Page 65 - Week 01 - Tuesday, 16 February 1993
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Before receiving the unsworn evidence the court is required to satisfy itself that the child is possessed of sufficient intelligence to justify the reception of the evidence and aware of the duty of speaking the truth.
That is a common law test. It has always been in the law. Most seven-year-olds would probably pass that. I suspect that a lot of six-year-olds would. Some three-year-olds might. It is a question in every case for an assessment by the judge after it has been through the police, after it has been through the prosecuting authorities. What you are saying, and what you would be saying to these parents, is, "We will not even let you get your justice".
Mrs Carnell, who last week put out an inflammatory press release and got her little write-up in the Community Times, "Canberra's Streets of Terror" - a politician seeking to exploit community fears about sexual assault, a politician who is prepared to get some publicity, whipping up hysteria about sexual assault - is going to vote against this provision tonight. I would like her to explain that to a family who have been told by the police and the DPP, "We cannot take your case to court because all we have is the evidence of your child, and the law says that that must be corroborated". You explain to them why that is a good law in the ACT, because it is not the law in many other States. The only States that now have this absolute bar are the Northern Territory and Tasmania. Most States have moved - Western Australia most recently - to do away with this absolute statutory bar, because there is no reason in principle to retain it. We are not saying that a person will automatically be found guilty when the child gives evidence. What we are saying is that the court should have the opportunity of hearing that evidence, and from that what we are saying is that the child and the family should have the opportunity to get justice.
Mr Humphries's speech about the presumption of innocence was a classic conservative tribute to the English and Australian judicial system. I was expecting him to come out with the Rumpole line about the golden thread of the common law that is often used when Rumpole talks about the presumption of innocence. It was a wonderfully traditional recitation of the presumption of innocence and the traditional English justice system.
A lot of Australians in 1990 do not think that the justice system delivers justice in this area of sexual assault. Most Australian women think the Australian justice system, when it comes to sexual assault, is stacked heavily in favour of the perpetrator of sexual assault and that they, who are going to the court seeking justice as they see it, are the ones who are on trial. That has been brought out in opinion poll after opinion poll and study after study. The Australian justice system does not deliver justice to the victims of sexual assault. This Government has recognised that. We have already sent a major reference to the Community Law Reform Committee on looking at the procedure by which we go about prosecuting sexual assaults in this country.
If Mr Humphries is concerned that we are parting from tradition in relation to this provision, he ain't seen nothing yet. I expect that over the next couple of years we will be bringing forward a series of major changes to the way we prosecute sexual assaults in this community. The current system is not working.
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