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Published: Fri, 02 Feb 2018
The child witness powers and protections in the criminal trial
A key feature of the modern adversarial criminal trial is the giving of oral evidence by witnesses and the testing of that evidence through cross-examination (Cossins 2009). As a result, appearing in court is confusing and stressful for most people – particularly for children and young people who have been victims of or witnesses to violent crimes (Department of Justice, Victoria 2009) – and can lead to psychological trauma (Cossins 2009). Children often have trouble explaining what has happened either because of their lack of understanding or simply because of limited vocabulary and may also have difficulty with dates and figures (Legal Services Commission of South Australia 2005). Australian court systems recognise these limitations on the evidence provided by children, and provide numerous avenues for reducing the potential and actual strain on children required to appear as witnesses in criminal cases.
In this article the legal forms and associated practical measures instituted to protect child witnesses in Australian criminal trials are described, along with the gaps in protection that still exist and perspectives on how to fill them. Most of the article refers to the legal situation in New South Wales, although the corresponding legislation in most Australian jurisdictions is very similar and thus the concepts outlined are broadly applicable.
Definition of “child”
The Evidence Act 1995 (Parliament of New South Wales 2009) rather unhelpfully defines “child” as “a child of any age”. The Children (Criminal Proceedings) Act 1987 section 3(1) (Parliament of New South Wales 2009) defines “child” to mean a person who is under the age of 18 years. The Children and Young Persons (Care and Protection) Act 1998 (Parliament of New South Wales 2009) defines a “young person” as under 18 years but 16 years or older (i.e., 16 or 17). Nevertheless, for the purposes of assessing and protecting young people called as witnesses in criminal trials in New South Wales, the effective definition of a child is a person aged under 16 years (Judicial Commission of New South Wales 2009).
Children’s ability to understand language, concepts, and the meaning behind events differs from that of adults (Judicial Commission of New South Wales 2009, Equality before the Law Bench Book, 2009). The different capacities of children are important in relation to court appearances because they may affect the evidence they give and the manner in which it is received. Children’s ability to communicate their evidence is generally different from that of adults due to (ibid):
Differences in the way they understand the world, especially time, context, and causality.
Differences in the aspects of past events they remember and how they recall and relate them.
Greater dependence on context for comprehending language and concepts.
Less developed capacity to sequence events and relate them in order.
Differences in their understanding of vocabulary and grammar, especially personal pronouns and referents (for example, here, there, how and then).
Shorter attention span, especially under stress.
The fact that by the time they appear in court their developmental age may have altered substantially, which will affect how they present their evidence and how they are viewed by those in court.
Their relative lack of power in an adult world.
Children’s comprehension and communication skills can vary enormously, even among contemporaries, depending on their background and experiences. Children’s ability to give cogent evidence may be jeopardised by stress and anxiety, and thus is susceptible to be influenced by the way they are treated in court (ibid).
Factors that can affect children’s evidence
Numerous issues – combined with children’s different abilities, as described above -can significantly affect the reliability and comprehensiveness of evidence given by child witnesses, including (Judicial Commission of New South Wales 2009, Equality before the Law Bench Book, 2009):
Long delays in getting to court exacerbate children’s stress and adversely affect their memory of events.
Long waits at court – generally not a child-friendly environment – resulting in stress, boredom, tiredness and restlessness.
Formal and intimidating court environment and procedures that do not take sufficient account of a child’s needs, including the need for breaks for rest, to go to the toilet or to get a drink.
Confronting the accused: even when children use closed-circuit television (CCTV), they sometimes come face to face with the accused or his/her supporters in the court precincts, causing distress and intimidation.
Having to repeat their story over and over again: frustration and incomprehension about why repetition is necessary increases children’s stress and decreases their willingness to answer questions. Some children may have told their story many times before they get to court.
Incomprehensible processes and procedures — children may not understand what the court’s processes are intended to achieve, what can and cannot be said in evidence, the importance of intent and so on.
Complex language, which may cause children to give simple negative responses, silences, or present confused or contradictory evidence.
Confrontational questioning: if children are intimidated, they may become unable to respond or become distressed and break down.
The presence or absence of a support person: while some children will be helped by having a parent, guardian or other support person present in court, other children will feel inhibited by their presence.
