Page 74 - Week 01 - Tuesday, 16 February 1993
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Mr Kaine: On the basis of a sample of one?
MR MOORE: Mr Kaine will remember that when your children are a given age you are exposed to a wide range of children of that age by the nature of preschools and schools and so forth. The point is that what we are trying to achieve is to allow evidence to come before a court. I think the rather arbitrary line of seven is inadequate. It is not that we do not draw arbitrary lines in many ways; we do. One could use the same argument about whether 18 is the appropriate age for voting, because that has a certain arbitrary measure about it as well.
I think in this case the courts are quite capable of determining the weight they are going to give to evidence from children of different ages. There are on many occasions situations where children under the age of seven are subjected to sexual assault, and we really must be in a position to do what we can to protect them.
MR HUMPHRIES (9.42): I think Mr Connolly's assertion that I was arguing for some reversal of the onus of proof is quite unfounded.
Mr Connolly: Accusing us of that.
MR HUMPHRIES: I was not saying that at any stage in what I was referring to. I was saying that we were removing a protection for a defendant. There are all sorts of protections for defendants in our criminal justice system. Some of them are based on the onus of proof; some of them are based on the burden of proof, and there is a difference which Mr Connolly will understand; others are based on simple procedural rules which act as, if you like, little obstacles set up in the path of a prosecution to obtaining a conviction. They might appear quite arbitrary in some cases, but they are designed around that principle I spoke about before; that the law regards the protection of the innocent as being of paramount importance.
We seem to be focusing here on the protection of victims in a way which, unfortunately, does not embrace the full range of implications, the full range of issues. I think Mr Moore summed it up fairly well when he said that we put the question in this Bill that we might be better off convicting one innocent man for the sake of having nine children freed from the scourge of sexual abuse. That is obviously a very rough numerical calculation, but it is a very fair assessment of what we are doing here. We are putting at risk certain principles which have protected innocent people in the past, for the sake of coming down hard on sexual abuse.
I also point out one other thing that has not been made clear so far. These rules do not relate, unless I am very much mistaken, just to sexual assault prosecutions. They relate to all criminal proceedings in which a child is involved. So this could be used, for example, with a person who is accused of murder, and the child might be the only witness in regard to that person being accused of murder. That five-year-old child on his own evidence, without anything else, has the capacity to convict that person and send him to 20 years in the clink.
Mr Connolly: If they are believed.
MR HUMPHRIES: If they are believed. And as I have indicated, there are plenty of reasons why a child might well be believed in a court.
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