Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Chris Ellison)Schedule 3 - Protection of children in proceedings for sexual offences
Crimes Act 1914
The purpose of this Schedule is to amend the Crimes Act by inserting a proposed Part 1AD, which will provide protection for child complainants and child witnesses in proceedings for Commonwealth sex and sex-related offences. The protections include limitations on the examination and cross-examination of child witnesses, provision for the use of facilities such as closed-circuit television and restrictions on publishing details which could identify a child witness or child complainant.
The protective provisions have been devised in recognition of the fact that child complainants and child witnesses in sex offence proceedings are particularly vulnerable because of their age and the nature of the crime involved. The provisions are intended to reduce the stress and trauma experienced by child complainants and child witnesses in giving evidence and to protect the privacy of child complainants and witnesses.
Currently, State and Territory criminal trial laws of general application apply to Commonwealth criminal trials in the relevant State or Territory. However, State and Territory child witness protections apply only to a prescribed list of offences against the law of that State or Territory and not to Commonwealth offences.
The proposed amendments will remedy the absence of protections for child witnesses in Commonwealth sex offence trials. The proposed protections are analogous to those already existing in many State and Territory jurisdictions and are consistent with the recommendations in the Model Criminal Code Sexual Offences Against the Person Report.
Proposed Division 1 contains two provisions of general application to proposed Part 1AD.
Section 15Y - Proceedings to which this Part applies
Proposed section 15Y sets out the criminal proceedings to which proposed Part 1AD will apply. The Part will apply to any proceedings for a child sex tourism offence under Part IIIA of the Crimes Act; an offence involving the sexual assault of United Nations and associated personnel under section 71.8 of the Criminal Code; a slavery, sexual servitude or deceptive recruiting offence under Division 270 of the Criminal Code; any prescribed sexual offence; an offence that includes the commission of or an intention to commit one of the aforementioned offences; and to an offence of attempting or conspiring to commit or inciting the commission of any of the above offences.
Proposed Part 1AD will also apply to any related proceedings including committal proceedings.
Scope to prescribe offences has been included to allow a ready means to extend the protections to any new sex or sex related offences that may be enacted.
Proposed section 15YA defines a number of expressions and provides that, for the purposes of proposed Part 1AD:
child means a person under 18, therefore, the provisions that relate to the protection of child witnesses and child complainants in proceedings for sexual offences apply only to persons under the age of 18.
child complainant means, in relation to a proceeding, a child who is or is alleged to be a victim of an offence referred to in proposed subsection 15Y(1) and to which the proceeding relates. Although the term child witness includes a child complainant who is a witness, child complainants are specified separately in a number of the proposed provisions because those provisions either extend to a child complainant who does not appear as a witness in the proceeding (eg, proposed sections 15YB and 15YC) or apply differently to a child witness who is a complainant (eg, proposed section 15YF).
child witness means a child who is a witness in a proceeding to which proposed Part 1AD applies, and includes a child complainant who is a witness in the proceeding. The definition of child witness also covers a child defendant who appears as a witness in a proceeding, however, some of the proposed provisions will not apply to a child defendant who is a witness (eg, proposed sections 15YB, 15YC and 15YR).
closed-circuit television includes any similar technology that is specified in the regulations. This will provide a simplified means for extending the application of the provisions relating to the use of closed-circuit television to any alternative technology that performs a similar function.
credibility has the same meaning as in the Evidence Act 1995 . In the Dictionary to that Act, the credibility of a witness is defined to mean the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.
cross-examination has the same meaning as in the term by the Evidence Act 1995 . In the Dictionary to that Act, the cross-examination of a witness is defined to mean the questioning of a witness by a party other than the party who called the witness to give evidence.
evidence in chief means evidence given in examination in chief, which has the same meaning as in the Evidence Act 1995 . In the Dictionary to that Act, the examination in chief of a witness is defined to mean the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re-examination.
proceeding means a proceeding to which proposed Part 1AD applies under proposed section 15Y.
Division 2 - Admissibility of Evidence
Proposed Division 2 sets out rules of admissibility relating to evidence of a child witness or child complainants sexual reputation or sexual experience. However, the proposed Division does not apply to evidence of a child defendants sexual reputation or sexual experience.
Section 15YB - Evidence of Sexual Reputation
Proposed section 15YB limits the admissibility of evidence of a child witness or child complainants reputation with respect to sexual activities. Such evidence is only admissible by leave of the court.
