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54 - Criminal Justice Report

Where the prerecording of cross-examination is used, it should be accompanied by ground rules hearings to maximise the benefits of such a procedure.

The current South Australian provisions and the relevant court rules allow for directions hearings to be held to address these issues.

Government response: Accepted
Lead agency: Courts Administration Authority (CAA)
Recommendation progress status: Complete

55 - Criminal Justice Report

Staff and territory governments should work with courts to improve the technical quality of closed circuit television and audio visual links and the equipment used and staff training in taking and replaying pre-recorded and remote evidence.

Audio visual link equipment is available in every staffed court in South Australia, with multiple units in all larger sites. The quality is at times impacted by locations with a low band-width.

An independent review of the audio visual link system has commenced and will conclude at the end of February 2020.

Government response: Accepted
Lead agency: Courts Administration Authority (CAA)
Recommendation progress status: Implementing

56 - Criminal Justice Report

State and territory governments should introduce legislation to require the audio-visual recording of evidence given by complainants and other witnesses that the prosecution considers necessary in child sexual prosecutions, whether tried on indictment or summarily, and to allow these recordings to be tendered and relied on as the relevant witness's evidence in any subsequent trial or retrial. The legislation should apply regardless of whether the relevant witness gives evidence live in court, via closed circuit television or in a pre-recorded hearing.

The current South Australian provisions are largely consistent with this recommendation. However, the recommendation is broader in application than the current legislative provisions. Further consideration is being given to amendment of the legislation in line with this recommendation.

Government response: Accepted in principle
Lead agency: Courts Administration Authority (CAA)
Recommendation progress status: Planning

57 - Criminal Justice Report

State and territory governments should ensure that the courts are adequately resourced to provide this facility, in terms of both the initial recording and its use in any subsequent trial or retrial.

Witness suites that have the ability to record either directly or with centrally coordinated assistance are currently available in 7 metropolitan and 6 country court locations. Audio visual link equipment continues to be expanded and provided from within existing budget allocations.

An independent review of the audio visual link system has commenced and will conclude at the end of February 2020.

Government response: Accepted
Lead agency: Courts Administration Authority (CAA)
Recommendation progress status: Implementing

58 - Criminal Justice Report

If it is not practical to record evidence given live in court in a way that is suitable for use in any subsequent trial or retrial, prosecution guidelines should require that the fact that a witness may be required to give evidence again in the event of a retrial be discussed with witnesses when they make any choice as to whether to give evidence via pre-recording, closed circuit television or in person.

The practice of the Office of the Director of Public Prosecutions is consistent with this recommendation.  A formal policy/guideline is yet to be completed.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Implementing

59 - Criminal Justice Report

State and territory governments should establish intermediary schemes similar to the Registered Intermediary Scheme in England and Wales which are available to any prosecution witness with a
communication difficulty in a child sexual abuse prosecution. Governments should ensure that the scheme:

  1. requires intermediaries to have relevant professional qualifications to assist in communicating with vulnerable witnesses
  2. provides intermediaries with training on their role and in understanding that their duty is to assist the court to communicate with the witness and to be impartial
  3. makes intermediaries available at both the police interview stage and trial stage
  4. enables intermediaries to provide recommendations to police and the court on how best to communicate with the witness and to intervene in an interview or examination where they observe a communication breakdown.

The current South Australian provisions provide for communication partners to assist vulnerable witnesses is consistent with this recommendation.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

60 - Criminal Justice Report

State and territory governments should work with their courts administration to ensure that ground rules hearings are able to be held - and are in fact held - in child sexual abuse prosecutions to discuss the questioning of prosecution witnesses with specific communication needs, whether the questioning is to take place via a prerecorded hearing or during the trial. This should be essential where a witness intermediary scheme is in place and should allow, at a minimum, a report from an intermediary to be considered.

The current South Australian provisions within the Evidence Act 1929 and the relevant court rules allow for directions hearing to be held to address these issues.

Government response: Accepted
Lead agency: Courts Administration Authority (CAA)
Recommendation progress status: Complete

61 - Criminal Justice Report

The following special measures should be available in child sexual abuse prosecutions for complainants, vulnerable witnesses and other prosecution witnesses where the prosecution considers it necessary:

  1. giving evidence via closed circuit television or audio visual link so that the witness is able to give evidence from a room away from the courtroom
  2. allowing the witness to be supported when giving evidence, whether in the courtroom or remotely, including, for example, through the presence of a support person or a support animal or by otherwise creating a more child-friendly environment
  3. if the witness is giving evidence in court, using screens, partitions or one-way glass so that the witness cannot see the accused while giving evidence
  4. clearing the public gallery of a courtroom during the witness’s evidence
  5. the judge and counsel removing their wigs and gowns.

