases capture the attention of the media and the public, possibly creating a distorted view of sexual assault, and these are not the most suitable vehicle for influencing the development of policy in this area.
Of course, attrition is not restricted to reporting. Issues also arise following a police investigation, the laying of charges, at the prosecution stage and at trial. The report states:
High rates of attrition in sexual assault cases within the criminal justice system reduces the capacity of criminal sanctions to act as a deterrent to offending, and undermines community confidence in law and justice processes.
The bill is designed to address those issues without compromising other important principles. The bill also extends non-publication orders so that they may be maintained after a verdict in proceedings. This aims to reduce problems arising from adverse publicity. It also makes clear that publishing includes broadcast over the Internet. Other provisions strengthen already existing restrictions on calling complaints to give evidence at committal hearings. Another provision makes changes to possible jury directions by a judge. This is in the interest of justice in making the position clearer and more precise. Greater support is also provided to vulnerable witnesses in courtrooms. A recorded interview of a child complaint can be admitted as evidence even when the child is now over 18 years.
There are other provisions in the bill that do not arise from the task force report. One deals with the prohibition of cross-examination of complainants by the accused. I have mentioned that issue previously. The bill also provides an indemnity for the lawyers who are acting as the mouthpiece for the accused. The bill does not contain a provision relating to consent. I find that a difficult argument. There are arguments on both sides of the ledger about whether consent should be codified, and chapter 3 of the report deals with that very well. Those of us who are interested in law reform and progressive changes in the law would traditionally support codification, and that has been my position for some time.
The difficulty emerges when one tries to codify and draft a provision; it can sometimes make the situation worse than the situation being addressed. It is certainly not a new argument; arguments about codification have been raging in this Chamber since 1856. According to the history of criminal law in New South Wales, people have been arguing about codification for as long as there have been members of the Legislative Assembly. I do not see it as a particularly easy debate. In that context, taking a bit more time to consider the codification argument, which is what the Attorney General indicated today and in the second reading speech, can be no bad thing. If it is to be codified then it must be done very carefully, and taking a bit of time to do that can only be welcomed. This is a very good bill. It has dealt with a series of legal principles well and it should be welcomed.
Mr BARRY COLLIER (Miranda) [10.48 a.m.]: I support the Criminal Procedure Amendment (Sexual and Other Offences) Bill. This is landmark legislation. As a member of the Bar who has appeared in sexual assault trials, both for the prosecution and the defence, I can tell the House that there is no more difficult trial than a sexual assault matter. Of course, the person for whom it is most difficult is the alleged victim. I will refer to women in this debate, but we all know that men are also victims of sexual assault. We have come a long way from the days when if the alleged victim of sexual assault did not raise a hue and cry, or make a complaint within a very short space of time and if there was no corroboration, she would not be believed. Many women over the centuries have fallen victim to sexual assault and justice has not been done.
The reforms and clarification of the law provided for in this bill are significant. They will, in my view, make a substantial difference to the conduct of trials of sexual assault matters. It can be extremely difficult for the complainant in a sexual assault trial to give evidence. Some do not want to give evidence and dread the prospect of being embarrassed, and some have feelings of shame as if they are in some way to blame for what has happened. They dread having to relive the trauma they have endured for months, even years, after such a horrific, violent event—sometimes more than one event perpetrated over a lengthy period. In some instances the sexual assault is linked to domestic violence. The difficulty many experience in giving evidence is one of the principal barriers to victims of sexual assault coming forward, and a factor in the underreporting of a crime which really should bring shame on us as members of a civilised society.
The bill includes several important steps and I will refer to just some of them. First of all, it clarifies the circumstances in which the complainant may be called to give evidence in committal proceedings. Over time there have been changes from the situation where a complainant would give evidence not only in committal proceedings but also in the trial—a double whammy, if you like; a double dose of trauma, embarrassment or shame. Another important step over time has been the change to the law that enabled the accused to give a statement from the dock. In other words, accused persons could get up in the dock and say whatever they liked without having to face cross-examination on it. That right has long been abolished.
