Page 3441 - Week 09 - Thursday, 20 August 2009
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Turning to the first of the reforms in need of clarification today, there are some important points that need to be made clear. This reform aimed to reduce the potential for victims of sexual and violent offences to be at further harm by the court process. That was a goal that was cautiously supported at the time here in the Assembly and in the wider community. I say it was cautiously supported because while few disagree with the intended outcome, that is, better protection of vulnerable witnesses, there was heated community debate about the method employed by the reforms.
The reform essentially disallowed a self-represented accused person from cross-examining a vulnerable witness in violent and sexual offence cases. There were concerns in the community that the reforms were stripping away the rights of accused people to self-represent and that the very essence of a fair trial was being eroded. I do not wish to further canvass those arguments today. Rather, the reason I raise those concerns is that I think this amendment bill addresses, in part, some of those concerns.
The current operation of the legislation does, in limited factual scenarios, raise issues around the right to a fair trial. By that I mean that a self-represented accused is able to refuse the services of a legal representative for the purposes of the cross-examination. The accused may refuse representation for a number of reasons, as they are entitled to do. They may not meet the legal aid eligibility criteria or may not be able to afford legal representation of their own. They may also simply wish to represent themselves.
This scenario raises issues around the right to a fair trial because if the accused person continues to refuse legal representation, they will be denied the opportunity to cross-examine the witness. Under the current legislation the court will simply rule that the witness is unable to be cross-examined. That does interfere with the ability of an accused to test the evidence of a witness, which is fundamental to a fair trial.
The proposed amendment addresses this scenario by providing that the court may appoint a person to act as a mouthpiece of the accused for the sole purpose of cross-examining a vulnerable witness. That court appointed person is not a legal representative of the accused and cannot give legal advice. The appointed person will simply ask the questions they are directed to ask by the accused. The ability to appoint such a person will allow the case to continue without delay, will allow for the testing of evidence and will continue to protect vulnerable witnesses—an extremely important objective of the original legislation. This is a practical solution to a complex problem. I think it sets a more appropriate balance between the interests of vulnerable witnesses and the rights of the self-represented accused.
The second major area of reform that this amendment bill clarifies is changes to the committal system. The original reform introduced the concept of hand-up committals or paper committals. The committal system is an administrative function of the Magistrates Court. Consequently, the amendments in this bill make administrative and procedural changes to ensure that the reform objectives agreed to by the previous Assembly are fully carried through.
I reiterate the earlier point that in an ideal world these further amendments to clarify the operation of a recent reform would not be required. Notwithstanding that point, we will be supporting the amendments relating to the committal system as we are
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