Page 3521 - Week 09 - Thursday, 21 August 2008
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DR FOSKEY (Molonglo) (8.27): I move amendment No 1 circulated in my name [see schedule 4 at page 3555]. As I said before, I have moved some amendments which, if passed, would address some of the major concerns that I share with the parties who have consulted me about this bill. This amendment changes the government’s clause 7. The bill states:
A complainant is not required to attend and give evidence at a committal proceeding in relation to a sexual offence.
My amendment changes that to:
A court may direct that a client is not required …
The committal process should be a place to test the veracity of the evidence to avoid an accused being held in remand awaiting trial when early testing of the evidence might produce a different outcome. Last year an accused was held for a lengthy period in remand, only to find the case was dropped at the Supreme Court.
In conversations my office has had with members of the Law Society it has been suggested that the police may be likely to proceed with spurious cases if their evidence cannot be challenged at committal and legal professionals Jennifer Saunders, Ken Archer and John Harris—and John Harris is a spokesperson for the ACT Bar Association—have echoed these concerns in their comments on this bill. If the government’s clause passes unamended, the only evidence required to be given by the prosecution at the committal hearing would be a written statement, including a statement in the form of a transcript of a recording made by a police officer.
As Mr Archer outlines in his letter to Mr Corbell, there are concerns about the admissibility of such evidence, both at committal and at summary hearings and though the government has made some attempt at addressing this in subsequent clauses, I think it is important to be aware of these issues. My amendment takes one further step towards preserving the value of the committal process.
You will note that I have not changed this clause to mandate a complainant’s attendance at committal hearings. I have left it to the court’s discretion to decide if the complainant should attend. This leaves room for the court to decide if the committal process may have a detrimental impact on the complainant, especially to the extent where it may not proceed to a full hearing.
It has been suggested to me that the failure of cases has more to do with poor police and prosecution investigations than with the rigours of the court process. The CLA has stated:
The bill has a clear focus on the court process with no acknowledgement that a significant weakness in the current processes is the often poor standard of police and prosecution briefs of evidence.
Until this is addressed no amount of legislative amendment will overcome the current systemic problems in the successful prosecution of sexual offences. This amendment, its related amendment No 7 and the other amendments I am proposing are attempts to
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