2015
LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY
ATTORNEY-GENERAL AND MINISTER FOR JUSTICE
Justice Legislation Amendment (Vulnerable Witnesses) Bill 2015
SERIAL NO. 146
EXPLANATORY STATEMENT
GENERAL OUTLINE
The purpose of the Bill is to implement a number of recommendations of the Review of Vulnerable Witness Legislation Report.
The Review of Vulnerable Witness Legislation Report arose from the ‘Ampe Akelyernemane Meke Mekarle’ (‘Little Children Are Sacred Report’) and the ‘Closing the Gap of Indigenous Disadvantage – A Generational Plan of Action’, which recommended a review of all legislation relating to court procedures for vulnerable witnesses and child victims of alleged sexual abuse in the Northern Territory.
The Review of Vulnerable Witness Legislation Report contained nine recommendations focusing on ways to reduce the impact of court proceedings on vulnerable witnesses.  Subsequent to the finalisation of the review, two further issues were raised by stakeholders and were included in the Review of Vulnerable Witness Legislation Report.
As recommendations 1, 3 and 4 of the Review of Vulnerable Witness Legislation Report had been implemented by non-legislative means, the remaining recommendations and addendum issues A and B required legislative amendment for implementation.
Following extensive consultation, it was determined that recommendation 8 would not be pursued.  Accordingly, the Justice Legislation Amendment (Vulnerable Witnesses) Bill 2015, implements recommendations 2, 5, 6, 7 and 9 and addendum issues A and B of the Report.
The proposed amendments will strengthen existing vulnerable witness provisions and protections thereby reducing the impact and trauma of court proceedings on vulnerable witnesses.  This will also ensure that witnesses are more confident and comfortable giving evidence which will likely lead to more successful prosecutions.
NOTES ON CLAUSES
Part 1	Preliminary matters
Clause 1.	Short Title
This is a formal clause which provides for the citation of the Bill.  The Bill when passed may be cited as the Justice Legislation Amendment (Vulnerable Witnesses) Act 2015.
Clause 2.	Commencement
This is a formal clause which provides when the Act will commence.  The Act will commence on a day fixed by the Administrator by Gazette notice.
Part 2		Amendment of Domestic and Family Violence Act
Clause 3.		Act amended
This Part of the Bill will amend the Domestic and Family Violence Act.
Clause 4.		Section 104 amended
Consistent with recommendations 6 and 9, and addendum issue B of the Review of Vulnerable Witness Legislation Report, clause 4 amends section 104 of the Domestic and Family Violence Act to:
(a)	adopt the new definition of ‘vulnerable witness’ in section 21A(1) of the Evidence Act;
(b)	adopt the definition of ‘recorded statement’ in  section 21A(1) of the Evidence Act to require a recorded statement to be taken by an authorised person; and
(c)	clarify the definition of ‘vulnerable witness’ so that it includes a protected person applying for a Domestic Violence Order.
In order to include persons who have applied for a Domestic Violence Order (or for whom Police have sought a Domestic Violence Order) but have not yet had their application finalised, the definition of vulnerable witness in section 104 is amended to include ‘a protected person’ instead of ‘the protected person named in a DVO’.  In accordance with the definition of a ‘protected person’ in section 13(1) of the Domestic and Family Violence Act, this includes a protected person for whose protection a Domestic Violence Order is sought or is in force.
The adoption of other definitions in accordance with section 21A(1) of the Evidence Act ensures consistency, as far as practicable, with the vulnerable witness provisions in the Evidence Act.
For further detail regarding the amendments mirroring those made to section 21A(1) of the Evidence Act see below at clause 11.
Clause 5.		Section 114 amended
Section 114 of the Domestic and Family Violence Act is amended to mirror the amendments to section 5 of the Sexual Offences (Evidence and Procedure) Act to relieve magistrates of the responsibility of relaying questions from self-represented defendants, if an order is made precluding the defendant from cross-examining the witness directly.
For further detail regarding the amendments mirroring those made to section 5 of the Sexual Offences (Evidence and Procedure) Act see below at clause 22.
Clause 6.		Part 7.2 heading amended
Clause 6 amends the heading for Part 7.2 which contains the transitional provisions for the Domestic and Family Violence Act 2007.  This will allow for distinction to be made with the transitional provisions for the Justice Legislation Amendment (Vulnerable Witnesses) Act 2015.
