Summary Offences (Interviewing Vulnerable Witnesses) Amendment Bill

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:36): I rise as lead speaker to speak on the Summary Offences (Interviewing Vulnerable Witnesses) Amendment Bill 2017, introduced by the Attorney on 31 May this year, to amend the Summary Offences Act. The government claims that this addresses a potential gap in the legislation, that is, the Statutes Amendments (Vulnerable Witnesses) Act 2015, arising from a recent Supreme Court case, and in respect of the application of current practices of the police. On this side of the house, we will not be opposing this bill that has the effect of allowing in all cases where there is a vulnerable witness—that is, essentially, a person under 14 years of age or someone who has a cognitive impairment—that witness being able to give their evidence-in-chief via video evidence.

Members who were here in 2015 and 2016 had a very extensive debate in respect of changing the law to make it easier for vulnerable witnesses, in particular those with a cognitive impairment. There was considerable debate about this matter and it did significantly change the law. It was designed in recognition of the fact that we had a circumstance where people, usually with a cognitive impairment but sometimes because they were very young and might have had some maturity issues, were placed in a situation, particularly with serious sexual offences, where the whole process was one that was not conducive to reaching some just outcome.

That debate allowed for this alternate process to exist, and it very much was contrary to the fundamental principle that only in exceptional circumstances should a person who accuses another of a serious crime be excused from making that accusation in open court. Around the country, there have been law reform commission inquiries in respect of how we deal with this issue, particularly when the victim of an offence, as I say, is a child or someone who has a cognitive impairment. Sadly, in this case, we have had a history where, in respect of the capacity of some victims to give reliable evidence, clear evidence and effective evidence to have a just outcome, this has simply been inalienable. We have had shocking cases where children living in residential care because of their significant mental incapacity or cognitive impairment, as we now describe it, were ruthlessly and disgracefully abused, particularly sexually.

Inquiries that we have had since I have been in the parliament have identified these abuses. Whether it has been on a school bus, in their bedrooms, in sports rooms or in classrooms, there has been disgraceful conduct. I think it is fair to say that there was an overwhelming desire by the public to try to work out a way that we could work through this. I want to thank the former chief justice John Doyle, who was instrumental in highlighting not just the issue but how we needed to have some reform in this area so that we comply with our social responsibility and protect the vulnerable witnesses, particularly when they are victims of serious sexual offences. 

The law changed back in 2016 from the principal bill. I do not know how often it has been used since, but we have introduced a procedure that enables us to have a person with a vulnerable witness who can provide them with support throughout a case. Again, this is particularly important to victims of offences. Equally, it is fair to say that a young person who might witness, for example, a serious act of domestic violence between his or her parents may be in a considerably traumatised situation if they were to give evidence in the presence of the accused, particularly if they are a parent. 

Over the years, we have dealt with provisions for children. One of those has been—and I think it is fair to say that it is a very good initiative—the capacity, where appropriate, for a child to give evidence in another room or behind a screen so that they do not have to be in a situation of clear duress in giving evidence in the presence of a parent or step-parent. We reformed the law. It was pretty controversial, but it was passed with the passage of goodwill that we have reached some fair compromise. 

The government say, 'We should be able to change the law now in this bill to enable that to be used when the charges are any charges. For all offences—shoplifting, you name it—if there is child witness under the age of 14 now, they ought to be able to utilise this process.' The government say that they have relied on a recent Supreme Court decision. I will quote exactly what the Attorney said in his second reading speech: 

The bill addresses a potential gap in the Statutes Amendment (Vulnerable Witnesses) Act 2015 arising from the recent Supreme Court decision. In light of this decision and recent changes in SAPOL operational practices, legislative amendment is prudent to provide for the explicit admissibility of a video interview with a vulnerable party in criminal proceedings for all offences, not just, as at present, for a 'serious offence against the person'. 

