Bills
Evidence Bill 2025
Second reading
Resumed from 30 April.
Mr Liam Staltari (Carine) (1:30 pm): I rise on behalf of the opposition to speak on the Evidence Bill 2025, and at the outset I will make clear that the opposition will be supporting this bill. We acknowledge the importance of ensuring that Western Australia's evidence laws are modern, consistent and reflective of best practice. I appreciate, of course, that the Attorney General in his second reading speech outlined much of what this bill intends to do. It is a significant and large bill, and I will retrace some of the basic tenets. I understand there are many speakers to contribute to the debate.
As has been noted, this bill will replace the Evidence Act 1906 and, in its place, introduce uniform evidence law to Western Australia, bringing us into line with a range of other jurisdictions like New South Wales, Tasmania, Victoria, the Northern Territory and the Australian Capital Territory. I will note it will mark the end of something of an era because the current Evidence Act, at 118 years old, has been amended on some 98 prior occasions. This uniform bill follows the recommendations of the Australian Law Reform Commission's prior report, made some decades ago, which recommended that Australia's jurisdictions should adopt uniform evidence law, and that journey has been underway ever since. It will ensure that our laws are consistent and there is consistency in the application of evidence law within both our state courts and our courts that exercise federal jurisdiction. It is important to note, as has been flagged previously, that this bill will also make several WA-specific modifications that reflect the fact that we have unique legal practices that are in context and are procedurally sound and unique to Western Australia's experience. For example, I understand that the bill does not propose to adopt the use of identification parades.
Importantly, the bill brings forward a number of key reforms that aim to improve the process of giving evidence for children, victim-survivors of family domestic violence and others who might be considered special or vulnerable witnesses. I note, of course, that in this process the bill gives effect to many of the longstanding recommendations of a range of bodies and commissions, most notably the Royal Commission into Institutional Responses to Child Sexual Abuse and the Law Reform Commission of Western Australia.
These are timely reforms, and they are reforms that the opposition welcomes. I will restate some of them now. They include: the holding of ground rules hearings in which a court will set directions about the way in which children and other witnesses with specific communication needs can give evidence; new provisions to allow for specially trained officers to make a statement with either their mobile phone or a body-worn camera at an incident or shortly after an incident, using the footage as evidence to be played as the complainant's evidence-in-chief in a subsequent trial of an offence; further opportunities, importantly, for victim-survivors of family and domestic violence to access other witness assistance measures that would normally be available to special witnesses, and this can include access to a support person, a support animal, a communicator and other important resources; provisions that prohibit the inclusion of evidence relating to the sexual reputation or disposition of complainants in certain criminal proceedings; and the abolition of the obligation to give a Longman warning and, in its place, a more limited case-specific direction. These are just some of the reforms that are, of course, welcome. They are needed, particularly in supporting, as I mentioned, the safety and wellbeing of victim-survivors and other vulnerable witnesses.
I will note that this really is the latest development in what has been a long, rightly bipartisan process across governments of both stripes to improve and update our evidence law. Progressive updates have been made since way back in 1979 and agreed to by both sides for good reason. I will also note that this bill enters the 42nd Parliament as an amalgamation of two bills put forward in the 41st Parliament by the former Attorney General. One of those bills was introduced in this place and the other was introduced in the other place, which afforded it the opportunity to be subject to the Standing Committee on Uniform Legislation and Statutes Review. I note that the committee's report made nine findings and four recommendations and that this bill, which we consider now, took up three of those recommendations. The unenacted recommendation proposed to give greater certainty to the commencement timing of the review clause, and I am sure we can explore it in consideration in detail, but I will take the opportunity now in debate to ask the Attorney General why this recommendation was not progressed by the government. I also note a number of minor amendments have been put forward, and I look forward to exploring some of those in consideration in detail as necessary. Regardless of that, this is a timely reform. It continues a long tradition of reforming this space. Should this bill be passed, I am conscious it will again be referred for further review in the upper house, where I am confident the shadow Attorney General will have a more fulsome contribution to make. Therefore, it is with that in mind and for the reasons outlined before that I again restate that the opposition is pleased to support this bill.