Clause 7.		Part 7.3 inserted
Clause 7 creates Part 7.3 which includes section 135, being the transitional provision for the Justice Legislation Amendment (Vulnerable Witnesses) Act 2015. 
It is the intention of the Bill that the amendments apply to proceedings commenced on or after commencement of the Justice Legislation Amendment (Vulnerable Witnesses) Act 2015.  However, if a hearing commences prior to commencement and continues or is adjourned until a day on or after commencement, the amending Act will not apply.
In essence, this means that amended provisions are to apply in all proceedings, unless they form part of a ‘part-heard’ hearing that commenced prior to commencement.
Part 3		Amendment of Evidence Act
Clause 8.		Act amended
This Part of the Bill will amend the Evidence Act.
Clause 9.		Section 4 amended
Clause 9 amends section 4 of the Evidence Act to provide for the definition of ‘special sitting’, which is inserted by amended section 21A(1).  The definition in section 4 references the definition provided in amended section 21A(1).
Clause 10.		Section 6A inserted
This is a standard clause that provides that Part IIAA of the Criminal Code applies to an offence against the Evidence Act.  Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof.  Part IIAA also defines, or elaborates on, certain concepts commonly used in the creation of offences.
Clause 11.		Section 21A amended
Clause 11 amends section 21A(1) to provide a definition for the term ‘special sitting’.  The term is necessary as a result of the amendments to section 21B of the Evidence Act to expand the operation of the provision to the lower courts.  The term ‘special sitting’ is defined as:
‘a sitting of the court held for the purpose of conducting an examination, or part of an examination, of a vulnerable witness in proceedings for a sexual offence or serious violence offence’.
The terms ‘sexual offence’ and ‘serious violence offence’ are already defined in sections 4 and 21A(1) of the Evidence Act.
Section 21A(1) of the Evidence Act is also amended in accordance with recommendation 6 of the Review of Vulnerable Witness Legislation Report, to provide for a list of factors to be considered by the court when assessing whether a witness is vulnerable.  In doing so, the Bill removes the reference to ‘special disability’ and replaces it with a list of factors to be considered by the court when assessing whether a witness is vulnerable.  The term is replaced in order to address confusion which arose regarding the scope of the provision.  For example, the term may have been interpreted as being restricted to those witnesses who suffered from a physical or mental disability.  It is clear that the term ‘special disability’ was not meant to be restricted in this regard and was instead meant to include a list of factors to be considered by the court when assessing whether a witness was ‘vulnerable’. 
The amended definition of ‘vulnerable witness’ means a witness in proceedings:
(a)	who is a child; or
(b)	who has a cognitive impairment or an intellectual disability; or
(c)	who is the alleged victim of a sexual offence to which the proceedings relate; or
(d)	whom a court considers to be vulnerable.
In considering whether a witness is vulnerable, new section 21A(1A) provides that the court may have regard to:
(a)	any relevant condition or characteristic of the witness, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality;
(b)	any mental or physical disability and to which the witness is, or appears to be subject;
(c)	any relationship between the witness and the defendant to the proceedings; and
(d)	any other matter the court considers relevant.
This amendment is intended to remove the need for argument about whether a witness is vulnerable in the most obvious of cases, while leaving scope for a witness to be treated as vulnerable in other circumstances. 
This means that, for example in a domestic violence situation, the relationship of the parties will be a relevant factor when determining the witness’ vulnerability and protections available to them when giving evidence.
The language of the amendment is designed to give guidance while still preserving judicial discretion, and is similar to that contained in section 41(4) of the Evidence (National Uniform Legislation) Act (relating to improper questions). A similar provision has also been endorsed by the Victorian Law Reform Commission, the Australian Law Reform Commission and the New South Wales Law Reform Commission (in their Joint Report No. 102 of 2005).
The term ‘intellectual disability’ has been separated into ‘cognitive impairment’ and ‘intellectual disability’, as modern medical definitions distinguish the two terms.  As intellectual disability does not include cognitive impairment, the two terms must be provided separately.
