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| Mr STIRLING (Justice and Attorney-General): Madam Speaker, I move that the bill be now read a second time. In 2004, this government introduced a number of reforms to the procedural law for the prosecution of sexual offences. The purpose of the reforms was to reduce the trauma experienced by children and other vulnerable witnesses in criminal proceedings for sexual offences, and improve the quality of evidence from those witnesses. To a large extent, the reforms were based on the 1999 report by the Northern Territory Law Reform Committee on laws related to the investigation and prosecution of sexual assault. The report recommended, as the then Attorney-General outlined in his speech to this Assembly, the creation of alternative mechanisms by which children could give evidence in sexual assault proceedings. As a result, the Evidence Reform (Children and Sexual Offences) Act commenced in December 2004 and the reforms have generally functioned very well. However, the Office of the Director of Public Prosecutions has recently identified a number of problems of a minor or technical nature. These have occasionally resulted in children being required to give, on multiple occasions, evidence as to the nature of the sexual offences perpetrated upon them, and recorded or written statements of children to police officers or Family and Community Services’ workers being ruled inadmissible by the courts because they do not comply with technical requirements. These situations are not acceptable, though situations to previous amendments were clearly intended to prevent. Madam Speaker, if components of the previous reforms are not working properly or are not being interpreted the way the government intended, they must be amended as soon as possible. Accordingly, the purpose of the reforms introduced today is to clarify the operation of provisions relating to children’s recorded statements by specifically exempting their statements from the requirements of the act. Increase the options for witnesses in the delivery of the evidence - it does this by allowing child and vulnerable witnesses to rely upon recorded statements as the whole or part of their evidence in chief; pre-record their evidence at a special hearing; or, give evidence at trial using the Vulnerable Witness provisions; and, to ensure the number of times the child is required to give evidence is minimised by allowing for recording of trial evidence and its use at any subsequent hearing in relation to the offences in the event of a mistrial or appeal. In addition, a number of areas have been identified in which the policy objectives of the initial reforms can be extended. These amendments will apply the protections for children and other vulnerable witnesses regarding sexual offences, to proceedings where the defendant is charged with sexual and other offences, or where one of the charges is a serious violence offence. The proposed amendments relating to serious violence offences recognises the clear connection between the physical and sexual abuse of children, and the trauma also experienced by child witnesses in cases of violence. I refer at this point the Australian Law Reform Commission’s Report Seen and heard: priority for children in the legal process. Amongst other things, the report looked at children’s evidence, how it is presented, how it is treated by the justice system, and attitudes to this evidence. At one point the commission noted:
These reforms are not about stripping an accused of their rights, of removing an accused person’s opportunity to contest charges against them using every legal means at their disposal. That right is fundamental and these reforms do not remove or erode that right. These reforms are, instead, about allowing children and other vulnerable witnesses to give evidence in a manner that promotes their self-respect and protects their dignity. These are important goals. Just as importantly, they are also about making sure as much relevant information as possible is available to the decision-maker. I turn to the specific provisions of the bill. Firstly, the bill amends Part 5 of the Justices Act in relation to proceedings at committal. It inserts a new definition of a serious violence offence in section 4 of the act, and extends the operation of Part 5 to these offences. As a result of the amendments, the evidence of the child at committal must be given by written or recorded statement in proceedings for: a sexual offence; a sexual offence and other offences; a serious violence offence; or a serious violence offence and other offences. The definition of ‘serious violence offence’ is based on that contained in the Bail Act which was developed following extensive consultation with the Northern Territory Police. A serious violence offence is an offence against specified parts and sections of the Criminal Code punishable by imprisonment for greater than five years. Part 3 of the bill dealing with amendments to the Evidence Act also extends the admission of the hearsay evidence of children under section 26E of the Evidence Act to serious violence offences. The definition of serious violence offences is the same as that inserted in the Justices Act. Amendments are also made to the Justices Act for the purpose of exempting the written or recorded statement of children from the requirements of the Oaths Act. Section 25A of the Oaths Act allows a court to omit evidence of a child who cannot comply with the requirements of that act. However, this provision only applies where the witness is called to give oral evidence in court. Current sections 105B(2) and 105B(2A) provide that evidence is not admissible unless it complies with the Oaths Act. This has the effect of excluding the written or recorded evidence of children who cannot make a declaration in the form required by the Oaths Act. The amended section 105B sets out that, for the purpose of the committal hearing, the statement of a child need not comply with the requirements of the Oaths Act. It is sufficient that it be made by a child and, in the case of a written statement, contain a further statement of this fact and of the age of the child. Finally, in relation to the Justices Act, section 105A is amended to remove the requirement that the defendant or his or her legal presentative be provided with a copy of the recorded statement of the child. The actual provision of the visual recording opens up the opportunity for possible dissemination of the recording and further exploitation of the child. Under the amended section 105A, the prosecution will be required to provide the defendant with a transcript of the recorded statement and an invitation to view the recorded statement at a reasonable time and place nominated by the prosecutor. I turn now in greater detail to the amendments to the Evidence Act. The wording of the previous reforms to the Evidence Act, particularly section 21B was recently criticised in the Court of Criminal Appeal decision Queen v Manager [2006]. In that matter, the court was presented with the question of whether the prosecution could use a recorded statement made by a child to police officers supplemented by a video of the child answering a number of additional questions at a special hearing as the child’s evidence in chief at trial. This approach was obviously intended to limit the number of times the child was required to recount the details of the alleged assaults, and to minimise the child’s exposure to the daunting processes of our criminal justice system. Unfortunately, it was held that the current wording of section 21B does not allow a child’s statement to police to be used in this way. The court held that the whole of the evidence of the child witness at a special hearing must be given orally. Madam Speaker, these amendments will now ensure the government’s intention is clear. First, new definitions of ‘authorised person’, ‘examination’ and ‘recorded statement’ are inserted in section 21A of the act, in addition to the definition of ‘serious violence offence’ as discussed earlier. Under the new section 21B, the court may allow the use of recorded statement as the whole or part of a witness’s evidence in chief, or allow that witness to give evidence at a special sitting of the court. Evidence given at a special sitting may be recorded and replayed to the jury as the whole or part of the witness’s evidence. A new section 21C will also be inserted: · allowing the court to give directions in relation to evidence given outside the court room and transmitted to the court room, for example, by way of closed circuit television; · setting out the procedure to be followed where the evidence of a vulnerable witness is given at a special sitting; and · providing that where a witness is giving evidence from outside the court room, the court must, unless there are good reasons to the contrary, delay the giving of identification evidence until the end of the witness’s evidence. A further amendment has also been developed to limit the number of times a child or vulnerable witness is required to give evidence. New section 21E allows the recording of evidence of the child or vulnerable witness in criminal proceedings. The recorded evidence can then be used in any subsequence civil or criminal proceedings such as an appeal or in the case of a mistrial. New section 21F consolidates previous provisions relating to the closure of the court. It provides that the court may be closed in cases involving sexual and serious violence offences either where a vulnerable witness is to give evidence or where the recorded evidence of the witness is to be replayed before the court. Finally, Madam Speaker, a minor amendment is made to the Sexual Offences (Evidence and Procedure) Act to clarify that the definition of sexual offence in that act, and adopted in the Evidence Act, includes both current and repealed offences. It achieves this through reference to elements of the relevant Criminal Code offences. Madam Speaker, I commend the bill to honourable members. I table a copy of the explanatory statement. Debate adjourned |