CRIMES LEGISLATION (UNSWORN EVIDENCE) AMENDMENT BILL
In Committee (Recommittal)
Mr HARTCHER (Gosford - Minister for the Environment) [1.6 a.m.]: I move:
Page 2. After line 9, insert:
Amendment of Mental Health (Criminal Procedure) Act 1990 No. 10
4. The Mental Health (Criminal Procedure) Act 1990 is amended as set out in Schedule 2.
SCHEDULE 1 - AMENDMENT OF CRIMES ACT 1900
Before section 405, insert:
Abolition of an accused's right to make unsworn statement or to give unsworn evidence
404A.(1) Any rule of law or procedure or practice permitting a person who is charged with the commission of a criminal offence to make an unsworn statement or to give unsworn evidence in answer to the charge is abolished.
(2) Nothing in this section prevents a person from giving unsworn evidence under Part 6 of the Oaths Act 1900.
(2) Section 405 (Address to jury by accused):
(a) From section 405(1), omit "make any statement at the close of the case for the prosecution, and before calling any witness in his defence, without being liable to examination thereupon by counsel for the Crown or by the Court and".
(b) From section 405(1), omit "may,".
(c) From section 405(3), omit "or unsworn statement".
(3) Section 405A (Notice of alibi):
From section 405A(1), omit "or assert in any statement made by him under section 405(1) that he has an alibi".
(4) Section 409C (Limitation on dock statements in certain sexual offence proceedings):
(5) Eleventh Schedule (Savings and transitional provisions):
Part 5 - Crimes Legislation (Unsworn Evidence) Amendment Act 1994
Application of abolition of accused person's right to give unsworn evidence or to make unsworn statement
13. Section 404A, and the amendments to Sections 405, 405A and 409C made by the Crimes Legislation (Unsworn Evidence) Amendment Act 1994, apply to the trial of a person charged with an offence on or after the commencement of that section and those amendments.
SCHEDULE 2 - AMENDMENT OF MENTAL HEALTH (CRIMINAL PROCEDURE) ACT 1990
(1) Section 21 (Nature and conduct of special hearing):
From section 21(3)(d), omit "or to make an unsworn statement".
After section 40, insert:
Savings and transitional provisions
41: Schedule 1 has effect.
SCHEDULE 1 - SAVINGS AND TRANSITIONAL PROVISIONS
At the end of the Act, insert:
Application of abolition of accused person's right to make unsworn statement.
Mr WHELAN (Ashfield) [1.6 a.m.]: The Opposition accepts the decision of the House in relation to the dissent. It expresses disappointment that the Government did not seize the opportunity to reform the law. However, the Opposition accepts the decision with a deal of anguish. Government amendments incorporate the original bill initiated by the Government dealing with amendments to the Crimes Act in sections 404A and 405. As has been indicated publicly, our position is simple: if we were not successful in moving the amendments that the House has now ruled out of order, we would vote for the bill as prepared by the Government. In other words, if we could not get the necessary reform, we would vote, however regrettably, for the abolition of dock statements.
Dr MACDONALD (Manly) [1.7 a.m.]: I see this procedure as resurrecting the bill to achieve what the Government originally intended. Quite clearly, I am unhappy with the abolition of dock statements. I am equally unhappy with the retention of dock statements in their current form. I indicate to the House that tomorrow I shall give notice of a private member's bill to attempt to achieve what was sought last week by this bill, that is, the retention of dock statements with necessary amendments to prevent the type of abuse that we have witnessed. I am not happy with the outcome and that is the way I shall seek to resolve it.
Ms MOORE (Bligh) [1.8 a.m.]: I regret that dock statements cannot be retained in a different form. I support the honourable member for Manly, who expressed his attitude well. I will support a private member's bill, of which he will give notice tomorrow, to retain dock statements in an amended form. I place on the public record that the behaviour of the Attorney General in relation to this complex bill has been quite despicable. On regional radio last week he targeted the Opposition and the Independents - especially me - and suggested that they supported rapists and child molesters in preference to women and children. That was despicable, as his behaviour has been on a number of other issues, especially discrimination. I cannot understand the agenda of the Attorney, other than blatant expedient politicking. It is a disgrace for the leading law officer of the State to no longer support the presumption of innocence and to so badly misrepresent members of this House. He is beneath contempt.
Mr HARTCHER (Gosford - Minister for the Environment) [1.10 a.m.]: The Government remains proudly committed to its declared policy of the abolition of dock statements in New South Wales. The Attorney General has carried this difficult issue through to completion and upheld the declared policy of the Government to protect the innocent and ensure that those who have sought refuge in dock statements, especially by using them to discredit witnesses and victims, will no longer be able to do so. The fundamental right of silence remains; the fundamental right to go into the witness box and give evidence remains. All that is taken away is the historical anachronism that has been abolished in virtually every other common law jurisdiction in the world, as is well known to the honourable member for Ashfield. This legislation will bring New South Wales at last headlong into the twentieth century.
Mr WHELAN (Ashfield) [1.11 a.m.]: Ordinarily I would not speak at this stage, but the Minister has made a most amazing outburst, and made gross inaccuracies in law. The bill will do nothing to prevent people from being abused. Why does the Minister not understand that is what the reform is all about? The bill will do nothing to protect victims, because it contains nothing to prevent an accused person from making an outburst against a witness - except the reforms the Opposition introduced in 1982 and 1987, reforms that I wanted to bring before this Parliament. The Minister should not speak to me about victims. In the upper House, after Cabinet approved of it, amendments were made to the victims compensation legislation that provided that victims of crime would not be able to claim compensation. That was replaced by this esoteric consolation verdict so that any victim of crime, any victim of a sexual assault, will receive a consolation award.
Victims of crime will no longer be able to obtain compensation. The Government has removed the right of appeal to the District Court. The other thing members opposite, who pretend to look after victims, have done is introduce for the first time a threshold. Victims should understand that the threshold the Government introduced is $4,000. That will mean that if a woman walking down Martin Place is knocked over, kicked in the stomach, kicked in the teeth and has her bag stolen, she will not get $4,000 but will be disentitled from making a claim to this Government's Victims Compensation Tribunal. The Minister mentioned victims. I will tell him about victims. The Government should introduce that bill. It is about time the people of New South Wales understood the political stupidity of the Minister for the Environment. I shall give him some advice that I hope he will heed: hand in his legal practising certificate. He is an embarrassment.
Amendment agreed to.
Recommitted bill as amended agreed to.
Bill reported from Committee secundo with a further amendment and passed through remaining stages.
1. The amendment to section 21 made by the Crimes Legislation (Unsworn Evidence) Act 1994 applies to a special hearing conducted in respect of an offence with which a person is charged on or after the commencement of the amendment.