The child witness in the courtroom

Introduction

14.90 The legal system has traditionally given little support and preparation to child witnesses. Within the courtroom children are often subject to harassing, intimidating, confusing and misleading questioning. In addition, court buildings do not provide privacy for the child or promote the safety of the child outside the courtroom. A significant amount of evidence was presented to the Inquiry that children are frequently traumatised by their court appearance due to these factors. The abuse many children suffer is compounded by the abuse perpetrated by the legal system itself.

Understanding the process

14.91 If witnesses are prepared for and understand the purpose and process of the trial, they are better able to give evidence.[236] This is of particular concern in cases involving child witnesses where the child's evidence might be the only or the most substantial evidence against an accused person. However, children often appear in court knowing very little about the proceedings, the roles of the various professionals involved and their own role within this setting. For example, one young person spoke to the Inquiry about appearing as a witness in a criminal trial. He described the prosecutor as 'his' solicitor and was distressed that the prosecutor did not appear to protect his interests during the trial.[237]

14.92 Parents often have difficulties explaining the trial process to their child due to their own lack of knowledge. The Inquiry was told that, in criminal trials, prosecutors rarely have enough contact with children to brief or prepare them for the process of giving evidence.[238]

Recommendation 104 Age 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.

The role of the prosecutor

14.93 Children should always meet the person who will be calling them as witnesses. That person's role and the types of questions that will be asked once in court should be carefully explained to the child. The Inquiry was informed that child witnesses in criminal trials often do not meet the prosecutor until just before giving their evidence.[239] One submission suggested that this may be a result of prosecutors adhering to the view that the witness is not 'their' witness and that to meet with witnesses may be improper.[240] In addition, the same person or prosecution team rarely handles the one criminal case from beginning to end. Both these factors add to the distress of child witnesses. Children can be reluctant to talk to yet another stranger.[241] In addition, prosecutors who have no actual knowledge of a child and his or her circumstances can unknowingly be insensitive and cause upset, adversely affecting the child and the child's evidence.[242]

14.94 Western Australia has piloted a scheme whereby the DPP becomes involved in indictable offence cases at the election date, before the committal hearing. In these situations, the DPP has been able to meet and develop a rapport with child witnesses early in the case and to develop an understanding of the abilities of and protections needed by individual child witnesses at trial.[243] Similarly, the Brisbane Central Committals Project piloted the assumption of responsibility by the DPP for prosecuting all matters listed for committal in the Brisbane Central Magistrates Court from 13 July 1995 to 31 August 1996.[244] In NSW committals have been handled by the DPP rather than police prosecutors since 1990. Numerous reports have recommended that DPPs become involved in cases before committal and prosecute committal hearings in the place of police prosecutors.[245] While the Inquiry envisions that child witnesses should not be required to give evidence at committals, these proposals provide an appropriate method of facilitating better understanding between the child and the DPP.

Recommendation 105 Prosecutors 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.

Witness preparation and support

14.95 In addition to these initiatives, there is a need for programs and particular arrangements to prepare children adequately for the experience of giving evidence. A few submissions to the Inquiry suggested that child witnesses should have a legal advisor appointed to assist the child through the process of proceeding with a criminal complaint and appearing as a witness.[246] Certainly, a legal representative could help a child make an informed decision about whether to proceed with a complaint,[247] provide specific information to the child about what happens in court, advocate on the behalf of the child with prosecutors and others before the child goes to court and undertake related legal work on behalf of the child, for example in civil, family law and compensation proceedings.[248] However, while these functions are appropriate for a lawyer, witness support is essentially a task for a counsellor.

14.96 Some jurisdictions have initiated specialised programs to prepare witnesses, including child witnesses, for giving evidence and to reduce anxiety and psychological trauma associated with trial proceedings. These support services are located in the courts or Departments of Justice, DPPs, family services departments or outside the legal system. They may be staffed by social workers, legal personnel or specially trained volunteers. The services offered include some or all of the following: trial preparation and counselling, court visits, liaising with prosecutors or courts to keep the child informed of the progress of the case, attendance in court as the child's court companion and assistance in the preparation of Victim Impact Statements. These programs are generally confined to assisting witnesses in criminal proceedings.

