Northern Territory Second Reading Speeches

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EVIDENCE REFORM (CHILDREN AND SEXUAL OFFENCES) BILL 2004


Bill presented and read a first time.

Dr TOYNE (Justice and Attorney-General): Madam Speaker, I move that the bill be now read a second time.

The purpose of this bill is to reduce the trauma experienced by child witnesses and other vulnerable witnesses such as adults with intellectual disability in criminal proceedings for sexual offences, and improve the quality of evidence from those witnesses in criminal proceedings.

In December 2003, I announced a new Sexual Assault Task Force in response to government concerns about some spiked increases in the number of sexual crimes. The primary focus of the task force is reducing the level of sexual offences across the Territory through the development of a targeted whole-of-government sexual assault prevention plan. The task force is currently investigating Northern Territory data; researching police and legal responses across Australia; exploring service models, particularly in relation to indigenous survivors; and gathering information on issues facing the reporting, investigation and prevention of sexual assault in remote areas. The task force has also been looking at recommendations of the 1999 Law Reform Committee Report on the investigation and prosecution of sexual assault, including the proposals for specialist training for prosecutors, legal and judicial officers working on sexual assault cases, and the provision of facilities for vulnerable witnesses in Territory courts.

While I am looking forward to the task force presenting the prevention plan early next year, this government is not waiting until that time to put in place the measures necessary to protect those vulnerable members of our community. The Northern Territory has both a high rate of reported sexual assault and a high attrition rate of sexual assault cases in the criminal justice system. Very few reported cases actually result in a formal disposition by the courts. In 2001, the police reported a total of 263 cases of sexual assault with a clear-up rate of about 69%. In the same year, only 11 sexual assault cases reached a formal conclusion in the Supreme Court. Out of those cases, seven were pleas of guilty, two resulted in acquittals, and two resulted in a guilty conviction. There are concerns that the existing processes for prosecution of sexual offences have a significant negative impact on complainants of sexual assault, and whether cases are successfully prosecuted. This is supported by Australian research which indicates that the legal system systematically disadvantages children who report sexual assault.

The bill provides for children and other vulnerable witnesses to give evidence by pre-recorded statement, introduces time limits for the prosecution of sexual offences, abolishes oral examination of children at the committal proceedings for sexual offences, and introduces new provisions into the Evidence Act regarding the questioning of witnesses, and child witnesses in particular.

Disallowance of question and principles to protect child witnesses: a comparison of the existing Northern Territory laws with those in other states indicates that current Northern Territory laws to protect witnesses, including child witnesses, from inappropriate questioning is limited. The bill proposes a new provision for the Evidence Act which will permit a court to disallow a question that the court considers to be misleading, confusing, annoying, harassing, intimidating, offensive, repetitive or phrased in inappropriate language. In determining whether to allow a question the court must have regard to the age, maturity, cultural background and any mental, intellectual or physical characteristics of the witness. The provision will apply to all witnesses, including children, and replaces a provision in the Evidence Act that was more limited in its application. The new provision is more practical in approach, in that it recognises that different witnesses have different needs, attributes and levels of understanding.

The bill also proposes to introduce principles that the courts must take into account when dealing with child witnesses. These principles would provide guidance for the courts in the exercise of their discretion in relation to child witnesses. The advantage of placing principles such as this into legislation is that prosecutors, judges and magistrates are alerted to the issues that must be considered when a court is exercising its discretion in relation to the questions put to a child witness. They provide material for submissions and decision by the judicial officer in relation to questions to a child witness that minimise the grounds for an appeal from a decision to exclude a particular question. These principles are also consistent with, and relevant to, the proposals to record the evidence of children and fast-track the prosecution of sexual assault cases and other existing provisions in the Evidence Act regarding vulnerable witnesses.

Evidence of vulnerable witnesses: a 1999 report by the Northern Territory Law Reform Committee on laws related to the investigation and prosecution of sexual assault in the Northern Territory recommended the introduction of alternative means for children to give evidence in sexual assault prosecutions so that the statements of children recorded by video tape could be used instead of requiring the children to give oral evidence at the trial. The bill implements that recommendation.

An analysis of sexual assault cases heard by the Northern Territory Supreme Court over the last three years shows that one third of the cases involved victims who were children under the age of 18 years. Recent Australian research that examined the experiences of children who gave evidence in criminal proceedings for sexual offences, found that a significant number of children who had been through the process of giving evidence would not report sexual abuse again. The comments from children who participated in this research indicated a wide spread belief that the process was not worth the trauma suffered.

The Australian Law Reform Commission inquiry into children and the legal process recommended the introduction of legislation to permit the entire evidence of a child to be taken prior to the trial and videotaped. Recent research conducted for the Criminology Research Council on the experiences of child complainants of sexual abuse in the criminal justice system indicated that the Western Australian model, where the evidence of children is recorded at a special pre-trial hearing, has been successful in contributing to a reduction in trauma experienced by children during a prosecution.