Clause 12.		Section 21B amended
Consistent with recommendations 2 and 7 of the Review of Vulnerable Witness Legislation Report, clause 12 amends section 21B of the Evidence Act to:
(a)	clarify that vulnerable witnesses do not need to be present in the courtroom when their pre-recorded statement of evidence is played; and
(b)	expand its operation to the lower courts so that it applies in serious violence and sexual offences heard in any Northern Territory court, not just the Supreme Court.
In order to clarify that vulnerable witnesses do not need to be present in the courtroom when their pre-recorded statement of evidence is played at any time (rather than when it is replayed to the jury), the reference to ‘the jury’ in section 21B(5) is removed and replaced with reference to ‘the courtroom’.
In order to expand the operation of section 21B to the lower courts, section 21B(1) is amended so that the provision references both a ‘trial’ and ‘hearing’, therefore covering both a Supreme Court jury trial and Summary Hearing in the lower courts.
In practice, the amendment will mean that, in proceedings for a sexual offence or serious violence offence, the court (whether the Supreme Court, Court of Summary Jurisdiction or Youth Justice Court) may:
(a)	admit a recorded statement in evidence as the witness’s evidence-in-chief or as part of the witness’s evidence-in-chief;
(b)	hold a special sitting for the purpose of conducting the examination, or part of the examination, of the witness; and
(c)	have an audiovisual recording made of the examination of the witness at the special sitting and admit the recording in evidence.
By virtue of the definition of ‘serious violence offence’ in section 21A(1) of the Evidence Act and the definition of ‘sexual offence’ in section 3 of the Sexual Offences (Evidence and Procedure) Act, the provision will have broad application in the Court of Summary Jurisdiction as it will apply to a range of offences which are punishable by five or more years imprisonment.
In order to address concerns regarding the potential practical and operational implications of the expansion of section 21B to the lower courts, new section 3A has been inserted to provide that, amongst other matters, when considering whether to apply section 21B the court must take into account whether a recorded statement can be played or a special sitting can be held in the particular courtroom.  This provision has particular relevance to bush courts where there may not be facilities for evidence to be pre-recorded and replayed.
Clause 12 also amends section 21B(2)(b)(i) to remove the explanation of ‘special sitting’ from the section and displace it to section 21A(1), as a definition.  This amendment improves the clarity of the provision, to assist with interpretation.
Clause 13.		Section 21C amended
Section 21C of the Evidence Act is amended to reflect the displacement of the definition of ‘special sitting’ to section 21A(1), to improve the clarity of the provision and assist with interpretation. 
Clause 14.		Section 21D amended
In accordance with recommendation 5 of the Review of Vulnerable Witness Legislation Report, section 21D of the Evidence Act is amended to add an additional principle which provides that all efforts must be made to ensure that matters that could delay or interrupt a child’s evidence are determined pre-trial.
This amendment is consistent with the Bench Book for Children Giving Evidence in Australian Courts, published by the Australasian Institute of Judicial Administration Incorporated, and will ensure that, where possible, determinations on the admissibility of a child’s evidence or other legal argument is determined pre-trial, therefore reducing the trauma on the child and ensuring that their evidence is given as soon after the relevant event as possible.
Clause 15.		Section 49ZC replaced
This clause amends the offence contained in section 49ZC of the Evidence Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 49ZC provides for the offence of contempt of an interstate entity, which applies when a person gives evidence to an interstate entity (e.g court or tribunal) via audiovisual link.  Ordinary contempt provisions continue to apply to evidence that is given to a Territory court.  New section 49ZD has also been included to provide guidance regarding the conduct that constitutes contempt.
In order to ensure consistency across Territory legislation, the offence has been drafted consistently with sections 86 and 87 of the Northern Territory Civil and Administrative Tribunal Act.  Section 87(5)(c) of the Northern Territory Civil and Administrative Tribunal Act, however, has not been adopted as the interstate entity will not be physically sitting in the Territory.
The fault element for section 49ZC(1)(a) is intention and the fault element for section 49ZC(1)(b) is recklessness.  A reasonable excuse defence has also been provided.
Clause 16.		Section 55 replaced
This clause amends the offence contained in section 55 of the Evidence Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 55 provides for the offence of giving misleading testimony.  Consistent with similar offences across Territory legislation, the term ‘misleading’ includes ‘testimony that is misleading in a material particular or because of the omission of a material particular’.
The fault element for section 55(1)(a) is intention and the fault element for section 55(1)(b) is knowledge.
