Northern Territory Second Reading Speeches

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EVIDENCE AMENDMENT BILL 2004


Bill presented and read a first time.

Ms CARNEY (Araluen): Madam Speaker, I move that the bill be now read a second time.

I publicly gave notice of this bill in February. It arose as a result of evidence of an alleged rape victim being published in some detail in the NT News. I am prevented from naming the woman involved, but I will shortly quote what was published so that members know in general terms the case to which I am referring.

I would like to put on the record that the NT News did nothing wrong; it was certainly allowed to publish what the woman said in the course of her evidence. The point we make by introducing this bill is that her evidence should have been given in a closed court thereby removing the possibility of any media outlet publishing her evidence.

I should also record that the judge hearing the case did not act improperly by not closing the court. His Honour made a decision about that, a decision that was open to him under the Evidence Act.

As legislators, however, we need to look at the broader implications of the way judges and magistrates are using relevant parts of the Evidence Act and, where appropriate, respond accordingly. If there are sound arguments that suggest that a change to the act is warranted, then we should make those changes.

My advice is that there have been three cases in relatively recent times in which judges have refused to close the court for vulnerable witnesses. Certainly, this is not a huge number, but the consequences are serious. They are serious for the victims involved, but potentially serious for future victims who may be even more reluctant to report sexual assaults for fear of their evidence being published by the media.

Presumably, the circumstances of this most recent case were not foreseen when further amendments to the Evidence Act were introduced in 2001. This does not mean that we should not change the legislation in response to recent developments in an effort to stop what might be called a trend in our courts.

I should note that on other occasions, judges and magistrates have not permitted vulnerable witnesses to use other protection afforded under section 21A of the Evidence Act, namely the use of closed circuit televisions and partition screens.

For the benefit of members, legislation was enacted some years ago, which afforded witnesses deemed vulnerable various protections. Among those options was to have the court closed when giving their evidence. This was done so the vulnerable witnesses who, specifically in 2001, included the victims of sexual assaults, could be assured that they can be protected when giving their evidence, which is very personal, sensitive and distressing.

The victim in this case was the victim of an alleged rape, so clearly she was a vulnerable witness and, clearly, her evidence was very personal, sensitive and distressing.

I will turn to the relevant section of the Evidence Act shortly, however it is appropriate that I repeat what was quoted in the NT News. I do this partly to refresh the memories of members, but also to ask whether members think that the victim’s evidence should have been published. I quote from one of three articles, namely that published on 11 February, noting that there are two other articles, but the following was the most graphic:

A Territory financial expert has pleaded not guilty to raping his businesswoman wife in their upmarket home. The wife, aged in her 30s, yesterday in the Supreme Court gave her tearful account of the alleged rape.

The incident happened in June in the couple’s former matrimonial home. The woman said her estranged husband held a pair of kitchen scissors to her stomach and over the nipple of one of her breasts.

‘I was terrified’ she told the jury. ‘He said: ”Touch my c…. I know you like it” and his hands started going everywhere. I was scared. I was really scared’.

The jury was told how the husband raped her before ejaculating over her face, hair and pyjama top.

‘I kept saying: “No, no” the wife said. ‘I begged him “Please, please don’t”’.

The court had to adjourn after the wife broke down and wept as she was asked to identify the clothing she wore during the alleged rape; silk pyjamas and a satin and lace robe.

My view is not only should that evidence have been given in a closed court, but also, it was exactly that type of evidence in that type of case that the legislators contemplated when the vulnerable witness provisions in the Evidence Act were introduced.

The change I propose with this bill will ensure that the evidence of vulnerable witnesses will not appear in the media or be heard by members of the public. This is not in the interests of justice. The change will also ensure that vulnerable witnesses use, as of right, the other protections afforded under 21A of the Evidence Act.

Section 21A deals with vulnerable witnesses, and there is no need for me to outline the criteria here, suffice to say that alleged victims of sexual offences are, under the act, vulnerable witnesses. Subsection 2 provides that:

… a vulnerable witness is entitled to give evidence using one or more of the following arrangements as chosen by the witness.

I will not quote every word of subsections (a) to (d) here, but the ‘following arrangements’ are (a) evidence can be given by close circuit television; (b) from behind a petition or one-way glass; (c) a vulnerable witness can be accompanied by a relative, friend, or other person; and (d) - which is germane in light of the case I have referred to - states:

… that the Court be closed while evidence is being given by the vulnerable witness in the proceeding (including evidence given under cross-examination) and that no persons remain in or enter a room or place in which the Court is being held, or remain within the hearing of the Court, without its permission.

All of the above sounds reasonable and straightforward, however, it is subject to the conditions outlined in subsection 2A, which is as follows:

The Court may make an order that the vulnerable witness is not to give evidence using an arrangement under subsection (2) if satisfied that –

(a) it is not in the interests of justice for the witness's evidence to be given using that arrangement; or

…

And, pursuant to (2B):

In determining whether or not it is in the interests of justice to use an arrangement under subsection (2), the Court must have regard to the following matters:

(a) the need to minimise the harm that could be caused to the vulnerable witness by giving evidence;

(b) the interest in the vulnerable witness being able to give evidence effectively.


Subsection (2C) provides that the court must state its reasons for making an order under subsection (2A).

I understand that, in the case earlier this year, no reasons were given as to why it was that the victim could not give her evidence in a closed court. It is, nevertheless, hard to imagine that the interests of justice were served by the publication of this woman’s graphic evidence by virtue of the fact that the court was not closed when she gave it.

