Bills
Evidence Bill 2025
Committee of the whole
Resumed from an earlier stage of the sitting. The Chair of Committees (Hon Steve Martin) in the chair; Hon Dan Caddy (Parliamentary Secretary) in charge of the bill.
Clause 240: Recorded statement admissible as evidence in chief
Committee was interrupted after the clause had been partly considered.
Hon Dan Caddy: The member asked a question just before we suspended for question time. I will seek to answer that, and I hope it is the right question. The member was asking about disallowing the court from issuing arrest warrants, I think, for complaints in criminal proceedings in relation to family and domestic violence, and the answer is short. All I will say is this is a much broader issue of criminal procedure that was not canvassed during the creation of the bill. Changes to these mechanisms would require very broad consultation.
Hon Dr Brad Pettitt: I have a couple of other follow-up questions on this. Before the break, we were also talking about coercive control and false statements under proposed section 240(3). Given that a complainant who knowingly provides a false statement to police is liable to seven years imprisonment, a concern has been raised with us that this does not seem to take into account any pressures that the complainant may be under to provide a false statement due to coercive control or the like. Why is that the case, and how can that be managed?
Hon Dan Caddy: I am not sure I have an answer that is going to satisfy the member. We are here talking about the Evidence Bill. The scenario the member is talking about falls under criminal law. I say this by way of example: there may be a defence there—the defence of duress, for example—but, essentially, we are here today interrogating the Evidence Bill. That is a criminal law matter.
Hon Dr Brad Pettitt: I will read from page 193 of the bill. This is my point: it is in this bill. It is not a criminal law matter. I will read it out:
(3) A person who, in a recorded statement that is tendered in evidence, makes a declaration to the effect of subsection (2) and includes anything in the statement that the person knows is false or that the person does not believe is true, commits a crime.
Penalty for this subsection: imprisonment for 7 years.
So it is explicitly in this bill.
Hon Dan Caddy: The member is going to the case where someone gives a false statement and then, despite the fact that they were coerced into giving that statement, they get charged and convicted. The short answer is it is basically a matter for the prosecutorial team. If the person later says that they were coerced into giving their statement—and I say this not being a prosecutor—it is unlikely that they will then be prosecuted. If they are prosecuted and charged, it would be for the sentencing judge to decide what happens. The member is starting to go down a path. Yes, that is in here, but it is highly unlikely that anyone will get to that final stage.
Hon Dr Brad Pettitt: The reason I raise it is that it sits explicitly in this clause 240, "Recorded statement admissible as evidence in chief". Again, these are concerns that have been raised with us. Tell me whether I have got this right. We have a system, which I appreciate the parliamentary secretary described as efficient, of people giving evidence immediately after an incident, which is recorded. The issue that arises is that when evidence is given in that way, do there need to be more checks and balances? As we have said before, the person may be intoxicated, feeling under duress in some way or be at the height of anxiety at that moment. We were looking for some comfort and explanation about why clause 240 specifically talks about a prison sentence but does not talk about acknowledging that coercive control may come into play. I am trying to understand why that has not been dealt with directly.
Hon Dan Caddy: Sorry, I was not very clear last time. This aspect of the law is unchanged. Even without this bill happening, if someone goes to a police station and gives a statement that they are coerced into giving and it is a false statement, they can be charged under the current law. Here we are changing the method through which evidence in chief may be recorded. What flows from that is that what happens if they give a false statement, regardless of whether there is coercive control at play or not, is completely unchanged.
Hon Dr Brad Pettitt: Just for clarity, is the parliamentary secretary saying that the penalty written in clause 240(3) for seven years imprisonment exists in law in another place?
Hon Dan Caddy: The short answer is yes. The Criminal Procedure Act 2004, schedule 3, clause 4(8), states:
If the maker of a statement that is tendered in evidence under this clause wilfully includes anything in it that he or she knows is false or that he or she does not believe is true, he or she is guilty of a crime and is liable to imprisonment for 7 years
Hon Dr Brad Pettitt: I have a couple of quick questions on clause 240(1)(e)(i) about whether a police officer is qualified to create the recorded statement. What would the lowest rank be considered to be qualified? What training will police officers be required to undertake? How much of this training will specifically relate to family and domestic violence, especially in First Nations communities, and how much will relate to culturally safe communications with First Nations people, including historical and current negative experiences that they might have experienced with colonialism and/or policing? The context of this question is because I note the rise of incidents whereby First Nations women are misidentified as FDV perpetrators by police. What training will police receive in relation to that?
Hon Dan Caddy: Member, the details will be in the regulations, and they will be settled during the implementation period, but I will give the member some more information and advice that I have been given, which has come from the Western Australia Police Force. At this stage, it is likely that the regulations containing requirements for police officers who will be permitted to take recorded statements will be similar to the regulations for officers who are permitted to conduct recorded interviews with children; that is, they are likely to contain requirements that the interviewer is employed by the WA Police Force and has undergone approved training. The detail of the required training is likely to be different obviously due to the different skills and knowledge required to interview children compared with family and domestic violence victims, but it is at that same sort of level of training. For example, a person interviewing a child requires special knowledge on topics, such as child psychology, that are beyond the skills and knowledge that police officers would typically require to interview an adult witness. Officers who interview family violence victims will need to have specific knowledge about issues, such as the cycle of violence and trauma responses. It is likely that WA Police Force policies and procedures will stipulate training requirements that will need to be met for an officer to take recorded statements. I am advised that WAPOL has indicated that—to go to the start of the member's question about rank and everything else—
The Deputy Chair (Hon Steve Martin): Sorry, member. Noting the time I am required to report progress.
Progress reported and leave granted to sit again, pursuant to standing orders.
