Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024 - Initial Scrutiny [2024] AUSStaCSBSD 33 (28 February 2024)

• Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 202433
• Procedural fairness34
• Reversal of the evidential burden of proof37

---

Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024^[33]

Purpose	The Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024 amends the Crimes Act 1914 to implement trauma-informed measures that better support vulnerable persons when appearing as complainants and/or witnesses in Commonwealth criminal proceedings, whilst maintaining appropriate criminal procedure safeguards. The Bill implements recommendations 52, 53, 56 and 61 of the 2017 Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission).
Portfolio	Attorney-General
Introduced	House of Representatives on 7 February 2024
Bill status	Before the House of Representatives

Procedural fairness^[34]

1.95 Item 27 of Schedule 1 to the bill would insert proposed Division 2A into Part IAD of the Crimes Act 1914 (the Crimes Act), in relation to evidence recording hearings. The Division empowers a court, if it is satisfied that it is in the interests of justice to do so, to order an evidence recording hearing for a vulnerable person to give evidence^[35].

1.96 Proposed subsection 15YDG(1) provides that if a vulnerable person gives evidence in an evidence recorded hearing then they need not give further evidence unless the court orders it necessary to clarify or give proper consideration to the evidence, or in the interests of justice. A note to this subsection confirms this applies to further evidence that could otherwise be given on examination in chief, cross-examination, or on re-examination.

1.97 The explanatory memorandum notes that the intent of this provision is to:

...avoid vulnerable persons from being required to provide evidence further to that provided in an evidence recording hearing unless specific circumstances are met which warrants the person giving further evidence, and the court is satisfied that those circumstances arise.^[36]

1.98 The committee understands and welcomes that the purpose of evidence recording hearings is to prevent the re-traumatisation of vulnerable adults and children. However, it is unclear to the committee, on a reading of the bill and the explanatory memorandum, what impact (if any) proposed subsection 15YDG(1) might have on the rights of an accused person to fully test evidence and material put against them at trial, which is essential to meet the case made against them.

1.99 The committee notes that these impacts may be appropriately addressed by other measures in the bill. For instance, the committee welcomes the safeguards built into proposed section 15YDG which empowers the court to provide for further examination of the evidence in the interests of justice.

1.100 The committee also notes that any impacts on an accused person may appropriately be balanced by public interest justifications. In this light, the committee understands the sensitive policy considerations involved in the measures proposed by the bill and that the purpose of evidence recording hearings is to prevent the re‑traumatisation of vulnerable adults and children.

1.101 However, the committee considers that its ability to make an assessment of whether subsection 15YDG(1) trespasses unduly on personal rights and liberties would be assisted by a clear statement of the impact of the provision on the fair hearing rights of an accused person and an identification of any relevant balancing public interest considerations.

1.102 The committee therefore requests the Attorney-General’s advice as to:

• what impact (if any) proposed subsection 15YDG(1) could have on the right of an accused person to a fair hearing, including whether there are any safeguards contained elsewhere in the bill; and

• if the operation of proposed subsection 15YDG(1) could impact on the fair hearing rights of an accused person, whether further detail can be provided of the way in which the trial rights of an accused person have been balanced in the bill with the policy intent of protecting vulnerable witnesses from being re-traumatised by re-providing evidence.

Reversal of the evidential burden of proof^[37]

1.103 Item 55 of Schedule 1 to the bill substitutes existing subsection 15YR(2) of the Crimes Act. Subsection 15YR(1) of the Crimes Act provides that a person commits an offence if they publish any matter which identifies a vulnerable person in relation to a proceeding as being a child witness, child complainant or vulnerable adult complainant, or the matter is likely to lead to the vulnerable person being identified as such a person. The offence applies where the person did not have leave of the court to publish the matter and the person whom they identify is not a defendant in the proceeding.

1.104 Item 55 amends subsection 15YR(2) to add new offence-specific defences which provide that the offence in subsection 15YR(1) does not apply if:

• the publication is in an official publication in the course of, and for the purpose of, the proceeding (proposed paragraph 15YR(2)(a)); or

• the publication is in a document prepared for use in particular legal proceedings (proposed paragraph 15YR(2)(b)); or

• the vulnerable person is deceased (proposed paragraph 15YR(2)(c)); or

• for an adult vulnerable person, if they have given informed consent to the publication in accordance with subsection 15YR(2A), the publication is in accordance with limits set by the vulnerable person, and the person had capacity to consent at the time (proposed paragraph 15YR(2)(d)); or

• for a child vulnerable person, if they have given informed consent for the publication, the publication is in accordance with any limits set by the vulnerable person, and the consent was accompanied by a supporting statement in accordance with subsection (2B) (proposed paragraph 15YR(2)(e)).

