Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Bill 2015

Dr HUGH McDERMOTT (Prospect) [5.31 p.m.]: I support the Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Bill 2015. This legislation does what all criminal justice legislation should do—that is, focus on the victims of crime. It focuses on not only assisting them as they give their evidence and go through the often harrowing court procedures but also helping them to eventually get justice for what has happened to them. It focuses in particular on those who are the most vulnerable part of the criminal justice system—children.

Time and again we have had the situation, not only in this State and other States but also throughout the common law world, where children's evidence has not been upheld or has not been able to be provided because the court proceedings themselves are just too harrowing for them. The proceedings are often too harrowing for their families as well. It would be an horrific thing to go through and an horrific thing to have to relive in front of a judge and jury and during cross-examination. Hopefully this legislation will assist children and their families and enable them to give evidence so that the perpetrators of such heinous crimes as child sexual abuse can receive the punishment that they so richly deserve.

The member for Tweed spoke about criminal penalties, and I commend the Government for increasing them. But we need more than just tougher penalties to make sure that the criminal justice system works well. Often the perpetrators do not even think about the penalties—they do not care about the penalties; half the time they do not think they are going to get caught. What has happened constantly under the criminal justice system in New South Wales is that they have not been caught. We have all heard about the historic sexual abuse in institutions brought to light by the royal commission. Some of those instances of abuse were not discovered for 20, 30 or 40 years. It is only now that we are really starting to face up to the fact that the sexual abuse of children, over decades in New South Wales and other parts of Australia, has been a major crime and a major problem.

I am very pleased that this bill puts forward a pilot program, in which we can see if this actually works, to help children to give their evidence before the courts. It is so sad to think that the vulnerability of these witnesses sometimes prevents them from testifying before a court. It is up to the criminal justice system in the common law world, including in Australia, to address this. We pride ourselves on being at the forefront. The Parliamentary Joint Select Committee on Sentencing of Child Sexual Assault Offenders and a report of the Ombudsman in 2012 concerning child sexual assault in Aboriginal communities have said that this pilot program is essential in seeking redress and seeking justice for crimes against children.

The bill allows for the pilot to commence at the Newcastle and the Downing Centre district courts. It will deal with prescribed, indictable child sex offences. That is great news. I think it is great that the pilot will run at the central criminal courts at the Downing Centre. A high volume of cases goes through that centre so it is a good place to run this pilot program. It is also great that the pilot will be run in a regional area such as Newcastle. I think that is extremely important, because we need to see how it works in a regional court system as well as how it works in the central courts in Sydney.

Allowing children to give prerecorded evidence that can then be presented in court is a real step forward. It means they will be able to take their time and hopefully be in a non-threatening environment rather than being put on the stand in court with everyone looking at them. It is hard to get evidence from children in a courtroom situation. It is very important that they can give their evidence in a non-confrontational situation—even though they will still be cross-examined—where they can basically take their time and be close to their families as they are giving their evidence.

The Legislation Review Committee noted that the prerecording of evidence will infringe on the accused's right to a fair trial. That is fair enough—the accused does have rights, and they need to be taken into consideration. The committee also noted that the prosecution may be advantaged in being able to see the accused's defence before the trial starts. To counter this, the bill implements the reasonable requirement of the Crown to disclose its case in full before the child's evidence is recorded. So that balances things, and I think it does that well.

The child will be provided with an "intermediary" to assist with their testimony. The term being used is "child's champion". I do not quite agree with this term. Really this person is appointed by the court to assist the child in giving evidence. It is quite important that they have someone like that there. It is hard enough for a child to give evidence. For them to have their family there and to have an intermediary from the court to help them give their evidence is very important for the entire family. We have a long history of not many cases proceeding in these types of matters. The biggest issue has been unreliable testimony, as well as the vulnerability of victims. If the pilot in this legislation works, we will overcome that problem.

There are tens of thousands of child abuse survivors in New South Wales. Some estimates have suggested that there are up to 100,000 survivors of all the abuse that has happened in institutional care. What a horrific figure. I notice that today in Canberra the Federal Labor Party announced that it would back a redress scheme. I think that is good. I know also that Malcolm Turnbull is the patron of the Care Leavers Australasia Network [CLAN] and has been for many years. He was involved in the 2009 National Apology to the Forgotten Australians and Former Child Migrants. So I would like to think that redress might be an issue agreed upon at the national level.

The pilot program which this bill seeks to put into place is based on the United Kingdom system, which has been in place for a number of years. It allows prerecorded testimony from vulnerable children. It has worked pretty well. Certainly if one looks at the examples where it has worked one sees it has been effective. Justice has been brought to the victims of child sexual abuse. It is worth noting why it was brought in in the United Kingdom—it was because they found that children and young people who went through the court system and gave evidence were deeply scarred by the process.

