: The proof is in the pudding: Statutes Amendment (Vulnerable Witnesses) Bill 2015

The proof is in the pudding: Statutes Amendment (Vulnerable Witnesses) Bill 2015

Natalie Wade
South Australia

As promised in the SA Disability Justice Plan, the Attorney-General has passed another sweep of legislative amendments to create better access to the criminal justice system for people with disabilities. In 2014, the Attorney-General amended the Criminal Law Consolidation Act 1935 (SA), creating an offence of sexual exploitation of people with cognitive impairment (see section 51 of the Act). Following on from that, the Attorney-General has turned to the participation of people with disabilities as victims, suspects, witnesses and defendants. This overview will focus on the amendments relating to people with disabilities; however amendments have also been made for young children.

The Statute Amendment (Vulnerable Witnesses) Act 2015 (SA) targets the participation of people with disabilities in the criminal justice system by tailoring the Acts that regulate the pre-trial and trial processes and procedures, such as the Evidence Act 1929 (SA) and Summary Offences Act 1953 (SA) to account for cognitive impairment, complex communication needs and physical disability.

The amendments are complex and propose dramatic changes to existing processes. Without going into the intimate detail of all amendments, there are some big ticket items worth mentioning.

Before trial, interviews with suspects will be audio-visually recorded or audio recorded where reasonably practicable. Interviews with vulnerable witnesses will be conducted by prescribed persons, in prescribed circumstances for sexual and violent offences.

To equalise access to justice for people with disability, particularly with cognitive impairment or intellectual disability, accommodations were needed to obtain the evidence closer to the charges being laid rather than months or years after the event. Accordingly, under the Evidence Act, ‘pre-trial special hearings’ can now be held where the examination, cross-examination or re-examination of a ‘person with disability that adversely affects the person’s capacity to give a coherent account of the person’s experience or to respond rationally to questions’ (‘specified person’) can be audio visually recorded in an informal setting. This recording can be admitted to evidence at trial pursuant to section 13BA where the witness is available at trial to give further evidence if required. In addition, priority will be given in the Magistrates Court, District Court and Supreme Court for sexual offences against a specified person.

For people with complex communication needs, the Communication Assistant Model has been firmly established with provisions in the Evidence Act made for communication partners or other persons approved by the court to assist with a witness’s communication.

Interestingly, the exception to the hearsay rule for out of court statements has been amended with the new section 34LA of the Evidence Act. Out of court statements will now be able to be admitted, subject to some discretionary matters, to prove the truth of the facts asserted in the statement of a specified person in sexual offence trials where the witness will not be called to give evidence.

The amendments are a much anticipated reform for South Australians with disabilities that have lived with an antiquated criminal justice system for too long. On paper, it is a revolution. However, the true success of equality before the law will rest with the practical implementation of the reforms and in that sense, the proof will be in the pudding of successful prosecutions and greater participation by people with cognitive impairments, complex communication needs and other disabilities in the criminal justice system.

NATALIE WADE is the Chairperson of the Disability Rights Subcommittee, Australian Lawyers for Human Rights.

(2015) 40(3) AltLJ 213
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