Child witnesses are hampered by potentially reduced comprehension and language skills and abilities that are generally different from those of adults, and many factors can combine to affect the quality of their evidence. The measures that courts in New South Wales rely upon and apply to protect child witnesses are described in the next section.
Legal protections for children and their evidence
Section 306M(1) in Part 6 of the Criminal Procedure Act 1986 (Parliament of New South Wales 2009) provides for the giving of evidence by vulnerable persons: a “vulnerable person” is defined to mean “a child or a cognitively impaired person”. In the absence of a contrary intention, the Act applies to evidence given by a child who is under the age of 16 years at the time the evidence is given (Judicial Commission of New South Wales 2009, Child Witness/Accused). Persons defined as vulnerable may give evidence via CCTV or other alternative arrangements such as through support persons, using pre-recorded interviews, or by audio-visual link.
Competence to give evidence
Competence is the capacity of a person to function as a witness, and is a key consideration in determining whether a child may give evidence and if so, the nature of that evidence. Section 12 of the Evidence Act 1995 (Parliament of New South Wales 2009) provides that, except as otherwise specified by the Act (Judicial Commission of New South Wales 2009, Child Witness/Accused):
every person is competent to give evidence, and
a person who is competent to give evidence about a fact is compellable to give that evidence.
Prior to the application of the Evidence Amendments Act 2007 (Parliament of New South Wales 2007), section 13(1) of the Evidence Act 1995 (Parliament of New South Wales 2009) held that if a child to be called as a witness was incapable of understanding that, in giving evidence, he or she was under an obligation to give truthful evidence, the child was deemed not competent to give sworn  evidence (ibid). Section 13(2) provided that a child not competent to give sworn evidence on the basis of section 13(1) was nonetheless competent to give unsworn evidence (ibid) if:
(a) the court was satisfied that the child understood the difference between the truth and a lie,
(b) the court told the child that it is important to tell the truth,
(c) the child indicated, by responding appropriately when asked, that he or she would not tell lies in the proceedings.
The questions used to establish competence to give sworn or unsworn evidence must be framed in ways that young children, with their limited language skills, can understand. In R v RAG  NSWCCA 343 (quoted in Judicial Commission of New South Wales 2009, Child Witness/Accused), the argument was put that:
Assessing a child or young person’s understanding of the difference between the truth and a lie can only be reliably undertaken by posing simple questions, preferably after putting the child at ease by a series of questions concerning their age, schooling and favourite pastimes. Simple questions assume that the language within the question is as simple and direct as possible. Phrases including ‘regarding’ or ‘concerning’ should be avoided, along with phrases which suggest agreement, or include the use of the negative, for example, ‘it’s true isn’t it?’ or ‘is that not true?’ Hypothetical questions, questions involving abstract concepts, multi-faceted questions (questions incorporating more than one proposition), legal jargon and passive speech should also be avoided.
Determination of competence must focus on the statutory criteria in section 13(1) and (2) and nothing else: the judicial officer’s view of the reliability of the child’s evidence is not relevant to the determination (ibid).
With respect to proceedings that commenced on or after 1 January 2009, the Evidence Amendment Act 2007 replaced section 13 with the following eight rules for determination of competence (ibid):
(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability):
(a) the person lacks the capacity to understand a question about the fact, or
(b) the person lacks the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome.
(2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.
(3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
(4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact.
(5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person:
(a) that it is important to tell the truth, and
(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and
(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.
(6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
(7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.
(8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience.
Section 13 of the Evidence Act 1995 (Parliament of New South Wales 2009), amended by the Evidence Amendment Act 2007, provides clear guidelines for determining the competence of children and other vulnerable witnesses, protecting them and setting out rules for the treatment of their evidence. The procedures that can be applied to maximise children’s ability to give evidence in criminal cases and simultaneously protect them from psychological stress are the subject of the following section.
The general public can be excluded from hearing criminal proceedings to which a child is a party, and restrictions can be placed on disclosure of evidence in prescribed sexual offence proceedings and on publication and broadcasting of names (Judicial Commission of New South Wales 2009, Evidence given by alternative means). These procedures are set out under ‘Children in criminal proceedings’ in section [1-356] of the Statutory provisions of the Closed court and non-publication orders (Judicial Commission of New South Wales 2009).