Mr Mark Folkard (Mindarie) (1:35 pm): I rise with pride and purpose to speak in support of the Evidence Bill 2025, which seeks to replace the Evidence Act 1906, a piece of legislation that has served the state of Western Australia for well over a century. This bill is not simply a matter of reform. It is long overdue and it is transformational in the way that we approach the rules and principles that govern the admissibility, presentation and evaluation of evidence in our courts.
The justice system is a cornerstone of a fair and civil society. At the heart of our system lie the laws of evidence, rules and procedures that govern what can and cannot be presented to a court in the pursuit of justice. These rules must be not only just, but also clear, efficient and modern. In bringing forward this new Evidence Bill, we are stepping boldly into the 21st century to bring Western Australia into alignment with the uniform evidence laws that operate in the majority of Australian jurisdictions, including New South Wales, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory. The Evidence Act, at the time of its induction, was a pioneering piece of legislation. We can go back and reflect on Hansard from that time to see that. But over time, the way we collect, interpret and evaluate evidence has changed dramatically.
I stand in a unique position in this chamber. The chamber is full of a plethora of lawyers who are all experts in the interpretation of the Evidence Act—and I say "experts". But as a longstanding senior police officer, unlike our lawyers, I am the only member in this place who is an actual expert in applying the laws set out in the Evidence Act. In 30 years of policing, I never lost a single brief.
Legal doctrines have evolved. Our understanding of trauma, vulnerability, mental health and memory has deepened. Technology now plays a central role in our daily lives, and I will reflect on the number of people who have smartphones in their pockets and are delving into them as we speak. Technology, as I said, plays a central role in our lives and in the justice process, from body-worn cameras, which our Labor government gave all police officers, and forensic evidence to electronic communications and recording. Put simply, the 1906 act no longer reflects contemporary standards of legal practice or societal expectations. It has become fragmented by years of amendments, which have been countless, and judicial interpretation is often inconsistent and cumbersome to navigate. I can tell members, from my own experience, that is a fact.
It has outlived its purpose. The bill replaces an outdated framework with a modern, consistent, principled structure that will uphold justice, strengthen the protections for our vulnerable witnesses and enhance the efficiency of our courts. One of the most significant benefits of the bill is that it brings Western Australia into harmony with the uniform evidence law framework that governs evidence in other parts of Australia. The lack of uniformity in evidence laws has occurred for decades and created unnecessary complexity, cost and inconsistency for practitioners, law enforcement and the courts, especially in an age when interstate legal practice, national criminal investigations and federal prosecutions are increasingly common. It does police officers' heads in when they try to apply those laws, particularly in the organised crime interface in which crimes are national and international, because evidence that is acceptable in another state is not acceptable in our state and what is acceptable in the federal arena is not acceptable in the state arena. Our poor police officers, again, are experts in applying the laws but the interpretation consistently varies.
The current patchwork of our state and specific evidence law creates inefficiencies and confusion. Lawyers operating across jurisdictions—I just mentioned this—must navigate different rules, while judicial training must accommodate divergent standards. These inconsistencies undermine the principles of equal justice under the law. With this bill, Western Australia takes a major step forward in legal coherence and national consistency. We will join the majority of jurisdictions under a shared legislative framework that preserves the integrity and flexibility of our justice system, while also enabling a clearer, more predictable and more accessible legal process.
Let me turn to some of the key features of the Evidence Bill. I refer to the provisions that demonstrate both continuity and sound principles of justice, and the adoption of modern realities. This bill codifies comprehensive rules regarding the admission and exclusion of evidence relating to relevance, hearsay, opinion and expert evidence, which lie at the heart of our trial process. It introduces clear rules on relevance, with only evidence that is logically connected to the facts in issue being admitted, thus excluding distracting or prejudicial material. When the subject is defined by expectations, hearsay evidence—that is, statements made outside the court used to prove the truth of their content—will continue to be inadmissible. In plain language, if it occurs outside the court and cannot be proved, it cannot be used. Have we heard of trial by social media? Yes—100%. This legislation outlaws that.
On opinion evidence, the bill retains the traditional bar on and lays out opinions, while preserving the expectations for expert witnesses whose specialised knowledge assists the court in understanding technical and scientific matters. I can tell members, as a senior police officer, the only thing that I was an expert in was gauging how pissed a person was. Sorry, I should not have used that term—how drunk they were, all right. A police officer is the only known expert out there in relation to drunkenness!
