14. Children’s evidence

91 National interview standards should be developed and adopted for all interviews of potential child witnesses. These national standards should require that

    • all professionals responsible for investigating and interviewing potential child witnesses have appropriate training in child psychology and development, non-misleading questioning techniques and the rules of evidence for the various proceedings in which children may be involved

    • interviews with children be as short as possible and the number of interviews be kept to a minimum

    • every child who is being interviewed as a potential witness, whether as a victim of abuse, assault or other criminal act or as a witness to any relevant event or occurrence, has the right to have an independent person of his or her choice present while being interviewed.

Implementation. OFC should co-ordinate the development of the national interview standards in consultation with child advocacy organisations, police, legal aid commissions, family services departments and experts in investigative interviewing of children.

92 Specialised interview teams comprising, as appropriate, a police officer and family services department worker or counsellor should deal with all allegations of child maltreatment in which multiple court proceedings are possible. These teams should have as their goal eliciting accurate and reliable information from children in a manner that allows the information to be used in a number of different proceedings (criminal, care and protection, family, civil etc). These teams should be modelled on the US Child Advocacy Centres.

Implementation. These Centres, or the appropriate interview teams, should be developed jointly by State and Territory police and family services departments, with the involvement of Victim’s Services/Support organisations and other relevant agencies. OFC should co-ordinate the development of national standards for the staffing, skills and interview methods of Child Advocacy Centres or joint interview teams, in consultation with child advocacy organisations, police, DPP offices, legal aid commissions, family services departments, health and hospitals departments and experts in the field of investigative interviews of children.

93 A multidisciplinary working group on video and audio taping of interviews with child witnesses should be convened to

    • evaluate the advantages and disadvantages of various uses of taped interviews

    • develop protocols to be used by interview teams in taping, storing and maintaining the audio and video tapes

    • establish mechanisms to permit children to be further interviewed in relation to newly remembered details

    • propose evidentiary law reforms to allow the tapes to be used as evidence in court.

Implementation. The Attorney-General should recommend to SCAG that it convene such a multidisciplinary working group on taping interviews with child witnesses.

94 Legislation should permit the entire evidence of a child, including evidence in chief and cross-examination, to be taken prior to trial and video-taped for presentation at trial whenever the interests of justice so require.

Implementation. The Evidence Act should be amended to reflect the above provision. The Attorney-General through SCAG should encourage all States and Territories to enact similar legislation. The provisions in the Acts Amendment (Evidence of Children and Others) Act 1992 (WA) are an appropriate model for this legislation.

95 Child witnesses should not give evidence in person at committal hearings. The rules of evidence should be amended to permit a child’s written or audio or video taped statement to be produced instead of the live evidence of the child.

Implementation. The Attorney-General through SCAG should encourage all States and Territories to enact similar legislation.

96 When setting hearing dates, courts should give priority to cases involving child witnesses and set a fixed date for the evidence of the child. The prosecutor or legal representative for a party calling a child as a witness should be required to inform the court that a child is scheduled to appear so that the court can set an early pre-trial hearing for the video recording of the child’s evidence or so that it can prioritise the matter and set the trial for a specified time rather than allocating it to a rolling list.

Implementation. The State and Territory courts, along with the federal courts, should amend their Rules and listing practices to this effect.

97 A legal privilege should be conferred on all communications between children and counsellors for therapeutic purposes.

    • Evidence of the communications should only be able to be adduced in court where the court gives leave.

    • The court should not be able to give leave unless the evidence has substantial probative value, other evidence of the matters in the communication is not available and the public interest in protecting the confidentiality of the communications or in protecting the alleged victim from harm is substantially outweighed by the public interest in admitting the evidence.

Implementation. TheEvidence Act should be amended to reflect the above provisions. The Attorney-General through SCAG should encourage all States and Territories to enact similar legislation. The Evidence Amendment (Confidential Communications) Bill 1997 (NSW) is an appropriate model for this legislation.

98 All children should be presumed prima facie competent to give sworn evidence. Oaths and affirmations should be simple and in language that the particular child understands. Where questions regarding children’s competency arise, courts should be able to take a flexible approach to competency testing, including obtaining expert opinion or reports.

