In criminal matters, it is common for witnesses to be called to give evidence orally. Witnesses may be called to give evidence about something they saw, heard or otherwise perceived in order to assist the court in determining the guilt or innocence of an accused person, to resolve a factual dispute or even in relation to the sentencing of a person who has been found guilty of an offence. While the vast majority of witnesses are adults, child witnesses can give evidence in criminal proceedings too. However, they can only do so if they are both a ‘competent’ and a ‘compellable’ witness.
There are a number of legislative provisions and procedural practices that govern the way in which children give evidence. There are additional procedures and safeguards in place to protect children who are alleged to be victims of crimes. As well as being the alleged victims of offending, children can become witnesses in order to provide evidence in relation to an alleged criminal matter that does not involve them.
Competence and compellability
Pursuant to section 13 of the Evidence Act 1995, all persons are presumed to be ‘competent’ to give evidence unless they do not have the capacity to understand a question about a fact or do not have the capacity to give an answer that can be understood about a fact (because of their age, an intellectual disability or any other reason).
A person will not be competent to give evidence if that incapacity cannot be overcome, for example, through the use of breaks, simple language when asking questions or through the use of a different method of giving evidence. Further, it is important to note that a person may be competent to give evidence about some facts but not others.
Sworn and unsworn evidence
There is a further distinction that may arise in relation to child witnesses. This distinction is the distinction between competency to give sworn evidence, and competency to give unsworn evidence. Where a person does not have the capacity to understand that they are under an obligation to tell the truth when giving evidence, they may give unsworn evidence provided the court has told the person that:
- It is important to tell the truth;
- They may be asked questions they do not know or cannot remember the answer to and if this occurs they should tell the court such; and
- They may be asked questions that suggest certain things are true or untrue and they should agree with statements that are true and should feel no pressure to agree to statements that are untrue.
Reliability of evidence of child witnesses
Many people presume that the evidence of a child is not as reliable as the evidence of an adult. However, the law does not recognise this as a strict rule. Indeed, a judge presiding over a trial must not do or say anything to suggest to the jury that, generally speaking, evidence of children is unreliable or less reliable than that of adults.
This is not to say that the evidence of a child must be considered to be reliable, just that it is not necessarily less reliable just because it is the evidence of the child. The reliability of a child’s evidence can be assessed in the same way as any other evidence including by comparing it to any prior consistent or inconsistent statements, considering any corroborating evidence, the answers themselves or the demeanour of the witness.
Practical measures for child witnesses
A number of legislative provisions have been implemented to reduce the stress and difficulty that may be associated with children giving evidence. The court will be closed to the public anytime a child gives evidence. This means only the Magistrate or Judge, the accused person, court staff, a support person or the victim’s family may be present in court. A range of suppression or non-publication orders also apply which prohibit the name or information that may identify a child who is an alleged victim or witness from being published.
A child witness can give evidence from a remote room within the court precinct, rather than from in the courtroom itself. The child will appear by way of a video link and will be able to see the magistrate or judge and the lawyers at the bar table. They won’t usually be able to see the accused person.
A child who is an alleged victim of a sexual offence may be able to give their evidence by way of pre-recorded evidence. The pre-recorded evidence will be taken in the courtroom, often with the child appearing from a remote room. The pre-record will usually be carried out months in advance of any trial, and much closer in time to the date of any alleged offending than if the child had to wait for the trial to commence in order to give evidence.
In some cases, a witness intermediary will be utilised by the court. A witness intermediary is a professional who can speak with a child witness, assist them in understanding the court process and make recommendations to the Judge and legal representatives to make it easier for the child to give evidence. Recommendations may include asking counsel to remove their robes and wigs, suggesting regular breaks, requiring counsel to ask questions in a certain way or to use certain words.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.