Second Reading
The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Justice) [3.19 p.m.]: I move:
That this bill be now read a second time .
I seek leave to incorporate the second reading speech in Hansard.
Leave granted.
I am pleased to introduce the Criminal Procedure Amendment (Vulnerable Persons) Bill 2007.
This bill proposes amendments to the Criminal Procedure Act 1986 to amend the existing provisions that govern the giving of evidence by children in certain proceedings, and extend those provisions to cover persons with an intellectual impairment. It is proposed to repeal the Evidence (Children) Act 1997 and insert those provisions into the Criminal Procedure Act 1986 , extending their application to intellectually impaired persons. It is considered more appropriate that these provisions are placed in the Criminal Procedure Act 1986.
This bill forms part of the Government's on-going legal reforms in the area of sexual assault prosecution arising out of the recommendations of the Criminal Justice Sexual Offences Taskforce, and also the Statutory Review conducted by my Department in June 2006 into the Evidence (Children) Act 1997.
The Taskforce Report contained 70 recommendations, which not only focused on laws and procedures affecting the prosecution of sexual assault matters, but also gave rise to more general concerns with respect to the protection of vulnerable witnesses within the criminal justice system.
The Taskforce recognised that people who have an intellectual disability or other cognitive impairment may be more vulnerable to sexual assault, particularly where they require assistance with their daily life activities. The Taskforce Report highlighted the need to provide greater protection to people with intellectual disabilities and other cognitive impairments, and to improve police investigations and the court process for those people.
The Taskforce also highlighted the need to provide further protections for children giving evidence in these types of situations, to prevent re-victimisation. The rationale for introducing special arrangements for vulnerable witnesses recognises that such witnesses often suffer a deficit in the ability to communicate and find it harder to adapt to new environments and situations.
I turn now to the detail of the bill.
Clauses 5 and 6 repeal both the Evidence (Children) Act 1997 and the Evidence (Children) Regulation 2004 respectively.
These provisions will be transferred to the Criminal Procedure Act 1986.
Item [1] of Schedule 1 replaces Section 76 of the Criminal Procedure Act 1986 , which concerned recorded interviews with children, transcripts of such recorded interviews, and access to the recorded interview. The new Section 76 substantially re-enacts those provisions" and replaces references to a 'child' or 'children' with references to 'vulnerable persons', thereby extending its application to persons with an intellectual impairment.
The key term 'Vulnerable Person' is defined in the new Part 6 of Chapter 6 to be a child or an intellectually impaired person. For the purposes of that part, a person is intellectually impaired if the person has:
(a) an appreciably below average general intellectual functioning; or
(b) a cognitive impairment (including dementia or autism) arising from, or as a result of, a brain acquired injury, neurological disorder or a developmental disorder; or
(c) any other intellectual disability.
The only change to the Section is the insertion of subsection (4), which enables the recording to be admitted in circumstances where the Notice requirements set out in the regulations have not been complied with, provided that the parties consent, or the accused person or his or her representative has been given a reasonable opportunity to listen to or view the recording, and it is in the interests of justice.
This amendment was one of the Recommendations of the Criminal Justice Sexual Offences Taskforce, and was also highlighted in the Statutory Review of the Evidence (Children) Act 1997 in June 2006.
Item [2] of Schedule 1 amends Section 91 to provide that a complainant in certain sexual offence proceedings, who is intellectually impaired, will not be required to attend a committal. This amendment mirrors the protections already in place for child complainants in certain sexual offence proceedings, reducing the number of times such witnesses are subjected to cross examination over the course of a sexual assault prosecution and reducing the re-traumatisation associated with multiple court appearances. The amendment arises from the Recommendations of the Criminal Justice Sexual Offences Taskforce.
Item [3] of Schedule 1 replaces the existing Section 185, which concerns recorded interviews and transcripts of recorded interviews. The new Section 185 substantially re-enacts those provisions and extends their application to vulnerable persons, thereby including the intellectually impaired.
Item [4] of Schedule 1 adds a Note to the end of Section 274 that makes clear that these provisions extend to certain civil proceedings as well as criminal proceedings.
