Page 59 - Week 01 - Tuesday, 16 February 1993
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If a child does not, by fiction of the law, if you like, have the capacity to commit an offence below the age of eight, does it have the capacity to understand the necessity of telling the truth in a court? Arguably, Madam Speaker, it does not, and that question of doubt that lingers in my mind urges me, therefore, to put to the Assembly tonight that we should not completely remove that ancient provision defending those who appear before courts charged with these sorts of offences but should relax it for the age group between seven and 13, see its progress in those circumstances, and then decide at a later stage whether we also remove it for children aged under eight.
Just briefly, there are other provisions in this Bill. There are provisions for the quasi right, if I might put it that way, of a person accused of an offence to the use of an interpreter in a court. It is a commendable development and we would certainly support it. It does seem to me a little incongruous, though, that the Government that has put this forward also rejected an amendment last year to give people an absolute right to access to information in their own language about bail conditions and the availability of bail. I think Mr Connolly called it a cheap debating point. The sister Bill, the Crimes (Amendment) Bill, which we are debating cognately tonight, extends that privilege to proceedings in a police station, where a person is being interviewed and interrogated by the police.
It is a little ironic that in the Crimes (Amendment) Bill we are strengthening and protecting the position of defendants, to the extent that if a confession obtained in front of witnesses has not been tape-recorded that confession will be dismissed and not useable in a court - that is how far we go in the Crimes (Amendment) Bill; we are protecting and enhancing the position of a defendant in those circumstances - but in the case of a defendant in child proceedings we are actually derogating from his or her position. There is a slight irony in that. Nonetheless, I think that provision is a good one. We would support measures that protect the rights of people who appear before our criminal justice system to get the justice that I think we all believe is available with that system.
MR MOORE (8.49): Madam Speaker, I am delighted to follow Mr Humphries in this debate this evening because the issues he raised are issues I have considered at length. I find his arguments quite persuasive, to a certain extent, because he argues from the point of view of an ancient principle and a principle of law. Those ancient principles of law were based upon protection of property, and I think it is only in the last century or so that we have moved away from the notion of the law being designed to protect property to see what we can do to protect people and, more recently, what we can do to protect our children. When I say "our children", I am talking about the children of our society.
In this legislature we have a great responsibility, which we probably face more profoundly this evening than we have at any other time, in terms of weighing up two principles. There is the principle espoused by Mr Humphries of nine guilty men being acquitted rather than having an innocent man found guilty. It is interesting that what comes to our lips very easily is the notion that it is man, because that is how the ancient principle was developed. I think, though, that that notion, which was designed specifically to protect the innocent and, as Mr Humphries pointed out, often protected the guilty, did not take into account the fact that there is another more important principle, and that is the protection of children. What has become more obvious and more open in discussion over the last decade or two is the notion of the need to protect children, whom we no longer see as part of a man's property, in particular, as was the case when these laws and principles were formed.
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