The worst example was that of Frances Andrade, an esteemed violinist who tragically killed herself after giving evidence about her past abuse before a court. It is vitally important to stop things like that from happening in New South Wales. This is a good step and I am pleased that the Government is taking the lead in this area. Giving evidence in a courtroom about past abuse is probably one of the hardest things for a victim to do; it must be done properly. The legal profession will be watching the pilot program with interest. My only real concern is that the pilot will be resourced. I have not seen any figures, but I trust there will be sufficient funding for staff and locations in which to conduct these interviews. If this pilot works, I hope the Government will give a commitment to introducing this program statewide. In reality a lot of sexual abuse takes place and we must help the victims of that abuse as much as possible. I commend the bill to the House.

Ms MELANIE GIBBONS (Holsworthy) [5.40 p.m.]: I speak in support of the Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Bill 2015. The purpose of the bill is to amend the Criminal Procedure Act 1986 to enable a pilot program of specialist measures to support child victims in criminal proceedings for sexual assault offences. The bill implements one of this Government's key election commitments to the people of New South Wales—a strong commitment to support child victims of sexual assault. As the Attorney General said in the second reading of this bill:

Our criminal justice system should not compound the pain and it should not inflict more traumas on these young victims.

Over the past decade both sides of this Chamber have passed legislative reforms and they have gone a considerable way to helping children through the court process. But more needs to be done and this bill will assist in doing that. No member in this place would argue against such a commitment and support for our vulnerable children. Pleasingly, I note the bipartisan support for the bill. The bill responds to the recommendations of the Joint Select Committee on Sentencing of Child Sexual Assault Offenders and the NSW Ombudsman directed at reducing the stress and duration of court proceedings for child victims in child sexual assault cases. I was a member of that committee, as was the member for Oxley, who is seated in the Chamber. From the stories we have heard a lot can be done to support these victims, and the implementation of these recommendations will make a real difference to their lives.

In June 2015 the Child Sexual Offences Taskforce was convened to design the pilot scheme being implemented under this bill. The task force comprised those who investigate, prosecute, defend and hear child sexual assault matters, as well as victims groups, health professionals, legal academics and key government agencies. But this is not the only election commitment this Government has implemented in support of child victims. We have already implemented associated election commitments by appointing two specialist child sexual assault District Court judges, we have increased the maximum penalty for the offence of sexual intercourse with a child under 10 from 25 years to life imprisonment, and additional child sex offences have been included in the standard non-parole period scheme.

The bill provides that the pilot program will take place over a three-year period at the district courts at Newcastle and the Downing Centre in Sydney. During this period the pilot may, by regulation, be expanded to a further site where there is a significant Indigenous population. The bill will enable child victims who give evidence in sexual assault proceedings at pilot locations to have their evidence pre-recorded without a jury; they will be assisted in court by a children's champion. The introduction of children's champions into New South Wales courts has its roots in the Witness Intermediary Scheme [WIS], which was introduced as a pilot project in 2004 in England and Wales, and extended nationally in 2008. Registered witness intermediaries in the United Kingdom are typically speech and language therapists, psychologists, social workers, nurses, teachers or occupational therapists. They are recruited, assessed and accredited by the Ministry of Justice and all intermediaries under the scheme are listed in the intermediary register.

Their role extends from providing advice to investigating police on the special needs of a vulnerable complainant prior to their initial police interview, to advising the judge during trial as to how best legal counsel should frame their questions to elicit the most reliable testimony from a vulnerable witness. In this way an intermediary scheme aims to ensure that a child's best evidence is available at all stages of the criminal justice process. That aim underpins the reforms introduced in this bill. Experience in England and Wales is that intermediaries have the potential to reduce delays and attrition in the criminal justice process by making more efficient use of police, prosecution and court time, flagging at an early stage those cases where it is not feasible to interview the witness or for the witness to appear at trial, and encouraging early guilty pleas by helping defendants to understand the case against them.

This bill prescribes the criteria for the pilot program, which is a presumption in favour of the prerecording of evidence and a children's champion for child victims under 16 years of age; pre-recording of evidence to be available for child victims between 16 and 18 where it is in the interests of justice, considering in particular the wishes and circumstances of the child victim and the availability of prerecording facilities; and children's champions to be available for child victims between 16 and 18 who have difficulty communicating. The bill provides that prerecording should occur as soon as practicable following the date of the accused's first appearance in court.

The bill preserves the rights of an accused to a fair trial by requiring full disclosure of the prosecution case before a prerecording takes place. It further defines the role of a children's champion as a witness intermediary, an impartial officer of the court who will facilitate communication with the child victim, including by providing a written assessment report of the child's communication needs. It is also important to set standards as to who can act as a children's champion. The bill sets the minimum qualification requirement for a children's champion as a degree in psychology, social work, speech pathology or occupational therapy.

As I said earlier, this bill implements a key election commitment of this Government. Whilst it is important to keep faith with the electorate by honouring election commitments, it is far more important to put measures in place for the protection of our children. This pilot program will ensure that child victims in criminal proceedings for sexual assault offences dealt with in pilot areas have the opportunity to put forward their evidence in a setting that offers the least amount of anxiety and discomfort—that is so important. As the Chair of the Committee on Children and Young People, and as a member of the joint select committee that looked into many of these cases, I am well aware of the issues facing our most vulnerable citizens. I thank the Attorney General, the Hon. Gabrielle Upton, MP, for introducing this legislation. I am pleased to support this amendment bill and I welcome further provisions to protect our most vulnerable in society from harm. I commend the bill to the House.