14.97 Some agencies, such as Protect All Children Today (PACT) in Queensland and the Victim Support Service in South Australia, train volunteers to assist child witnesses by providing information, preparation and support, including acting as in-court companion for the child.[249] The witness support services in Victoria and NSW are similar, although operated by the DPP rather than volunteers. Other services, such as the Youth Advocacy Centre in Queensland, offer confidential legal advice and assistance as well as emotional support and practical court support.[250]

14.98 The Inquiry was particularly impressed with the Child Victim Witness Service in Western Australia. This service provides individualised pre-trial preparation, trial assistance and post-trial debriefings for children who give evidence in court.[251] The preparation process includes keeping the child and family informed of the progress of the case and explaining the trial process to the child, including the meaning of 'reasonable doubt' and the roles of the judge, the lawyers and the court staff. The child is assisted in choosing a court companion to come to court with him or her (usually not the worker) and is debriefed after giving evidence. The worker does not provide 'therapeutic' counselling.[252]

14.99 The Inquiry heard evidence that witness support workers who assist child witnesses are often viewed with suspicion, particularly by the defence. It is often alleged that they have 'coached' the child or contaminated the child's evidence.[253] To minimise these problems, witness support services should ensure that their workers do not discuss with the child the facts of the case or the child's evidence. The experience of Western Australia's Child Victim Witness Service is that in fact many children are quite relieved that they are not expected to talk about the allegations with the witness support worker.[254]

14.100 Where Child Advocacy Centres, discussed at paragraph 14.37, are established to provide a multidisciplinary investigation of child abuse allegations, these centres can also provide the location for witness support and preparation. In the United States, many of these centres employ counsellors, trial co-ordinators or victim advocates who undertake many of the functions of the Western Australian Child Victim Witness Service. However, our recommendations concerning witness support and preparation ought to be implemented whether or not Child Advocacy Centres are established in Australian jurisdictions.

Recommendation 106 Child 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.

Court companions

14.101 Many children giving evidence in criminal trials may attend court with a court companion who comes into court with the child witness to provide emotional support. The court companion may be a parent, trusted family member, friend or counsellor with a witness support unit, although in some jurisdictions this person is someone unknown to the child and appointed by the court.[255] This person should always be someone the child trusts, who is able to comfort the child and reduce any anxiety that the child might experience while giving evidence. A court companion or 'support person' may attend court with a child witness in all States and Territories, generally at the discretion of the judge.[256] However, the Inquiry heard evidence that court companions are often required to sit at the back of courtrooms rather than close to the child while the child gives evidence.[257] Provisions permitting court companions will not assist child witnesses effectively unless those court companions can sit close enough to the child to lend real and productive emotional support.

Recommendation 107 Children 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.

CCTV and screens

14.102 Child witnesses are particularly fearful of confronting the accused when they come to court.[258] For many child victim witnesses, this may be the first time they have seen this person since the disclosure of the alleged offences.[259] The Inquiry was told of instances where the accused attempted to intimidate the child witness by making threatening faces or gestures in court.[260] Problems such as these are not limited to child victim witnesses in criminal trials. The same stresses can affect children who witness other criminal events and child witnesses in various civil proceedings.[261]

14.103 In recognition of these problems many States and Territories allow children and other vulnerable witnesses to give evidence by CCTV or from behind a screen. In NSW under the Crimes Amendment (Children's Evidence) Act 1996 all child witnesses, including to a limited extent children giving evidence in trials in which they are also the accused, have the right to give their evidence in this manner in any criminal or civil proceeding relating to a 'personal assault offence', in complaints for apprehended violence orders or in proceedings before the Victims Compensation Tribunal arising from the commission of a personal assault offence.[262] In Western Australia, Tasmania and the ACT, CCTV is the presumed method by which child victims give evidence in some criminal proceedings.[263] Other jurisdictions allow CCTV or screens for child witnesses upon the application of a party if the child is shown to be a 'special witness'.[264]

14.104 The use of CCTV and screens has many benefits for child witnesses. The ALRC's evaluation of children's use of CCTV in the ACT revealed that children who used CCTV when they wanted to do so were less anxious and more effective than those who did not use the system even though they wished to.[265] The professionals and parents of children in that study all said that CCTV reduced stress on children as they gave evidence and some believed that the use of CCTV permitted some cases to proceed that may not have proceeded without it.[266]

