Northern Territory Second Reading Speeches

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SEXUAL OFFENCES (EVIDENCE AND PROCEDURE) AMENDMENT BILL 2001

Mr Speaker, I move that the bills be now read a second time.

The purpose of these bills is to implement a number of the recommendations of the Northern Territory Law Reform Committee, in its Report on the Laws relating to the Investigation and Prosecution of Sexual Assault in the Northern Territory. The Evidence Amendment Bill also seeks to clarify existing provisions of the Evidence Act.

The bills will effect change to two areas of the laws of evidence. Firstly, amendments are made to the provisions dealing with the giving of evidence by ‘vulnerable witnesses’ and secondly, provisions are introduced to create confidentiality of the communications made in the course of the treatment of victims or alleged victims of sexual assault.

The Evidence Act already contains provisions that provide for special measures that the court may implement when the evidence of a vulnerable witness is to be given. These measures were introduced in 1994. They are designed to reduce the emotional burden and harm that may be occasioned by particular classes of witnesses in giving their evidence.

In some cases, these measures may be necessary to ensure the effective giving of evidence by a witness. The need for special measures may arise due to special features of the witness, for example their youth or that they are under some form of disability including intellectual disability, or it may be because of the nature of the offence itself, for example alleged sexual offences.

It is an important aspect of a fair and balanced criminal justice system that the capacity of a witness to give evidence not be lost by insistence on formal procedural requirements, provided that a fair trial can still be attained. The vulnerable witness provisions provide a proper balance for each of these interests in legal proceedings.

Some problems have now become apparent in the practical application of the ‘vulnerable witness’ provisions. The majority of these problems have been identified by the Northern Territory Law Reform Committee and the reforms to be brought about by the proposed amendments seek to remedy present defects.

The Evidence Act defines vulnerable witnesses as being those under 16 years of age, intellectually disabled witnesses and those, who in the opinion of the Court, are under a special disability, either because of the circumstances of the case or because of the circumstances of the witness. Cultural or religious backgrounds, the relationship of the witness to another party in the proceeding or the nature of the offence itself are all factors that might be considered under this provision to give rise to a special disability. Each of these categories has application to all forms of legal proceedings, both civil and criminal.

In addition, alleged victims of a sexual offence to which the proceedings relate, are ‘vulnerable witnesses’, regardless of their age or intellect or any other disability. Obviously, where additional factors exist, such as the youth of the witness or an intellectual disability or particular cultural circumstances, the need to provide special measures is even stronger in the hearing of sexual offences. It is this category of vulnerable witnesses, that is, those giving evidence in proceedings concerning sexual offences, with which these amendments deal.

The first concern is that the existing definition of ‘sexual offence’ is too narrow. The current definition of ‘sexual offence’ for the purposes of the vulnerable witness provisions is that contained in the Sexual Offences (Evidence and Procedure) Act. That definition is presently confined to sexual offences under the Criminal Code. It is however possible for criminal proceedings to still arise for prosecution where the offence charged is one under the Criminal Law Consolidation Act, the antecedent legislation to the Criminal Code. These cases may arise where a trial concerns sexual offences that are alleged to have occurred many years previously, for example, during the alleged victim’ s childhood.

At present, because the definition is confined to offences under the Criminal Code, those witnesses are not automatically classed as ‘vulnerable witnesses’. We do not believe that the protection that is extended to a witness by the vulnerable witness provisions should be dependent upon when the offence occurred. It is therefore proposed to amend the Sexual Offences (Evidence and Procedure) Act to extend the definition of a vulnerable witness so as to include sexual offences arising under the Criminal Law Consolidation Act. That will allow the alleged victim of a sexual offence under the old legislation to be treated as a ‘vulnerable witness’ for the purpose of giving their evidence. The ‘vulnerable witness’ provisions are further altered by amendments to the Evidence Act.

As I have said, the vulnerable witness provisions are not new. They were introduced in 1994 following extensive public consultation, and as a result of recommendations of the Working Party on Sexual Abuse chaired by Justice Thomas of the Northern Territory Supreme Court. They are also in keeping with the recommendations of the Australian Law Reform Commission in its 1997 report, Seen and Heard: Priority for Children in the Legal Process. That report recommended a presumption in favour of the use of closed circuit television in all matters involving child witnesses.

The vulnerable witness provisions introduced four special measures that may be employed for the giving of evidence by ‘vulnerable witnesses’. In summary, these allow for evidence to be given via closed circuit television, where this facility is available, or giving evidence in the courtroom but providing protection by using some method for screening the other party to the proceeding from the view of the witness. Two other measures may be employed, either separately, or in conjunction with these measures. A witness may be accompanied by a support person and the Court may order that the Court be closed whilst the evidence is being given. These measures have particular importance in the context of proceedings related to sexual offences.

