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Legal bodies divided over proposed DFV evidence pilot

The use of recorded video statements in criminal domestic and family violence (DFV) court cases had the potential to further traumatise victims and prejudice alleged perpetrators and their right to a fair trial, a parliamentary committee has been told.

Queensland legal bodies today appeared before the state’s parliamentary Legal Affairs and Safety Committee (LASC) to voice their views on a proposed Bill for a pilot enabling recorded video statements taken by trained police officers to be used as an adult victim’s evidence in chief in DFV criminal proceedings.

While the Bar Association of Queensland made submissions opposing the pilot project contained in the Evidence and other Legislation Amendment Bill 2021 at the hearing, the move was given qualified support by Queensland Law Society (QLS) and Women’s Legal Service Queensland (WLSQ).

BAQ President Tom O’Sullivan, in a written submission, said: “The Association does not consider that recorded statements used in DFV and related criminal proceedings would increase access to justice or streamline proceedings for victims.

“In the Association’s view, the Pilot may impede the efficient administration of justice, is not required in the interests of justice and has the potential to prejudice an accused and their ability to obtain a fair trial.”

Mr O’Sullivan said DFV and related criminal proceedings were, by their very nature, difficult offences to prosecute and to defend.

“Often the cases will rely mainly on an allegation and a denial,” he said. “Typically, there will be conflicting versions presented by the parties involved.

“This presents a tribunal of fact with a difficult task and requires them to make a careful assessment, in the most effective way, of the plausibility of the complaint and the credibility or reliability of the complainant.

“An accused person must at all times be accorded the right to a fair trial.”

Appearing at today’s hearing, BAQ representative Ruth O’Gorman QC said there was also the potential for a victim of DFV to be subjected to further trauma if required to attend court and required to verify or be questioned over their video statements.

“It may not alleviate the trauma, it might add to the trauma,” Ms O’Gorman said.

QLS President Kara Thomson, in her written submission, gave qualified support of the measure designed to minimise victim trauma.

“We acknowledge that there may be benefits to a victim as a result of the use of video recorded evidence in chief,” Ms Thomson said. “Victims will not have to recount the facts multiple times, for instance. However, in other cases there may be disadvantages.

“For example, the way a victim’s evidence is presented to the court may be impacted, depending on the context and timing of when the recorded statement was taken.

“Pre-recorded evidence can sometimes be less impactful than evidence given personally.

“Further, where evidence in chief is recorded, parts of the recorded statement may be ruled as inadmissible and edited accordingly. Depending on the circumstances, this may have a positive or negative impact on the way in which the evidence is received.”

Ms Thomson’s submission was supported at today’s hearing by the Society’s Criminal Law Committee Acting Chair Rebecca Fogerty, appearing via videolink, who said the pilot had the “general support” of Queensland solicitors.

WLSQ’s interim chief executive Kristen Podagiel, in a four-page submission, also gave qualified support for the pilot.

“WLSQ support the introduction of recorded statements in proceedings related to domestic violence matters, because we also see this as an opportunity to reduce the trauma on the victim complainant, and that if provided and used with the complainant’s consent, it is a real opportunity to capture the evidence of the domestic violence incident contemporaneously,” Ms Podagiel said.

“WLSQ does, however, have some concerns about the existing wording of the Bill, and would also like the inclusion of a section which would allow for a recorded statement to also be used in proceedings for domestic and family violence orders.”

Read the BAQ submission.

Read the QLS submission.

Read the WLSQ submission.

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