For the second time in two years, the South Australian Parliament is considering modifying the standard for identification evidence admissible in criminal trials. The Evidence (Identification) Amendment Bill 2012 recommends photographic line-up identification as the required standard for identification evidence.

Following a Tasmanian case in which a 12-year-old girl was prostituted by her mother and her mother’s friend, and the controversial decision by the Director of Public Prosecutions to prosecute only one of the girl’s clients, the Law Reform Institute of Tasmania (‘TLRI’) was called upon to review the crime of sexual intercourse with a young person and the availability of the defence of mistake as to age. Following the release of the TLRI’s final report, Sexual Offences against Young People, late last year the Attorney-General, Brian Wightman announced his intention to introduce legislation strengthening the defence of mistake as to age in relation to sexual offences against young people. The Bill is expected to include many of the TLRI’s recommendations including a requirement that an accused only be able to rely on the defence of mistake as to age in circumstances in which they are able to demonstrate that they took all reasonable steps to ascertain the age of the young person. Whilst the TLRI did not recommend the adoption of a no defence age, the Attorney-General intends to exclude the defence of mistake as to age if the young person involved is
12 years or younger.

In other law reform news, children and other vulnerable witnesses are likely to be afforded greater protection from the impact of giving evidence in court. Legislative amendments are currently being drafted and if passed will allow a child victim of sexual or serious offences involving violence to pre-record the entirety of their evidence before the trial commences, will prevent unrepresented accused from cross-examining victims of a sexual crime and will create a presumption of joint trials in cases of sexual offences where there are multiple complainants against a single accused. The Bill is likely to be introduced later this year.

Before delivering their charge to the jury at the end of a criminal trial, Victorian judges need a very large glass of water. With some jury charges stretching into days, they are the longest in Australia, possibly the English-speaking world. The prevailing system not only exhausts trial court judges, but befuddles juries. Judges’ efforts to make their charges ‘appeal proof’ via complex mini-lectures on every conceivable technical aspect of the relevant and potentially relevant law had the paradoxical effect of significantly increasing the number of appeals and retrials in Victoria.

In September 2012, the Attorney-General introduced the Traditional Owner Settlement Amendment Bill 2012 into the Legislative Assembly. The Bill amends the Traditional Owner Settlement Act 2010 (Vic), legislation enacted as an alternative to seeking native title under the Commonwealth’s Native Title Act 1993.