The court may only grant leave for such evidence to be admitted if the court is satisfied that the evidence is substantially relevant to facts in issue in the proceeding. For example, leave might be given if the evidence is relevant to proving the defendants knowing involvement in child prostitution. The court is not to treat the evidence as substantially relevant to facts in issue merely because it may raise inferences as to the child witness or child complainants general disposition.
If the evidence of a child witness or child complainants sexual reputation is admitted, it must not be treated as relevant to the child witness or complainants credibility.
The proposed section does not apply to a child who is a defendant in the proceeding.
The proposed section will ensure that child complainants and child witnesses receive a level of protection commensurate with that recommended for adult complainants in the Model Criminal Code Report on Sexual Offences Against the Person by preventing unjustified damage to character and reputation and inappropriate humiliation and embarrassment.
Section 15YC - Evidence of Sexual Experience
Proposed section 15YC limits the admissibility of evidence of a child witness or child complainants experience with respect to sexual activities (other than sexual activities involving the defendant). Such evidence is only admissible by leave of the court.
The court may only grant leave for the evidence to be admitted if the court is satisfied that the evidence is substantially relevant to facts in issue in the proceeding or, if the evidence relates to the sexual experience of a child witness or child complainant and is to be adduced in cross-examination of the child witness, that the evidence is of substantial probative value.
Proposed subsection 15YC(2) provides further guidance as to the meaning of the expressions substantially relevant to facts in issue and substantial probative value. The court must not treat the evidence as substantially relevant to facts in issue merely because it may raise inferences as to the child witness or child complainants general disposition. In determining whether the evidence has substantial probative value, the court is to have regard to:
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- whether the evidence tends to prove that the child witness knowingly or recklessly made a false representation when the child witness was under an obligation to tell the truth; and
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- the period that has elapsed since the acts or events to which the evidence relates were done or occurred.
The proposed section does not apply to a child who is a defendant in the proceeding.
The proposed section is based on section 5.2.39 of the Model Criminal Code, but has been modified to incorporate the substantial probative value test in section 103 of the Evidence Act 1995 , which relates to the cross-examination of a witness as to his or her credibility. Limiting the admissibility of evidence of sexual experience will protect child witnesses and child complainants from damage to character and reputation and inappropriate humiliation and embarrassment that may be caused if evidence of sexual activity unconnected with the alleged crime is admitted.
Section 15YD - Leave under this Division
Proposed section 15YD requires applications for leave to adduce evidence of a child witness or child complainants sexual reputation or sexual experience under proposed Division 2 to be in writing and to be made in the absence of the jury (if there is a jury).
A court must not determine an application for leave until the court has considered any submissions and other evidence it considers necessary for determining the application. If leave is given the court must state in writing its reasons for giving leave and ensure those reasons are entered in the courts records.
The above requirements are drawn from the recommendations in the Model Criminal Code Report on Sexual Offences Against the Person. By requiring applications for leave and the courts reasons for granting leave to be documented, the proposed section provides means of ensuring that judges are accountable for decisions to admit such evidence and that the restrictions set out in proposed section 15YB and 15YC are fully complied with.
Division 3 - Cross-Examination
Proposed Division 3 applies to the cross-examination of a child witness or child complainant.
Section 15YE - Disallowing inappropriate or aggressive cross-examination
Proposed section 15YE provides the court with a discretion to disallow a question put to a child witness in cross-examination if the question is inappropriate or unnecessarily aggressive. In considering whether a question is inappropriate or unnecessarily aggressive the court is to have regard to the personal characteristics of the child witness.
The personal characteristics of the child witness to which the court is to have regard include, but are not limited to, the age, culture, mental capacity and gender of the child witness. The courts power to disallow a question under any other law will be preserved by proposed section 15YT.
Section 15YF - Unrepresented defendants-cross-examination of child complainants
Proposed section 15YF precludes an unrepresented defendant from personally conducting the cross-examination of a child complainant. Although the defendant will not be able to personally question the child complainant, any questions the defendant wishes to ask the child complainant will be put to the child at the request of the defendant by a person appointed by the court.
The strict prohibition on an unrepresented defendant personally cross-examining a child complainant recognises that cross-examination of a child complainant directly by the alleged offender will undoubtedly be traumatic and distressing for the child.
The court will be able to exercise its power under any other law to disallow a question the defendant requests the person to ask (see proposed section 15YT).
