18.55 The common law traditionally regarded children as an unreliable class of witness, requiring that trial judges warn juries that it is dangerous to convict on the uncorroborated evidence of a child, even where the child is deemed competent to give sworn evidence. This requirement grew from a perception that children are prone to fantasy, highly suggestible, and likely to give inaccurate accounts of events.
18.56 Contrary to such beliefs, research conducted in recent years demonstrates that children’s cognitive and recall skills are not inherently less reliable than that of adults. In their joint report Seen and Heard: Priority for Children in the Legal Process (ALRC 84), the ALRC and The Human Rights and Equal Opportunity Commission (HREOC) noted:
Recent research into children’s memory and the sociology and psychology of disclosing remembered events has established that children’s cognitive and recall skills have been undervalued … The presumed gulf between the reliability of evidence from children and that from adults appears to have been exaggerated … Children, including very young children, are able to remember and retrieve from memory large amounts of information, especially when the events are personally experienced and highly meaningful.
18.57 The Report emphasised that the reliability of an individual child’s memories and perceptions, both at the time of initial questioning and at a later date, is likely to be influenced by factors such as the manner and context in which the child is questioned. It noted that the use of misleading and suggestive questioning techniques adversely affects the ability of young children to recall events accurately, and that the most effective way of eliciting accurate and more detailed information is through the use of non-leading cues. The Report also found that younger children may have difficulties when questioned about particular times and dates, and hence may be unable to recount events in chronological order, but that this has no bearing on the accuracy of the description of the events reported. Overall, the Report emphasised that research confirms that children’s evidence is not generally less reliable than that of adults, but that its reliability may be influenced by particular factors.
18.58 In order to reflect contemporary understanding of children’s cognitive and recall skills, the common law corroboration warning requirement in respect of child witnesses was abolished by statute in all Australian jurisdictions. In some jurisdictions, legislative provisions were enacted to prohibit trial judges from warning or suggesting that children are an unreliable class of witness.
18.59 Section 165 of the uniform Evidence Acts provides that a trial judge is to give a warning in respect of evidence ‘of a kind that may be unreliable’ where a party so requests, unless there are good reasons for not giving the warning. Section 165(1)(c) expressly includes ‘age’ as a factor which may cause evidence to be unreliable.
18.60 Despite changes to the law removing the corroboration warning requirements, the ALRC and HREOC found in their 1997 Report that it remained standard practice in many jurisdictions for judges to warn juries about the unreliability of children’s evidence. Submissions to that inquiry emphasised that in giving such warnings, judges were often guided by their individual assumptions and prejudices about child witnesses, rather than by modern research findings. The ALRC and HREOC therefore recommended that judges should be prohibited from warning or suggesting to the jury that children are an unreliable class of witness or that their evidence is suspect; and that judicial warnings about the evidence of a particular child witness should only be given where a party so requests and it can be shown that there are ‘exceptional circumstances’ warranting the warning. It specified that ‘exceptional circumstances’ should not depend on the mere fact of the witness being a child, but on objective evidence that the particular child’s evidence may be unreliable.
18.61 Similarly, in the 1997 Report of the Wood Royal Commission into the New South Wales Police Service (Wood Royal Commission Report), concerns were expressed that some members of the judiciary were continuing to give inappropriate warnings in respect of children’s evidence, and that s 165 of the uniform Evidence Acts might not be effective to prevent a return to the practice of giving such warnings as a matter of course. The Report recommended the implementation of the recommendations made by the ALRC and HREOC in relation to judicial warnings and child witnesses. The Evidence Act 1995 (NSW) was amended in accordance with the recommendations of the Wood Royal Commission Report in 2001.
18.62 The Evidence Act 1995 (NSW) now contains the following provisions in relation to judicial warnings and child witnesses:
s 165A prohibits trial judges from warning or suggesting to juries that children as a class are unreliable witnesses or that it is generally dangerous to convict on the uncorroborated evidence of any child witness; and
s 165(6) provides that warnings in relation to the reliability of a child’s evidence can only be given in accordance with s 165B. Section 165B provides for the following warning in respect of the evidence of a particular child witness:
(2) A judge in any proceedings in which evidence to which this section applies is given may:
(a) warn or inform the jury that the evidence of the particular child may be unreliable because of the child’s age, and
(b) warn the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it.