Clause 17.		Section 59 replaced
This clause amends the offence contained in section 59 of the Evidence Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
Amended section 59 provides for the offence of breaching an order made under section 57 or 58 of the Evidence Act prohibiting the publication of evidence and names of parties and witnesses.
The fault element for section 59(a) is intention and the fault element for section 59(b) is recklessness.
Clause 18.		Part 10, Division 3 inserted
Clause 18 creates Part 10 which includes sections 69, 70 and 71, being the transitional provisions for the Justice Legislation Amendment (Vulnerable Witnesses) Act 2015.
It is the intention of the Bill that the amendments apply to proceedings commenced on or after commencement of the Justice Legislation Amendment (Vulnerable Witnesses) Act 2015.  However, if a trial or hearing commences prior to commencement and continues or is adjourned until a day on or after commencement, the amending Act will not apply.
In essence, this means that amended provisions are to apply in all proceedings, unless they form part of a trial or hearing that commenced prior to commencement.
A separate transitional provision is provided for the amended offence provisions (sections 49ZC, 49ZD, 55 and 59) so that a person is not guilty of an offence unless all conduct constituting the offence occurs after commencement of the Justice Legislation Amendment (Vulnerable Witnesses) Act 2015.
Part 4	Amendment of Sexual Offences (Evidence and Procedure) Act
Clause 19.		Act amended
This Part of the Bill will amend the Sexual Offences (Evidence and Procedure) Act.
Clause 20.		Part 1 heading inserted
Clause 20 inserts a heading entitled ‘Part 1, Preliminary matters’ in order to facilitate the division of the Sexual Offences (Evidence and Procedure) Act into Parts.
Clause 21.		Sections 3AB, 3AC and Part 2 heading inserted
Clause 21 inserts new section 3AB to provide for the concurrent operation of the Evidence (National Uniform Legislation) Act and the Sexual Offences (Evidence and Procedure) Act.  This provision is a standard procedural clause that mirrors section 6 of the Evidence Act.  The provision corrects an oversight as it should have been made as a consequential amendment to the Evidence (National Uniform Legislation) Act, but was not.
Clause 21 also inserts section 3AC into the Sexual Offences (Evidence and Procedure) Act.  This is a standard clause that provides that Part IIAA of the Criminal Code applies to an offence against the Sexual Offences (Evidence and Procedure) Act.  Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof.  Part IIAA also defines, or elaborates on, certain concepts commonly used in the creation of offences.
Clause 22.		Section 5 amended
Clause 22 inserts a heading entitled ‘Part 2, Evidence and Procedure for Sexual Offences’ in order to facilitate the division of the Sexual Offences (Evidence and Procedure) Act into Parts.
This clause amends section 5 of the Sexual Offences (Evidence and Procedure) Act to:
(a)	relieve Judges of the responsibility of relaying questions from self-represented defendants during sexual offence trials; and
(b)	provide the court with the power to appoint a person to put questions to the complainant on behalf of unrepresented defendants.
This provision alleviates concern regarding the inappropriateness of a Judge asking questions on behalf of the defendant, particularly in situations where the complainant’s credibility is in issue and there is a suggestion that the Judge could be seen (by the jury) to agree with the questions posed to the complainant.
The provision has been drafted to restrict questioning by the appointed person to that which is requested by the defendant.  The appointed person must therefore not provide any legal advice or ask any question beyond that provided to them by the defendant.
New section 5(3) has been inserted to require the court to issue a warning that the defendant will not be permitted to adduce evidence in relation to a fact in issue in order to contradict the evidence of the complainant, if they do not accede to cross-examination being conducted by the appointed person.  This provision reflects the operation of the common law rule in Browne v Dunn (1893) 6 R 67 which provides that where a party intends to lead evidence that will contradict or challenge the evidence of an opponent’s witness, they must put that evidence to the witness in cross-examination.  
References to ‘shall’ in section 5 have also been amended to reflect current drafting practice and the preferred term ‘must’.
Clause 23.		Section 11 replaced
This clause amends the offence contained in section 11 of the Sexual Offences (Evidence and Procedure) Act so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
In converting section 11 so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code, it has been necessary to separate the offence into three separate provisions: new sections 11, 11A and 11B.  Clause 23 also inserts new section 11C which reflects current section 11(4).
