Legislative Assembly for the ACT: 2019 Week 11 Hansard (24 September) . . Page.. 3747 ..
This reform addresses recommendations by the royal commission that states and territories implement intermediary schemes. The royal commission made these recommendations in recognition of the particular difficulties faced by child victims and victims with communication difficulties in accessing justice through the criminal justice system.
The royal commission heard examples of many child complainants breaking down during cross-examination due to the stress and trauma associated with giving their evidence. The criminal justice report told us that vulnerable witnesses may not have the language to describe what happened and that, even if they can articulate that something happened, they struggle to disclose this accurately to strangers in unfamiliar settings. Communication barriers may also make it difficult for children to disclose the abuse with enough detail to assist further investigation and the laying of charges.
At the most fundamental level, in order to participate in the criminal justice process, children must be able to give a comprehensible account of what has happened, understand the questions being asked of them and provide a comprehensible response to those questions. Without this, evidence of any criminal acts perpetrated against them cannot be heard and considered by the criminal justice system. Consequently, the abuse remains unheard and unaddressed.
The bill also establishes the legal framework for the use of ground rules hearings in the ACT. A ground rules hearing is a pre-hearing process where the court takes into consideration the communication, support or other needs of a witness and sets ground rules accordingly. Where an intermediary has been appointed, the ground rules hearing provides an opportunity for the intermediary to inform the court of the communication needs of the witness and for the court to make any adjustments that are in the interests of justice. This could include rules about how a witness can be questioned, whether breaks are required, directions about support animals or any other direction.
The royal commission recommended that state and territory governments ensure that ground rules hearings are held in child sexual abuse proceedings because they improve the trial process for all parties, but particularly for complainants. For the complainant, they provide an opportunity to have their needs considered and to make adjustments to the trial process that might help them to give evidence. The royal commission cited the example of a child who alleged that she was always assaulted from behind, and she was able to give her evidence in a corner, with a tent over her and surrounded by her toys. This allowed her to feel safe, in that no-one was able to approach her from behind while she gave her evidence.
While the bill is primarily concerned with improving the experience of victims in the criminal justice system, it will also deliver clear benefits to the accused, the justice system and the broader society. For the accused the bill provides the court with a broad discretion to order a ground rules hearing or appoint an intermediary for any witness with a communication difficulty, including an accused person. This allows both defendants and victims to benefit from the scheme. In addition, high quality