(3) Such a warning or information may be given only:
(a) if a party has requested that it be given, and
(b) if that party has satisfied the court that there are circumstances particular to that child in those proceedings that affect the reliability of the child’s evidence and that warrant the giving of a warning or the information.
(4) This section does not affect any other power of a judge to give a warning to, or to inform, the jury.
18.63 In DP 69, the Commissions proposed that the uniform Evidence Acts be amended to include provisions similar to ss 165(6), 165A and 165B of the Evidence Act 1995 (NSW). Submissions and consultations demonstrate considerable support for this proposal. A number of submissions and consultations confirm that, despite research which demonstrates that children’s evidence is not inherently unreliable, traditional misunderstandings still pervade the courtroom and affect the decisions made by judicial officers and jurors.
The Commissions’ view
18.64 Despite the fact that research shows that the evidence of children is not inherently less reliable than that of adults, it has been found that the credibility of children’s evidence is still often underestimated by juries and the community generally. Given that such misconceptions still appear to be prevalent, the Commissions consider that there are grounds for adopting a provision prohibiting judges from giving general warnings about the unreliability of child witnesses, as provided in s 165A of the Evidence Act 1995 (NSW). However, given that statutory prohibitions on the giving of general warnings in relation to particular categories of witness have not successfully displaced the common law practice of doing so, it is also necessary to adopt a specific warnings provision, similar to that provided in s 165B of the Evidence Act 1995 (NSW).
18.65 As noted in Chapter 2, one of the policies underpinning the Inquiry is that the uniform Evidence Acts should be of general application and should generally not include provisions relating to specific offences or categories of witness. However, it is acknowledged that in some instances it will be appropriate to include provisions which apply only to particular categories of witness. The Commissions note in Chapter 2 that it is impossible to be entirely consistent in relation to this policy, and the approach taken will vary depending on the nature of the particular provision.
18.66 In this Report, the Commissions consider a number of suggested amendments to the uniform Evidence Acts relating specifically to child witnesses. In Chapter 20, the Commissions have not recommended that recently enacted evidentiary provisions relating specifically to child witnesses be included in the Acts. This conclusion is reached on the basis that many of these provisions are closely linked with particular types of proceedings or complex procedural issues. It is considered that these provisions are more conveniently located in procedural and proceeding-specific legislation. However, the proposed amendments presently under consideration can be distinguished from those considered in Chapter 20, as they are not procedural in nature and apply to all types of proceedings in which there is a jury. Further, it is appropriate to locate them in the uniform Evidence Acts because they qualify the operation of s 165 of the Acts and reinforce the policy underpinning s 165 that warnings should only be given where the circumstances of the case indicate that they are warranted. A final consideration in favour of including such an amendment in the uniform Evidence Acts is that the provision is already located in the Evidence Act 1995 (NSW), and hence there is a practical prospect of achieving uniformity in this area. The Commissions therefore consider that these provisions are appropriately located within the uniform Evidence Acts.
18.67 The Commissions note that support has been expressed for the New South Wales provisions generally, but that the drafting of s 165B has raised some concerns. In its Report on Child Sexual Assault Prosecutions, the New South Wales Legislative Council Standing Committee on Law and Justice expresses some concern that s 165B(2)(a) might be interpreted as allowing a trial judge to give a warning about the reliability of a particular child’s evidence solely on account of the child’s age. The Committee recommended that s 165B be amended to provide that such warnings are only to be given where it can be shown that there are ‘exceptional circumstances’, which circumstances cannot be established by the mere fact that the witness is a child.
18.68 The Commissions consider that it is desirable for legislative amendment to reflect contemporary understanding of the reliability of children’s evidence, and agree that s 165B as currently worded may not be sufficient to displace ongoing presumptions of the unreliability of child witnesses. In light of this, the Commissions recommend that provisions similar to those contained in ss 165A and 165B of the Evidence Act 1995 (NSW) should be included in the uniform Evidence Acts, but that the sections should explicitly provide that age alone is insufficient to establish unreliability. Section 165B of the Evidence Act 1995 (NSW) should also be amended to mirror the recommended provision. A draft provision is included in Appendix 1.
18.69 Further, in order to ensure that the recommended legislative amendments achieve their desired purpose, the National Judicial College of Australia, the Judicial College of Victoria, the Judicial Commission of New South Wales and the state and territory law societies and bar associations should consider conducting educational programs regarding the cognitive and behavioural development of children and the implications of this for the reliability of the evidence of child witnesses.