When further changes were made to the act in 2001 to include sexual assault victims, the then Attorney-General, Mr Burke said, on 29 May:

It is important to note that this will not prevent the court from making an order refusing those measures, but it may only do so where it is satisfied that it would not be in the interests of justice to employ those measures or because of the urgency of the matter.

I suspect the term ‘in the interests of justice’ means many things to many people. However, I note and agree with the comments of the former Attorney-General when he said in the same debate on 29 May:

Of course, we must allow for circumstances in which the interests of justice may require the alleged victim to give evidence in a completely open manner in court, but those circumstances are not likely to be commonly required in order to provide an accused with a fair trial.

He went on to say:

It has always been the intention that the vulnerable witness provisions be presumptive in favour of special measures being used.

I will repeat that: ‘… be presumptive in favour of special measures being used.’ The amendments in 2001 were supported by the Labor Party. The member for Nhulunbuy said, on 26 June 2001, in debate:

Classification as a vulnerable witness entitles a witness to a series of court protections, and for good reason, in the knowledge that it is difficult enough asking in the first place for the victim to have to come to court and confront the trauma, the pain and the anxiety of the offence.

Madam Speaker, is that a convenient time?

Madam SPEAKER: Yes, it certainly is.

Debate suspended.


Continued from earlier this day.

Ms CARNEY (Araluen): Madam Speaker, continuing on from earlier, I raised the issue of vulnerable witnesses in my maiden speech on 16 October 2001. I suggested that all victims of violence fall within the vulnerable witness legislation. I will repeat something of what I said on 16 October 2001:

I know of too many victims who have been prevented by a judge or a magistrate from utilising the protection intended by the legislature. Of course, many crimes of violence are perpetrated on women and children. It is an absurdity, is it not, that on the one hand, we as a community encourage women and children to report sexual and physical violence yet on the other, we make the process of giving evidence as intimidatory and as awful as possible?

This issue is not new to me, nor is it new to government. It has always been intended that the measures that are contained in section 21A of the Evidence Act be presumptive in favour of being used and, in the context of the case to which I have referred, while witnesses generally should give their evidence in open court, there are particular circumstances where this should not occur, provided that the accused has a fair trial. In the absence of any reasons to the contrary, it is impossible for me to see how the interests of justice were served by not closing the court on a particular occasion in the case to which I have referred and, indeed, in other cases.

Regardless of the circumstances of this particular case, however, our view is that, on balance, the act should be changed so that the victims who are vulnerable be permitted to avail themselves of the protections afforded under section 21A(2) as of right, and that the only limitation be that if it is not available owing to the urgency of the proceedings; that is, if it is impracticable to give effect to that arrangement. That is an amendment also contained in the bill. That part in the bill has been changed only slightly and contemplates, as did the original section, I suspect, situations where things like a closed circuit television is not available. This bill will give victims the security of giving their evidence without the world knowing the details. It will also ensure that the original aims of the legislation are preserved and will, accordingly, assist other vulnerable witnesses.

Sexual assaults are on the increase in the Territory, which is why the Attorney-General created the Sexual Assault Task Force in December. In his media release dated 17 December 2003, he said:

Work is already under way to improve court processes for vulnerable witnesses like sexual assault victims.

I assume, therefore, that he or his department or members of the task force are actually going to make some improvements. I submit that supporting this bill should be one of them. This bill is not major, but it is important. Vulnerable witnesses should have the protections as of right, which are outlined in section 21A of the Evidence Act and should have them except where it is impracticable.

The social implications of not fixing this problem are significant. How do we expect victims of sexual assaults, for instance, to report assaults in the knowledge that, although a vulnerable witness, that person’s very personal, sensitive and distressing evidence could be heard by the world at large, or that they may not be afforded the opportunity of the protection afforded under the act?

I note that, after I gave notice of this bill, the Attorney-General responded in the media by saying that matters were ‘in hand’. That was in February and government has had ample time to fix the problem. This is a short bill and fixing the problem is not difficult. Government may well be looking at further measures and, if that is the case, so be it. However, in the meantime government does have an obligation to respond and to act.

I am aware that the Sexual Assault Task Force is currently looking at a range of issues in the area of sexual assault, but remedying the problem highlighted by this and, indeed, other cases, does not need to wait. It can be a one-off fix. There is no need to delay; in fact, I suggest that it is inappropriate to delay.

It is noteworthy that, since giving notice of this bill, the Attorney-General has not contacted me about it. He has not offered me, either informally or formally, advice as to why it is that the government will, as I understand it, not support this bill. He knows my personal interest in this area and, in fact, earlier this week in reply to a letter I sent to him about the Sexual Assault Task Force, he wrote:

I welcome your personal interest and commitment to this area.

That sentence that was repeated elsewhere in the same letter. In those circumstances, it is appropriate that I record my disappointment that he has not communicated with me. That is his right, of course, but I am left to deduce that there are what can only be described as political or strategic reasons for his failure to do so.

If that is the case, and it may not be, in which case I do hope to hear from him before this bill is debated, then I say that I am not prepared to play politics with this issue, I am not prepared to sit by and wait. In the absence of any explanation, I can only assume that politics stands in the way of his support for this bill. Those who have been directly affected by the problems highlighted by the case to which I have referred and others will, no doubt, be forced to come to that conclusion as well. Madam Speaker, I commend the bill to honourable members.

Debate adjourned.




 

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