Mrs Lisa Munday: Hang on—paramedics!
Mr Mark Folkard: I do take that exception. On admissions, the rules governing the admissibility of statements against interest, especially those made in the context of criminal investigations, have been carefully designed to ensure fairness and clarity. I will unpack that a little bit later with an anecdote. A justice system must provide dignity, protection and appropriate accommodations for vulnerable witnesses, particularly children and individuals living with mental impairment. That is critical. It is about how we interview. I have just done an inquiry in relation to Redress. How we take testimony from those traumatised individuals is key for both their credibility and, more importantly, their vulnerability as witnesses. This bill retains, and in many ways enhances, provisions that recognise the special status of those witnesses. It allows police to continue to conduct interviews with children and people with mental impairment, and for those interviews to be played in court as part of their evidence-in-chief. It will also allow for the use of prerecorded evidence obtained during special hearings so that vulnerable witnesses are not forced to give evidence live at trial, potentially years after the event. These provisions are grounded in an understanding of trauma, memory and the challenges of cross-examination of vulnerable individuals. They will serve to not only reduce secondary victimisation but also improve the reliability and quality of the evidence delivered.
In relation to violence and special statements, one of the most powerful features of this bill is its targeted focus on the realities of family violence and its impact on victims and their ability to engage with the justice system. The bill introduces a critical new provision that allows specially trained officers to take statements from family victims at the scene or shortly after an incident and for that statement to be played as the complainant's evidence-in-chief. It recognises the time-sensitive nature of trauma and that victims may later recant or become unwilling participants due to coercion by, fear of or dependence on their abuser. The phrase "coercive control" stands out so much in that environment. By capturing the immediacy and the authenticity of the victim's account, we can strengthen both the integrity of that evidence and the accessibility of justice for some of the most marginalised members of our community.
In relation to body-worn camera evidence, we are introducing technology into the justice system in a modern way. During my time as a police officer, the most credible and fearsome and fearless police officer was the one who used his notebook. I was such an officer. I remember an incident when I charged an individual with attempted murder. This individual stabbed the complainant with a stainless-steel steak knife with such force that he bent the knife by 90 degrees, and it stayed bent. During the course of my investigations, I made numerous notes in my notebook, including admissions from the accused. Those notes were so damning to the accused that both the prosecution and the defence counsel, through agreement, disallowed particular parts of my notes from being disclosed to the jury. And I laugh—that is how powerful a police officer was with his notebook. The presiding judge read my notebook and the parts that were not disclosed to the jury. The end result was that the accused was convicted with acting with intent to cause grievous bodily harm and received a five-year sentence. Now, instead of a police officer's notebook, we will be able to use body-worn cameras to collect evidence as recorded statements and admissions. The by-product is that it will make our police more credible and ensure that the best evidence is produced to the courts. The just will see the events as they occurred in real time.
We are making effective use of technology with provisions that will allow police officers to give evidence via body-worn camera footage. This technology, now widely used in law enforcement, provides unfiltered, contemporaneous accounts of the events. It serves both to corroborate the officer's testimony and to provide the court with an objective visual record, enhancing the reliability of the evidence and the transparency of police conduct. We know that since body-worn cameras have been introduced the number of successful complaints made against police and their conduct has taken a dramatic downturn because the recordings are played and they corroborate what the officer has said. I find great contentment in that space.
I turn to judicial warnings. Reforming the Longman warning is an important development in this bill. There is the striking out of the mandatory Longman direction, a rule that dates back to the High Court decision in Longman v The Queen in 1989. I will unpack it further. The striking out of testimony is just so wrong. Under the decision, juries were warned that it was dangerous to convict in sexual offence cases based solely on the complainant's evidence, especially when there had been a long delay in reporting the incident. How fair was that in the child abuse environment? Often, these people would not make disclosures for many, many years and, even then, it was only partial disclosure. Although well-intentioned at the time, the Longman warning has become a barrier to justice for many survivors of sexual assault who may delay the disclosure for reasons well understood in psychology and social research, and these include shame, fear and trauma. How we allowed that to stand for so many years I just find diabolical. The bill ensures that the judge must not make such a direction, thus restoring the balance of fairness in trials involving historical sexual offences and removing the outdated prejudicial doctrine that unfairly questions the credibility of complaints. The number of religious institutions that have hidden behind that is absolutely criminal. It is going on today, it is going on now and, hopefully, this bill will put it to bed forever.
