Resumed from 25 November.
HON ALISON XAMON (North Metropolitan) [10.28 am]: I will continue my remarks from yesterday, when I was addressing the problem of uncertain dates in four particular scenarios. The four sets of provisions that I outlined are not mutually exclusive. They can operate together when necessary—for example, if there is uncertainty about both the date of the offence and the age of the victim at the time the offence was committed.
I note that the Criminal Law Amendment (Uncertain Dates) Bill 2019 is retrospective in the sense that it will apply to all alleged acts and omissions regardless of whether they occurred before or after the bill’s commencement. However, the bill is not retrospective in the following senses: it does not create new offences, and it does not render anything illegal that was previously legal; it does not expose an offender to the risk of a higher maximum penalty; and it also does not expose a person to double jeopardy if they were previously acquitted because of uncertainty about the dates, and as a result the person cannot be retried.
The bill removes a barrier that can prevent the prosecution from proceeding. It is not known how often this has occurred, because data has not been kept about the decisions of investigators about whether to lay charges. However, I note that in the other place two examples were given of matters in which charges had been laid and uncertainty about dates had subsequently become an issue. One case was SI v The State of Western Australia [No 2], in which a conviction for penetrating a child under 13 years of age was overturned because of uncertainty about the date of the offence and whether the old offence or a new offence should apply because the case spanned a period of a change in law. In another appeal case, Kailis v The Queen , there was uncertainty about whether sexual offences had actually been committed before or after the victim’s thirteenth birthday.
Bail eligibility, parole eligibility and aggravating or mitigating factors will apply as usual to the offence with which the accused is charged. I note that the Royal Commission into Institutional Responses to Child Sexual Abuse did some excellent work in this space. The commission found that many victims do not disclose child sexual abuse until many years after the abuse occurred, and often not until they are well into adulthood. Survivors who gave evidence to the commission reported taking, on average, 23.9 years to tell someone about the abuse, and men often took longer to disclose than women. The average reporting time for females was 20.6 years and for men it was 25.6 years. There are many barriers to disclosure and there is still a lot of work to do to break down these barriers. The royal commission made a range of recommendations in that space. I know that work is being done to address those recommendations, and it is incredibly important that this work is made a priority.
The Greens are very happy to support this bill. We think that this is an important mechanism to try to prevent the miscarriage of justice that occurs when perpetrators evade conviction because it could not be conclusively established when the offending took place. I particularly welcome the potential positive impact on the prosecution of child sexual abuse offenders, whom we know commit particularly heinous crimes that often have a lifelong impact on the victim. We are very happy to support this bill. I note that there is still more work to be done. In particular, I would like to see the prioritisation of additional important law reform in this space, such as raising the age of criminal responsibility. That is a bill that I would love to have seen brought into this place, debated and passed before the end of this year. These are the sorts of related bills that would help to complement these important law reforms that we have in front of us today. I certainly hope that this suite of reforms will be prioritised in the next Parliament.
Comments and speeches by various members
Bill read a second time.
The Deputy Chair of Committees (Hon Dr Steve Thomas) in the chair; Hon Sue Ellery (Leader of the House) in charge of the bill.
Comments and speeches by various members
Title put and passed.
Bill reported, without amendment, and the report adopted.
Bill read a third time, on motion by Hon Sue Ellery (Leader of the House), and passed.