Criminal Procedure Amendment (Sexual and Other Offences) Bill 2006
Reverend the Hon. Dr GORDON MOYES: I speak to the Criminal Procedure Amendment (Sexual and Other Offences) Bill on behalf of the Christian Democratic Party. This bill amends the Criminal Procedure Act 1986 and the Crimes Act 1900 to implement some of the 70 legislative recommendations of the Criminal Justice Sexual Offences Task Force. As mentioned earlier by the Hon. Catherine Cusack, a Sydney journalist, Paul Sheehan, gives a telling portrayal in his book, Girls Like You, of the deficiencies in the legal system when dealing with sexual assault cases. Mr Sheehan had followed the progression of a case through the judicial system in which six Pakistani-born brothers and their acquaintances had been charged with rape. The brothers and their acquaintances would befriend their victims, take them to their abode and, in concert, rape the young females. Threats would be made to the lives of their victims if they ever spoke about the horrific incidents.
Young Tegan Wagner was one victim who fell prey into the hands of these brothers, but through her courage and sheer determination not only sought recourse through the judicial system but also became a beacon for many young women who are afraid to speak out about their sexual assault. I pay homage today to her efforts on behalf of the many unfortunate victims of these heinous crimes. I also hope wholeheartedly that the reforms we are considering today will go some way towards providing a more effective platform for redress for victims. Apart from enduring horrific assault and the pain of dealing with the bitter aftertaste, victims of sexual assault often confront severe obstacles to justice being meted against their assailant. Notably, this occurs only if victims come forward and initiate action against their assailant within the court system. The list of obstacles in obtaining redress through the court system is overwhelming.
One of the principal difficulties lies in the nature of the adversarial system that provides redress for sexual assault victims. For example, the reputation of victims is often called into question and denigrated by lawyers who are engaged in cross-examination. Victims often are made to feel either that they are sexually promiscuous, and thus deserved the assault, or somehow consented to the assault because of the manner in which they dress or their demeanour. Honourable members will agree that this is a really contemporary issue because in today’s papers, in the Australian particularly, the head Muslim cleric, Sheik Taj El Din Al Hilaly has said, in effect, that women who are immodestly dressed bring rape upon themselves. He implicitly gave credence to the arguments used by the assailants referred to in Sheehan’s book as justification for their brutal assaults. The assailants actually quoted him.
In doing so, the cleric has absolved men who rape women from taking any responsibility for their atrocious actions. In particular, today’s Australian reported segments of Al Hilaly’s Ramadan address, citing him as saying that women who “sway suggestively”, and wear make-up and immodest dress were to blame for being preyed upon. In a religious address on adultery to about 500 worshippers in Sydney last month at the conclusion of Ramadan, Sheik Al Hilaly is reported to have said:
If you take out uncovered meat and place it outside on the street, or in the garden or in the park, or in the backyard without a cover, and the cats come and eat it and the flies, whose fault is it, the cats or the uncovered meat? The uncovered meat is the problem.
The Sheik then said:
If she was in her room, in her home, in her hijab, no problem would have occurred.
I remind honourable members that Sheik Al Hilaly was admitted to Australia as a result of the personal intervention by Mr Paul Keating. I call upon all moderate Muslims to disassociate themselves from these statements and that underlying attitude toward Australian women. I also call upon those who have responsibility at the Auburn mosque to counsel and discipline the Mufti. There is a pressing need for Muslim people to speak against that attitude. Such comments and their despicable underlying philosophies ought not be tolerated at any level in any culture, particularly this nation where we aspire to place value on womanhood and champion personal responsibility. The Mufti’s statements not only denigrate Australian women, but beg the question: Are all Muslim men nothing more than alley cats or flies who prey upon meat?
Other obstacles to recourse lie in procedural rules that have the effect of helping the accused’s cause, but at the expense of the victim. For instance, tactical strategies can often be employed to extend trials far beyond the time needed to address the evidence to be tendered. It seems one is limited only by how much one can pay a lawyer. This stretching out of time exacerbates the emotional and often physical ordeal that a victim, usually a woman, undergoes to have the matter laid to rest. Often victims give up following through with the trial and decide not to continue with the prosecution because they are sick and tired of all the publicity surrounding it.