Although the bill brings Western Australia into line with uniform evidence law, it does not do so blindly. Where existing WA provisions serve the public interest and reflect on local practice, they are retained. Notably, the special hearings regime, which allows prerecorded evidence from children and vulnerable witnesses, has been preserved. It is a great thing that we take this evidence through a third party so we do not retraumatise our kids in particular, but also victims of sexual assault.
(Member's time extended.)
Mr Mark Folkard: Allow me to briefly highlight the broader advantages this bill will deliver. For legal practitioners the bill will provide clarity, consistency and alignment with the national framework, making cross-jurisdictional practice easier. Here in WA it will mean Senior Counsel and King's Counsel from Victoria will be able to practice over here—not that I am in favour of that as I am sure our legal community here does an effective job, but it will allow a consistent set of rules. The bill will simplify the legal landscape for judges and magistrates and will remove unnecessary ambiguity and outdated doctrines—a hundred per cent. It will just make life easier. It will make our core processes more effective for the people who need them, our victims. For victims and vulnerable witnesses, the bill will deliver safety, dignity and support throughout their engagement in the courts. Finally, for the community, it will provide a justice system that is modern, fair, trauma informed and rooted in principles of law—not made up.
In closing, I say this: justice is not static. It must evolve with society. It must embrace technological advances, psychological understanding and social change. The Evidence Bill delivers exactly that. It is principled, modern and fair. It will replace an outdated act, which, although it has served us well, no longer reflects the reality of modern legal practice or the needs of our community. It brings Western Australia into step with the majority of Australian jurisdictions. It delivers consistency, clarity and confidence in our courts. Probably the most important thing this bill does is to support the vulnerable. It holds the powerful to account and it strengthens the rule of law and the rights of all.
This bill is overdue. I remember as a young constable we were talking about reforms to the Evidence Act. The Evidence Act was one of the first things we were taught as young police officers going through the academy. Back in the day, when I went through the school, it was in Maylands. I think our school started with 300 students and 280 graduated. One of the first things our teachers did was drum into us the laws of evidence, and I mean they drummed them into us. It was back in the day when we had to parrot the Evidence Act. In saying that, I learnt from that. Some would say I had a distinguished career, but I am a bit more conservative in that space. I learnt. As I said, in 30 years of policing I did not lose a single brief, with a 100% success rate. I had a couple of draws, but I never lost a single brief, because I learnt from great senior police officers. When I plied my craft, I was surrounded by exceptional police officers. All interviews are recorded now. I was involved with Detective Senior Constable Glenn Cranitch at the time, and he did the first video recording of evidence going back nearly 30 years ago. I remember working in Northam when we had a fraud case and there were something like 60 to 70 victims of this fraud. Normally, we would have done a handwritten record of the interviews, which would have taken days. We did the first video record of interview, and as a result, we now do all of our record of interviews on video. Even our complainant statements are sometimes recorded on video these days. The Evidence Act modernised that because it got police to use their body-worn cameras. It was this government that introduced the wearing of body-worn cameras by all officers. As I said, it brought us into the 21st century.
Mr Dave Kelly: Tell us about the 21st century!
Mr Mark Folkard: Body-worn cameras have brought a reality and a freshness to the evidence. They are contemporary. We can see it. We often hear the commissioner stating that he has reviewed body-worn camera footage, particularly of police shooting incidents and the like. He can reflect on that footage and make his determination, virtually on the spot. That is the advantage they have brought to modern policing practice. This bill will streamline that into our judicial system expeditiously. Having never used the damn things because they were introduced—
Mr Dave Kelly: In the 20th century!
Mr Mark Folkard: There we go, member, in the 20th century!
I can say that some of my dear colleagues who wear them still reflect on their notebooks. Imagine how compelling the evidence will be when the officer has his notebook and his video images of the incident, and what a powerful witness this individual becomes. A police officer with his notebook and his body-worn video camera will be a very formidable ally of the vulnerable when it comes to a prosecution.
Debate interrupted, pursuant to standing orders.
(Continued at a later stage of the sitting.)