• Under the amendments, vulnerable complainants in prescribed sexual proceedings, being children and those who are intellectually impaired, now
• have an entitlement to the presence of a support person when giving evidence in camera (Items [6] and [7]);
• are prevented from being cross-examined directly by an unrepresented accused person (item [8]);
• may use alternative arrangements for the giving of evidence, such as closed-circuit television, or the use of screens or planned seating arrangements in the courtroom ([Item 9]).
• have a general entitlement to the presence of a support person as set out in Section 294C when giving evidence in such proceedings (Items [10], [11] and [12]);
Item [13] of Schedule 1 inserts a new Part 6 into Chapter 6 of the Criminal Procedure Act 1986 , which deals with Evidentiary Matters. The proposed Sections 306M to 306ZP concern the giving of evidence by vulnerable persons, defined as children and intellectually impaired persons.
The new Part substantially re-enacts the provisions of the Evidence (Children) Act 1997, so as to enable the electronically recorded interviews made by investigating officials with a witness who is a vulnerable person, to be admitted into evidence as part of the person's evidence in chief. For children these are commonly know as JIRT [Joint investigation response team] interviews.
The new Part also confers an entitlement upon such vulnerable persons to give their evidence in criminal proceedings, and certain other proceedings, by means of closed-circuit television or other similar technology, rather than attending the proceedings to give oral evidence.
Proposed Section 306P sets out the circumstances in which the new Part 6 will apply to the evidence of vulnerable witnesses. In the case of a child, this is when the child is under the age of 16 at the time the evidence is given. This provision has not changed from the Evidence (Children) Act 1997.
In the case of intellectually impaired witnesses, the provisions will apply if the court is satisfied that the facts of the case may be better ascertained if the witness's evidence is given in such a manner. In making such a determination, the court will consider not only the quality of the evidence, but also the effect of any stress or trauma associated with the witness giving his or her evidence in the ordinary way.
There are some minor modifications contained in the proposed Part 6. Proposed Section 306Q provides that the Regulations may require an investigating official to record interviews with vulnerable persons. This replaces Section 7 of the Evidence (Children) Act 1997, which requires an investigating official who questions a child in connection with the investigation of the commission or possible commission of an offence by the child or any other person to ensure that any representation made by the child in the course of the interview is recorded, if the investigating official considers it may be adduced as evidence in court.
Existing Section 7, which sets out the requirements for the recording of interviews, will be moved to the regulations, and this will allow more flexibility in police operations and the ready adoption of new technologies when they become available.
Proposed Section 306U replaces and amends Section 11 of the Evidence (Children) Act 1997, which allows the previously recorded statement of a child under the age of 16 years to be admitted in criminal proceedings as his or her evidence in chief, where he or she is over the age of 16 but less than 18 years of age. The proposed amendment expands these provisions to enable the recording to be admitted no matter what the age of the person at the time of the hearing. This proposed change is in response to a specific Recommendation of the Criminal Justice Sexual Offences Taskforce.
Subsection (4) also makes it clear that the provisions requiring the vulnerable person to be available for cross-examination and re-examination in subsection (3) do not apply to committal proceedings.
Proposed Section 306V replaces Section 12 of the Evidence (Children) Act 1997 and concerns the admissibility of the recording of the vulnerable person's evidence. The amendment provides that despite a failure to comply with the Notice requirements in the regulations, the recorded statement should be admitted if the parties consent, or if the accused has had an opportunity to view the recording, and it would be in the interests of justice to do so.
This amendment also arises from the Recommendations of the Criminal Justice Sexual Offences Taskforce, as well as the Statutory Review of the Evidence (Children) Act 1997 conducted by my Department in June 2006.
The task force considered that the court should have a discretion whether to admit the evidence in circumstances where compliance with the notice provisions cannot be proved, provided that the accused has had an opportunity to view the recording, and it is in the interests of justice, or the parties consent. This would avoid a two-week delay, which the prosecution is obliged to seek in order to comply with the notice requirements. It would also bring these provisions in line with other judicial discretions.