Amended section 11 provides for the offence of publishing or making a report in contravention of section 6 or 7 of the Sexual Offences (Evidence and Procedure) Act.  Sections 6 and 7 relate to the publication of the complainant or defendant’s identity, in certain circumstances.
The fault element for section 11(a) is intention and the fault element for section 11(b) is recklessness.
New section 11A provides for the offence of breaching an order in relation to the publication or making of a report.
The fault element for section 11A(a) is intention and the fault element for section 11A(b) is recklessness.
New section 11B provides for the offence of revealing certain information about the identity of a complainant and/or defendant other than by ‘report or publication’ (which is covered by section 11).  The offence does not apply if the statement or representation is made or published for an authorised purpose under section 12 of the Sexual Offences (Evidence and Procedure) Act.
The fault element for section 11B(a) is intention and the fault element for section 11B(c) is recklessness.  Strict liability applies to 11B(1)(b).
Clause 24.	Section 12 amended
Section 12 is amended to reflect the separation of section 11 into four parts: sections 11, 11A, 11B and 11C.
Clause 24 also amends section 12 to update the spelling of the word ‘authorised’ so that it reflects Australian English.
Clause 25.		Section 13 replaced
Clause 25 amends section 13 so that it complies with the criminal responsibility principles in Part IIAA of the Criminal Code.
As section 13 relates to the criminal liability of the executive officer of a body corporate it has been drafted in accordance with the Statute Law Amendment (Directors’ Liability) Act 2015.  In this regard, it should be noted that the provision was included in the amendments made by the Statute Law Amendment (Directors’ Liability) Act 2015, however, as the offences within the Act still fell under Part II of the Criminal Code, section 13 was drafted in accordance with Part II and not Part IIAA.
In accordance with the amendment to section 13 made by the Statute Law Amendment (Directors’ Liability) Act 2015, section 13 is designated as a ‘Type 2’ provision.  In effect the only amendment made by this Bill is that the provision is now compatible with Part IIAA of the Criminal Code.
The provision will apply to sections 11, 11A and 11B of the Sexual Offences (Evidence and Procedure) Act and any offences prescribed by regulation.
Clause 26.		Part 3 and Part 3, Division 1 headings inserted
Clause 26 inserts new Part 3, which will contain all transitional provisions for the Sexual Offences (Evidence and Procedure) Act.  The clause also inserts a heading for new Division 1, entitled ‘Transitional matters for Statute Law Amendment (Directors’ Liability) Act 2015’.  This Division contains the transitional provisions for the Statute Law Amendment (Directors’ Liability) Act 2015 and will allow for distinction to be made with the transitional provisions for the Justice Legislation Amendment (Vulnerable Witnesses) Act 2015.
Clause 27.		Section 14 heading amended
In order to avoid duplication this clause omits the heading ‘Transitional matters for the Statute Law Amendment (Directors’ Liability) Act 2015’ and replaces it with the heading ‘Offences – before and after commencement’.
Clause 28		Part 3, Division 2 inserted
Clause 28 creates Part 3 which includes sections 15, 16, 17 and 18, being the transitional provisions for the Justice Legislation Amendment (Vulnerable Witnesses) Act 2015.
It is the intention of the Bill that the amendments apply to proceedings commenced on or after commencement of the Justice Legislation Amendment (Vulnerable Witnesses) Act 2015.  However, if a trial or examination commences prior to commencement and continues or is adjourned until a day on or after commencement, the amending Act will not apply.
In essence, this means that amended provisions are to apply in all proceedings, unless they form part of an examination or trial that commenced prior to commencement.
A separate transitional provision is provided for the amended offence provisions (sections 11, 11A and 11B) so that a person is not guilty of an offence unless all conduct constituting the offence occurs after commencement of the Justice Legislation Amendment (Vulnerable Witnesses) Act 2015.
A further separate transitional provision is provided for amended section 13 (Directors’ liability provision), in accordance with the transitional provisions provided under the Statue Law Amendment (Directors’ liability) Act 2015.
Part 5 			Expiry of Act
Clause 29.		Expiry of Act
This is a standard clause which provides that the Justice Legislation Amendment (Vulnerable Witnesses) Act 2015 expires the day after it commences.  As this is an amending Act, there is no need to retain the Act on the statute book, once all the amendments to other Acts have been effected.