14.105 Despite these documented benefits, the use of screens and CCTV has been contentious. CCTV may not permit the jury to see the size of the child and so it may leave the jury unaware of the vulnerability of the child as against the accused.[267] Some prosecutors say that a child's evidence will be seen by a jury as less credible if not adduced in the traditional manner.[268] In addition, some prosecutors are said to believe that the appearance of a visibly distressed child witness makes a jury more likely to convict.[269] If correct, these statements of prosecutors' views are of great concern. They reflect an attitude that gives greater priority to winning a conviction than to the well being of the child victim or witness.

14.106 On the defence side, a key argument against the use of CCTV is that it may cause the jury to prejudge the accused.[270] However, judges can give a standard direction to juries at the commencement of any trial in which CCTV or a screen is used that this is standard procedure when children are giving evidence in a criminal court and that the jury cannot draw any inferences from the use of these devices. This is required in the ACT, NSW and Western Australia. Of course, CCTV and screens must be standard procedure if this direction is to be accurate.

14.107 A study of criminal trials in Western Australia found that most jurors understood the reasons why CCTV or screens were used for child witnesses and that the presence of this equipment did not make it more difficult to reach a verdict.[271] Only 15% of jurors surveyed said that a verdict would have been easier to reach had the child given evidence in the courtroom. Approximately half the jurors surveyed said that they had trouble judging the size of a child witness who gave evidence by way of CCTV although most also said that seeing the child in the courtroom would not have made their deliberations easier. The CCTV equipment was particularly effective to amplify children's voices, however, making them easier to hear and understand.[272]

14.108 Evidence to the Inquiry indicated various problems in jurisdictions where use of CCTV is discretionary rather than presumptive. Children often qualify their willingness to give evidence, saying for example 'I'll do it, as long as he's not in the room'.[273] But they may be pressured into going ahead with a complaint even though giving evidence by CCTV or from behind a screen is not guaranteed.[274] Prosecutors often do not make applications to use CCTV or screens until the child is about to give evidence, leaving the child anxious and uncertain.[275] Sometimes children are not even informed of the possibility that they can give evidence by CCTV and no application for its use is made.[276]

14.109 The ALRC's report on children's evidence and CCTV recommended that all child witnesses have the right to use CCTV or other screening facilities where CCTV is not available.[277] This Inquiry reiterates that there should be a presumption for the use of CCTV in all cases involving child witnesses, with the child having the right to decide whether to use the facilities.

Recommendation 108 There 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.

Recommendation 109 The 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.

Legal language and questioning in court

14.110 The language and the formalities of the courtroom are alien and incomprehensible to most children and can intimidate and confuse many child witnesses.[278] These problems are particularly acute during cross-examination.[279] Lawyers often use confusing sentence structure deliberately during cross-examination to confuse the witness.[280] Analyses of trials involving child witnesses show that cross-examination questions consistently include language that is well beyond the everyday experiences of most children.[281] In addition, the highly structured interrogation used in crossexamination often calls for child witnesses to repeat certain answers and to focus on minute details.[282] Questions are asked in such a way as to preclude all but a 'yes' or 'no' response and may address events out of time sequence.[283] Lawyers also frequently interrupt witnesses to restrict their accounts and to retain tight control over their testimony. These techniques can have the effect not only of preventing a child witness from describing events in the order in which the child remembers them but also of maximising the possibility of confusing the child and of contaminating the child's memory.[284] Indeed, these questioning techniques are used for this very purpose.[285]

14.111 The purpose of cross-examination in an adversarial system is properly an attempt to create reasonable doubt by revealing inconsistencies in testimony, ferreting out untruthful testimony and even discrediting the witness. However, the Inquiry heard significant and distressing evidence that child witnesses are often berated and harassed during cross-examination to the point of breakdown.[286] As one commentator has said,

[c]ross-examination is that part of the proceedings where the interests and rights of the child are most likely to be ignored and sacrificed.[287]

For example, one young person described to the Inquiry her experiences as a witness in a criminal trial.

