Children as witnesses, applicants and participants in State and Territory legal processes

Children as witnesses

2.122 There are no national statistics on the number of children who appear as witnesses in legal proceedings. These statistics are rarely kept by individual courts and tribunals or by other relevant government agencies. The Inquiry conducted extensive research and requested information on child witnesses from courts, tribunals, DPPs, Legal Aid Commissions, welfare departments and other agencies that may have access to this information to develop a picture of child witnesses in Australia. While the results of this research do not provide a comprehensive account of the numbers of children involved in legal processes as witnesses, they can give an indication of the extent of children’s involvement.

2.123 Queensland. In Queensland, children rarely give evidence before the Supreme Court in criminal or civil proceedings.[293] However, between 1 February 1994 and 1 January 1997, 1 216 children gave evidence in criminal proceedings involving sexual assault charges, presumably in district or magistrates’ courts.[294] These figures do not include criminal matters involving other offences, civil proceedings or care and protection proceedings,[295] and therefore the total number of child witnesses in Queensland is probably much higher.

2.124 NSW. In NSW, police received reports regarding 2 143 alleged victims of child sexual assault in 1995. A total of 501 alleged offenders were charged in court with respect to offences against 630 child victims.[296] Of the alleged offenders, 94 pleaded guilty in the magistrates’ court and 407 were committed for trial.[297] As 62 alleged offenders were ‘no billed’ before trial, and 153 pleaded guilty at arraignment or sometime before trial, there were 190 trials for child sexual assault in NSW in 1995.[298] The victims of child sexual assault were likely to have given evidence in these trials, resulting in 111 acquittals and 79 convictions.[299]

2.125 The Child Witness Unit, a section of the DPP Sydney regional office, handled 31 matters at the committal stage during 1995-96, 20 of which were committed for trial and four committed for sentencing.[300]

2.126 Victoria. Victorian courts and agencies do not keep statistics on child wit-nesses. Again, it seems that children rarely appear as witnesses before the Sup-reme Court[301] but often appear as witnesses in lower courts. In 1995-96 the Witness Assistance Service of the Victorian Office of Public Prosecutions assisted witnesses in approximately 73 matters that involved allegations of child sexual assault.[302]

2.127 Data from the Video and Audio Taped Evidence Project for the recording of evidence in chief of child victims and mentally impaired witnesses also gives some indication of the numbers of child witnesses in Victoria. From 1 January to 30 November 1995, 383 statements were taken in video format by the police, 66 of which were transcribed for presentation in magistrates’ courts at trials and com-mittals, in the care and protection and criminal divisions of the children’s court,the Family Court and the Crimes Compensation Tribunal.[303] The legislation requires that children whose evidence in chief is given by video-taped interview in criminal proceedings be available for cross-examination in court. Children involved in this project therefore may have appeared in courts as witnesses.[304] This project is now in the second year of State-wide implementation.

2.128 It is not the practice in Victoria for children to give evidence in care and protection proceedings. Evidence relating to the child and any statements the child may have made is usually related by a child welfare worker and other professionals.[305]

2.129 Western Australia. From 1 January 1996 to 14 November 1996, 64 children gave evidence through closed circuit television (CCTV), by using screens or by prior video-taping for later presentation in criminal trials in Western Australian district courts and the Supreme Court and in preliminary hearings.[306] This number under-reports the actual number of child witnesses in Western Australian courts.[307] Children rarely give evidence in Western Australian care and protection proceedings, perhaps as few as 2 or 3 children a year, although statistics are not kept on this aspect of care and protection proceedings.[308]

2.130 The Western Australian Child Victim Witness Service has been preparing and supporting child witnesses (most of whom give evidence in criminal trials) since July 1995. Its operations provide an additional indication of the number of child witnesses in Western Australia. In the past two years, it has received a total of 363 referrals for assistance to child witnesses. On 14 August 1997 it had a current caseload of 216 children.[309]