The bill clarifies the circumstances in which complainants may be called to give evidence in committal proceedings for certain sexual offences, and makes it clear that a child complainant can never be called to give evidence in committal proceedings. Requiring a child to give evidence in a trial is difficult enough for the child, the child's family and/or supporter. Over the years there has been a change to the law to enable a child to have a support person and give evidence by way of video link, which is very important for the child. Making it clear that a child cannot be called to give evidence in committal proceedings is a step in the right direction, one of those clarifications of the law that I spoke about earlier.
An important part of any criminal trial, of course, involves the directions that the judge gives to the jury. The judge is the judge of the law; the jury is the judge of the facts. The current Act provides that in certain sexual offence proceedings, where evidence is given or a question asked of a witness that tends to suggest an absence of complaint or delay in making a claim about the alleged offence, the judge is to warn the jury that the lack of complaint or delay in complaining does not necessarily indicate that the allegation is false. In fact, there may be good reasons why a victim of sexual assault may hesitate in making, or refrain from making, a complaint about the assault. There may be many reasons why a person does not make a complaint. They may regard it as a one-off event and say, "This is never going to happen again." That is particularly the case if domestic violence is involved.
As the honourable member for Liverpool correctly stated, in many instances the victim of a sexual assault knows the person who has assaulted him or her, and in some cases is in a domestic relationship with that person. The bill goes further and provides that the judge must not warn the jury that delay is relevant to the victim's credibility unless there is sufficient evidence to justify such a warning. That provision achieves the right balance in a trial. The judge may warn the jury, but only if the parties to the proceedings request that he or she do so; and the judge may give the warning only as to the nature of the disadvantage caused or likely to be caused—perhaps a forensic disadvantage arising from the loss of relevant evidence that may point to the innocence of the accused.
With regard to the judge's directions to the jury, the bill provides that in certain sexual offence proceedings a judge must not warn a jury or make any suggestion to a jury that complainants as a class are unreliable witnesses. We are all different. We have different motives and different lifestyles. It is important that judges do not warn the jury or make any suggestion that complainants in sexual assault matters are unreliable or that they are fabricating their evidence. It is just another way of saying the complainant deserved to be assaulted, which of course is a lie. It is appropriate that judges are directed that they must not suggest that the alleged victims of sexual assault are fabricating evidence for some other reason. That is an important step in encouraging victims to come forward to give evidence.
I should say, also, that it is a brave woman that comes forward to give evidence in a sexual assault matter. It takes a great deal of courage on her part. She may have family present in court and having to go through the trauma of giving evidence is something that really turns victims away from coming to court. They constantly see television shows—either a television program based on the American justice system or one based on the Australian justice system—that depict the complainant being dragged through the hoops and breaking down in the witness box. The bill is an important step forward in that it provides for a record of evidence given by a complainant in sexual offence proceedings to be admitted in any new trial that is listed following a trial that has been discontinued. In other words, if a complainant, the alleged victim of a sexual assault, gives evidence in a trial that is aborted or in which there is a hung jury, or for some reason the trial is discontinued, that evidence can be admitted in any subsequent trial without the complainant being required to enter into the witness box and go through the trauma of giving evidence again.
The record of such evidence is admissible if the prosecutor gives the court and the accused person notice of his or her intention to tender that record of evidence given in the first trial. The Act also provides that the hearsay rule, which lawyers are always interested in, will not prevent the admission or the use of that record in evidence. If the record of evidence given by the complainant in the first trial is admitted in subsequent trial proceedings, the complainant will not be compellable to provide any additional evidence. The alleged victim does not have to go into the witness box to give additional evidence, although he or she may elect to do so. As I said, that is a great step forward in encouraging victims to report the heinous crime of sexual assault. The prosecutor can say, "This has to be done, but only once." It does not have to be done on two, three or perhaps four occasions.
The bill contains procedural steps such as this that are landmarks in the law relating to sexual assault matters. I commend the Attorney General for introducing the legislation. I commend the Criminal Justice Sexual Offences Task Force, established in 2004, many of whose recommendations have been implemented with the introduction of this bill. I commend all the agencies involved. In my electorate of Miranda numerous agencies and numerous people work with victims of sexual assault and I commend them on the work that they do in respect of one of the most difficult matters to come before the court. It is a most difficult matter for people who are the victim of this crime and their families—parents, brothers and sisters—who go through the process with them, who sit in court day in and day out, and who are forced to listen to a description of shocking events. It is an extremely difficult time for victims who have the courage to come forward and report sexual assault offences. I admire them for doing so. I trust that this bill will encourage more victims of sexual assault to agree to give evidence in court. I commend the bill to the House.