Implementation. The Evidence Act is an appropriate model for these provisions. The Attorney-General through SCAG should encourage those jurisdictions that have not introduced legislation based on the Evidence Act to enact similar provisions.

99 The child of a party should have the right to object to being called to give evidence against that party in any criminal and civil proceeding. In deciding whether to require an objecting child to give evidence against a party, judges should apply a balancing test in which the judge looks to whether the harm to the child or to the child’s relationship with a party outweighs the need for the evidence to be given.

Implementation. The Evidence Act should be amended to reflect the above provisions. The Attorney-General through SCAG should encourage all States and Territories to enact similar legislation.

100Corroboration of the evidence of a child witness should not be required. Judges should be prohibited from warning or suggesting to the jury that children are an unreliable class of witness and that their evidence is suspect.

    • Judicial warnings about the evidence of a particular child witness should be given only where (1) a party requests the warning and (2) that party can show that there are exceptional circumstances warranting the warning. Exceptional circumstances should not depend on the mere fact that the witness is a child, but on objective evidence that the particular child’s evidence may be unreliable.

    • Warnings should follow the Murray formula to reduce the effect of an individual judge’s bias against, or general assumptions about, the abilities of children as witnesses.

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.

101Expert opinion evidence on issues affecting the perceived reliability of a child witness should be admissible in any civil or criminal proceeding in which abuse of that child is alleged. In particular, evidence that may assist the decision maker in understanding patterns of children’s disclosure in abuse cases or the effects of abuse on children’s behaviour and demeanour in and out of court should be able to be admitted.

Implementation. The Evidence Act should be clarified to reflect the above provisions. The Attorney-General through SCAG should encourage all States and Territories to enact similar legislation. This legislation should in particular mirror the Evidence Act’s abolition of the common knowledge and ultimate issue rules.

102Evidence of a child’s hearsay statements regarding the facts in issue should be admissible to prove the facts in issue in any civil or criminal case involving child abuse allegations, where admission of the hearsay statement is necessary and the out-of-court statement is reasonably reliable. A person may not be convicted solely on the evidence of one hearsay statement admitted under this exception to the rule against hearsay.

Implementation. The Evidence Act should be amended to this effect. The Attorney-General through SCAG should encourage all States and Territories to enact similar legislation.

103Multiple proceedings involving more than one incident concerning the same child victim and accused or more than one child victim and the same accused should be joined in a single trial to avoid the necessity of children giving evidence in numerous proceedings over long periods of time and the problems associated with rules against tendency and coincidence evidence. To this end, joinder rules and rules against tendency and coincidence evidence should be reviewed in light of the hardship these rules cause to particular child victim witnesses.

Implementation. The Attorney-General should recommend to SCAG that it convene a working group to conduct this review.

104Age appropriate literature and other forms of information should be developed for all child witnesses to explain various proceedings, possible parties to the proceedings, the roles of each person involved in the process, the types of questions that may be encountered and the reasons for them and the meaning of common terms, legal and otherwise, that may be encountered by the child while giving evidence.

Implementation. Courts should develop this information in conjunction with the relevant State and Territory authorities. This information should not be considered a substitute for the witnesses preparation and support programs discussed in Recommendation 106.

105Prosecutors or legal representatives for parties presenting the child as a witness should always meet the child prior to the court appearance and should attempt to establish a rapport. Wherever possible the same prosecution team should conduct the case at committal and trial in a way that minimises the number of people involved in the process of preparing and presenting the child witness.

Implementation. The Attorney-General through SCAG should encourage the development of practice directives for federal, State and Territory DPPs to this effect.

106Child witnesses should have the right to assistance, support and preparation for the experience of giving evidence.

    • Specialist child witness support units should be established to undertake these functions. These services should be staffed by trained counsellors, although this would not preclude the use of volunteers. They should provide individualised assistance to children appearing as witnesses in civil and criminal proceedings.

    • The functions of support units should include

― explaining the court process and preparing the child for the experience of giving evidence

― keeping the child informed of the progress of the case and liaising with prosecutors, solicitors and police on behalf of the child

― accompanying the child to court or arranging for a court companion of the child’s choice

― making necessary referrals for the child and his or her family to therapeutic counselling, medical care and other services necessary to assist the child.