The current South Australian provisions contained in sections 13 and 13A of the Evidence Act 1929 are consistent with this recommendation.

Government response: Accepted
Lead agency: Courts Administration Authority (CAA)
Recommendation progress status: Complete

62 - Criminal Justice Report

State and territory governments should introduce legislation to allow a child’s competency to give evidence in child sexual abuse prosecutions to be tested as follows:

  1. where there is any doubt about a child’s competence to give evidence, a judge should establish the child’s ability to understand basic questions asked of them by asking simple, non-theoretical questions – for example, about their age, school, family etc
  2. where it does not appear that the child can give sworn evidence,
  3. the judge should simply ask the witness for a promise to tell the truth and allow the examination of the witness to proceed.

This recommendation is under consideration along with other recommendations for legislative amendment.

Government response: For further consideration
Lead agency: Courts Administration Authority (CAA)
Recommendation progress status: Planning

63 - Criminal Justice Report

State and territory governments should provide adequate interpreting services such that any witness in a child sexual abuse prosecution who needs an interpreter is entitled to an interpreter who has sufficient expertise in their primary language, including sign language, to provide an accurate and impartial translation.

The courts are able to ensure that witnesses are provided with an interpreter where required.

Government response: Accepted
Lead agency: Courts Administration Authority (CAA)
Recommendation progress status: Complete

64 - Criminal Justice Report

State and territory governments should consider or reconsider the desirability of partial codification of judicial directions now that Victoria has established a precedent from which other jurisdictions could develop their own reforms.

This recommendation is under consideration along with other recommendations for legislative amendment.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

65 - Criminal Justice Report

Each state and territory government should review its legislation and introduce any amending legislation necessary to ensure that it has the following provisions in relation to judicial directions and warnings:

  1. delay and credibility: Legislation should provide that:
    1. there is no requirement for a direction or warning that delay affects the complainant’s credibility
    2. the judge must not direct, warn or suggest to the jury that delay affects the complainant’s credibility unless the direction, warning or suggestion is requested by the accused and is warranted on the evidence in the particular circumstances of the trial
    3. in giving any direction, warning or comment, the judge must not use expressions such as ‘dangerous or unsafe to convict’ or ‘scrutinise with great care’
  2. delay and forensic disadvantage: Legislation should provide that:
    1. there is no requirement for a direction or warning as to forensic disadvantage to the accused
    2. the judge must not direct, warn or suggest to the jury that delay has caused forensic disadvantage to the accused unless the direction, warning or suggestion is requested by the accused and there is evidence that the accused has suffered significant forensic disadvantage
    3. the mere fact of delay is not sufficient to establish forensic disadvantage
    4. in giving any direction, warning or comment, the judge should inform the jury of the nature of the forensic disadvantage suffered by the accused v. in giving any direction, warning or comment, the judge must not use expressions such as ‘dangerous or unsafe to convict’ or ‘scrutinise with great care’
  3. uncorroborated evidence: Legislation should provide that the judge must not direct, warn or suggest to the jury that it is ‘dangerous or unsafe to convict’ on the uncorroborated evidence of the complainant or that the uncorroborated evidence of the complainant should be ‘scrutinised with great care’
  4. children’s evidence: Legislation should provide that:
    1. the judge must not direct, warn or suggest to the jury that children as a class are unreliable witnesses
    2. the judge must not direct, warn or suggest to the jury that it would be ‘dangerous or unsafe to convict’ on the uncorroborated evidence of a child or that the uncorroborated evidence of a child should be ‘scrutinised with great care’
    3. the judge must not give a direction or warning about, or comment on, the reliability of a child’s evidence solely on account of the age of the child.

The current South Australian provisions contained in the Evidence Act 1929 are consistent with these recommendations.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

66 - Criminal Justice Report

The New South Wales Government, the Queensland Government and the government of any other state or territory in which Markuleski directions are required should consider introducing legislation to abolish any requirement for such directions.

This recommendation is under consideration along with other recommendations for legislative amendment.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

67 - Criminal Justice Report

State and territory governments should support and encourage the judiciary, public prosecutors, public defenders, legal aid and the private Bar to implement regular training and education programs for the judiciary and legal profession in relation to understanding child sexual abuse and current social science research in relation to child sexual abuse.

