2017-03-06
PENNICUIK (Southern Metropolitan) — The Greens will be supporting the Crimes Legislation Further Amendment Bill 2016. This bill makes amendments to the Crimes Act 1958, the Criminal Procedure Act 2009, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and the Jury Directions Act 2015. With regard to the Criminal Procedure Act, the bill amends that act to enable expert evidence to be given concurrently or consecutively in criminal trials and also amends the act so that when there is a ruling on a no-case submission by an accused the trial judge may take into account the evidence already given by an expert witness called on behalf of any accused in the trial. It also amends the Criminal Procedure Act to enable the Supreme Court or County Court to hear and determine charges for summary offences when all charges for an indictable offence have been discontinued.
The bill amends the Crimes (Mental Impairment and Unfitness to be Tried) Act to enable expert evidence to be given concurrently or consecutively, as in the amendments to the Criminal Procedure Act, in investigations into the fitness to stand trial and in special hearings. The bill amends the Crimes Act to clarify the offence of attempt where the substantive offence is a sexual offence involving an element of reasonable belief in consent. The prosecution must prove that the accused did not reasonably believe that the complainant would consent to the penetration or touching, as the case requires.
The bill amends the Jury Directions Act to ensure that relevant jury directions apply in cases of conspiracy, incitement or attempt to commit sexual offences. The provisions ensure that directions on consent and reasonable belief in consent are given in all sexual offence cases and that directions on delay and credibility are given in all sexual offence cases. I think these are more than, as was described by Mr Gordon Rich-Phillips, minor technical amendments; they are amendments to clarify some provisions in those acts and also to improve procedures in the courts under those acts.
The final amendment is to the Criminal Procedure Act 2009 to enable the Court of Appeal to substitute a conviction for an alternative offence where an appeal against conviction was successful following a guilty plea.
In reference to enabling expert evidence to be given concurrently or consecutively in criminal trials, which is colloquially known as 'hot tubbing', these provisions will allow for two or more expert witnesses to give evidence at the same time or directly following one another with the consent of the prosecution and the accused. It is noted in the second-reading speech that recent studies and commentary highlight a number of benefits of this, including reducing adversarial bias and the distortion of expert evidence; facilitating discussion and peer review; enhancing comprehension and analysis by the jury, which I think is a very important reason for introducing these provisions; distilling expert evidence to the key issues in dispute in a case; and reducing court time and costs.
More specifically concurrent evidence allows for two or more expert witnesses to be sworn in and to give evidence at the same time issue by issue. The experts explain their assumptions and opinions and are able to question the evidence of the other expert. Counsel and the trial judge can also ask questions of the expert witnesses. This will aid jury comprehension and streamline the process in giving expert evidence. It is noted that this procedure was used very successfully during the Royal Commission into Family Violence.
In an article by Steven Rares, which was published on the Federal Court website on 12 October 2013, on how concurrent expert evidence aids understanding issues, Australian courts and agencies were acknowledged as having the most experience with the hot tub concurrent expert evidence method. An article in the Oregon Law Review stated in 2009 that the innovation itself is attributable to Australia. Ian Freckelton, SC, recently echoed this tribute in the fifth edition of Expert Evidence: Law, Practice, Procedure and Advocacy, commenting that international interest is developing — for example, in the United States of America, Canada and the United Kingdom.
Because each expert knows his or her colleague can expose any inappropriate answer immediately and can also reinforce an appropriate one, the evidence generally proceeds directly to the critical and genuinely held points of difference. Sometimes these differences will be profound, and at other times the experts will agree that they are disagreeing about their emphasis but the point is not relevant to resolving their real dispute.
Justice McClellan described the process as:
… essentially a discussion chaired by the judge in which the various experts, the parties, advocates and the judge engage in an endeavour to identify the issues and arrive where possible at a common resolution of them. In relation to the issues where agreement is not possible a structured discussion, with the judge as chairperson, allows the experts to give their opinions without constraint by the advocates in a forum which enables them to respond directly to each other. The judge is not confined to the opinion of one advisor but has the benefit of multiple advisors who are rigorously examined in a public forum.
This differs from the current approach, where expert evidence can be given in a trial by different experts sometimes days apart, sometimes weeks apart and sometimes even further apart, so it can be confusing and difficult for the jury in particular to follow the arguments and also for the court to be able to distil the arguments down to their essence and to focus on those. For these reasons the Greens support this reform.
In terms of consecutive evidence, this allows experts to be called immediately following each other, which means the expert evidence stays fresh in the minds of members of the jury. This practical measure is fully supported by the Greens.
In reference to the amendments to the Jury Directions Act so that the directions on consent, reasonable belief in consent and delay and credibility of a complainant apply to all sexual offences, the Greens welcome these amendments. However, as we have previously stated in Parliament in reference to the Crimes Amendment (Sexual Offences and Other Matters) Bill 2014 and the Jury Directions Bill 2015, we believe that these jury directions should be mandatory, not discretionary, as should the directions in relation to family violence. We previously sought to amend the legislation in this regard. As I said, this is a matter that we have raised on previous occasions.
I note that this view on the need for mandatory jury directions for these matters is not only the view of the Greens but also the view of the Federation of Community Legal Centres and a further 11 organisations, including the Victorian Centres Against Sexual Assault, Domestic Violence Victoria and the Victorian Council of Social Service. This is because we cannot assume that all jury members and counsel — in fact all judicial officers — have a sophisticated understanding of these issues, let alone the community as a whole. A recent national community attitude survey found that about 20 per cent of Australians think that a woman is partly to blame for being sexually assaulted if she was drunk or drug-affected. Some prominent Australians have also made inappropriate comments that have amounted to victim blaming. While this attitude is significant in the community we believe that jury directions on sexual offences should be mandatory to ensure a fair and just trial.
This is a fairly straightforward bill with regard to the issues that I have covered. We believe that those issues will clarify the acts that the bill amends and introduce new provisions and procedures that will be of benefit to the courts.