I just want to say that, whilst we agree to this bill being passed—and we have considered it at some length—I want to give clear notice to the Attorney that I do not want him coming into this parliament and relying on judgements that simply do not support the contention that is before the parliament. That is not to say that the judgement in this case of Justice Bampton's was a judgement in error or not worthy of looking at the question of how we deal with the interpretation of the transitional clauses in respect of the principal act that we dealt with—fine. 

In that case, to briefly advise members, a video interview was taken of a six year old who was allegedly a victim of an aggravated assault by his stepfather. Two questions of law were referred from the Magistrates Court to Justice Bampton. The magistrate ruled the video inadmissible, but the judge said it was admissible under the transitional provisions. I should add that she confirmed that the magistrate was right in excluding the evidence, but she allowed it under the transitional provisions. 

This was a judgement that looked at this whole question. Clearly, on the face of this case, I would suggest that justice prevailed, consistent with the parliament's intention. Although it perhaps highlighted the need to consider the transitional aspect, nowhere in that judgement does Justice Bampton say, 'We need to sort out the law here to enable all cases or all offences to utilise the video evidence material.' She made a comment in paragraph 20, obiter at best, that the law only applies to serious offences. She did not go on to say that this was really an inadequacy of the law. She did not go on to say that all cases need to be considered. She did not say that at all. 

We are here dealing with this not because of this judgement, which is being utilised by the Attorney in this case to hang his hat on this reform, but because in the practical real world now, when police interview children, as a matter of course they video it, as they should. It is a sensible tool that is available now for dealing with children and to be able to ensure that they have a contemporary recording, as soon as practicable after the incident, of the child's observations and the commentary that they make in respect of the questions they are asked. 

I think that practice is appropriate and particularly important if there is a cognitive impairment, not by age—namely, being a child—but where there is some disability that makes communication very difficult and/or affects their capacity to concentrate in order to give what would otherwise be considered to be reliable and fluent evidence and for statements to be recorded. Even under the principal act there are very clear rules that are set out, including under the regulations, as to how these videos are to take place. 

It is clearly not acceptable for the police to do a two-hour interview and cut out the bits they like or do not like and provide an edited tape for the purposes of admission. I think they still have an obligation to have a clock in the background to make sure that there is continuous filming of the interviewee. Obviously, proximity of the interviewer to the interviewee and all the other things that are normal, and what we would expect to be normal rules associated with the taking of a statement for the potential video evidence to be submitted, need to be complied with. As I said, you cannot just turn up with the prosecutor tendering an edited version of that interview. 

I do not doubt for one moment that in some circumstances the video will be long and perhaps not the best form of presenting the evidence-in-chief of the witness. In fact, particularly if it has taken a very long time, it still might be better for the statement of the witness to be recorded in writing, reviewed by the witness—the child or person with an incapacity—and signed off, with or without their support person. That statement can still be presented and they can be available for further evidence‑in‑chief, where it is allowed in the court process. That may be a better option. It might actually be more succinct, it might avoid confusion and it might be clearer to do it in that way. 

The contemporary method of the police is to have a video record of the interview, which is a very helpful tool in the criminal law process. Because it is really an advance in relation to the technology available, we on this side of the house accept that it is a reasonable option that ought to be available. It is conditional upon the fact that, from our point of view, it is absolutely critical that the vulnerable witness must be available for cross-examination and, of course, that the admissibility of the video interview is still to be at the discretion of the trial judge. On the basis of those two protections, which are in the principal act, and the maintenance of the obligation of this to ensure that the accused has the right to a fair trial, we are agreeing to this. 

There is a case, we say, for the expansion. The Law Society of South Australia, unsurprisingly, are not happy with this. They take the right of any witness very seriously in ensuring the obligation to face the person they accuse in court and suggest, therefore, that this is not an advance they would support. Bearing in mind that they took that view in respect of the principal act, we see that as unsurprising, but I thank them for their contribution in that regard. I also thank Justice Bampton for her decision in Police v T, DCJ, but remind the Attorney that he either not quote from cases that do not support the argument or, alternatively, read the case before he comes in here and pretends that it does.