Section 15YG - Unrepresented defendants - cross-examination of child witnesses
Proposed section 15YG prohibits cross-examination of a child witness (not including a child complainant) by an unrepresented defendant personally, unless the court gives leave. The court may give an unrepresented defendant leave to personally cross-examine a child witness if satisfied that the childs ability to testify under cross-examination will not be adversely affected if the defendant conducts the cross-examination. In deciding whether the childs ability to testify will not be adversely affected the court must have regard to any trauma likely to be caused to the child witness if the defendant conducts the cross-examination.
If the court refuses an unrepresented defendant leave to conduct the cross-examination personally, any questions the defendant wishes to ask must be put to the child witness by a person appointed by the court.
In contrast to proposed section 15YF, which completely prohibits cross-examination of a child complainant by an unrepresented defendant personally, proposed section 15YG permits the court to give leave to the unrepresented defendant to conduct the cross-examination of a child witness personally. A complete prohibition is not appropriate in the case of a child witness, as cross-examination by the defendant personally will not necessarily be traumatic (for example, where there is no proximate relationship to the defendant or the complainant).
Section 15YH - Represented defendants - cross-examination of child witnesses and child complainants
Proposed section 15YG precludes a represented defendant from personally conducting the cross-examination of a child witness or a child complainant. A defendant who is represented by counsel may only cross-examine a child witness or a child complainant through counsel.
Division 4 - Special facilities for child witnesses to give evidence
Proposed Division 4 provides for the use of special facilities and arrangements, such as closed-circuit television, while a child witness is giving evidence.
Section 15YI - Closed-circuit television
Proposed section 15YI provides that evidence given by a child witness must be given by means of closed-circuit television, except in certain circumstances. A child will not be required to give evidence by means of closed-circuit television if:
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- the child is a least 16 years old and chooses to not use closed-circuit television to give evidence;
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- if the court orders that the child is not to give evidence by means of closed-circuit television; or
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- closed-circuit television is not available in the court.
A court must not order that a child is not to give evidence by means of closed-circuit television unless the court is satisfied that it is not in the interests of justice for the child witness evidence to be given by means of closed-circuit television.
A child witness may be intimidated and distressed by having to appear in an open court. Allowing a child witness to testify by means of closed-circuit television will minimise the trauma of giving evidence by enabling the child to give his or her evidence in a less formal and more private environment. As a consequence, the child witness will be better able to focus on questions being asked.
Section 15YJ - Giving evidence by closed-circuit television
Proposed section 15YJ facilitates the use of closed-circuit television by ensuring that the courts powers to control proceedings within the courtroom extend to any location outside the courtroom from which a child witness is giving evidence by means of closed-circuit television. The proposed section also permits the court to adjourn the proceeding to another location to enable a child witness to give evidence by means of closed-circuit television.
Section 15YK - Viewing evidence given by closed-circuit television
Proposed section 15YK provides that, where a child witness gives evidence by means of closed-circuit television, the child and any person present with the child must be able to be seen on one or more television monitors by any persons who have an interest in the proceedings.
Section 15YL - Alternative arrangements for giving evidence
Proposed section 15YL provides for the use of alternative arrangements while a child witness is giving evidence, where the childs evidence is not to be given by closed-circuit television for one of the reasons set out in proposed section 15YI. For example, alternative arrangements are to be used if closed-circuit television is not available in the court.
The court must make arrangements to restrict the contact the child has with the defendant while giving evidence and may make arrangements to restrict the contact the child has with members of the public. The arrangements the court can make include the use of screens and planned seating arrangements. By restricting the contact a child witness has with other persons in the courtroom, and in particular with the defendant, the alternative arrangements will ameliorate the stress and embarrassment that may be experienced by a child witness in giving evidence.
If the child is at least 16 years old, he or she may choose not to use the arrangements while giving evidence.
Division 5 - Use of video recordings
Proposed Division 5 permits a video recording of an interview with a child witness to be used in proceedings.
Section 15YM - Use of video recordings
Proposed section 15YM provides for a video recording of an interview with a child witness conducted by a constable or a person in a prescribed category to be admitted as evidence in chief of the child witness, if the court gives leave. The court must not give leave if satisfied that it is not in the interests of justice for the childs evidence in chief to be given by video recording.
A child witness who gives evidence in chief by video recording must be available for cross-examination and re-examination.