Ms VIRGINIA JUDGE (Strathfield) [10.58 a.m.]: I support the Criminal Procedure Amendment (Sexual and Other Offences) Bill. I commend the Attorney General and his hardworking staff, and the departmental staff, for the efforts they have put into bringing this bill before the House today. It was interesting to listen to the very thoughtful, clear and concise contributions of the honourable member for Liverpool and the honourable member for Miranda. They spoke with considerable knowledge and experience of these laws, which I do not have. Their contributions highlighted some of the key issues addressed by the bill. Obviously they have a lot of experience in this area, which I believe is important in the process of ensuring that the legislation is effective.
I believe that Karen Willis from the Rape Crisis Centre in Drummoyne is in the public gallery this morning. It is great that she has taken time out from her busy schedule to come in here. I visited the Rape Crisis Centre a couple of years ago, when I met Karen and some of her staff. I was extremely impressed by the work they do at the centre. They are so compassionate and caring, and they try to make the best use of the resources they have available to them. Indeed, I bet they work long past the hours required of them to make sure they assist people who have, sadly, fallen victim to these horrendous crimes. It is probably about time I made a return visit to the centre. I will try to get there some time before Christmas or in the New Year to see where Karen and her staff are up to. I thank them for the way they welcomed me on my visit to the centre. Although the Rape Crisis Centre serves the entire State, I know that quite a few people in the inner west, particularly from my electorate of Strathfield, perhaps would have used the service. It is regrettable that it has to come to that, but at least Karen Willis and her staff are there to do the best they can to support people who have suffered from sexual offences committed against them.
In December 2004 the Attorney General established the Criminal Justice Sexual Offences Task Force to examine issues surrounding sexual assault in the community and the prosecution of such matters within the criminal justice system. The task force was to advise the Attorney General on ways to improve the responsiveness of the criminal justice system to victims of sexual assault, whilst ensuring that an accused person receives a fair trial. The report of the task force entitled "Responding to sexual assault: the way forward" made more than 70 recommendations for change, including a number of legislative amendments. These recommendations represent one of the most comprehensive reviews of the law in this area in the last 20 years. It is great that our Government has taken steps to allow that to occur. The task force reviewed the current law in New South Wales and other jurisdictions with respect to sexual assault offences and what amendments may be desirable and worthy of implementation.
In particular, the task force examined the number of reported sexual assault cases that are prosecuted and the outcomes of those matters, including the number of victims whose cases may not proceed through the criminal justice system and why so many cases do not proceed; how to improve the provision of information and services to people who have been sexually assaulted; the law in relation to consent; the test for the admissibility of evidence of sexual experience and reputation; the efficacy and practice regarding committal proceedings involving adult sexual assault complainants; non-publication orders in sexual assault trials; directions to juries in sexual assault trials; the test for admissibility of tendency and coincidence evidence; whether there should be a presumption that multiple complainants should be dealt with together in the same trial against the accused; the evidence of children, and whether existing mechanisms and court practices provide adequate safeguards against children being re-traumatised by the court process; practices and procedures regarding the safety, protection and rights afforded to people with intellectual disabilities and other cognitive impairment, and people living in aged care residential facilities in light of their vulnerability to sexual assault; whether there should be a specialist court, or a dedicated and specialised approach to prosecuting and hearing sexual offence cases; how to improve the management of sexual offences cases through the courts and reduce delays; and whether any alternative models or approaches should be included in any recommended specialised model.
The bill implements a number of those recommendations, including: improving the committal process for complainants; expanding the use of non-publication orders in these cases; simplifying jury directions; improving the situation for young people who are abused by allowing a recorded interview of a child complainant to be admitted as evidence even where the child is now over the age of 18; and providing that any witness who has difficulty in communicating unaided may use an intermediary or device when giving evidence, if that witness normally employs such a device to assist in communication. In addition, the bill makes two further amendments that were not specifically considered by the task force but have been raised by practitioners. The Government's previous amendments to allow transcript and other evidence from an original trial to be admitted in retrials will be extended to allow all or part of a complainant's previous evidence in criminal proceedings to be used in subsequent trials in circumstances where the earlier proceedings were discontinued because the trial was aborted or there was a hung jury. There is some flexibility, however, to recall the complainant in circumstances where their evidence has not been fully completed; to clarify any matters arising from the original evidence; to canvass fresh material that has become available since the original proceedings were adjourned; or it is otherwise in the interests of justice to do so.