Proposed Section 306ZE replaces and amends Section 21 of the Evidence (Children) Act 1997 which places a prohibition on children giving identification evidence by means of closed-circuit television or other similar technology. The child must be brought into court to give such evidence orally. Identification is often not a fact in issue in such proceedings, and the existing prohibition has been identified as unnecessarily problematic and has caused some practical difficulties, particularly where the child is giving evidence from a remote facility. The proposed amendment therefore retains the prohibition on giving identification evidence by way of closed-circuit television, but limits it to circumstances where identification is a fact in issue in the proceedings.
Schedule 2 makes consequential amendments to other Acts arising from the bill. The amendments contained in this bill will make it easier for children and persons with an intellectual impairment to give their evidence and provide greater protections from the stresses of the court process, as well as assisting them to give the best evidence they can give. I am sure these amendments will be welcomed by all members.
I commend this bill to the House.
The Hon. JOHN AJAKA [3.19 p.m.]: The Criminal Procedure Amendment (Vulnerable Persons) Bill 2007 amends the Criminal Procedure Act to make further provision with respect to the giving of evidence in criminal proceedings by certain vulnerable persons, namely children and intellectually impaired persons, in the form of recordings of previous representations and by closed-circuit television in court proceedings. The bill will consequently repeal the Evidence (Children) Act. The Opposition does not oppose the bill.
The bill arises out of recommendations of the Criminal Justice Sexual Offences Taskforce. The task force recognised that some members of our community, such as the intellectually disabled, may be more vulnerable to sexual assaults. It was also recognised that police investigations and court proceedings needed to be improved for vulnerable persons. It is our duty as elected representatives to ensure that vulnerable persons are given the protection they need and deserve. By incorporating the Evidence (Children) Act within the Criminal Procedure Act and broadening the definition from "child" to "vulnerable persons", which are defined as "children and intellectually impaired persons", the bill will help protect more vulnerable persons.
The bill will result in intellectually impaired persons being able to, first, not attend committal hearings, second, have their evidence-in-chief tendered in the form of recorded interviews or transcripts in criminal proceedings and certain civil proceedings, and, third, in prescribed sexual proceedings, be prevented from being cross-examined directly by an unrepresented accused, have access to alternative arrangements for the giving of evidence and the presence of a support person when giving evidence.
It is important to note that concerns have been raised about the possible ramifications of proposed section 306Q of the Act, which provides that the regulations may require an investigating official to record interviews with vulnerable persons. The concern is that intellectually disabled people may not be aware that their conversations are being recorded and police may use that as evidence in a case without their prior knowledge or understanding. Courts and their officials will need to treat vulnerable persons with the utmost respect and understanding.
I note also that the courts of New South Wales would be in a better position to protect vulnerable members of our community if the Government provided the courts with the very necessary additional funding so desperately needed. It is time for the Government to deliver properly resourced specialist courts, with specially trained judges, Crown prosecutors, Director of Public Prosecution lawyers and support staff. I am pleased to indicate, as I did earlier, that the Opposition does not oppose the bill.
Reverend the Hon. FRED NILE [3.22 p.m.]: The Christian Democratic Party supports this very practical, worthwhile bill, which will provide additional protection in the law to the intellectually impaired. The bill will provide greater protection for child witnesses and other vulnerable persons. This is part of the ongoing implementation of legislative recommendations made by the Criminal Justice Sexual Offences Taskforce in its 2005 report headed "Responding to Sexual Assault: The Way Ahead." As honourable members know, the task force made 70 recommendations for change, including a number of legislative amendments, and they have been picked up in this bill. A number of the amendments had already been dealt with in the Criminal Procedure (Sexual and Other Offences) Bill.