The Attorney-General’s Department’s Disability Justice Symposium and Continuing Professional Development program “CPD Central” (now finalised) have provided relevant training and education programs for the profession in relation to vulnerable witnesses within the criminal justice system. The Government of South Australia will continue to explore the ability to support similar initiatives in the future.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

68 - Criminal Justice Report

Relevant Australian governments should ensure that bodies such as:

  1. the Australasian Institute of Judicial Administration
  2. the National Judicial College of Australia
  3. the Judicial Commission of New South Wales
  4. the Judicial College of Victoria are adequately funded to provide leadership in making relevant information and training available in the most effective forms to the judiciary and, where relevant, the broader legal profession so that they understand and keep up to date with current social science research that is relevant to understanding child sexual abuse.

The Government of South Australia, through the Courts Administration Authority, provides funding to the National Judicial College each year. Funding is also provided by the Attorney-General’s Department on an annual basis to the Australasian Institute of Judicial Administration.

Note: this statement was updated as part of the 2019 Annual Report

Government response: Accepted
Lead agency: Attorney-General's Department (CAA)
Recommendation progress status: Complete

69 - Criminal Justice Report

In any state or territory where provisions such as those in sections 79(2) and 108C of the Uniform Evidence Act or their equivalent are not available, the relevant government should introduce legislation to allow for expert evidence in relation to the development and behaviour of children generally and the development and behaviour of children who have been victims of child sexual abuse offences.

This recommendation is under consideration along with other recommendations for legislative amendment.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

70 - Criminal Justice Report

Each state and territory government should lead a process to consult the prosecution, defence, judiciary and academics with relevant expertise in relation to judicial directions containing educative information about children and the impact of child sexual abuse, with a view to settling standard directions and introducing legislation as soon as possible to authorise and require the directions to be given.

The National Child Sexual Assault Reform Committee’s recommended mandatory judicial directions and the Victorian Government’s proposed directions on inconsistencies in the complainant’s account should be the starting point for the consultation process, subject to the removal of the limitation in the third direction recommended by the National Child Sexual Assault Reform Committee in relation to children’s responses to sexual abuse so that it can apply regardless of the complainant’s age at trial.

This recommendation is under consideration along with other recommendations for legislative amendment.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

71 - Criminal Justice Report

In advance of any more general codification of judicial directions, each state and territory government should work with the judiciary to identify whether any legislation is required to permit trial judges to assist juries by giving relevant directions earlier in the trial or to otherwise assist juries by providing them with more information about the issues in the trial. If legislation is required, state and territory governments should introduce the necessary legislation.

The current South Australian position is consistent with this recommendation. There is no impediment to judges giving directions to a jury about relevant matters at any time.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

72 - Criminal Justice Report

Each state and territory government should work with its courts, prosecution, legal aid and policing agencies to ensure that delays are reduced and kept to a minimum in prosecutions for child sexual abuse offences, including through measures to encourage:

  1. the early allocation of prosecutors and defence counsel
  2. the Crown – including subsequently allocated Crown prosecutors
    – to be bound by early prosecution decisions
  3. appropriate early guilty pleas
  4. case management and the determination of preliminary issues before trial.

The current South Australian position is consistent with this recommendation, in that all participants in the criminal justice system constantly work to reduce delays.  The Office of the Director of Public Prosecutions has established a Vulnerable Witness Team to create a team of solicitors who almost exclusively deal with vulnerable witnesses, including children.

The Government of South Australia is currently reviewing the results of reviews conducted by the former Chief Justice of the Northern Territory, the Honourable Brian Martin AO QC into the operation and effectiveness of the sentencing reductions regime that applies in South Australia and into major indictable reforms, designed to facilitate earlier resolution of major indictable criminal matters and improve the flow of cases through the courts.

Government response: Accepted in principle
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Implementing

73 - Criminal Justice Report

In those states and territories that have a qualified privilege in relation to sexual assault communications, the relevant state or territory government should work with its courts, prosecution and legal aid agencies to implement any necessary procedural or case management reforms to ensure that complainants are effectively able to claim the privilege without risking delaying the trial.

The current South Australian position is consistent with this recommendation.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

75 - Criminal Justice Report

State and territory governments should introduce legislation to require sentencing courts, when setting a sentence in relation to child sexual abuse offences involving multiple discrete episodes of offending and/or where there are multiple victims, to indicate the sentence that would have been imposed for each offence had separate sentences been imposed.