Exclusion from the court
The principle of open justice is a fundamental aspect of the Australian justice system. Public openness means that court proceedings are fully exposed to lay and professional scrutiny and criticism, which protects the system against abuse and corruption, and is a vital factor in maintaining the integrity and independence of the courts and public confidence in the system (Judicial Commission of New South Wales 2009, Closed court and non-publication orders). Nevertheless, there are cases in which the interests of justice require either that the public and the media be excluded from the whole or part of the proceedings. To this end, the court may exclude from proceedings involving children anyone not directly interested in the proceedings. Family members of the victim are entitled to remain, and media representatives may remain unless the court directs otherwise (ibid).
Restrictions on publication
The court may prohibit the publication or broadcasting of the names of children involved in criminal proceedings. Except in specified circumstances (see section 11(4)–(4E), section 11 of the Children (Criminal Proceedings) Act (NSW) 1987 (Parliament of New South Wales 2009) prohibits publication of:
1. The name of a witness who was a child at the time of the offence, even if he/she is not a child at the time of giving evidence, or the name of a child to whom any criminal proceedings relate.
2 The name of any person who is mentioned in any criminal proceedings in relation to something that occurred when the person was a child.
3. The name of any person who is otherwise involved in any criminal proceedings and was a child when the person was so involved.
4. The name of any sibling of a victim of the offence to which the proceedings relate, where the sibling and the victim were both children when the offence was committed.
These prohibitions extend to publishing any material that is likely to lead to the identification of the person (but applies only to a publication or broadcast which connects the person with the criminal proceedings) (Judicial Commission of New South Wales 2009, Closed court and non-publication orders). Some prohibitions may be avoided with the consent of the court or the person or, in the case of a deceased child, with the consent of a senior available next of kin (see section 11(4)–(4E) – Parliament of New South Wales 2009, Children (Criminal Proceedings) Act 1987).
In cases involving serious indictable offences, the court may, at the time of sentence, authorise the publication or broadcasting of the name of the person with or without the person’s consent (ibid, section 11(4B)). The court must be satisfied that the making of such an order is in the interests of justice, and that the prejudice to the person arising from publishing or broadcasting their name does not outweigh those interests (Judicial Commission of New South Wales 2009, Closed court and non-publication orders).
Alternative methods of giving evidencem
As noted earlier, children are permitted to give evidence in criminal cases via CCTV or other alternative arrangements such as through support persons, using pre-recorded interviews, or by audio-visual link; these innovations are now in use in all Australian jurisdictions (Cossins 2009). New South Wales’s statutory schemes for evidence given via CCTV and other alternative arrangements relate to complainants in sexual offence proceedings and to evidence given by “vulnerable persons” in proceedings for personal violence offences (Judicial Commission of New South Wales 2009, Criminal Procedure Act 1986).
Where proceedings are in respect of a “prescribed sexual offence” (as defined in the Criminal Procedure Act 1986, section 3), alternative arrangements may be made for a complainant giving evidence (section 294B(1)). The complainant is entitled to give evidence from a place other than the courtroom using CCTV or other communications technology, make use of alternative arrangements such as planned seating arrangements or screens to restrict visual and other contact between the complainant and the accused person or any other persons in the courtroom. Despite the entitlement of a complainant to give evidence via CCTV or other technology, the court may order that such methods are not to be used if the court is satisfied that there are special reasons, in the interests of justice, for the complainant’s evidence not to be given in such a manner (Judicial Commission of New South Wales 2009, Evidence given by alternative means).
If a statement made by a vulnerable person to police regarding a criminal offence is recorded, a vulnerable person is entitled to give evidence in the form of the recording (ibid). When children are giving evidence, this entitlement serves a dual purpose. In R v NZ (2005) 63 NSWLR 628 (ibid) it was observed that:
“One of the objectives of introducing this procedure was to reduce the trauma for children giving evidence, but it was also to aid in maintaining the reliability of the child’s account from contamination or a failure of recollection over time.”
This right applies to a child who was under the age of 16 years at the time the recording was made, regardless of his or her age at the time of giving evidence (ibid). Unless the witness giving evidence is the accused, he or she, must be available for cross-examination and re-examination, which may be conducted either orally in the courtroom or by means of alternative arrangements (ibid).
