NSW Passes Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Bill 2015

Thursday 29 October 2015 @ 11.45 a.m. | Crime

Both houses of the NSW Parliament have now passed the Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Bill 2015.  The Bill implements some of the recommendations from the report of the Joint Select Committee on Sentencing of Child Sexual Assault Offenders, released earlier this year.  In particular, the Bill provides that in some circumstances, evidence of child complainants will be able to be pre-recorded.  The Bill also creates the role of a “children’s champion” who may serve as a witness intermediary to assist child complainants.

Background to the Bill

In her second reading speech, NSW Attorney-General Gabrielle Upton said that the court process was a daunting one for many people, but could be particularly traumatic for “children who have suffered the trauma of sexual abuse, which is one of the worst crimes imaginable”, and said that “[o]ur criminal justice system should not compound that pain; it should not inflict more trauma on these young victims”.  She concluded by saying

“The bill is purposeful in being focused on intending to reduce the re-traumatisation of child victims in courts, clearly without compromising the fundamental elements of a fair trial. There will be an evaluation during and at the end of the pilot prior to any expansion of both of these measures.”

Amendments in the Bill

The Bill amends the Criminal Procedure Act 1986 (NSW) by inserting a new Part 29 that outlines the pilot scheme.  The changes will operate from 31 March 2016 until 31 March 2019 in the NSW District Courts in Newcastle and Sydney.  Children under 18 who are giving evidence in cases involving prescribed sexual offences will be eligible to participate in the scheme.  There is a presumption that children under 16 will have their evidence pre-recorded under the scheme, subject to contrary Court orders.  Recordings must be taken as soon as practicable, and the prosecution must ensure that the accused person and their legal practitioners have access to the recording, although they will not be entitled to possession of it.

Feedback on the Bill

The NSW Legislation Review Committee, which examined the Bill, noted that the changes could potentially impact on the right of an accused to a fair trial:

“Requiring an accused to crossexamine a witness before the trial has begun means they will be required to prepare and disclose their case in advance. This may provide the prosecution with further avenues for investigation and time to alter their case.”

However, they concluded that the advantages outweighed these concerns.

The Children’s Champions part of the scheme is based on a similar model currently being used in the United Kingdom.  Their role is to “communicate and explain” to the witness and the court, and they are required to be impartial in their facilitation of communication.   Children’s Champions will need to have a tertiary degree in a field such as Psychology,  Social Work, Speech Pathology or Occupational Therapy, with other qualifications able to be prescribed by regulation.

The Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Bill 2015 passed the Legislative Council yesterday (28 October 2015), and it is currently awaiting assent.

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Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Bill 2015, explanatory memorandum and second reading speech - available from TimeBase's LawOne service

Legislation Review Digest (Legislation Review Committee No. 9/56 - 27 October 2015)

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