This is an extremely comprehensive review. These legislative changes will make a significant contribution towards easing the process of assisting sexual assault victims. I cannot for a moment imagine what it would be like to be sexually assaulted; it is something that would take one many, many years to get over, if one ever were to get over it. Any measures the Government can take to ease that process are welcome. In another area of law, the Carr-Iemma Government also introduced victim impact statements, which was an early initiative that has also proved to be very helpful.
I note that some wonderful young people from Homebush primary school, a school in my electorate of Strathfield, have just come into the Chamber. It is therefore fortuitous that I have been given the privilege to speak to and support the bill. I think this is the students' first visit to the Parliament. They are sitting in the public gallery so beautifully and listening intently to part of the wonderful democratic process we have in this country, a process that many countries do not have. It is simply wonderful that anyone can walk in off the street, sit in the public gallery, and be part of what is happening in this Parliament, or be part of tours such as the one that has been organised this morning. I hope the students enjoy their visit to the Parliament. I support the bill and commend it to the House.
Ms LINDA BURNEY (Canterbury—Parliamentary Secretary) [11.07 a.m.], in reply: On behalf of the Attorney General I speak in reply to the Criminal Procedure Amendment (Sexual and Other Offences) Bill. I do not intend to repeat much of what has been said. I thank the members representing the electorates of Gosford, Hornsby, Liverpool, Miranda and Strathfield for their contributions. I wish to respond to some of the matters raised by the Opposition. In particular I wish to address four specific points raised by the honourable member for Gosford to which he has rightly requested responses.
Clearly, the bill is about addressing and alleviating some of the stress and trauma experienced by those who are the victims of sexual assault. As I said in my second reading speech, the bill is not just about legislative reform and reform within the judiciary but also about attitudinal and cultural change. It is very distressing that when sexual assault is reported in the media or discussed in the public arena it is suggested that somehow or other the woman who has been the victim of sexual assault must have brought it on herself. That is one of the major cultural changes we are talking about: that somehow it is the victim who is at fault. I think we as a society are moving away from that, but let us not pretend that that attitude and those comments do not sneak into public discourse now and then.
People have spoken at length about the small proportion of sexual assaults that enter the criminal justice system and the even smaller number where convictions are attained, but also, worryingly, the amount of attrition in connection with sexual assault cases getting as far as conviction. The Australian Bureau of Crime Statistics and Research Crime and Safety report of 2004 said that each year between 10 and 30 per cent of adult female sexual assault victims report their experience to the police. However, community perceptions of the potential revictimisation of sexual assault complainants when participating in the criminal justice process may be reflected in low reporting decisions. The previous comments I made go some way to address that particular issue.
I know other members have spoken about this but let me be very specific about the three main stages of attrition: the point of investigation, the decision of the prosecutors not to proceed to trial, and acquittal of the accused after a trial or defended summary hearing. A complex range of procedural, evidential and non-legal factors influence the attrition process. As the honourable member for Miranda said, some victims of sexual assault have had the strength and courage to go and make a complaint but they are worn down by the process; they are traumatised over and over again, in many cases, by the process. This situation is at the heart of this bill.
The Bureau of Crime Statistics and Research estimates also that more than 80 per cent of sexual offences reported to police do not proceed to prosecution. Today we have talked about factors that contribute to the alarming and unacceptable situation where the victim is revictimised and eventually withdraws. The distress and the capacity to cope can only be properly understood if one can stand in the shoes of the people who have been victims of sexual assault. Evidentiary factors that can affect the admissibility and reliability of evidence also increase the difficulty of complainants. As I pointed out, lower rates of conviction for sexual offences undermine community confidence in law and justice processes, distresses the people who are trying to get some justice, and may also dissuade victims from coming forward. That is, in essence, what we are seeking to address with this bill.
