Hearsay and children’s evidence

8.180 The hearsay rule is particularly significant in cases involving child witnesses, as children are often incompetent to give sworn or unsworn evidence, or unwilling to give evidence due to the trauma involved.[204] Moreover, children may be unable to give satisfactory evidence due to the unfamiliarity of the courtroom setting and procedure, and limitations in memory, accurate recall of events, or mental and intellectual capacity.[205] The lack of evidence from child witnesses may mean that some cases are not prosecuted.[206]

8.181 Some previous statements, disclosures or descriptions made by children may fall into one of the existing exceptions to the hearsay rule, for example where the occurrence of the asserted fact is fresh in the memory of the child.[207] Others may be admissible as evidence of the truth of the asserted facts under s 60 if the evidence is relevant for that purpose and for a purpose other than proof of the asserted fact (eg, for credibility purposes).[208]

8.182 In their joint inquiry into children in the legal process (ALRC 84), the ALRC and the Human Rights and Equal Opportunity Commission (HREOC) considered that the hearsay exceptions in the uniform Evidence Acts are insufficient to admit all relevant previous statements made by children because patterns of disclosure among child victims often involve disclosure of small pieces of information over periods of time.[209] It was considered that the admission of a child’s out-of-court statement could preserve the child’s account at an early stage, making it a reliable form of evidence, and could reduce the stress and trauma on the child of testifying in court.[210]

8.183 For these reasons, it was recommended in ALRC 84 that the uniform Evidence Acts should be amended to allow children’s hearsay statements to be admitted in certain cases:

Evidence 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.[211]

8.184 The ALRC and HREOC recommendation is based on a hearsay exception created by the Supreme Court of Canada in R v Khan.[212] In Canada, courts may admit children’s hearsay statements about a fact in issue if admission of the evidence is ‘necessary’ and the statement is reasonably reliable.[213] Admission of the evidence is considered ‘necessary’ where the child is: incompetent to give evidence; or is unable or unavailable to give evidence, such as where the child is extremely young or cannot give a coherent or comprehensive account of events; or the judge is satisfied that giving evidence might be traumatic for, or harm, the child.

8.185 In ALRC 84 it was noted that the ‘necessity’ limb of the test in R v Khan provides a much broader set of circumstances for the admissibility of a child’s statement than the hearsay exceptions found in ss 63 and 65 of the uniform Evidence Acts—tests which depend on the ‘unavailability’ of the child to testify. Further, the ‘reasonable reliability’ limb of the test in R v Khan is less stringent than the ‘high probability of reliability’ test in s 65(2)(c) of the uniform Evidence Acts.[214]

8.186 This issue has also been canvassed (in a non-uniform Evidence Act jurisdiction) by the VLRC in its report on sexual offences.[215] The VLRC recognised that direct evidence given by a child in court may not be better than hearsay evidence of a child’s earlier statements about sexual abuse and recommends a child-specific hearsay exception applicable to child sexual offence cases.[216]

8.187 In its interim report, the VLRC proposed that the courts should have a discretion to admit the hearsay evidence of children, regardless of whether the child is available to give evidence.[217] However, the final report expresses reservations about the fairness of such an approach where the child’s evidence cannot be tested in cross-examination because the child is not available to give evidence. The VLRC also notes that provisions allowing the court to admit hearsay evidence of sufficient probative value where the child is not available to give evidence may have limited effect because courts may routinely exercise their discretion to exclude evidence in this situation.[218]

8.188 In its final report, the VLRC recommended that a hearsay exception be enacted for evidence of statements to prove facts in issue:

  • in any criminal case involving child sexual assault allegations where the child is under the age of 16 and is available to give evidence; and

  • where the court, after considering the nature and content of the statement and the circumstances in which it was made, is of the view that the evidence is of sufficient probative value to justify its admission.[219]

Existing laws

8.189 A number of jurisdictions have made provision for the admission of child witnesses’ hearsay statements as proof of the facts asserted. The Family Law Act 1975 (Cth) provides that, in children’s matters under Part VII of that Act, evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child is not inadmissible solely because of the law against hearsay.[220]

8.190 In NSW and Tasmania, in certain criminal proceedings the evidence of certain previous statements made by a child may be admitted.[221] Queensland legislation allows for the admission of documentary evidence of statements made by child witnesses tending to establish a fact as evidence of that fact.[222] In Western Australia, a statement made by a child before the proceedings were commenced that relates to any matter in issue in the proceedings may be admitted at the discretion of the judge.[223] Northern Territory legislation provides an exception to the hearsay rule in sexual offence proceedings for evidence of a child’s statement to another person.[224]

Submissions and consultations

8.191 In IP 28 it was asked whether there should be an additional exception to the hearsay rule regarding children’s hearsay statements about a fact in issue, making such statements admissible to prove those facts and, if so, subject to what restrictions.[225] The Commissions expressed the view in DP 69 that the best way to address concerns about this issue, at least in the medium term, may be through hearsay exceptions specific to certain offences and located outside the uniform Evidence Acts. It was noted that the Commissions’ common policy is that the uniform Evidence Acts should remain Acts of general application, and that hearsay exceptions for children’s evidence have close links with complex procedural issues that at this point are more appropriately dealt with outside the uniform Evidence Acts.[226] This position received support.[227]