From the bench it is also difficult to intimately understand the hardship suffered by victims in enduring a trial. Defence lawyers are in a position of inherent bias towards the victim by virtue of their engagement by the accused. They often employ tactics to identify holes in the victim’s story, and thereby erode the victim’s confidence and apparent credibility. Fortunately, the many and varied problems with the current legal system in redressing the grievances of sexual assault victims was given due recognition by the Government in December 2004, and I praise the Government for that. In December 2004, the Government established the Criminal Justice Sexual Assault Offences Taskforce. A number of government and non-government agencies were represented on the task force, including the Attorney General’s Department. I will not go through the list because a previous speaker has mentioned the representatives. It was a widespread and significant group.
The task force was set up to examine models for the prosecution of sexual assault offences and also to evaluate initiatives for legislative and procedural change in sexual assault prosecutions in this State. The task force released its findings in December 2005, and I again congratulate the task force on completing its work in a very extensive manner, and for producing its report within 12 months. The report of the task force was entitled, “Responding to sexual assault: the way forward”. A great impetus behind the formation of that task force and the reforms we are considering lies in the work of the New South Wales Rape Crisis Centre. Representatives of my office spoke with Karen Willis, the manager of the centre, who indicated her wholehearted acceptance of the bill.
The centre is at the forefront of the issues that victims confront before, during and after the prosecution process. I am glad that the centre supports the initiatives in this bill. Of course, we will see more reforms in the coming months that will go towards implementing more fully the further recommendations handed down by the task force. As mentioned by a previous speaker, that task force made 70 recommendations for change, including a number of legislative amendments. The bill implements the majority of the legislative recommendations made by that task force. However, it should be noted that the bill does not include changes to the law of consent or to the provision of a one-stop-shop and does not expand on legislative provisions dealing with vulnerable witnesses. I look forward to those matters coming before the House.
Rather than exhaustively detail all of the amendments proposed by this legislation, which excellent speakers have already done, in particular the Hon. Greg Donnelly, I draw attention to certain aspects of the bill. The bill amends section 292 of the Criminal Procedure Act 1986 concerning non-publication orders. The amendments will enable non-publication orders to be maintained after a verdict. Clearly, the media will look for any opportunity to sensationalise this type of case to reduce problems that arise from adverse publicity, and “publishing” will be clarified to include dissemination over the Internet.
In the light of that dreadful attack last June by 12 abusive young men upon an intellectually disabled young girl in Werribee, who then published the films of their crimes on the Internet, an appropriate amendment is needed. A concomitant amendment is made to the Crimes Act 1900. Importantly, the bill will create more safeguards during the committal process to make sure that witnesses are not called unnecessarily. For example, amendments are made to the Criminal Procedure Act 1986 to provide clarity in cases where there is consent between the parties that an alleged victim will not be directed to attend unless the magistrate is also satisfied that there are special reasons in the interests of justice. In that vein, it is of utmost importance to note that judicial officers must be given specific education that is tailored to understand the needs and the position of sexual assault victims.
The bill is said to simplify a number of jury directions that have over time become ponderous, inconsistent and confusing to lay people who form our juries. One such jury direction is known as the Longman warning. This warning is given to the jury when the court considers that, because of the passage of time between the offence and the complaint, it would be dangerous to convict on the complainant’s evidence alone. That is unless the jury is satisfied as to the soundness of the evidence after close scrutiny. In contributions to the second reading speech it was said that there have been a number of criticisms of aspects of the Longman warning from the judiciary, practitioners and academics. The bill will provide that such a warning should be given only in cases when a party requests it and the court is satisfied that the party has suffered a significant forensic disadvantage due to the delay. In that context, I draw attention to the comments of the Legislation Review Committee. The report of that committee on this bill noted:
The bill arguably trespasses upon the rights of an accused in limiting the availability of a Longman direction. However, the Committee also notes that the changes ought to be viewed in the light of an ongoing process of criminal law reform designed to improve the legal system’s handling of sexual assault prosecutions.
Of great importance are the amendments to the Evidence (Children) Act 1997 that will allow a recorded interview of a child complainant to be admitted as evidence even when the complainant is over 18. The bill will also give greater support to other vulnerable witnesses in the courtroom, and amendments to the Criminal Procedure Act 1986 are made to that effect. I trust that the measures in this bill will make the court process easier for victims to bear. I look forward to seeing the Government’s proposed legislation dealing with the remainder of the recommendations of the task force in the months to come. I hope the Christian Democratic Party can wholeheartedly support those additional amendments as we support this bill.