When I asked for clarification of questions, I was made to feel stupid. He [the defence barrister] would say to me 'But don't you do English at school? Don't you understand what these words mean?' And he would barrage me with so many questions and figures and dates and names I was just lost...[he] made me feel very small and intimidated. So by the end I just stopped asking for clarification and as a result of that gave answers to questions that I just didn't understand...[and] the questions that the defence was allowed to ask: the detail — the absolutely embarrassing detail that he proceeded to go into again and again — it just blew me away. It was just so embarrassing to be up there on the stand in front of 12 members of the jury who were staring at me and these detailed, embarrassing, sexual questions were being asked over and over again, and when I gave an answer, he would say 'I'm sorry, can you repeat that?' and I would say it again and he would say 'I'm sorry, I just didn't hear that. Could you repeat it again?' I know it's just a tactic, but it worked — it scared the hell out of me![288]

No child can be expected to give effective evidence under these circumstances. The contest between lawyer and child is an inherently unequal one. Child witnesses are often taken advantage of because they can be easily confused and intimidated, because they are unable to match the linguistic skills of experienced lawyers or because, unlike the lawyer, they are in a hostile, alien environment. These problems were consistently addressed in submissions to the Inquiry.[289] They are clear examples of the legal abuse of children.

14.112 Cross-examination is not the only problem facing children giving evidence. As one commentator has noted, 'magistrates, prosecutors and judges all use language which does not admit the world of the child and does not allow or enable the child to present her evidence in the most convincing way'.[290] Some children find the experience of examination in chief and re-examination just as traumatic as that of cross-examination, particularly where the child misunderstands the role of the prosecutor.[291] Most lawyers, magistrates and judges are not trained in talking to children and lack the necessary language, sensitivity and skills to elicit a coherent account from the child in courtroom interrogations.

14.113 Some jurisdictions have legislated for the appointment of 'child interpreters' who can interpret questions in language that a child can understand or who can interpret the child's answers for the court.[292] These interpreters may be able to shield child witnesses from the confusion and intimidation caused by incomprehensible questions. However, many submissions to the Inquiry opposed them, considering them a poor substitute for requirements that judges and lawyers themselves have training in appropriate skills for dealing with children.[293] Specialist pediatric workers in the medical profession receive such training and so too should those in the legal profession who have regular dealings with children. This training should include not only communication skills but education about the physical and emotional capacities of children to give evidence over long periods of time.

14.114 Some submissions suggested that allowing children to give evidence in a narrative format might reduce the problems.[294] This would be helpful, but it would not solve the problems associated with cross-examination. Other submissions suggested that the adversarial system itself is the cause of the problems and as such is inappropriate in cases involving child abuse. They suggested that an informal tribunal conducting proceedings similar to a coronial inquiry should be used instead.[295] However, because the rights of an accused could be decisively affected by the findings of such a tribunal, this type of system violates the doctrines of separation of powers and the right to a fair trial. In federal cases, it could be unconstitutional. There are several High Court authorities which stand firmly against such an initiative.[296]

14.115 Magistrates and judges are meant to be 'referees' for a fair trial. They therefore have particular responsibility to ensure that child witnesses understand the questions asked and are not harassed or intimidated by tone of voice, aggressive questioning, incomprehensible language and unfair or abusive treatment. Judicial officers should ensure children have appropriate breaks and are not questioned for excessive periods of time. Rules of evidence in each jurisdiction already contain provisions to prevent undue badgering or harassment of witnesses,[297] as do many legal professional association rules and guidelines.[298] These can provide child witnesses with some protection against harsh, intimidating and confusing questioning. Most rules make no explicit recognition of the particular vulnerability of child witnesses, however. In addition, evidence to the Inquiry indicates that counsel, magistrates and judges rarely intervene to enforce these rules.[299] They tolerate, or even perpetuate, child abuse by the legal system.

Recommendation 110 Guidelines 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.

Recommendation 111 All 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.

Recommendation 112 The 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.

Physical aspects of the courtroom and its facilities

14.116 The appearance of court personnel and barristers in wigs and gowns may confuse and intimidate child witnesses, especially very young children.[300] The presence of members of the public in court may also cause them distress, particularly while giving evidence about personal or embarrassing details.