Recommendation 18–2 The uniform Evidence Acts should be amended to include provisions dealing with warnings in respect of children’s evidence similar to those contained in ss 165(6), 165A and 165B of the Evidence Act 1995 (NSW). Section 165B should be amended to make it clear that a trial judge is not to give a warning about the reliability of the evidence of a child solely on account of the age of the child.
 Hargan v The King (1919) 27 CLR 13.
 Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, ALRC 84 (1997), [14.15].
 See Ibid, [14.19].
 Ibid, [14.19]–[14.20].
 Ibid, [14.21].
 Ibid, [14.21].
 Ibid, [14.24].
 Uniform Evidence Acts s 164; Criminal Code Act 1899 (Qld) s 632(2); Evidence Act 1906 (WA) s 50; Evidence Act 1958 (Vic) s 23(2A); Evidence Act 1939 (NT) s 9C. In South Australia, the corroboration requirement has been abolished in relation to the sworn evidence of children: Evidence Act 1929 (SA) s 12A.
 Evidence Act 1995 (NSW) ss 165(6), 165A, 165B; Evidence Act 1958 (Vic) s 23(2A), (2B); Criminal Code Act 1899 (Qld) s 632(3) (not restricted to children as a class of witness, but applies to ‘any class of persons’); Evidence Act 1906 (WA) s 106D (for indictable offences); Evidence Act 1939 (NT) s 9C; Evidence Act 2001 (Tas) s 164(4). Section 15YQ(a) of the Crimes Act 1914 (Cth) and s 70 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) prohibit the giving of warnings that children are an unreliable class of witness in sexual offence proceedings.
 Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, ALRC 84 (1997), [14.70].
 Ibid, [14.71].
 Ibid, Rec 100.
 Royal Commission into the New South Wales Police Service, Final Report, vol 5 (1997), [15.139].
 Ibid, Rec 90. The Wood Royal Commission considered a draft recommendation made by the ALRC and HREOC: Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, A Matter of Priority: Children and the Legal Process, DRP 3 (1997), Draft Rec 5.8. The ALRC and HREOC inquiry was completed after the Wood Royal Commission report was released. Recommendation 100 of ALRC 84 was in similar terms to the draft recommendation in DRP 3.
 See Evidence Legislation Amendment Act 2001 (NSW).
 Section 164(4) of the Evidence Act 1910 (Tas) contains a provision similar to s 165A(1) of the New South Wales Act, prohibiting judges from warning or suggesting to a jury that it is unsafe to convict a person on the uncorroborated evidence of a child because children are classified by law as unreliable witnesses.
 Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 16–1.
 A Cossins, Consultation, Sydney, 3 August 2005; Rosemount Youth and Family Services, Submission E 107, 15 September 2005; The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005; H Astor, Consultation, Sydney, 2 August 2005; NSW Rape Crisis Centre, Consultation, Sydney, 4 August 2005; K Mack, Submission E 82, 16 September 2005; Victoria Police, Submission E 111, 30 September 2005. No submissions or consultations opposed the proposal.
 R Shackel, Submission E 105, 27 September 2005.
 T Beregi, Submission E 79, 16 September 2005.
 New South Wales Legislative Council Standing Committee on Law and Justice, Report on Child Sexual Assault Prosecutions, Report 22 (2002), [1.42]. See also the discussion in Ch 9 of this Report regarding the need for expert opinion evidence regarding the behaviour and development of children.
 See the discussion later in this chapter relating to the Longman and Crofts warnings.
 The uniform Evidence Acts currently contain some provisions which apply only to specific categories of witness: uniform Evidence Acts ss 18–19, 31.
 See also discussion in Ch 20.
 For example, family law proceedings.
 For example, the use of technology in the courtroom.
 See Rec 2–2 in Ch 2.
 New South Wales Legislative Council Standing Committee on Law and Justice, Report on Child Sexual Assault Prosecutions, Report 22 (2002), [4.19]. See also J Hunter, C Cameron and T Henning, Litigation II: Evidence and Criminal Process (7th ed, 2005), [23.88].
 New South Wales Legislative Council Standing Committee on Law and Justice, Report on Child Sexual Assault Prosecutions, Report 22 (2002), Rec 26; Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, ALRC 84 (1997), Rec 100.
 It is noted that as yet there is no case law dealing with s 165B.
 See Rec 3–1.