The proposed amendment provides options for the prosecution to present the evidence of children under the age of 18 years and other vulnerable witnesses such as adults with an intellectual disability in cases involving sexual or violent offences. They permit the prosecutor to adduce pre-recorded evidence of the witness instead of the vulnerable witness giving oral evidence at the trial. The prosecutor has the option of presenting the witness evidence-in-chief in the pre-recorded statement or recording the whole of the witness evidence including cross-examination at a special pre-trial hearing of the court. This will allow the witness evidence to be captured at a relatively early stage in the proceedings and helps to prevent trauma to the witness as a result of last minute rescheduling of trials or re-trials.

It is anticipated that the court will develop guidelines in relation to this provision to assist parties to use this provision effectively. The Supreme Court already has facilities necessary for the recording of a witnesses’ evidence at a special hearing. The bill also proposes to use out-of-court or hearsay evidence in sexual offence prosecutions that involve a child. In these cases, the court will have the discretion to admit evidence of a child’s statement to another person if the court considers the evidence is of sufficient probative value. For example, this will permit the court to admit evidence of a child’s initial disclosure of sexual abuse and for that to be part of the evidence of the offence. Under the current laws of evidence such statements cannot be admitted as evidence of the offence. The rights of an accused person are protected by the provision that an accused person cannot be convicted solely on the basis of hearsay evidence admitted under the provision. The bill also proposes that a court must be closed when a vulnerable witness gives evidence in relation to a sexual offence.

Amendments to the Justice Act: the bill proposes an amendment to the Justice Act which will abolish the oral examination of children at preliminary examinations held in the Magistrates Court also referred to as committal proceedings. In prosecutions for sexual assault offences children are often required to give oral evidence which includes cross-examination at both the committal hearing and a trial. While the Northern Territory Justice Act provides for a procedure for written statements to be used as evidence in committal proceedings the defendant can require the attendance of a witness to attend and to give oral evidence and this is invariably the case in committal proceedings for sexual offences.

Traditionally, the procedure of calling oral evidence at committal and permitting cross-examination of witnesses is justified on the basis that the accused is entitled to be appraised of the full extent of the Crown’s case and the evidence. Committals have also been identified as having an important role in giving protection from unwarranted prosecution. However, changes such as the establishment of independent Directors of Public Prosecutions, the introduction of formal and public guidelines in relation to prosecutorial discretion, and the full disclosure of the prosecution case also provide protection from unwarranted prosecution.

The trend of law reform across Australia in this area indicates that the traditional procedures, such as a full oral commital hearing are being re-evaluated and there is recognition of the need to balance the legitimate rights of accused persons with the protection of victims of crime, particularly child victims. Most Australian states have now either modified or abolished oral examination of children in commital proceedings for sexual offences.

A recent Australian study of the experiences of children in sexual assault prosecutions found that cross-examination of children at commital is often more harsh than at actual trial, and that intimidatory cross- examination at commital increases a child’s fear of the trial.

There are indications that inappropriate, oppressive or lengthy cross-examination of children occurs in commital proceedings in the Northern Territory. At a recent commital hearing in Alice Springs, a child was cross-examined for two days for a charge under section 131A of the Criminal Code, Unlawful Sexual Relationship with a Child. The child was cross-examined, even though she had given birth to a child as a result of the alleged offences at the age of 14 years and the accused had confessed to police of having sexual intercourse with the child on five occasions.

In its 1997 report on Children in the Legal Process, the Australian Law Reform Commission recommended that child witnesses should not give evidence in person at commital proceedings and that, instead, the child’s written or electronically recorded statement should be produced as evidence.

This bill proposes to abolish oral examination of children under the age of 18 years at commital proceedings, formerly known as preliminary examinations in the Justices Act. Evidence of the child will only be given by written or recorded statement and the child cannot be cross-examined. This means that the child will only be required to give evidence on one occasion rather than at both the commital hearing and trial.

Abolishing oral examination of children in commital hearings for sexual offences will have other benefits as cases will be heard more quickly and will use fewer resources in the Magistrates Court.

Amendment to the Oaths Act: amendments to the Oaths Act are necessary to ensure consistency between this act and other provisions proposed by this bill for the use of evidence recorded by audio tape, video or other audio visual recording means. The proposed amendments will not authorise the use of these statements in court proceedings, but will permit their use when they are otherwise admissible in proceedings.

Time limits for the prosecution of sexual offences: previous Northern Territory reports into sexual assault laws published in 1992 and 1999 recommended the introduction of time limits for the prosecution of sexual assault offences to deal with the problem of lengthy delays, which may cause further trauma for victims of sexual assault.

I am pleased that this long standing recommendation is now being implemented by this bill. The fast tracking of sexual assault prosecutions was also recommended by the Coroner, Mr Cavanagh SM, in the findings concerning a case of a youth suicide in Alice Springs.

In this matter, the Coroner concluded that the deceased’s lengthy interaction with the criminal justice system as a victim awaiting the finalisation of proceedings was a stressor that contributed to her decision to take her own life.

