14.120 The recommendations in this chapter address issues affecting all child witnesses. Additional protections may be needed for child witnesses who are Indigenous or from non-English speaking backgrounds or who have certain disabilities.
Children from different cultural backgrounds
14.121 Child witnesses from different cultural backgrounds can have additional difficulties with communication, cultural restrictions about discussing certain topics with certain people, the formality of hearing processes and cultural characteristics that may detract from a particular child’s ability to give the necessary information in court or that may affect the weight and credibility of a particular child’s evidence.
14.122 The problems for Indigenous witnesses, including children, are well documented. They include difficulties caused by the question-answer format of giving evidence, which is not the usual way that Indigenous people give important information, the use of silence as an important and positively valued part of many Indigenous conservations, ‘either-or’ questions that are rarely found in the linguistic structure of traditional Indigenous languages or Indigenous varieties of English, cultural differences in the use of eye contact and gratuitous concurrence — an Indigenous conversational pattern of agreeing with whatever is being asked.
14.123 Other problems may arise from the type of information being sought. For example, speakers of Indigenous languages or Indigenous varieties of English tend not to use expressions that specify quantity or number, tending to name or list rather than count. There are often restrictions on certain kinds of knowledge to certain classifications of people or on speaking about certain things in public, which will deter or prevent a witness giving certain information in court.
14.124 Similar problems may face child witnesses from non-English speaking backgrounds. Even where a person from a non-English speaking background has a good command of English, he or she can experience cultural and linguistic interference with the use of language and demeanour in court to the detriment of the evidence or the way that it is perceived. Although not all people from non-English speaking backgrounds experience the same barriers to giving evidence, other common problems may include cultural inhibitions about discussing certain topics, for example sexual assault, fears of police, courts and judges, inability to comprehend or communicate in English and lack of knowledge about the legal system and what is expected or possible through the legal process.
14.125 Many reports have attempted to address these issues for adult witnesses. Their recommendations are equally important for the appropriate participation of child witnesses. Particular attention should focus on the right of child witnesses who do not speak fluent and standard English to the assistance of an interpreter or communicator at their request, the possibility of giving evidence in narrative format and the admissibility of expert evidence of cultural or other language considerations that may assist in making a fairer assessment of a particular child witness’ evidence. In addition, our recommendations regarding investigations, witness support and preparation, courtroom facilities and appropriate training and education of the participants should be implemented taking account of children from different cultural backgrounds.
Recommendation 116 Upon the application of a party or on its own motion, a court should have discretion to permit unconventional means of giving evidence for child witnesses from different cultural backgrounds. In addition, expert evidence explaining cultural behaviours or communication characteristics of a child from a particular cultural background should be admissible.
Implementation. The Evidence Act should be amended to reflect these provisions. The Attorney-General, through SCAG, should encourage all States and Territories to enact similar legislation.
Recommendation 117 Every child witness who requests or who appears to need the assistance of an interpreter should have the right to the assistance of such interpreter while being questioned, both during the investigation and trial stages of any legal proceeding.
Implementation. The national interview standards should require that all children questioned during investigations have the right to an interpreter. The Evidence Act should be amended to reflect that all child witnesses should have the right to an interpreter while giving evidence in court. The Attorney-General through SCAG should encourage all States and Territories to enact similar legislation.
Children with a disability
14.126 Children with certain disabilities may face particular problems in communication and perceptions of their competency to give evidence. Many of the recommendations in this chapter can address these difficulties, as they require the court and the parties to take account of the circumstances of the individual child witness. However, additional assistance may be required for child witnesses with disabilities, particularly in communicating their evidence to the court and ensuring that stereotypes of people with disabilities or unusual behavioral or physical manifestations of a disability do not characterise their evidence as unreliable.
14.127 One United States case illustrates the special measures that can be adopted for such children. A three year old child was psychiatrically disturbed as a result of being abducted, sexually abused and dumped into a cesspit. She was able to give evidence about her experience by a video-taped deposition during which all questions were asked by her psychiatrist. The prosecutor, defence counsel and a representative of the judge were behind a one-way mirror and their questions were put to the child through the psychiatrist, who had a micro-receiver in his ear. The psychiatrist could then seek the desired information in a manner that did not further disturb the child.
14.128 A submission to the Inquiry reported an Australian case concerning a young deaf and intellectually impaired woman sexually assaulted by an acquaintance. She was unable to communicate her evidence in a conventional manner as she did not speak, could not understand conventional sign language and was able only to type out her words on a typewriter. A system was set up so that the young woman could be asked questions by computer and type her responses, with both projected on a screen for the jury to see. With the young woman able to tell her story to the court, the defendant changed his plea.
14.129 The disadvantages suffered by witnesses with certain disabilities include perceptions that their evidence is unreliable. In exceptional circumstances, the question and answer format may be completely inappropriate for witnesses with certain disabilities. In other cases the disability may cause the witness to behave in court in a manner that might be perceived as an indication of unreliability. In these cases expert evidence should be admissible to explain a child witness’ particular disability, the characteristics of the disability and likely physical responses of the child to the court environment and process.
Recommendation 118 Upon the application of a party or on its own motion, a court should be able to permit unconventional means of giving evidence for child witnesses with disabilities. In addition, expert evidence explaining the disability of a child witness and its physical or behavioral characteristics should be admissible.
Implementation. The Evidence Act should be amended to reflect these provisions. The Attorney-General through SCAG should encourage all States and Territories to enact similar legislation.
 See M Walsh ‘Interactional styles in the courtroom: An example from northern Australia’ in J Gibbons (ed) Language and the Law Longman House Essex 1994, 231.
 D Eades ‘A case of communicative clash: Aboriginal English and the legal system’ in J Gibbons (ed) Language and the Law Longman House Essex 1994, 242.
 id 242–244.
 id 246–248.
 See M Walsh ‘Interactional styles in the courtroom: An example from northern Australia’ in J Gibbons (ed) Language and the Law Longman House Essex 1994, 225.
 K Laster & V Taylor Interpreters and the Legal System Federation Press Sydney 1994, 163.
 See generally Access to Justice Advisory Committee Access to Justice: An Action Plan AGPS Canberra 1994; ALRC Report 57 Multiculturalism and the Law ALRC Sydney 1992.
 eg Access to Justice Advisory Committee Access to Justice: An Action Plan AGPS Canberra 1994; ALRC Report 57 Multiculturalism and the Law ALRC Sydney 1992; Qld Criminal Justice Commission Aboriginal Witnesses in Queensland’s Criminal Courts Qld Criminal Justice Commission Brisbane 1996.
 See NSWLRC Report 80 People with an Intellectual Disability and the Criminal Justice System NSWLRC Sydney 1997, 253–279; Qld Advocacy IP Submission 104.
 See NSWLRC Report 80 People with an Intellectual Disability and the Criminal Justice System NSWLRC Sydney 1997, 253–279.
 N Walker-Perry & L Wrightsman The Child Witness: Legal Issues and Dilemmas Sage Publications Newbury Park 1991, 12–13.
 ibid. This case did not go to trial as the defendant eventually pleaded guilty.
 M Brennan IP Submission 219.
 See NSWLRC Report 80 People with an Intellectual Disability and the Criminal Justice System NSWLRC Sydney 1997, 271.