Mr RON HOENIG (Heffron) [5.48 p.m.]: I make a contribution to debate on the Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Bill 2015. I endorse the remarks of the shadow Attorney General, and member for Liverpool. I welcome this bill as the next step in the process of trying to protect vulnerable witnesses who give evidence in court about these heinous offences. I will add something to this debate from my experience both as a public defender for 25 years and also as a Crown prosecutor for several years. I have either prosecuted or defended hundreds of these types of cases.

These are heinous offences. A royal commission is currently underway to deal with these sorts of offences being committed against children in institutional care. I regret to say that the advice from police is that the royal commission is only scratching the surface. These horrendous offences are rife and have been for centuries. When I spoke to police officers about this crime a number of years ago they estimated that one in every five people had been sexually assaulted at some time in their life. That figure is frightening. Sexual assault scars children for life. Very few people are able to successfully recover from that experience.

For the prosecution, the defence and the trial judge, these are difficult criminal proceedings in which to participate. Barristers and judges approach their task objectively and at times may appear dispassionate, which can give the wrong impression, particularly to vulnerable victims. An outstanding suggestion that has arisen from a number of inquiries is to pilot the role of a children's champion. The Crown faces considerable difficulty in sexual assault proceedings, although it is at times aided by witness assistance officers who look after and protect vulnerable victims while matters are prepared for trial. The pilot of a children's champion is a worthwhile suggestion, and I commend the Attorney General and those who have provided advice on taking that course. The children's champion initiative has been successful overseas. If it is properly resourced it will add considerably to justice being provided in response to these heinous offences.

The recording of evidence in advance will also be trialled under the pilot program. For many years, evidence of a child's initial complaint and interview has been recorded in advance and subsequently played at trial. The pilot program requires cross-examination and re-examination also to be recorded. That sounds like a good idea, but I caution the Attorney that its implementation must be monitored. It will require counsel to be properly briefed on several occasions. It will also require Legal Aid and Public Defenders to be resourced to prepare two trials for the same offence. Those who are not involved in the legal system probably do not understand the implication of the pilot scheme for the administration of justice. Under the pilot scheme, when a child is cross-examined counsel will have to be fully briefed, as for a trial. Despite what the rules of the court say, usually counsel are not ready until the first day of a trial. The new arrangement will require them to be ready twice.

I draw to the Attorney's attention an issue that has crept in over the years, which is not making available to counsel the recording of the evidence, which will now include the cross-examination and re-examination. Arrangements must be made for counsel to view that evidence. I understand and support not giving that evidence to an accused person. Lawyers will need to study that evidence carefully, including the demeanour of the person on the recording. They will also need to study the cross-examination, which is substantially longer than the initial evidence, and the re-examination. It may take several days to view the evidence that is to be played at trial. Arrangements will have to be made for counsel to sit somewhere for a couple of days to view the evidence. I do not know why members of the bar are no longer trusted to receive evidence on the undertaking that only they will view it. If the Attorney were concerned about confidentiality she could ask for the bar rules to be strengthened. This is a practical issue. Will counsel sit in an office of the Director of Public Prosecutions for two or three days, carefully viewing the evidence? I suggest the Attorney consider that.

Whilst it is a good idea to have specialist judges in this jurisdiction, I warn the Attorney of another issue that is perhaps a matter for the Judicial Commission. Whether one is judging, prosecuting or defending sexual assault cases, one has to be seen to be dispassionate and objective. Such cases take their toll. Most judges on the District Court bench will be delighted with the pilot program because it will mean that they will have fewer of these matters before them. The way the justice system works is that there are independent judges who are seen to look after themselves. The Judicial Commission and the heads of jurisdiction will need to make sure that the judges who specialise in sexual assault cases are not affected by hearing such cases day in and day out. It is sickening to read about such cases in the newspaper, but spending all day of every day listening to horrendous cases has an impact. The days of the old, bold lawyers and judges have gone. It is no longer the case that they can put up with hearing any type of evidence. We must consider the support that is provided to judges, to look after their health.

I caution the Attorney to give consideration to another issue while the pilot program is taking place. The directions that judges are required to give juries in criminal trials are complex. Those of us who have done hundreds of them have seen jurors' eyes glaze over after two or three minutes. Rarely does anyone understand or pay attention when a judge gives directions in cases where the Crown is relying on tendency of coincidence evidence. Judges are so concerned about making an error that they generally read out the standard directions. That has an impact on their ability to communicate. So many directions are required to be given to juries that juries have trouble following them. This aspect of the law should be reviewed to simplify the judge's directions to the jury. The last thing any of us wants in sexual assault cases is for juries to retire to consider their verdicts having not understood the legal directions given to them. On the whole, I welcome the pilot program. Some areas are outstanding; others will have to be monitored during the trial period. I commend the bill to the House.

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