Complainants in sexual offence proceedings and children and other vulnerable persons in personal violence proceedings are entitled to have a support person present when they give evidence – even if the witness gives evidence by way of alternative means or arrangements (Judicial Commission of New South Wales 2009, Evidence given by alternative means).
The reforms described above are very likely to have contributed to the improvement of the experiences of child witnesses in criminal cases in New South Wales and other Australian jurisdictions. Nevertheless, there are areas of law which continue to expose children to unnecessary harm when giving evidence.
Cross-examination – an area of procedure in which children remain vulnerable
Justice James Wood, in an paper given to a 2004 Australian Institute of Judicial Administration conference entitled Child witnesses – best practice for courts (Wood 2004), described the particular difficulties that exist in relation to child witnesses, and identified issues he felt remained to be addressed. Justice Wood expressed unease that, in cases involving child victims, the accused can cross-examine a child witness vigorously as to the truth of the allegations and their credibility, yet remain silent (ibid). He proposed two legislative options which could rectify this apparent imbalance:
to make the right of the accused to cross-examine a child witness conditional upon giving evidence, or at least to limit the kind of questions that can be put to exclude, for example, unsupported allegations;
to permit the qualified comment that, where the prosecution’s case depends upon the evidence of a child witness whose veracity has been challenged yet the challenger does not provide evidence, the jury can take into account – when judging the child witness’s evidence – the fact that they have not heard the version of the accused.
Similarly, Michael Brennan (quoted in Cossins 2009) wrote that “for children, cross‑examination is that part of court proceedings where their ‘interests and rights … are most likely to be ignored and sacrificed”. According to Cossins (2009), because of the way in which cross‑examinations are conducted, the child sexual assault trial can be regarded as a legally sanctioned forum in which children are emotionally traumatised by defence counsel. Children are therefore disadvantaged in the criminal justice process even though their evidence may be central to the prosecution’s case (ibid).
Between 1994 and 2009, numerous inquiries were conducted into the prosecution of child sex offences and the experiences of children as witnesses in the Australian criminal justice system (Cossins 2009). These inquiries generated detailed information about the way children are treated as witnesses, including that (ibid):
cross-examination is one of the worst parts of testifying for children;
children are often subject to aggression, humiliation, harassment and accusations of lying and are sometimes berated to the point of breakdown;
the most hurtful part of cross-examination for children is being accused of lying;
children are subject to lengthy cross-examination, sometimes without breaks;
children are subject to questions that are complex, developmentally inappropriate, repetitive and deliberately designed to confuse and create inconsistencies;
the linguistic style of defence lawyers is, in comparison to that of other investigative professionals, relatively unlikely to match that of the child;
children are commonly discredited because of delay in complaint or continued association with the offender, despite the fact that these are recognised responses to sexual abuse in the literature; and
the powers of judicial officers to intervene to prevent improper questioning are ‘exercised sparingly’ or have no effect on defence counsel questioning.
These reports suggest that evidence is frequently extracted from child witnesses in child sexual assault trials via bullying and coercion, and implies that the criminal justice system is taking unfair advantage of children’s emotional and intellectual levels. Furthermore, inappropriate cross-examination may lead to the distortion of a child’s evidence and the child may wrongly be perceived as an unreliable and untruthful witness (ibid).
Eastwood and Patton (2002) conducted a comprehensive examination of the experiences of child complainants of sexual abuse in Queensland, New South Wales and Western Australia, via in-depth interviews with 130 participants. Their research showed that fewer than 50% of the children interviewed in Queensland and New South Wales would report sexual abuse if it occurred again. These figures were obtained despite the fact that two-thirds of the children who said they would not report again had had their complaints upheld by the court. An even more remarkable and telling finding was that when crown prosecutors, defence counsel and judiciary were asked if they would want their own children in the justice system if the child was a victim of serious sexual abuse, only 18% of interviewees in Queensland, 33% in New South Wales and 46% in Western Australia agreed. Among defence counsel, (43%) responded “no” and (57%) “not sure” – not one defence lawyer said they would want their child to experience the court system.