The intention at the time of enacting these measures was to ensure that any potential harm to victims of sexual assault be minimised and also to ensure that any fears that a victim might have of giving evidence of a sexual offence be allayed. This is a particularly important consideration in the case of children who may be required to give evidence of sexual offences.

As the Australian Law Reform Commission noted in its report, child witnesses are particularly fearful of confronting the accused when they come to court. The Commission noted that for many children, the court might be the first time that they have seen the person since the disclosure of the alleged offences. Of course, the same will often be true of adult victim witnesses, and the prospect of again seeing the person who is alleged to have committed a sexual offence against them, will be fraught with anxiety and fear. As the Commission observed in its report, this is likely to be exacerbated where the special measures are entirely discretionary. Not knowing until you arrive at court whether you will be able to give your evidence in a protected way not only produces an undesirable level of anxiety and stress for victim witnesses, but also may act as a disincentive for people to come forward with their evidence.

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 these circumstances are not likely to be commonly required in order to provide an accused with a fair trial. The legislation already contains provisions that require the judge, at a trial by jury, to issue a warning to the jury not to draw any adverse inference from the fact that the witness has given evidence by way of some special measures nor to give any greater weight to their evidence because of these measures. The judge must also warn the jury that the practice is a routine practice of the court. Of course, in order to give that warning it must indeed be true that the measures are routine.

It had always been the intention that the vulnerable witness provisions be presumptive in favour of special measures being used, particularly so, where the vulnerable witness falls into two or more categories, for example, child witnesses in sexual offence proceedings.

In order to clarify the parliament’s intention in this regard, amendments are to be made which create entitlement to the available measures specified. It is important to note that this will not prevent a 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. These amendments will further permit a vulnerable witness to choose the mode of delivery of their evidence, that is by closed circuit television where available or by screening in court, except where the court has determined that the interests of justice might require an alternative choice.

The amendments make clear that the interests of justice require more than a simple focus on the rights of an accused to a fair trial. These rights are important and critical to a fair justice system. However, there are other interests that must also be considered. Care for other participants in the system, particularly children, must be included, as well as the need to ensure that evidence can effectively be given.

Amongst the special measures that a court may order for the giving of evidence by a vulnerable witness is an order allowing a ‘vulnerable witness’ to be accompanied by a support person during the giving of their evidence. The legislation currently confines the category of support person available to either a friend or a relative. This has been found to be unduly narrow as it prevents the witness being supported by a person with whom they may have developed rapport in a professional context, for example a counsellor. There is no reason why such a person should be excluded from that role. The proposed amendment to the Evidence Act will allow a wider choice of who may be a support person for an alleged victim during legal proceedings.

The act presently requires that the support person for a vulnerable witness must be visible to the parties, the court and to the jury whilst the witness’s evidence is being given. Where the order to allow the witness to be accompanied by a support person is made in conjunction with an order for screening the witness from the person charged with an offence, the requirement for the support person to be visible to the parties, court and jury has proved logistically difficult in some court rooms. On occasion, this has necessitated the support person being seated away from the witness, which very obviously defeats the purpose of having a support person. The proposed amendment requires that the support person only be visible to the magistrate or to a judge and jury.

The legislation has also not been clear on the procedure that should be followed in the event that the status of a person as a ‘vulnerable witness’ is contested. As it would defeat the very purposes of the provisions to have a witness fully exposed during this determination, the amendment provides for a witness to be treated as a vulnerable witness pending a final determination of that issue.

The provisions of which I have just spoken, represent some of the changes to the law that have been made by parliaments in recent years to both provide protection for complainants of sexual offences and to encourage the reporting of these offences. Other reforms have dealt with issues such as restrictions on the use of prior sexual history, modifications of the rules on recent complaint and on the requirement for corroboration. Each of these reforms have gone some way to reducing the trauma for complainants of sexual offences and in instilling confidence that they will be treated fairly within the criminal justice system. Each of these measures sought to reform an area of the law of evidence which had previously been used to unfairly undermine the credibility of complainants, particularly female complainants, in sexual offence proceedings. The reform that this bill introduces is a further step towards creating a balanced and fair process for both the accused and complainants in legal proceedings involving sexual offences.

A further reform that is introduced by the Evidence Amendment Bill is to enact a new part in the Evidence Act to provide for confidentiality of communications between counsellors and complainants of sexual offences. Sexual offences almost invariably produce emotional trauma for the victim. Many victims will be unable to recover from the experience without the assistance of professional counselling. Indeed, even with such assistance, there will be those who may never fully recover from their experience. Recognising that fact, the community has an interest in ensuring that victims of sexual offences be assisted as far as is possible in the healing process.

