Protecting children’s rights — legal representation for child witnesses?

14.130 Some submissions to the Inquiry suggested that child witnesses in criminal proceedings should be legally represented, with the legal representative appointed to assist child witnesses at the earliest possible time, for example when the allegations are first made.[322] They argue that a legal representative should have standing in the criminal proceedings to ensure that appropriate applications are made for children who choose to proceed with a complaint or that objections are made to improper or harassing questions by either the prosecutor or the defence counsel.[323] This argument presumes that prosecutors cannot always be counted upon to make applications for CCTV or screens, to intervene to prevent objectionable cross-examination or to exhibit appropriate sensitivity in their examination of a child witness.[324] The recommendations in this chapter are more appropriate ways to address these problems.[325]

14.131 However, if the recommendations in this chapter are not implemented or prove unable to prevent the abuse of child witnesses described to the Inquiry, the drastic measure of providing all child witnesses with legal representatives who can protect their interests during the trial should be considered seriously. In any event, legal advice should be available to those children and their families who request it. The specialist children’s legal services described in recommendation 86 should undertake these responsibilities.

[322] Youth Advocacy Centre IP Submission 120; Oz Child Legal Service IP Submission 195. See also P Ambikapathy ‘The use of a watching brief as a legal tool for the protection of child witnesses in the criminal justice process’ in J Vernon (ed) Children as Witnesses: Proceedings of a Conference held 3–5 May 1988 AIC Canberra 1991, 117.

[323] See P Ambikapathy ‘The use of a watching brief as a legal tool for the protection of child witnesses in the criminal justice process’ in J Vernon (ed) Children as Witnesses: Proceedings of a Conference held 3–5 May 1988 AIC Canberra 1991, 117; Confidential Minutes of Meeting Sydney 5 November 1996.

[324] eg one young person told the Inquiry that he felt he needed his own solicitor when he gave evidence in a criminal trial, as the crown prosecutor not only did not protect him from defence counsels’ hostile questioning but also engaged in similar practices himself: Confidential Minutes of Meeting 5 November 1996.

[325] In particular, our recommendations concerning the presumption that all child witnesses will give evidence by CCTV or from behind a screen, the training of prosecutors, judges and magistrates in child development and language, and a more interventionist approach to questioning on the part of judges should have an impact on the prevalence of these problems: see recs 108-110.