Child Witnesses (ACT)
It is not unusual for a child to give evidence in a criminal proceeding. This may be because the child is the alleged victim or because they witnessed the alleged offence. There are special rules relating to child witnesses to ensure they are protected throughout the court process and to minimize the trauma children suffer as a result of giving evidence. This page deals with child witnesses in the ACT.
When a child is called to give evidence, instead of being asked to take a formal oath or affirmation, the child will be asked to make a promise to tell the truth. If there is doubt that the child is mature enough to understand this promise, the child will be asked questions to establish whether they know the difference between truth and lies and whether they know that it is wrong to tell a lie.
If the child is found not to be competent to give evidence, they will not give evidence and any previous statements they have made will be precluded.
When a child gives evidence, the process is different to when an adult gives evidence.
In the ACT, any witness aged under 18 must give evidence via an audio-visual link unless the court directs otherwise. This generally means that the child will be in a different room within the courthouse and their evidence will be played on a screen in the courtroom. This means that the child does not have to be in the same room as the accused or be subjected to the formalities of the courtroom.
Where a child is the alleged victim of a sexual or violent offence, their evidence may be presented to the court in the form of a recording of the interview they did with the police. This avoids the need for the child to repeat their story. The child will still be required to undergo cross-examination (via audio-visual link).
When a child is required to undergo cross-examination in sexual offence proceedings, their cross-examination may be pre-recorded. This means that the child will be subjected to cross-examination before the trial and will not have to attend the trial.
Perceptions of child witnesses
In the past, children were commonly viewed as unreliable witnesses, with perceptions that children were suggestible and that their evidence was often inaccurate. The law used to require judges to warn juries that it was dangerous to convict on the uncorroborated evidence of a child, even where the child had been found to be capable of giving evidence under oath. This meant that in child sex cases, where the uncorroborated evidence of a child was often the only evidence, juries often acquitted.
More recently, it has been recognized that children have greater cognitive and recall skills than they have historically been given credit for and that even very young children can often remember large amounts of information. However, as with adults, their memories of events deteriorate over time.
Warnings about child witnesses
In the ACT, judges are now explicitly prohibited from warning juries that children are an unreliable class of witness or that the evidence of children is inherently less reliable, or credible, or requires more scrutiny than that of adults (section 165A of the Evidence Act 2011).
Judges are also prohibited from giving a warning about the unreliability of the evidence of a particular child solely because of the child’s age and from giving a warning about the danger of convicting on uncorroborated evidence of a child.
However, a judge may give a warning about the unreliability of the evidence of a particular child for particular reasons. They may warn the jury about the need for caution in deciding whether to accept the evidence of a particular child if there are circumstances (other than the child’s age) that warrant this warning.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.