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Other Parliamentary SpeechesThis page is dedicated to Peter's speeches during parliament that do not fall under Questions or Questions without notice. They range from debating legislation, reporting on events or issues in his seat of Southport and his Ministerial Statements.
Evidence [Protection of Children] Amendment Bill |
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| Posted by Administrator (admin) on Sep 10 2003 |
| Other Speeches >> |
Mr LAWLOR (Southport-ALP) (12.06 p.m.): I support the Evidence Protection of Children) Amendment Bill, which amends the Criminal Code, the Evidence Act 1977 and other statutes. It essentially deals with and improves the treatment of child witnesses by the criminal justice system. Courts can be very cold and intimidating places, even for adults, and they are more so of course for children, especially children who may have gone through a trauma. This bill makes our courts more sensitive when dealing with those children who are either victims or witnesses. The reforms aim to ensure that a child should not have to give evidence on more than one occasion and that measures to reduce the stress when evidence is required should be taken wherever possible and that the trial should be resolved as quickly as possible.
Nevertheless, the reforms do not compromise the right of an accused to a fair trial, nor do they lower the high standard of proof required to gain a conviction. They recognise that a witness giving evidence in court, particularly a child witness, is entitled to be treated with dignity and respect, as all witnesses should be. The bill has many facets which will be dealt with by other speakers, but I want to concentrate on one issue in this bill, and that is the doctrine of recent complaint. The bill will amend the Criminal Law (Sexual Offences) Act 1978 in relation to the issue of recent complaint. Clause 40 will insert a new section 4A which abolishes the special rule relating to recent complaint evidence-that is, how, when and to whom the person first complained.
The judge must also direct the jury that a recent complaint supports the evidence of the complainant as it is consistent with the conduct complained of and a delayed complaint is therefore more likely to be false. That was the assumption. The High Court assumed that a delay in a complaint by a person who has been sexually assaulted was inconsistent conduct and therefore that adversely affected the complainant's credibility.
That rule is based on the expectation that a victim of a sexual offence can complain at the first opportunity. It assumes that as a matter of human experience victims of sexual assault will complain
promptly of the assault. But the available evidence suggests that, especially in relation to child victims, for a variety of reasons an early complaint is not necessarily possible or to be expected. Many genuine victims will never make a formal complaint. In this regard, there is a variety of reasons why a formal complaint is not made or delayed.
One reason that I have heard on more than one occasion from at least two victims is that they do not want to embarrass their parents by making a complaint and often they wait until the parents have died before they make a complaint. The fact that a complaint might be made 20 or 30 years later is not to say that it is not a genuine one; often it is just delayed out of consideration for other family members.
The basic assumption behind the rule has been criticised by many eminent judges. Proposed section 4A makes two significant changes to the law. Firstly, it makes evidence of a complaint admissible in sexual offence cases regardless of when it was made. Secondly, it prohibits a judge from instructing a jury that the law regards the evidence of a complainant to be more or less reliable based only on the length of time between the commission of the offence and the making of the complaint. Mr Justice Thomas commented on the admissibility and relevance of complaint evidence. He stated-
In my view it would assist any jury in a case involving a sexual complaint to know how and when any complaint about the conduct of the accused person first emerged. Evidence of this kind is pivotal to explaining how the complainant comes to be in the witness box and the accused in the dock. An assessment of the truth of the complaint can hardly be attempted without some knowledge of how it first saw the light of day. It is my view that evidence of first complaint should always be receivable in cases involving sexual misconduct as evidence which permits a better understanding of the story, irrespective of when it was made. To say that an early complaint is merely a bolster, or a later complaint a drawback to the complainant's credibility is an oversimplification.
I believe that to be the case. The explanatory notes state-
Section 4A also makes it clear that nothing in the provision derogates from the power of a court in a criminal proceeding to exclude evidence if it is satisfied that it would be unfair to admit the evidence, nor does it preclude the making of any other comment that is required by law or that it is appropriate to make in the circumstances of the case.
The evidence of the complaint may be admitted regardless of when it is made. Also, a judge is not to warn or suggest to the jury that the law regards the evidence of a complaint to be more or less reliable based solely on the length of time between the alleged commission of the offence and the making of the complaint. I commend the minister and his hardworking departmental and ministerial staff on this important piece of legislation. I commend the bill to the House. Last changed: [PUBLISHED_DATE] at 9:00 AM
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