Page 2830 - Week 09 - Tuesday, 11 October 2022
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(Miscellaneous Provisions) Act 1991, which requires consideration of the reasonableness of a mistaken belief as to consent. It provides that self-induced intoxication cannot be considered in determining whether the accused person had knowledge, recklessness or a reasonable belief as to consent. It allows special interim personal protection orders and workplace protection orders which will operate for longer than 12 months where there are ongoing related criminal proceedings. It amends the definition of “sexual act” in the Crimes Act to address unintended consequences arising from the Crimes (Consent) Amendment Act 2022.
The bill is a significant bill, and a detailed human rights analysis against the Human Rights Act 2004 is included in the explanatory statement. There has been a careful consideration and balancing of the human rights of a person in criminal proceedings and another person’s human right to safety within their home and in the community.
While the bill may engage and limit some human rights under the Human Rights Act 2004, these limitations are proportionate and justified in the circumstances because they are the least restrictive means available to achieve the purpose of protecting victims of sexual violence, and the community as a whole. The findings of the report provide strong justification for these limitations.
I will now explain these amendments in more detail. Firstly, the bill explicitly provides that evidence of prior family violence may be admissible in sexual offence proceedings. The report revealed that many people who experience sexual violence also experience other forms of violence in a domestic and family violence setting. However, the report highlights that only 37 per cent of all sexual assaults reported to police nationally were domestic and family violence related. Very few cases of sexual violence enter the criminal justice system and those that do will face significant barriers and obstacles in progressing to sentencing.
Despite established principles in common law that permit the admissibility of evidence of uncharged acts of family violence as context evidence, the report suggested that this practice is not widely used or understood. The bill adopts recommendation 23(e) of the report and legislates the existing common-law position to make it clear that evidence of prior family and domestic violence as context evidence may be relevant and admissible in a sexual assault trial.
By making this position clear, the amendment aims to assist police in how they investigate sexual assault matters by clarifying what information may be relevant at the initial evidence-gathering stage. This amendment further assists the jury and the court to understand a pattern of behaviour, explain a delay in the victim making a complaint, or overcome false impressions that the incident occurred in isolation. I note that the amendment does not change the court’s general discretion to refuse to admit or to limit the use of evidence if that evidence might be unfairly prejudicial to a party.
The bill provides that self-induced intoxication cannot be considered in determining whether the accused person had knowledge, recklessness or a reasonable belief as to consent, in accordance with recommendation 23(l) of the report. The report noted that it is presently confusing for juries to take intoxication into account in the assessment of whether the accused was reckless in deciding the complainant had consented to a
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