Implementation. The Attorney-General through SCAG should encourage all States and Territories to establish specialist child witness support units in all jurisdictions. The Western Australian Child Victim Witness Service is an appropriate model for these units. In light of current child witness support programs in some jurisdictions, OFC should co-ordinate the development of national standards for child witness support units in consultation with the relevant State and Territory agencies.

107Children should be allowed to choose at least one person who may come into the courtroom with them while giving evidence. This person should be permitted to sit next to the child while the child gives evidence.

Implementation. The Attorney-General through SCAG should encourage all States and Territories to enact legislation to this effect.

108There should be a presumption in favour of the use of CCTV in all matters, criminal and civil, involving child witnesses. Where CCTV is not available, use of a screen should be the standard procedure.

Implementation. The Evidence Act should be amended to reflect the above provisions. The Attorney-General through SCAG should encourage all States and Territories to enact similar legislation. The provisions in the Crimes Amendment (Children’s Evidence )Act 1996 (NSW) are an appropriate model for this legislation.

109The decision not to use CCTV or a screen is one for the child. Where a child does not wish to use these facilities, the prosecution or party calling the child as a witness should be required to apply to the court for leave to present the child in open court. The judge should ensure that the child has given informed consent to the application.

Implementation. The Evidence Act should be amended to this effect. The Attorney-General through SCAG should encourage all States and Territories to enact similar legislation. The provisions in the Acts Amendment (Evidence of Children and Others) Act 1992 (WA) are an appropriate model for this legislation.

110Guidelines and training programs should be developed to assist judges and magistrates in dealing with child witnesses. The guidelines and training should include

    • standard periods of time beyond which child witnesses of various ages should not be expected to give evidence in chief or to manage continuous cross-examination without a break

    • standard length of breaks needed by child witnesses of various ages

    • examples of aggressive or confusing examination tactics so as to enable judges and magistrates to recognise and prevent aggressive, intimidating and confusing questioning

    • examples of language and grammar inappropriate to the age and comprehension of child witnesses so as to enable judges and magistrates to ensure questions are stated in language that is appropriate to the age and comprehension of the child witness.

Implementation. The Australian Institute of Judicial Administration (AIJA) should develop such guidelines and training programs for all relevant courts in consultation with experts in the area of child witnesses.

111All prosecution staff who have contact with child witnesses should receive training in the use of age appropriate language for child witnesses, children’s developmental stages and the possible effects of giving evidence on children of various ages.

Implementation. Federal, State and Territory DPPs should ensure appropriate training for all prosecution staff having contact with child witnesses. Where appropriate, child witness units should be developed in the office of each DPP.

112The advocacy and professional conduct rules incorporated in barristers’ and solicitors’ rules should specifically proscribe intimidating and harassing questioning of child witnesses. Lawyers should be encouraged to use age appropriate language when questioning child witnesses.

Implementation. Law Societies and Bar Associations should be encouraged to amend their rules to this effect.

113Child witnesses should be provided with appropriate waiting facilities in all court buildings where they are likely to appear as witnesses. These should ensure privacy and separation from the public and in particular from a defendant or hostile opposing party, that party’s counsel and the media.

Implementation. All courts should designate an appropriate facility in or near the court building as a children’s waiting room. Where facilities are not available in the court building, the prosecutor or legal representative for the party calling the child as a witness should be responsible for taking all necessary steps to ensure that the child is provided with appropriate facilities and protected from the risk of intimidation or harassment.

114Upon the application of a party or on its own motion, a court should have the discretion to

    • modify seating arrangements

    • require the removal of wigs and gowns

    • exclude from the court any or all members of the public

if necessary to prevent undue distress to a particular child witness.

Implementation. The Attorney-General through SCAG should encourage all States and Territories to enact similar legislation.

115Where a court can consider a Victim Impact Statement in the sentencing process, a child victim should have assistance, where required, in preparing the VIS.

Implementation. The Attorney-General through SCAG should encourage those States and Territories in which a Victim Impact Statement is permitted to enact similar legislation.

116Upon 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.

117Every 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.

118Upon 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.