14.117 In addition, the design of many court buildings can intimidate witnesses, particularly victims of crime and children.[301] Long periods spent waiting in the court building, inappropriate waiting facilities and the crowding together of hostile parties, lawyers and the media can increase witnesses' anxiety.

14.118 Children waiting to appear as witnesses in criminal proceedings are particularly concerned about seeing the accused.[302] Many courts lack separate waiting facilities. The Inquiry was told that in the public areas of the court children have been intimidated and harassed by the accused, his or her family, defence counsel and the media.[303]

[A]fter I had come out from giving evidence — I had come out and was so upset that I was taken to a small room where I could recover away from everybody looking at me, and [the defence solicitor] came and stood in the door with his arms up like that and both feet splayed out so that nobody could get in or out...and he just stood there and stared at me while I was trying to recover from this...I was saying 'Get out. Go away,' and he just stood there and stared at me through the whole break...Before the committal hearing, the first day, I walked into the room before I was supposed to go on [to the courtroom] and I was sitting on a wooden bench and [the defence solicitor] just came and sat two feet right in front of me and leant over on his knees and just stared.[304]

In-court measures such as CCTV and screens and controls on cross-examination are of little benefit if child witnesses are subject to these tactics outside the courtroom.

Recommendation 113 Child 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.

Recommendation 114 Upon 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.

The child's voice in sentencing

14.119 In criminal trials Victim Impact Statements can provide an opportunity for victims of crime to participate in the sentencing part of the criminal justice process.[305] Where they are used, child victims may need assistance in preparing statements. Witness support units, the child's counsellor or a family member may be best suited to assist a child in this manner.

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

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

[236] PACT IP Submission 154.

[237] Confidential Minutes of Meeting Sydney 5 November 1996.

[238] M Forrester IP Submission 116; C Eastwood IP Submission 160.

[239] M Forrester IP Submission 116; C Eastwood IP Submission 160; Confidential DRP Submission 18.

[240] LA Beards DRP Submission 6.

[241] see T Coyne IP Submission 80; I Wallace IP Submission 85.

[242] ibid.

[243] Kreative Kids DRP Submission 35.

[244] Qld Criminal Justice Commission Evaluation of the Brisbane Central Committals Project Qld Criminal Justice Commission Brisbane 1996, 1.

[245] eg D Bereton & J Willis The Committal in Australia AIJA Melbourne 1990; Access to Justice Advisory Committee Access to Justice: An Action Plan National Capital Printing Canberra 1994, 420.

[246] eg Oz Child Legal Service IP Submission 195; Youth Advocacy Centre IP Submission 120.

[247] Youth Advocacy Centre IP Submission 120.

[248] ibid.

[249] PACT IP Submission 154; SA Victim Support Service IP Submission 185. However, the SA Victim Support Service is not directed specifically to child witnesses.

[250] Youth Advocacy Centre IP Submission 120.

[251] S Bellett Minutes of Meeting Sydney 2 July 1997.

[252] ibid.

[253] Defence counsel have been known to subpoena support workers and their files for these reasons: Youth Advocacy Centre IP Submission 120.

[254] S Bellett Minutes of Meeting Sydney 2 July 1997.

[255] Most jurisdictions also prohibit someone who is a witness in the case from being another witness' court companion.

[256] Acts Amendment (Evidence of Children and Others) Act 1992 (WA) s 106E; Evidence Act 1977 (Qld) s 21A(2); Evidence Act 1929 (SA) s 13(2); Evidence Act 1939 (NT) s 21A(2); Crimes Act 1990 (NSW) s 405CA; Evidence Amendment (Children and Special Witnesses) Act (Tas) s 122E; Evidence Act 1958 (Vic) s 37C(3).

[257] Confidential DRP Submission 18.

[258] A Kapardis Psychology and Law Cambridge University Press Cambridge 1997, 97.

[259] H Taylor, DPP Qld IP Submission 102.

[260] eg Confidential Public Hearing Submission Brisbane 31 June 1996.

[261] ALRC Report 63 Children's Evidence: Closed Circuit TV ALRC Sydney 1992, 24. Other proceedings that may be intimidating for child witnesses include those before such tribunals as a medical practitioners' licence review board, victim compensation tribunals, anti-discrimination or human rights tribunals etc.