8.192 In DP 69, the Commissions recorded the opposition to a new hearsay rule for child witnesses voiced by the NSW PDO and the Law Council.[228] The Law Council said:

The Council does not believe that such an exception can be based on necessity where the result of admitting hearsay evidence creates an unreasonable risk that an innocent person may be convicted. Where possible, children should testify orally and their testimony be subject to cross-examination.[229]

8.193 The Commissions also recorded the opposition of Victoria Legal Aid. That opposition was renewed in a further submission. It was said to be undesirable to introduce ‘a general child hearsay exception and provisions that reduce the barriers to admissibility for child hearsay’. Factors were pointed to that may affect the reliability of the evidence, including that at the time of making the representation of which evidence is later tendered, the child may not be mature enough to understand the difference between the truth and a lie; may not understand the importance of telling the truth; may be mistaken about certain facts; and may misinterpret the nature or significance of events reported.[230] Objection is also made to other amendments to the hearsay rules that might have the effect of reducing barriers to admissibility for hearsay evidence from a child. [231]

The Commissions’ view

8.194 As pointed out in DP 69, there are significant barriers to the development of any recommendation for the introduction in the uniform Evidence Acts of a hearsay exception directed to children’s evidence. There is no consensus on the precise limits of the perceived mischief, and therefore no consensus on the form any statutory hearsay exception might take. For example, some proposals apply only to evidence in sexual offence cases, others to family law proceedings, and others to all civil or criminal proceedings in which allegations of child abuse are made. A more precise formulation of the difficulties is necessary before such change could be made. Agreement as to how to make that change would also be vital.

8.195 For reasons already canvassed, the Commissions do not propose that evidentiary provisions relating specifically to hearsay evidence of child witnesses should be included in the uniform Evidence Acts. However, the Commissions reiterate that the recommendations in this Report for reform of some provisions of general application may, in some circumstances, reduce barriers to the admission of children’s hearsay evidence.[232]

8.196 Finally, if reform of the hearsay rule relating to children’s evidence is deemed necessary, the states and territories could work towards developing a uniform approach to the topic outside the uniform Evidence Acts. Once achieved, consideration could be given to including the laws in the uniform Evidence Acts. The mechanism proposed for monitoring uniformity, which is discussed in Chapter 2, may be useful in this regard.

[204]Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, ALRC 84 (1997), [14.78].

[205]Ibid, Ch 14.

[206]Ibid, [14.78].

[207]Uniform Evidence Acts ss 64, 66.

[208] See the discussion of Lee v The Queen (1998) 195 CLR 594 in Ch 7.

[209]Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, ALRC 84 (1997), [14.79].

[210]Queensland Law Reform Commission, The Receipt of Evidence by Queensland Courts: The Evidence of Children, Report No 55: Part 1 (2000), Ch 8.

[211]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 102.

[212]R v Khan [1990] 2 SCR 531, 546; Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, ALRC 84 (1997), [14.81]–[14.82].

[213]R v Khan [1990] 2 SCR 531: in this case, a child’s previous representation of sexual assault was admitted through an adult witness without calling the child.

[214]Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, ALRC 84 (1997), [14.82], fn 217.

[215]Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [5.97]–[5.130].

[216]Ibid, [5.105]–[5.115].

[217]Victorian Law Reform Commission, Sexual Offences: Interim Report (2003), Rec 75.

[218]Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [5.125]–[5.127].

[219]Ibid, Rec 139.

[220]Family Law Act 1975 (Cth) s 100D.

[221]Evidence (Children) Act 1997 (NSW) ss 8, 9: this applies only to children who are under the age of 16 at the time the evidence is given. Evidence (Children and Special Witnesses) Act 2001 (Tas) s 5(1): this applies to children under the age of 17.

[222]Evidence Act 1977 (Qld) s 93A. Statements contained in a document that were made by another person in response to the child’s statements are also admissible: s 93A(2). The maker of the statements must be available to give evidence in the proceeding. These sections apply to children under 16 years of age, or children aged 16 or 17 who are classed as special witnesses.

[223]Evidence Act 1906 (WA) s 106H. Details of the statement must be given to the defendant and the defendant must be given the opportunity to cross-examine the child: s 106H(1). The person to whom the child made the statement is to give evidence of the making of the statement and of its content: s 106H(2). These sections apply to proceedings relating to certain sexual and other violent offences under the Criminal Code (WA), and where the child was under 16 years of age when the complaint was made.

[224]Evidence Act 1939 (NT) s 26E.

[225]Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 5–15.

[226]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), [7.273]–[7.274].

[227]G Brady, Consultation, Sydney, 26 August 2005.

[228]New South Wales Public Defenders Office, Submission E 50, 21 April 2005; Law Council of Australia, Submission E 32, 4 March 2005.

[229]Law Council of Australia, Submission E 32, 4 March 2005. The Law Council does, however, support modified procedures for the giving of evidence by children.

[230]Victoria Legal Aid, Submission E 113, 30 September 2005.


[232] See Rec 8–2 and Rec 8–4.