Page 3517 - Week 09 - Thursday, 21 August 2008
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cross-examined. Cross-examination of alleged victims at committal, which is often more rigorous and intimidating because it is done in the absence of a jury, leads many alleged victims to seek to have the proceedings discontinued for fear of having to go through additional trauma and humiliation at trial.
The reforms will minimise the contact children and intellectually impaired complainants in sexual offence proceedings have with the court system, to considerably enhance their ability to recover from the traumatic events that they have experienced and allow them to move on with their lives. These witnesses will be able to give their evidence at a pre-trial hearing, held as soon as possible after a committal but before the actual trial.
A pre-trial hearing will be a unique pre-trial process involving a witness giving their evidence in a separate room to the courtroom and then being cross-examined and re-examined on this evidence via audiovisual link by the defence and prosecution, who will be in the courtroom in the presence of the judge, the accused and anyone else the court orders should be present. This evidence is recorded and later played at the actual trial as a substitute for the witness’s oral testimony at trial, eliminating the need for the witness to attend the trial to give their evidence.
Prerecording evidence aims to address fundamental problems with the criminal justice system and how it deals with children’s evidence. Delays in the court process are inevitable, but they work against children’s ability to recount events long after they occur. For young children and for people with an intellectual disability, the ability to give cogent evidence many months or years after the event might be beyond their developmental and intellectual capacity despite the fact that they were able to give coherent descriptions at a time closer to the events in question. These reforms will have the most positive impact on the lives of children and intellectually impaired complainants involved in the court process.
Amendments also ensure that the court can order prerecording for adult complainants in sexual assault proceedings if it is satisfied that that is necessary.
The reforms will prohibit a self-represented accused in sexual and violent offence proceedings from personally cross-examining vulnerable witnesses. The prohibition is aimed at protecting witnesses from the distress, intimidation and humiliation that can occur as a result of having to respond to questions about intimate sexual or personal matters by the alleged offender. The prohibition maintains the accused person’s entitlement to cross-examine these witnesses through a legal representative of their choosing or provided to them free of charge, if necessary.
Other important reforms include permitting the admission into evidence of a transcript of an audio or visual interview between police and children or intellectually impaired people in a committal proceeding; permitting the admission into evidence of a prerecorded audiovisual recording of an interview between police and children or intellectually impaired people who are complainants of sexual and violent offence proceedings; or permitting evidence which is prerecorded, either as part of a police interview or at a pre-trial hearing, to be admissible in later proceedings, such as a rehearing or an appeal, or in another proceeding arising as a result of the original proceeding, for example, in a Family Court matter.
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