2.131 South Australia. A recent survey examining the incidence of sexual assault in South Australia found that in 1994-95 the majority of sexual assault victims were children or young people. Of all sexual assault victims reported to the police 716 (37.1%) were 14 or younger and a further 407 (21.1%) were aged 15-19.[310] Some of these reported crimes were processed in the courts. In the 1994 calendar year, there were 60 cases in South Australian district courts and the Supreme Court in which unlawful sexual intercourse (a crime in which children 16 years old and under are, by definition, the complainants) was listed as the main charge.[311] Of these 18 cases went to trial and the child victims were likely to have given evidence at the trials.[312] That same year, there were another 35 cases in district courts and the Supreme Court involving charges of indecent assault of a victim who was 16 or younger, 11 of which went to trial.[313] There are no data showing how many children appeared as witnesses in other criminal cases.

2.132 In South Australia’s care and protection jurisdiction, again children rarely give evidence. In some complex cases, a videotape of the police officers or welfare department worker’s interview with a child may be presented but children are not subject to cross-examination in these cases.[314]

2.133 Tasmania. Although children in the South and North West of Tasmania rarely appear or give evidence in care and protection proceedings, in the Launceston area children aged 12 and over give oral evidence in approximately 20% of care and protection cases.[315] In addition, affidavit evidence of children aged 12 and over is presented in 50% of care and protection cases in Launceston and children may often be cross-examined on the contents of the affidavit.[316] Videotaping interviews with children under the age of 12 is also common in Launceston and these videotapes are presented as the child’s evidence in approximately 25% of care and protection cases.[317] No Tasmanian statistics were available regarding children who appear as witnesses in other civil and criminal jurisdictions. However, it was reported that of the 1 153 victims assisted by the Victims of Crime, Response and Referral Services in 1995-96, approximately 5% (58) were children aged 17 and under.[318]

2.134 ACT. According to the ACT DPP, during 1995-96 42 children aged 16 or under were potential witnesses in respect of 42 charges of sexual assault on a juvenile and 71 charges of acts of indecency with a juvenile.[319] It was again rare for children to give evidence in the Supreme Court.[320] The ACT Supreme Court’s CCTV facilities for child witnesses were used only 3 times from August 1995 to August 1996.[321] The ACT children’s court, opened in 1996, also has CCTV facilities which, as of May 1997, had not been used in care and protection matters but had been used by children giving evidence in an unknown number of criminal matters relating to adults.[322]

2.135 Northern Territory. In the Northern Territory, no child gave evidence in the Supreme Court’s civil registries over the past 4 years.[323] The Supreme Court’s CCTV facilities, available for children and other vulnerable witnesses who give evidence in criminal proceedings, are used approximately 5 or 6 times per year.[324] Some magistrates’ courts also have CCTV facilities but no information is available about their use in this jurisdiction.[325]

Children as applicants and other participants

2.136 Children participate in State and Territory legal processes as applicants or in other ways, mostly in actions for compensation, damages or other civil remedies. Again, statistics are rare and the Inquiry’s research provides an indicative picture rather than a comprehensive account of child applicants or other participants.

2.137 In 1991-92, the Civil Justice Research Centre of NSW conducted a survey of NSW Supreme Court Common Law Division files to determine a profile of the court users, patterns regarding the settlement of civil actions and plaintiff satisfaction with the court system. Of the 775 matters where information was provided on the age of the plaintiff, there were 30 (3.9%) in which the plaintiff was under the age of 18.[326]

2.138 Legal Aid Commissions in many jurisdictions provided the Inquiry with information on the number of grants of legal aid to children for civil matters in 1996-97.