I address the four issues particularly raised by the honourable member for Gosford, and specifically the issue of one-stop shops. That matter is a high priority and the subject of much discussion. I want to assure the Parliament and the people who are taking great note of this debate that the task force recommended that consideration be given to the implementation of one-stop shops to allow victims to get early access to health counselling services at one location. A young woman who was a victim of an awful sexual assault, but who sadly has passed on, subsequently was dragged from pillar to post, from doctors to hospitals to police, in a traumatised state. The notion of one-stop shops is to stop victims of sexual assault having to attend several locations for several different reasons.
The plan currently is under consideration by the Department of Health and the Human Services Chief Executive Officers Committee. One-stop shops would have particular relevance in rural areas where there is not necessarily the same availability of services for victims of sexual assault that we might find in more populated areas. I cannot say what the outcome of the committee's consideration will be but I can say that the argument for one-stop shops has been heard very clearly and there will be a recommendation shortly.
The honourable member for Gosford asked what the Government has done to assist sexual assault complainants in the past. Those who have listened to and participated in this debate would understand that there has been a raft of legislative changes and amendments over a number of years to make the process of giving evidence in sexual events cases less traumatic. In fact, my recollection is that since I have been a member of this Parliament there have been at least four or five bills, including some of the ones that the honourable member for Strathfield referred to, in relation to reform in this area.
Some of the amendments include prohibiting a child complainant from being called at committal; prohibiting an accused from personally cross-examining the complainant; establishing remote witnesses facilities and allowing complainants to use closed-circuit television from these facilities to give their evidence; creating a positive duty on the court to disallow improper questions; closing the court when the victim gives evidence in sexual offence proceedings; introducing new rules governing the service of sensitive evidence; improving the case management of these cases by introducing pre-trial binding directions; and legislative acknowledgment of the role of a support person in legislation.
In relation to future legislative reform, especially in relation to consent, the honourable member for Liverpool canvassed the very difficult but very important definition of "consent". The Government intends to introduce further legislative reforms that will provide further support and protection for sexual assault complainants. A separate bill bringing forward reforms to vulnerable victims is under way. It will contain a comprehensive definition of "intellectual impairment"; it will contain provisions to enable a video recording of the statement of an intellectually impaired complainant to be admitted as his or her evidence in chief; and it will allow cross-examination via closed-circuit television, similar to the present arrangements in place for children. Offences with respect to victims with intellectual impairment will also be clarified to provide greater certainty for the victim.
I underline that the Government is developing also a consultation bill and paper on issues surrounding consent. This will include a statutory definition of "consent", as well as expansion of the list of circumstances that vitiate consent. There will also be an objective fault test, which places the onus on the accused to demonstrate what steps he or she took to ascertain if the victim was consenting. This is a major change to a complex area of law and will benefit from further consultation with practitioners and interested parties.
Finally, I address the issue of the introduction of a specialist court. I attended a launch here at the Parliament of, I think it was called, Black and Purple, that raised awareness about these issues. The Criminal Justice Sexual Offences Task Force examined the issue of specialist courts and studied similar schemes established in other jurisdictions such as Canada and South Africa. When examining the specialist courts in other jurisdictions the common elements integral to their success appear to be a dedicated and separate case management list; specially trained prosecution teams; a dedicated co-ordinator to facilitate specialist listings; specialist witness support; specialised court staff; and specialist police training.
One criticism is that there is a potential for special courts to emulate the same problems as existing courts. If training is incomplete or inadequate, common goals are not implemented in practice and responses are not necessarily adequately resourced. However, after close consideration of these models—and this may be a disappointment to some people—the task force did not support the introduction of a specialist sexual assault court at this point. Specialist courts can also create additional problems, such as burnout amongst professionals involved, leading to high staff turnover, resulting in a lack of continuity and a lag in the provision of such specialist services. Debate will continue on this point. The task force report concluded that while some of the measures employed by specialist courts are worth adopting in our general court system, the concept of a specialist sexual assault court is not necessarily a magic panacea. The focus is on our existing court structures and system.
Task force recommendation Nos 66 and 67 concern a specialised response to sexual assault prosecution. The Attorney General's Department has established an advisory panel to consider Recommendation No. 66. The panel consists of representatives of the judiciary, the Office of the Director of Public Prosecutions, the principal administrator of the courts and the Legal Aid Commission. This bill recognises the needs of victims and inadequacies in the current legislation. I thank those involved in the drafting of the bill, including advocacy groups. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
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