1.105 A note to proposed subsection 15YR(2) confirms that the evidential burden of proof is reversed in relation to these defences.

1.106 Proposed subsection 15YR(2A) provides that a vulnerable person gives informed consent for the purposes of the defence in proposed paragraph 15YR(2)(c) if the person who gives consent understands the options available and the consequences of giving consent. Proposed subsection 15YR(2B) sets out what is classified as a supporting statement for the defence in proposed subsection 15YR(2)(e) which involves, amongst other requirements, that the statement is in writing by a medical practitioner or psychologist (including their name and qualifications).

1.107 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.108 The committee notes that the Guide to Framing Commonwealth Offences^[38] provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:

• it is peculiarly within the knowledge of the defendant; and

• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.^[39]

1.109 In relation to the defence in proposed paragraph 15YR(2)(a), it is unclear how whether something is an official publication in the course of the proceedings could be peculiarly within the defendants knowledge given that official publications should be published and therefore publicly available.

1.110 For the defence in proposed paragraph 15YR(2)(b), the committee considers that a document prepared for use in legal proceedings should be available to the relevant court and the parties to that proceeding, and also notes that the defence does not apply only to documents protected by legal professional privilege. It is therefore unclear how such matters would be peculiarly within a defendant’s knowledge.

1.111 Proposed paragraph 15YR(2)(c) provides a defence which places the evidential burden of proving a person is deceased on the defendant. The committee finds it very difficult to foresee a scenario in which whether or not a specified person is dead is a matter that is peculiarly within the knowledge of a defendant. It should be quite simple for the prosecution to prove that the relevant person is alive.

1.112 The defence in proposed paragraph 15YR(2)(d) requires that the person who is giving the consent understand the decision they are making to give consent. Again, it is unclear to the committee how a defendant would be best placed to provide evidence as to another person’s mental considerations and state of mind at a particular point in time. A requirement for a defendant to adduce evidence that a person provided them with consent is different from a requirement that the defendant positively prove what another person’s state of mind was at a point in time, and therefore the committee is not convinced that, as worded, this matter would be peculiarly within the knowledge of a defendant.

1.113 Finally, for the defence in proposed paragraph 15YR(2)(e), whether or not a child vulnerable person has given informed consent is determined by the matters in proposed subsection 15YR(2A) which include the existence of written medical or mental health evidence. Such evidence should be easily obtainable by the prosecution and would, in the committee’s view, be stronger evidence of a child vulnerable person’s state of mind than evidence that would be adduced by a non-expert defendant.

1.114 The committee also notes that the explanatory memorandum has made little attempt to justify the appropriateness of these reversed burdens with reference to the Guide to Framing Commonwealth Offences:

Placing the evidential burden on the defendant in relation to the exemptions in subclause (2) is appropriate because the facts in relation to the exemption would be peculiarly within the knowledge of the defendant. In particular, it would be impracticable to require the prosecution to prove that the defendant had not sought the informed consent of the party and/or had not obtained a certificate as set out in paragraph (e), while it would be straightforward for the defendant to provide this evidence.

This evidentiary burden is the same as was included in relation to the more limited defences in the repealed s 15YR(2).^[40]

1.115 The committee notes that these defences do not hinge on whether a defendant reasonably believed or reasonably understood consent to be given or the circumstances to be met. In light of this, the evidence that would be adduced by a defendant in each of these five defences should be relatively easy and inexpensive for the prosecution to obtain and does not justify a reversed evidential burden.

1.116 The committee therefore requests the Attorney-General’s advice in relation to proposed paragraphs 15YR(2)(a) to (e) as to:

• whether the reversed evidential burden defences are justified in reference to the Guide to Framing Commonwealth Offences; and

• whether the bill could be amended to remove the reversed evidential burdens by, for example, inserting the defences as elements to the offence.

---

^[33] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024, Scrutiny Digest 3 of 2024; [2024] AUSStaCSBSD 33.

^[34] Schedule 1, item 27, proposed section 15YDG of the Crimes Act 1914. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

^[35] Schedule 1, item 27, proposed subsection 15YDB(1) of the Crimes Act 1914.

^[36] Explanatory memorandum, pp, 16- 17.

^[37] Schedule 1, item 55, proposed subsection 15YR(2) of the Crimes Act 1914. The committee draws senators’ attention to this provision pursuant to Senate standing orders 24(1)(a)(i).

^[38] Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 50–52.

^[39] Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.

^[40] Explanatory memorandum, p. 26.