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QLS highlights concerns with criminal justice amendments

Queensland Law Society highlighted concerns with the Criminal Justice Legislation (Sexual Violence and Other Matters) Amendment Bill 2024 at Friday’s Community Support and Services Committee hearing.

QLS Criminal Law Committee Deputy Chair Patrick Quinn and Senior Policy Solicitor Bridget Cook appeared at the public hearing at the Parliamentary Annexe, Brisbane.

“We understand that the committee has been provided with a copy of our written submission that highlights our concerns with certain aspects of the bill including the insertion of new section 210A and amendment of s229B of the Criminal Code,” Bridget said.

“We also take this further opportunity to emphasis our view that the aspects of the Bill relating to tendency and coincidence evidence should not be enacted, until a comprehensive review is undertaken by the Queensland Law Reform Commission.”

Significantly, the Bill seeks to codify well-established common law rules relating to the admission of propensity and similar fact evidence and introduce a new criminal offence of unlawful sexual acts with a child aged 16 or 17 under one’s care, supervision or authority.

The Bill forms the third tranche of legislative reforms recommended by the Women’s Safety and Justice Taskforce relating to sexual violence and women and girls as accused people and offenders. 

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QLS raised several concerns at the hearing and in its submission, including querying whether it should seriously be thought that an offence of sexual acts with a child aged 16 or 17 under one’s care, supervision or authority, that does not involve identifiable abuse or harm, ought to be criminalised and attract the proposed penalty of 10 years’ imprisonment.

In relation to the proposed new position of authority offence, Patrick gave the committee the example of a 17-year-old university student having an informed and voluntary relationship with a tutor, where both lived on campus. 

“We understand the objective is to protect vulnerable children against abuse, and that of course is supported,” Patrick said.

“The new offence provision doesn’t require the prosecution to prove the abuse of the position of authority or the acts constituting the offence were done without consent which is concerning.

“Instead, it presumes abuse by the existence of the relationship and there is a danger of particularising certain relationships as axiomatically abusive. And in the QLS submission, the prosecution should be required to prove the existence of abuse.

“An example of why the amendment is problematic, and the defence is not appropriate, a lawful, informed and voluntary sexual act between a 17-year-old at a university college and a young 18 or 19-year-old tutor at a college that would be captured by this provision and the defence would not apply.”

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Other QLS concerns relate to Clause 18 – Amendment of section 21A – Evidence of special witness where an accused person can be excluded from being present; and Clause 20 – new section 21AAB – Directions hearings which may constrain cross-examination.

Patrick also answered questions from the committee about video recording special witness evidence, which is another area of concern for the Society due to the lack of funding and resources available to support the approach.

“One of the big difficulties at the moment is the court’s ability to be able to do this in an appropriate way,” he said. “If you are in Brisbane or a regional court, the facilities that are available are very different.

“So if this were to be enacted, there would need to be proper funding to ensure the equipment was up to scratch, and also that there were trained IT professionals who are available to assist. Quite often there are delays caused by video recording of evidence. It has become more and more common for interpreters and the like to be in different locations. And experience from our members is that it is quite problematic.

“So it needs to be properly funded, but on the whole there is no opposition to video recording of evidence so long as there is the ability for there to be an objection taken, for example in a retrial.

The committee is due to table its report on Friday, 2 August 2024.

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