An analysis of sexual assault cases finalised in the Northern Territory Supreme Court over the last three years shows that there are significant time delays in many criminal prosecutions involving sexual assault or child sex abuse. One-third of finalised cases involved child victims, and many of these cases took more than 12 months from the initial proceedings in the Magistrates Court to final deposition in the Supreme Court. In cases involving adult victims, the time delays were even more significant, with many cases taking more than two years to be completed.

Data produced by the Australian Bureau of Statistics indicates that the median duration for sexual assault and related offences in the Northern Territory Supreme Court is 44 weeks. This is significantly longer than the median duration for property offences at around 18 to 20 weeks, or homicide and related offences at 35 weeks.

Delays in the prosecution of these sexual assault offences means that the quality of evidence from victims is compromised and victims experience further trauma as a result of the drawn out legal proceedings. National and international experience in this area highlights the need to ensure that cases of sexual assault are dealt with as quickly as possible. The proposal introduced time limits for the prosecution of all sexual offences. Proceedings in the Magistrates Court and in the Supreme Court must be completed within three months. The provision includes a discretion for the court to extend the time period where this is necessary.

Fast tracking of sexual assault cases will not cause any significant problems in the administration of courts, due to the relatively low number of cases coming before the Supreme Court. In 2000-01, only 11 out of the total of 331 finalised cases in the Northern Territory Supreme court involved charges of sexual assault as the principal offence, and most of these, in fact, seven, proceeded by way of plea of guilty.

The amendments to the Sexual Offences (Evidence and Procedure) Act proposal will provide a definition of sexual offences to be used in this act. The Evidence Act and the Justices Act – the definition includes all sexual offences contained in the Criminal Code. Madam Speaker, I commend the bill to honourable members.

Ms CARNEY (Araluen): Madam Speaker, I would like to take this unusual but, I am told, legitimate step of making a few comments before I adjourn this bill. I am advised by a couple of my colleagues that I am able to do so.

Madam SPEAKER: You do not want to make this your second-reading speech?

Ms CARNEY: Yes, with a view to continue …

Madam SPEAKER: If you like, you can make your comments and then seek leave to …

Ms CARNEY: Thank you, Madam Speaker, and I can assure the Attorney-General that he does not have anything to worry about. I was interested in his comments in the second-reading speech where he quoted some figures from 2001. He said that there were 263 cases in the Northern Territory of sexual assault. Eleven of those cases made it to court. Seven were pleas, two were acquitted, and two offenders were convicted. Can I add to those, by the following figures – in 2002-03, the Territory’s crime figures record 419 sexual offences. In the same period, in the ABS Criminal Reports publication, it says that only 33 of those cases went to court. Of those 33, eight were acquitted, 23 were pleas, and there were, again, only two convictions in contested matters.

I raise that, Madam Speaker, because this is a very serious issue, and it is important for all of us to get this right. I know the Attorney-General feels strongly about it, and I know that he knows that I do as well, which is why, no doubt, he extended me the very kind offer of a briefing, which I had a week or so ago before this bill was presented today.

It is the case, as I understand it, much of which is contained in the bill is based on a body of research that is done, not just in some other jurisdictions in Australia, but internationally. So there is a global push, I think, to improve the court processes for victims.

However, the main point I wish to make is this – this bill is essentially based, or has regard to the evidence of children and other vulnerable witnesses, particularly on the basis of information I received at the briefing, witnesses, or victims with intellectual disability. Given the figures the Attorney-General quoted, and given the figures that I have added, it seems to me that the area of sexual assaults in the Northern Territory is so very serious that, we know, of course, it goes beyond children, that it affects adults, women and men, but for the most part, women in particular, I would like to urge the Attorney-General to consider, perhaps announcing when the bill next comes before the parliament, an inquiry, and I know I have asked him about this before, but I do so now with some passion and great sincerity, but for him to consider commencing an inquiry, similar to that commenced in March this year by the South Australian Parliament, that is, an inquiry into sexual assault conviction rates. I am yet to look at the bill in detail, but it may well be that some of the difficulties with prosecutions will be addressed by this bill, and that will be great, and I will be the first to applaud it.

However, there are some other issues that, as legislators, we can learn from, having regard to the South Australian parliament’s inquiry. Some of the areas are this – and I am happy to show the Attorney-General if he does not already have the inquiry document issued from the South Australian parliament – that I raise are under the heading of Possible Inquiries. A list is made and some of these are: what are the barriers to reporting sexual assaults; what is the role of police in investigating sexual assault offences; is adequate training provided to police in relation to sexual assault investigations and prosecutions; is the prosecution process properly explained to the complainants; and is adequate victim support provided to indigenous Australians and persons from non-English speaking backgrounds? They are some of the matters that the South Australian committee will inquire into.

Attorney-General, I simply ask you to consider commencing an inquiry. All of us in the Northern Territory can benefit. If our collective objective is to come up with good laws for the Northern Territory and to assist women and children giving evidence then, surely, an inquiry like this would complement the aims and objectives that I understand that you and your government are committed to achieving.

Madam Speaker, with those comments, I seek leave to continue my remarks at a later time.

Leave granted.




 

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