[262] Crimes Amendment (Children Evidence )Act 1996 (NSW) s405D.A personal assault is defined to include offences against the person, offences such as stalking, intimidation with intent to cause fear for personal safety, contravening an apprehended violence order, child abuse and the intent or attempt to commit these offences: s 405C.

[263] Acts Amendment (Evidence of Children and Others) Act 1992 (WA) s 106N; Evidence Amendment (Children and Special Witnesses) Act 1995 (Tas) s 122G ; Evidence (Closed Circuit Television) Act 1991 (ACT) s 4A.

[264] eg Evidence Act 1939 (NT) s 21A(2); Evidence Act 1977 (Qld) s 21A(2); Evidence Act 1929 (SA) s 13(9), (10).

[265] ALRC Report 63 Children's Evidence: Closed Circuit TV ALRC Sydney 1992, 3.

[266] id 4.

[267] S Ryan Public Hearing Submission Parramatta 7 August 1996.

[268] ALRC Report 63 Children's Evidence: Closed Circuit TV ALRC Sydney 1992, 7; ACT Attorney-General IP Submission 194.

[269] WA Police Service IP Submission 136.

[270] Victim's Rights & Civil Rights Project DRP Submission 33.

[271] C O'Grady Child Witnesses and Jury Trials: An Evaluation of the Use of CCTV and Removable Screens in Western Australia WA Ministry of Justice Perth 1996, iii–iv.

[272] ibid. In fact, a particular benefit for children who gave evidence by CCTV during this study was that they were seldom interrupted by judges and lawyers with requests to speak up or repeat answers.

[273] Youth Advocacy Centre IP Submission 120.

[274] ibid.

[275] ibid.

[276] Oz Child Legal Service IP Submission 195.

[277] ALRC Report 63 Children's Evidence: Closed Circuit TV ALRC Sydney 1992.

[278] J Cashmore 'Problems and solutions in lawyer-child communication' (1991) 15 Criminal Law Journal 193, 194. See also M Brennan & R Brennan Strange Language: Child Victims Under Cross-Examination 3rd ed Charles Sturt University Riverina 1988, 10; H Taylor, DPP Qld IP Submission 102; Darwin Practitioners' Forum 16 July 1996.

[279] These problems may be compounded when questioning is conducted by an unrepresented party and that party is a person who has allegedly assaulted or harmed the child witness. Although this situation occurs rarely, shrinking legal aid budgets may mean that more parties to criminal or civil proceedings go unrepresented in the future: National Legal Aid DRP Submission 58.

[280] M Brennan 'The discourse of denial: Cross-examining child victim witnesses' (1995) 23 Journal of Pragmatics 71, 73.

[281] J Cashmore 'Problems and solutions in lawyer-child communication' (1991) 15 Criminal Law Journal 193, 194; M Brennan & R Brennan Strange Language: Child Victims Under Cross-Examination 3rd ed Charles Sturt University Riverina 1988, 10.

[282] see J Cashmore 'Problems and solutions in lawyer-child communication' (1991) 15 Criminal Law Journal 193; M Brennan 'The discourse of denial: Cross-examining child victim witnesses' (1995) 23 Journal of Pragmatics 71; M Brennan & R Brennan Strange Language: Child Victims Under Cross-Examination 3rd ed Charles Sturt University Riverina 1988.

[283] see J Cashmore 'Problems and solutions in lawyer-child communication' (1991) 15 Criminal Law Journal 193; M Brennan 'The discourse of denial: Cross-examining child victim witnesses' (1995) 23 Journal of Pragmatics 71; M Brennan & R Brennan Strange Language: Child Victims Under Cross-Examination 3rd ed Charles Sturt University Riverina 1988.

[284] See para 14.21 for a discussion of problems of interviewing techniques and children's answers.

[285] see E Levy Examination of Witnesses in Criminal Cases Thompson Professional Publishing Ontario 1991, 235. This publication is designed to be a guide for young lawyers on how to conduct the examination of witnesses. The author specifically proposes the use of these techniques when questioning child witnesses, using the child's subsequent confusion to trigger assumptions that children are unreliable, untruthful, inaccurate witnesses.