Their findings about the reluctance of former child witnesses to re-enter the criminal justice system was a clear indictment of the systems’ treatment of them. Eastwood and Patton recommended reforms (not all of which are reproduced here) to ensure that every child asked to give evidence in a criminal trial should:
be provided with dedicated and comprehensive court support from the time of reporting, and with child-friendly facilities prior to giving evidence.
not be required to appear in court unless the child wishes to do so.
give evidence once only – for the purposes of trial. Full prerecording of the child’s evidence should be available.
be permitted the use of CCTV and to choose support persons.
be protected from seeing the accused at all stages of the process.
be permitted legal representation and/or a dedicated child advocate.
be protected under all circumstances from aggressive cross-examination.
be entitled to after-court counselling and de -briefing.
be treated with dignity, respect, care and humanity.
Eastwood and Patton (ibid) also recommended that:
every legal practitioner who acts in cases of child sexual abuse needs to be trained and accredited in child development and the dynamics of sexual abuse
barristers who breach legislation while cross-examining children should be disciplined; persistent offenders should be precluded from acting in such cases
if ‘closed courts’ allow defence barristers to act with impunity, courts must be opened to select personnel to ensure openness and accountability
Bar Associations must develop a code of ethics to eliminate offensive and unethical behaviour complete with discipline and penalties for those who breach such guidelines.
every magistrate and judge who sits in cases of child sexual abuse be trained in child development and the dynamics of child sexual abuse.
Happily, state parliaments have recently begun to make changes along these lines. It is now accepted that the right to cross-examination by the defendant is not an absolute right: in most Australian jurisdictions, where the accused is unrepresented, the right to cross‑examine has been modified so that the accused is unable to directly cross-examine a complainant in a sexual assault trial (Cossins 2009). In 2002, it was recommended that a duty should be imposed on trial judges to control improper questioning, and as a result, section 275A of the Criminal Procedure Act 1986 (the Criminal Procedure Further Amendment (Evidence) Act 2005 -Parliament of New South Wales, 2009) was enacted, which – for the first time in Australia – imposed a positive duty on judges to intervene in relation to improper questions (Cossins 2009). Similar legislation was subsequently passed in Victoria and other jurisdictions.
Although the innovations noted above are welcome, and – combined with the use of CCTV and remote rooms for giving evidence – have significantly improved the experiences of child witnesses, cross-examination remains one of the most stressful aspects of giving evidence for children (ibid). Recent studies (Eastwood and Patton 2002, Cashmore and Trimboli 2006) showed that the treatment of children by defence counsel and the styles and types of cross‑examination questions are largely unchanged. In response, Cossins (2009) made five recommendations for legislative reform that balance the accused’s right to a fair trial against the needs of complainants and the expectations of the community.
Prohibit suggestive questions or statements that are designed to persuade the child to agree with the proposition or suggestion put to them.
Prohibit the same question or the same statement being produced more than once to avoid the child’s answer being a product of suggestion or a desire to please an authority figure rather than the child’s memory and experience.
Prohibit questions or statements made by the defence that directly accuse the child of lying or being a liar, given the damaging effects of such allegations on a child’s mental health.
Restrict the use of prior inconsistent statements by the defence so that, before the defence can cross-examine a child on a prior inconsistent statement, the judge must be satisfied that the statement is indeed a prior statement about a key issue, that it is inconsistent, and that it relates to an important matter.
Appoint an intermediary (social worker, psychologist or other relevant professional) trained in child cognition, language, and development to assess defence questions during cross-examination and advise the trial judge on the appropriateness of questions put in cross‑examination.
According to Cossins, her proposed reforms would limit the right to cross-examine in ways that will improve the quality of the evidence given by children in child sexual assault trials but not diminish the right of the accused to a fair trial (ibid). It remains to be seen if Australian jurisdictions will adopt Cossins’ proposals.
Giving oral evidence in a criminal trial can be a stressful experience for child witnesses, and this can be exacerbated by many aspects of the court environment and procedure. Australian courts have implemented numerous measures to protect children from psychological trauma, including the ability to provide evidence by CCTV and other remote means, and restrictions on publication of information that could identify witnesses. Strict criteria exist for the determination of competence to provide evidence, and whether that evidence should be sworn or unsworn, which also serve to protect children from exposure to harm in the court setting. Nevertheless – and despite some recent legislated improvements – child witnesses remain vulnerable to harm associated with the adversarial nature of cross-examination in criminal trials.
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