This recommendation is under consideration along with other recommendations for legislative amendment.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

76 - Criminal Justice Report

State and territory governments should introduce legislation to provide that sentences for child sexual abuse offences should be set in accordance with the sentencing standards at the time of sentencing instead of at the time of the offending, but the sentence must be limited to the maximum sentence available for the offence at the date when the offence was committed.

This recommendation is under consideration along with other recommendations for legislative amendment.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

77 - Criminal Justice Report

State and territory governments, in consultation with their respective Directors of Public Prosecutions, should improve the information provided to victims and survivors of child sexual abuse offences to:

  1. give them a better understanding of the role of the victim impact statement in the sentencing process
  2. better prepare them for making a victim impact statement, including in relation to understanding the sort of content that may result in objection being taken to the statement or parts of it.

The information provided to victims and survivors of child sexual abuse offences by the Director of Public Prosecutions, and other agencies involved in providing information to victims and survivors, meets this recommendation.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

78 - Criminal Justice Report

State and territory governments should ensure that, as far as reasonably practicable, special measures to assist victims of child sexual abuse offences to give evidence in prosecutions are available for victims when they give a victim impact statement, if they wish to use them.

The current South Australian position is consistent with this recommendation.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

79 - Criminal Justice Report

State and territory governments should introduce legislation, where necessary, to expand the Director of Public Prosecution’s right to bring an interlocutory appeal in prosecutions involving child sexual abuse offences so that the appeal right:

  1. applies to pre-trial judgments or orders and decisions or rulings on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case
  2. is not subject to a requirement for leave
  3. extends to ‘no case’ rulings at trial.

This recommendation is under consideration along with other recommendations for legislative amendment.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

80 - Criminal Justice Report

State and territory governments should work with their appellate court and the Director of Public Prosecutions to ensure that the court is sufficiently well resourced to hear and determine interlocutory appeals in prosecutions involving child sexual abuse offences in a timely manner.

This recommendation is related to recommendation 79 and will be considered together as appropriate.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

81 - Criminal Justice Report

Directors of Public Prosecutions should amend their prosecution guidelines, where necessary, in relation to the decision as to whether there should be a retrial following a successful conviction appeal in child sexual abuse prosecutions. The guidelines should require that the prosecution consult the complainant and relevant police officer before the Director of Public Prosecutions decides whether to retry a matter.

This recommendation is consistent with existing Office of the Director of Public Prosecution practices, policies and guidelines.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

82 - Criminal Justice Report

State and territory governments should ensure that a relevant government agency, such as the Office of the Director of Public Prosecutions, is monitoring the number, type and success rate of appeals in child sexual abuse prosecutions and the issues raised to:

  1. identify areas of the law in need of reform
  2. ensure any reforms – including reforms arising from the Royal Commission’s recommendations in relation to criminal justice, if implemented – are working as intended.

The practice of the Office of the Director of Public Prosecutions is consistent with this recommendation.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

83 - Criminal Justice Report

State and territory governments (other than the Northern Territory) should give further consideration to whether the abolition of the presumption that a male under the age of 14 years is incapable of having sexual intercourse should be given retrospective effect and whether any immunity which has arisen as a result of the operation of the presumption should be abolished. State and territory governments (other than the Northern Territory) should introduce any legislation they consider necessary as a result of this consideration.

This recommendation is under consideration along with other recommendations for legislative amendment.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

84 - Criminal Justice Report

State and territory governments should review their legislation – and if necessary introduce amending legislation – to ensure that complainants in child sexual abuse prosecutions do not have to give evidence on any additional occasion in circumstances where the accused, or one of two or more co-accused, is a juvenile at the time of prosecution or was a juvenile at the time of the offence.

This recommendation is under consideration along with other recommendations for legislative amendment.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

85 - Criminal Justice Report

State and territory governments should keep the interaction of:

  1. their legislation relevant to regulatory responses to institutional child sexual abuse
  2. their crimes legislation and the crimes legislation of all other Australian jurisdictions, particularly in relation to child sexual abuse offences and sex offender registration under regular review to ensure that their regulatory responses work together effectively with their relevant crimes legislation and the relevant crimes legislation of all other Australian jurisdictions in the interests of responding effectively to institutional child sexual abuse.

Implementation of the recommendation will be ongoing. The Government of South Australia will continue to monitor opportunities for law reform to enhance the operation and interaction of its own legislation and that of other jurisdictions, and will continue to actively participate in inter-governmental working groups to achieve that aim

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Implementing

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Page last updated: 5 December 2019