Some of the important aspects of this bill include the extension of protection currently provided to children in the criminal justice system to other vulnerable witnesses such as the intellectually impaired. It will also enable the pre-recorded statement of a child made when he or she was less than 16 years of age to be admitted as his or her evidence-in-chief no matter the age of the child at the time of the hearing. Another important aspect prohibits the calling of a complainant with an intellectual impairment at committal proceedings for certain sexual offences, mirroring the protection already provided to child complainants. The bill will also amend former part 2, concerning the requirement for interviews for children to be recorded and which had not yet commenced, stating that any such requirements as to the recording of interviews with vulnerable persons may be set out in the regulations. Finally, it provides that vulnerable witnesses will only be brought into court to give oral evidence about identification in circumstances where it is a fact in issue in the matter.
In the briefing we received, the Attorney General indicated that the whole issue of consent is now a priority for his department and in due course he will be bringing in legislation relating to consent in rape cases, to which we are looking forward and will give our support. This is needed to assist victims and hopefully to increase the conviction rate, which is very low.
Ms LEE RHIANNON [3.25 p.m.]: The Greens support this bill. All its measures will in some way make it easier for children and people who are intellectually impaired to negotiate the criminal justice system where sexual assault is alleged. However, much more needs to be done to ensure the criminal justice system accommodates the victims of sexual assault. The work of the Criminal Justice Sexual Offence Taskforce, set up by the Government in 2004 to drive reform, has been critical in outlining key reforms to modernise and humanise the criminal justice system for sexual assault victims. For the Government to claim in the media in recent times that the majority of the task force's recommendations have been implemented is, sadly, far-fetched.
The Hon. John Hatzistergos: No, it is not.
Ms LEE RHIANNON: According to our advice, it is more accurate to say that one-sixth of the recommendations have been implemented. The Attorney General says that is rubbish. It would be good to sit down with him and get the accurate figures, but that is certainly the impression that people who study this closely have gained. All the best work in the world by the Criminal Justice Sexual Offence Taskforce becomes irrelevant if its recommendations are ignored. Library bookshelves are lined with worthy reports on this subject, and they are gathering dust. It is the job of the New South Wales Attorney General to ensure that this is not the future for the taskforce's recommendations.
Piecemeal reform by the Government, when the editors of a major paper decide to create a momentary media storm around the failures of our sexual assault laws, is not good enough. It would be interesting for the Attorney General to enlighten us on how that played out. The Government needs a big-picture commitment, not an ad hoc approach, to revolutionise our legal system. The New South Wales Rape Crisis Centre, which was represented on the Criminal Justice Sexual Offence Taskforce, has developed a comprehensive best practice model for the prosecution of complaints of sexual assault, which I understand the centre hopes the Attorney General will embrace and implement.
The centre is clearly of the view that the current system is failing women. It notes that in 2005 just under 9,500 complaints of sexual and indecent assault were made to New South Wales police. The Australian Bureau of Statistics estimates that only 20 per cent of assaults are reported. Fewer than 500 people are convicted every year, with not all of those convicted receiving custodial sentences. The rate of reporting through to conviction for sexual assault is far lower than for any other criminal offence.
One of the key planks of the Rape Crisis Centre's best practice model is for a one-stop unit to provide counselling, health and legal services and most importantly, access to a case manager. This was also recommended by the task force. Such a holistic service is critical to help ease the way for victims who, because of their experience, are already reluctant to become involved in the criminal justice process. The Attorney General's office tells us that the one-stop shop initiative is being considered by the Department of Health and Police, These words do not sound promising. They suggest the Government may drag its feet on this and other proposals until such time as a tabloid creates a stir and a directive comes down from a government under siege to announce the implementation of the initiative to remove some heat. That is certainly how we have seen other government policies play out in this area.
Another key reform recommended by the Rape Crisis Centre, unfortunately rejected by some on the task force because it was not considered politically viable, is the establishment of specialist sex offences courts. The centre points out that this does not involve the construction of new court buildings as most current court complexes have the capacity to be redesigned to incorporate these specialist courts.
What specialist courts offer is the opportunity to change the culture of our current court system. Victims of sexual assault would experience fewer delays and a smoother pre-trial and trial process. A specialist court would enable specially designed courtrooms equipped with closed-circuit television [CCTV] facilities. Victims would face a specialist judge, assisted by specialist sexual assault prosecutors, both experienced in sexual assault matters. Other ingredients in the Rape Crisis Centre's plan include a range of law reform changes, including a legislative definition of consent.