[286] H Taylor, DPP Qld IP Submission 102; Royal Children's Hospital, Minutes of Meeting 29 July 1996.

[287] M Brennan & R Brennan Strange Language: Child Victims Under Cross-Examination 3rd ed Charles Sturt University Riverina 1988, 3.

[288] Confidential Public Hearing Submission Brisbane 31 July 1996.

[289] eg Royal Children's Hospital Minutes of Meeting Brisbane 29 July 1996; Darwin Practitioners' Forum 16 July 1996; J Evans IP Submission 59.

[290] M Brennan 'The discourse of denial: Cross-examining child victim witnesses' (1995) 23 Journal of Pragmatics 71, 72.

[291] One young person who spoke to the Inquiry stated that while giving evidence he felt most unprotected from the crown prosecutor: Confidential Minutes of Meeting Sydney 5 November 1996.

[292] eg Acts Amendment (Evidence of Children and Others) Act 1992(WA) s 106A.

[293] National Legal Aid DRP Submission 58; National Children's and Youth Law Centre DRP Submission 59; Law Council of Australia DRP Submission 84; NSW Government DRP Submission 86.

[294] The Evidence Act s 29(2) permits this upon application by the party calling the witness. There are special circumstances where a child should be permitted to give evidence in narrative format: see paras 14.125, 14.126.

[295] J Benfer, E Drew & K Shepherd IP Submission 119; L Gunawan IP Submission 135. S Castell-McGregor IP Submission 152; Anonymous IP Submission 180; SA Victim Support Service IP Submission 185; J Mogridge & M Hood, Women & Children's Hospital Minutes of Meeting Adelaide 30 April 1996; T Donald, Women and Children's Hospital Public Hearing Submission Adelaide 1 May 1996; Royal Children's Hospital Minutes of Meeting Brisbane 29 July 1996.

[296] Brandy v HREOC (1995) 183 CLR 245; Dietrich v R (1992) 177 CLR 292.

[297] eg Evidence Act and Evidence Act 1995 (NSW) ss 26, 41; Evidence Act 1939 (NT) s 21B; Evidence Act 1977 (Qld) s 21(2); Evidence Act 1929 (SA) s 25; Evidence Act 1906 (WA) s 26; Evidence Act 1977 (Tas) s 103; Evidence Act 1958 (Vic) s 54.

[298] eg Vic Bar Rules of Conduct r 6.1; Qld Bar Association Queensland Barristers' Rules r 35(c); Law Society of NSW & NSW Bar Association Professional Conduct and Practice Rules Advocacy r 35; Qld Law Society Solicitor's Handbook para 4.08; Law Society of SA Professional Conduct Rules r 16.3(a); Law Society of the ACT Guide to Professional Conduct and Etiquette para 12.8(a); Law Society of the NT Professional Conduct Rules r 16.9; Law Society of WA Professional Conduct Rules r 13.8(a). See also Law Council of Australia National Professional Blueprint: Model Rules of Professional Conduct and Practice Proposed for Adoption in each Australian State and Territory Law Council of Australia Canberra 1997 r 17.21(c).

[299] Royal Children's Hospital Minutes of Meeting Brisbane 29 July 1996; Darwin Practitioners' Forum 16 July 1996; S Ryan Public Hearing Submission Parramatta 7 August 1996.

[300] M Aronson & J Hunter Litigation: Evidence and Procedure 5th ed Butterworths Sydney 1995, 742; Ministerial Advisory Committee on Equity Matters DRP Submission 41.

[301] R Pattenden Judicial Discretion and Criminal Litigation 2nd ed Oxford University Press Oxford 1990, 116.

[302] A Kapardis Psychology and Law Cambridge University Press Cambridge 1997, 97.

[303] eg I Wallace IP Submission 85.

[304] Confidential Public Hearing Submission Brisbane 31 July 1996.

[305] Victim Impact Statements have been criticised, particularly in homicide cases, as an attempt to place different values on the lives of different victims and a suggestion that such values should influence the sentence that a person receives: see J Curtin & A Dean 'Judge slams flawed victims law' The Sydney Morning Herald 28 May 1997.