By allowing a video recording of an interview with a child witness to be admitted, the exposure of the child to court room questioning can be limited. An added advantage is that the account given closest to the time of the alleged offence will be fresh and hence more likely to be an accurate account of events than several months later. Limiting the application of the section to video recorded interviews conducted by constables and other prescribed classes of person (eg, social workers) will ensure that such interviews are conducted by persons of appropriate professional status.
Section 15YN - Admissibility of evidence given using video recordings
Proposed section 15YN sets out further provisions relating to the admissibility of evidence given video recording. In particular, proposed subsection 15YN(1) provides that evidence given by video recording is admissible despite the fact that it is evidence of previous representations made by the child during the interview. However, other rules of evidence, including rules relating to the admissibility of hearsay evidence and evidence of counselling communications, continue to apply to evidence given by video recording.
Evidence given by video recording is only admissible if the court is satisfied that any defendant in the proceedings or his or her lawyer was afforded a reasonable opportunity to listen to and view the recording.
Proposed Division 6 contains miscellaneous provisions dealing with adult companions for child witnesses; the exclusion of members of the public from the courtroom; proscribing warnings to the jury on certain matters; prohibiting publication of details identifying a child complainant or child witness; and preserving the courts general powers to control proceedings.
Section 15YO - Adults accompanying child witnesses
Proposed section 15YO provides that a child witness may choose an adult to accompany him or her while he or she is giving evidence in a proceeding (including while giving evidence by closed-circuit television). However, the court may disapprove the person chosen by the child witness if it considers that the person is not an appropriate person to accompany the child. For example, the court may determine that it is not appropriate for an adult who is a party to the proceeding to accompany the child.
The court may allow more than one adult to accompany a child if it considers that it is in the interests of justice to do so. For example, a court may allow a child to be accompanied by a relative and an interpreter.
An adult accompanying a child witness must not prompt the child or otherwise influence the answers the child gives to questions or disrupt the questioning of the child.
Section 15YP - Exclusion of people from the courtroom
Proposed section 15YP gives the court the power to exclude some or all members of the public from the courtroom while a child witness is giving evidence in the courtroom. A court may exercise this power, for example, to make it easier for a child to testify freely or to protect a child witness reputation.
Section 15YQ - Warnings etc not to be given about childrens evidence
Proposed section 15YQ prevents a judge from warning a jury or suggesting to a jury that the law regards children as unreliable class of witness or that the law requires greater or lesser weight to be given to the evidence of a child witness that is given by closed-circuit television or video recorded interview or that is given while the child is accompanied by an adult. The proposed section implements section 5.2.41 of the Model Criminal Code (Reliability of evidence of children) and also ensures that judges cannot undermine the beneficial effect of proposed Divisions 4 and 5 and section 15YO by warning or suggesting to a jury that evidence given in reliance on those provisions should be given lesser weight.
Section 15YR - Publication identifying child witnesses or child complainants
Proposed section 15YR makes it an offence for a person to publish any matter, without the leave of the court, which identifies a person (other than a defendant) as a child witness or a child complainant or is likely to lead to his or her identification. However, the proposed section does not apply to any official publication in the course of, and for the purpose of, the proceeding or a document prepared for use in particular legal proceedings.
A court may grant leave for a person to publish identification details. In deciding whether to grant leave the court must consider any trauma to the child witness or damage to the child witness reputation that could be caused by the publication and whether the publication is for the supply of transcripts to person with a genuine interest in the proceedings (eg, a party to the proceedings) or for genuine research purposes. The court (whether constituted by the same or different judicial officers) may give leave after the proceedings have finished.
The onus is placed on a person who wishes to publish identifying details to apply for leave to do so, as the prevention of the further trauma to the child complainant or child witness will in most cases outweigh any public interest in knowing the identity of the child.
The proposed section does not apply to child defendants as they are already covered by State and Territory provisions that apply to Commonwealth criminal proceedings in the relevant jurisdiction.
Section 15YS - Division 5 of Part IIIA unaffected
Proposed section 15YS provides that the proposed Part does not affect the operation of Division 5 of Part IIIA of the Crimes Act, which provides for overseas witnesses in child sex tourism proceedings to give evidence by video link.
Section 15YT - General powers of a court
Proposed section 15YT preserves the courts general powers to control the conduct of a proceeding, including the questioning of witnesses, unless those powers are expressly or necessarily affected by the provisions in proposed Part 1AD.
Where a court has power to give leave under one of the provision of proposed Part 1AD, the court may grant leave subject to conditions.