Thursday, 22 October 2020 Legislative Assembly- PROOF Page 1 LEGISLATIVE ASSEMBLY Thursday, 22 October 2020 The Speaker (The Hon. Jonathan Richard O'Dea) took the chair at 09:30. The Speaker read the prayer and acknowledgement of country. Announcements THOUGHT LEADERSHIP BREAKFAST The SPEAKER: I inform the House that we had two outstanding leaders of Indigenous heritage at our Thought Leadership breakfast this morning. I thank all those members who attended that event. In particular I thank our guest speakers: Tanya Denning-Allman, the director of Indigenous content at SBS, and Benson Saulo, the incoming Consul-General to the United States, based in Houston. I thank both of them and note we will have another event in November. [Notices of motions given.] Bills STRONGER COMMUNITIES LEGISLATION AMENDMENT (DOMESTIC VIOLENCE) BILL 2020 First Reading Bill introduced on motion by Mr Mark Speakman, read a first time and printed. Second Reading Speech Mr MARK SPEAKMAN (Cronulla—Attorney General, and Minister for the Prevention of Domestic Violence) (09:46:44): I move: That this bill be now read a second time. The Stronger Communities Legislation Amendment (Domestic Violence) Bill 2020 introduces amendments to support procedural improvements and to close gaps in the law that have become apparent. Courts can be a daunting place for victims of domestic and family violence. The processes can be overwhelming. Domestic violence is a complex crime like no other because of the intimate relationships between perpetrators and victims. Those close personal connections intertwine complainants and defendants in ways that maintain a callous grip on victims. This grip can silence reports of abuse, delay reports when victims are brave enough to come forward, and intimidate victims to discontinue cooperating with prosecutions. These challenges create obstacle—and therefore potential disincentives—for victims to act on the horrific abuse that they continue to endure. Reforms contained within today's bill seek to ease that burden. We want victim-survivors to feel empowered to report abuse and to be confident that, when they take that courageous step, they will be supported during proceedings. These amendments will provide greater protections for domestic violence victims when giving evidence and ensure that they will continue to be protected upon the release of the offender from custody, improve court procedures for criminal and apprehended domestic violence order [ADVO] proceedings, and explicitly recognise the intersection between animal abuse and domestic violence. The bill introduces two important provisions to the Criminal Procedure Act 1986 to assist complainants when giving evidence in criminal proceedings involving domestic violence offences and related ADVO proceedings. A domestic violence offence is a personal violence offence in circumstances where the person who has committed the offence has, or has had, a domestic relationship with the victim. Acts of personal violence include offences such as homicide, acts causing danger to life or bodily harm, assault occasioning actual bodily harm, sexual assault, child sexual assault, intimate image offences and many others. A domestic violence offence also includes offences other than personal violence offences where the commission of the offence is intended to coerce or control the victim or to cause the victim to be intimidated or fearful. Related ADVO proceedings include those that involve the same defendant and victim who is referred to as the person in need of protection [PINOP] in ADVO proceedings, as a result of the alleged domestic violence related charges being the subject of criminal proceedings. The amendments are contained in schedule 2 items [1] to [6] and [8] to [10] to the bill. The amendments will provide domestic violence complainants with the ability to give evidence in a closed court for the duration of their evidence, including the period during which a domestic violence evidence in chief Thursday, 22 October 2020 Legislative Assembly- PROOF Page 2 recording is played or any other recording that may form their evidence; and an entitlement to give evidence remotely via audiovisual link or other similar technology, or alternative arrangements, including the use of screen or planned seating arrangements. These reforms build on existing entitlements available under the Criminal Procedure Act for other vulnerable witnesses, including sexual assault complainants, children and individuals who are cognitively impaired. They also build on amendments in the Crimes Legislation (Victims) Act 2018, which introduced a provision entitling all domestic violence complainants to have a support person present when giving evidence. Increasing court protections for victims of domestic violence will help the justice system's response to domestic violence offending. This in turn may increase victim attendance rates and the finalisation of criminal matters in court. While there is the potential for some delay in these proceedings as a result, any delay is expected to be minimal and outweighed by the benefits of the reforms. The first amendment in schedule 2 [3] to the bill implements an entitlement for a domestic violence complainant to give evidence in a closed court. The ability to give evidence to a closed court is currently available only to domestic violence complainants if the accused has been charged with a prescribed sexual offence or the complainant is a child or a cognitively impaired witness. This amendment will close the gap to ensure that all domestic violence complainants in criminal proceedings are provided with the same protections under the law of New South Wales. Requiring a complainant to give evidence in front of people in the public gallery, who may also be the accused's friends and family, can be intimidating and add unduly to the trauma of the court process. Limiting the courtroom presence only to people directly connected with the criminal proceedings is appropriate, given the sensitive dynamic of domestic violence offending. While implementing this reform may result in some delays in proceedings to ensure the physical closure of a court, the difficulties of giving evidence also can cause delay as a complainant may require a number of breaks throughout the course of their evidence. This reform will support a complainant to give their best evidence in a timely manner and may result in fewer brakes being required overall. Consistent with similar protections available in prescribed sexual offence proceedings, a complainant will maintain the ability to elect to give evidence in open court, should they so choose. The court will also maintain some discretion to direct that the court remain open when a complainant is giving evidence if a party to the proceedings requests this. However, the court must be satisfied that there are special reasons in the interest of justice to do so, or that the complainant consents to giving their evidence in open court. The principle that proceedings for an offence should generally be open or public in nature or that justice should be seen to be done will not in itself constitute special reasons for this purpose. Open justice is a fundamental principle of the justice system in Australia. However, this must also be balanced with a court's ability to perform its functions in the administration of justice. The closure of a court in some circumstances recognises that the public interest in the administration of justice, especially for matters involving vulnerable witnesses such as domestic violence victims, can outweigh the need for open justice. The second amendment in schedule 2 [3] provides domestic violence complainants with an entitlement to give evidence remotely via audiovisual link or other similar technology, or through the use of alternative arrangements such as screen and planned seating arrangements. Currently, domestic violence complainants may give evidence remotely only upon successful application to the court under the Evidence (Audio and Audio Visual Links) Act 1998. This is not always granted and there have been inconsistencies in treatment of those witnesses. If contested, those pre-trial applications can also take up valuable court time. This amendment provides more certainty for complainants in domestic violence proceedings through the introduction of a legislative entitlement. It recognises that domestic violence complainants have the same need for and should have the same opportunity to benefit from remote appearances as do other vulnerable witnesses. It can be intimidating for domestic violence victims to face their perpetrator with whom they may have been in a family or intimate relationship for a number of years. Allowing for alternative means to give evidence strengthens the criminal justice response to these difficult situations in an appropriate and trauma-informed way while balancing an accused's right to a fair trial, including the right to test any evidence to the fullest extent. The amendment ensures that domestic violence complainants will have the right to choose the manner in which they give evidence. The framing of this amendment as an entitlement makes it clear that it is not a directive and complainants will maintain the ability to elect to give evidence in person. The court also retains some discretion to order an in-person appearance; however, only if there are special reasons in the interests of justice to do so. I turn now to an important amendment in the bill improving jury directions and warnings in domestic