Table 2.26 Grants of legal aid to children for civil matters, 1996-97[327]


Total number of grants


Western Australia


no comments



50% of these cases concerned claims for damages for personal injury or criminal injury compensation

South Australia


case involved a discrimination claim



all cases concerned personal protection (apprehended violence orders), as criminal injuries compensation claims are mostly handled by private practitioners



52 of these cases involved criminal injuries compensation, with the rest including domestic violence, anti-discrimination and consumer protection matters

Northern Territory

an estimated 10% of all civil matters funded

grants were generally made to the child’s litigation guardian and included claims for personal injury and crime compensation, professional negligence matters, probate/intestacy or testator family maintenance actions and contract (consumer) disputes

2.139 Most State and Territory Supreme Courts estimated for the Inquiry the numbers of civil actions commenced by guardians ad litem or next friends, who conduct litigation on behalf of child litigants in civil matters. However, guardians ad litem and next friends can also be appointed for people other than children in certain circumstances, so the data should be evaluated cautiously.[328]

2.140 The Brisbane registry of the Supreme Court of Queensland reported that between 1 January 1996 and 30 June 1996 an estimated 24 cases were filed in which a next friend was a party.[329] In the ACT Supreme Court, 8 matters were brought by a next friend in the civil jurisdiction from 1 January 1996 to 1 August 1996.[330] The Supreme Court of the Northern Territory searched the registers for the past four years and found 4 matters in which a guardian ad litem had been appointed for minors.[331]

2.141 As Table 2.26 has shown, children are often involved in criminal injuries compensation proceedings as applicants or the subjects of applications for compensation. For example, from 1 January 1993 to 1 August 1996, there were 70 applications by or on behalf of children to ACT magistrates’ courts and the Supreme Court for criminal injuries compensation.[332] In 1995-96, the Victorian Crimes Compensation Tribunal made 1 943 awards of compensation to victims who were aged 0-18.[333] Information from other jurisdictions was not available.

2.142 Another area of State and Territory civil jurisdiction involving children is adoptions. Here the child’s views may be an important aspect of the proceedings. In 1995-96, there were 668 children adopted in Australia, most of whom (74%) were adopted by non-relatives.[334] Of the 177 children adopted by relatives, 72% were between the ages of 5 and 14, and almost all (167) were adopted by a step-parent.[335] The 491 children who were adopted by non-relatives in 1995-96 tended to be younger than those adopted by relatives. Of the 217 Australian-born children adopted by non-relatives only 33% were aged 5 or older and of the 274 overseas-born children adopted by non-relatives only 20% were aged 5 or older.[336]

2.143 In Victoria, children may make applications to the children’s court in respect of ‘irretrievable breakdown’ with their parents or carers.[337] There were no such applications in 1995-96,[338]one during each of 1994 and 1993 and four in 1992.[339] Children may also make applications for apprehended violence orders in some States and Territories. The Inquiry was unable to find any statistics on the number of children who initiate such proceedings other than those already mentioned in Table 2.26.

[293] No children gave evidence in the Supreme Court at Brisbane during the last 5 months of 1996: Letter from Registrar Brisbane Supreme Court, 24 January 1997.

[294] Letter from Youth Justice Manager Qld Dept of Families, Youth and Community Care 21 March 1997.

[295] Letter from Acting Manager of Statistical Services Qld Dept of Families, Youth and Community Care 23 December 1996.

[296] Judicial Commission of NSW Child Sexual Assault Judicial Commission of NSW Sydney 1997, 2-3, 11.

[297] id 11.

[298] ibid. Two of the alleged offenders died before trial.

[299] Judicial Commission of NSW Child Sexual Assault Judicial Commission of NSW Sydney 1997, 11.

[300] NSW DPP Annual Report 1995-96 NSW DPP Sydney 1996, 76.

[301] It appears that few, if any, child witnesses (or any other child participants) appeared before Vic Supreme Courts in the latter half of 1996: letter from Deputy Prothonotary Supreme Court of Vic 13 February 1997.

[302] Vic DPP Annual Report of Operations: Office of Public Prosecutions 1995-96 Vic DPP Melbourne 1996, 49. However, as such cases might involve adult as well as child witnesses, this number cannot accurately represent the total number of child witnesses in criminal cases in Vic.

[303] Vic Police IP Submission 45.

[304] ibid. On the other hand, the existence of the videotaped interview may often have led to guilty pleas, perhaps lessening the number of children required to give evidence in court.