While the Greens welcome the Attorney General's move to release a discussion paper on this and other reforms such as the introduction of an objective fault test, and his four-month deadline for action, we will closely monitor progress to ensure it does not fall off the Government's to-do list. We need a government willing to focus on the more difficult question of how to change our society to prevent sexual assault, rather than simply place an ambulance at the bottom of the cliff. Police need better training and NSW Health's forensic response requires improvement through better resourcing. Lastly, the Rape Crisis Centre is making a well-measured call for more research, training and resources. Current services for victims and survivors of sexual assault are so under resourced that they are unable to meet demand. We need additional counselling services, expansion of the nurses' examiner program and funding to support initiatives targeting indigenous communities.
A reform program to create a criminal justice system that operates as a safe place for women to pursue prosecution of a sexual assault involves many facets. It is imperative that the Government pursue a complete, finessed reform package. There is no quick fix or room for a bitsy, ad hoc approach. The Greens urge the Government to get on with implementing reform measures that are now laid before it—they are already there, on the table—acting independently of the pressure of any sensational campaign from the tabloids. That would benefit everyone, particularly the victims of sexual assault.
The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Justice) [3.33 p.m.] in reply: I thank honourable members for their contributions to this debate. To respond to the matter raised by Ms Rhiannon—anonymously I might add—I point out the following facts. Of the 70 recommendations contained in the Criminal Justice Sexual Assault Task Force report, 44 relate to legislative reform, and 15 of those recommendations were implemented in the Criminal Procedures Amendment (Sexual and Other Offences) Bill 2006, which was assented to on 2 November 2006. I also point out that 11 of the legislative recommendations did not require any action to be taken; for example, recommendation No. 15 that there be no attempt to define "recklessness". In addition, six of the remaining 18 recommendations that refer to legislative reform concern increased protection for children and witnesses with intellectual impairment in the criminal justice system, and they are included in this bill.
The 12 outstanding legislative recommendations concern a definition of "consent", expansion of the circumstances vitiating consent and the introduction of an objective fault test. They also deal with the expansion of offences of a sexual nature committed against persons with an intellectual impairment in the Crimes Act and the use of a more appropriate definition for those offences that takes into account a range of other cognitive impairments that are not covered by the definition. The amendments have been drafted and are set out in the consultation bills. They have been publicly circulated, along with a discussion paper on each topic, due to their complex nature. As I have indicated, I hope to introduce a further bill covering these amendments in the near future.
The remaining 26 recommendations in the task force report are operational in nature and relate predominantly to service delivery as well as education and training. Four of those recommendations are currently being implemented and an interagency working group has been formed, comprising representatives of various government agencies affected by the recommendations, that will be responsible for monitoring the coordination and oversight of the implementation of the remaining recommendations.
A couple of honourable members have mentioned the issue of specialist courts. That was not a task force recommendation. The Government commitment is to have every district court operate as a specialist court. To that end, a practice note has been issued by the Chief of the District Court dealing with timeliness and process in relation to these matters. Training is being provided to members of the judiciary to ensure that they are across the new obligations provided for in the legislation and other issues relating to the conduct of sexual assault cases. It is important to recognise the fact that the District Court sits in 32 locations across the State. Having a specialist court—which, as I said, was not recommended by the task force—would inevitably mean that victims would have to travel lengthy distances to access the court, which would sit only in specified locations. The Government does not believe that that is in the interests of victims, particularly if it results in extended delays in the conduct of trials because they have to be moved to other locations. It is in the interests of everyone— the prosecutors, the victims, the witnesses and the community—that the process being implemented by the Government, which ensures that the District Court is well equipped to deal with all these matters in a timely way, is progressed.
Question—That this bill be now read a second time—put and resolved in the affirmative.
Motion agreed to.
Bill read a second time.
Third Reading
Motion, by leave, by the Hon. John Hatzistergos agreed to:
That this bill be now read a third time.
Bill read a third time and returned to the Legislative Assembly without amendment.