At present it is possible for the defence to seek to undermine the credibility of a complainant in a sexual offence by obtaining, through subpoena, access to the notes and other records of counselling sessions and using the contents of those documents to cross-examine the witness. Counsellors also may be able to be called to give evidence of the matters that have passed between them in counselling sessions. Fortunately, this does not seem to have become an established practice in the Northern Territory but without reform to this area of the law of evidence, the opportunity for the practice remains open. Three other jurisdictions in Australia - New South Wales, Victoria and South Australia - have introduced reforms that provide protection for communications between counsellors and victims or alleged victims of sexual offences. We plan to follow their lead.

There are a number of reasons why there should be protection of the confidentiality of communications in a counselling relationship. Confidentiality is a critical aspect of professional relationships. The effectiveness of counselling may be undermined where the complainant knows that the communications may later be disclosed in court. They may be reluctant to be frank and open about the event and about their emotional response to it. This will limit the ability of the counselling sessions to reduce the trauma of the event and assist the victim to deal with it.

The knowledge that communications may be used in court proceedings may act as a disincentive to seek counselling at all, or result in a delay in seeking counselling. The victim may fear that if the communications are revealed, they will be placed at risk of retribution. They may fear that personal information will be revealed that will allow the accused to seek them out. Counsellors themselves may have similar concerns.

Complainants may fear that personal information, not relevant at all to the charges, will be disclosed and quite rightly resent that intrusion into their personal privacy, not just by the accused but by the other participants in the proceedings, the judges and the lawyers. Each of these matters has an undesirable limiting effect on the outcomes hoped to be achieved by counselling.

However, the need to maintain a fair judicial process must not be lost in these concerns. There will remain some instances where communications from counselling sessions will be relevant and should remain admissible in proceedings. An obvious example is where the complainant confesses in counselling that the complaint is fabricated. It is an unlikely occurrence but nevertheless one that must be provided for. In some instances the complaint itself may have sprung from counselling sessions.

Considerable concern has been expressed by courts in other jurisdictions as to the dangers or inherent dangers represented by the use of certain therapies such as hypnosis and eye movement desensitisation and reprocessing treatment, both often associated with Recovered Memory Syndrome. The Northern Territory Law Reform Committee drew attention to the concern expressed by professional people in the field as to Recovered Memory Syndrome. The reliability of evidence gained by these therapies may well require testing at trial. Relevant issues would be whether there has been independence and freedom from suggestion in the therapy and the qualifications and experience of the therapist. Such matters should remain available to be explored in an appropriate case.

The bill creates a limited privilege for communications that pass between a victim or alleged victim of a sexual offence and a counsellor. It extends to both oral and written communications. It is limited to treatment in a professional context. Confidential communications may however be adduced or produced in evidence by judicial discretion under a structured process.

First, if a party seeks to adduce or produce this evidence, they must apply for leave of the court. The legislation specifies the procedure that must be followed on an application for leave and limits the access to material that is produced in order to make this determination. It would of course defeat the whole purpose of the legislation if the material that is privileged were made available to all parties and the judge on a leave application.

The bill deals with this problem by ensuring that any documentation produced on a leave application is available only to the judge. Other procedures, for example requesting answers to written questions from the counsellor, may be used by the court to come to a determination as to whether it will grant leave. The court is then required to consider a balance of interests in determining whether or not to grant leave. The court must be satisfied that the evidence has substantial probative value in respect of a fact in issue and that no other evidence of similar or greater value is available. In other words, the defence must have been able to show some legitimate factual basis for admission of the communications.

In addition, the court must weigh the public interest in preserving confidentiality against the public interest in admitting the communications. It is only where the latter interest substantially outweighs the interest in preserving confidentiality that the evidence may be admitted. The court is further empowered to make ancillary orders to limit harm to a complainant where it considers that leave to adduce the evidence should be granted. These include orders to protect the safety of the complainant and suppress publication.

These bills allow for a complainant to waive confidentiality if they so desire. Balancing competing interests in the judicial process is always a difficult matter. The laws of evidence as they relate to the proceedings involving sexual offences are ones that have caused particular controversy over the years. There was much criticism that the common law had produced a system which was biased to the interests of the accused and which discouraged victims of sexual offences from coming forward with their complaints because of the fear of their treatment in the courts.

Many of those matters have already been remedied. The amendments introduced by these bills, providing for specific rules and procedures to be used in sexual offence proceedings take one further step towards an appropriate middle ground.

I commend the bills to honourable members.

Debate adjourned.

 

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