[305] Letter from Director Youth and Family Services Vic Dept of Human Services 23 June 1997.

[306] 31 children gave their evidence via CCTV, 25 used a screen and 8 had their evidence taken prior to trial and presented at trial via videotape: letter from Registrar’s Chambers WA Supreme Court 15 November 1996.

[307] Although most child witnesses under 16 years of age are presumed to give evidence in these ways, this number does not include child witnesses appearing in criminal proceedings other than those in which the crime is a ‘specified offence’, those child witnesses aged 16 and over and those appearing in civil proceedings.

[308] Letter from Principal Legal Officer WA Dept of Family and Children’s Services 7 April 1997.

[309] S Bellett Agency Referrals to Child Victim Witness Service unpublished 25 August 1997.

[310] J Wundersitz ‘Sexual Offending in South Australia’ Information Bulletin Issue 1 SA Attorney-General’s Dept Adelaide 1996, 6.

[311] Office of Crime Statistics Crime and Justice in South Australia 1994 SA Attorney-General’s Dept Adelaide 1995 table 4.3.

[312] ibid.

[313] ibid.

[314] Letter from Chief Executive SA Dept of Family and Community Services 20 December 1996.

[315] Letter from Director Youth and Family Services Tas Dept of Community and Health Services 15 May 1997.

[316] ibid.

[317] ibid.

[318] Tas Dept of Justice Annual Report 1995-96 Tas Dept of Justice Hobart 1996, 39.

[319] ACT DPP Annual Report 1995-6 ACT DPP Canberra 1996, 23.

[320] Letter from Registrar Supreme Court Office Law Courts of the ACT 8 August 1996.

[321] ibid.

[322] Letter from Manager Court Services Unit ACT Dept of Education & Training and Children’s Youth & Family Services 12 May 1997.

[323] Letter from Registrar Supreme Court of NT 3 March 1997.

[324] ibid.

[325] ibid.

[326] J Baker Who Settles and Why? Law Foundation of NSW Sydney 1994 appendix 4.

[327] Derived from Letter from R Lindsay, Acting Director Legal Aid of WA 25 August 1997; Information from B Cross, Assignments Manager Tas Legal Aid Commission 22 August 1997; Letter from J Battersby, Policy and Research Officer Legal Services Commission of SA 13 August 1997; Letter from C Staniforth, Chief Executive Officer Legal Aid of ACT 13 August 1997; Letter from C Reynolds, Executive Legal Officer Legal Aid Qld 25 August 1997; Letter from R Cornall, Managing Director Legal Aid Vic 13 August 1997; Letter from J Stone, NT Legal Aid Commission 9 September 1997. NSW is not included in this table as NSW Legal Aid did not supply this information to the Inquiry.

[328] In addition, by the time the child’s matter is heard before a court, the child for whom the guardian ad litem was originally appointed may have become an adult: letter from Registrar Supreme Court of NT 3 March 1997.

[329] Letter from Registrar Supreme Court at Brisbane 29 July 1996.

[330] Letter from Registrar ACT Supreme Court 8 August 1996.

[331] Letter from Registrar Supreme Court of NT 3 March 1997.

[332] Letter from Registrar ACT Supreme Court 8 August 1996.

[333] Magistrates’ Court of Vic Crimes Compensation Tribunal 24th Annual Report 1995-96 Magistrates’ Court of Vic Melbourne 1996, 24.

[334] R Bentley & A Broadbent Adoptions Australia 1995-96Child Welfare Series 19 AIHW Canberra 1997, 9.

[335] id 13. These figures do not include adoptions of overseas-born children by relatives in Australia.

[336] id 15.

[337] See para 17.104.

[338] Vic Dept of Human Services Annual Report 1995-96 Vic Government Printer Melbourne 1996, 132.

[339] Vic Dept of Justice Caseflow Analysis Section of the Courts, Tribunals and Registries Division Children’s Court Statistics 1995 Vic Dept of Justice Melbourne 1996, 74.