Child Witnesses in Criminal Matters

Children may be called to give evidence in court in some circumstances. This most often occurs in criminal law matters. A child may give evidence about a crime that was committed against them or a crime that they witnessed but were not involved in. This article deals with child witnesses in criminal matters in Queensland.

Child witnesses are special witnesses

Children do not give evidence in the same format as adults. They are classed as special witnesses, meaning that protective measures are in place to offer them extra protection and support. Giving evidence can be daunting and intimidating, and the special witness provisions are designed to limit the trauma to the child that results from giving evidence. This is particularly important in matters where the child is the alleged victim.

Extra considerations for child witnesses

There are extra considerations required when it comes to child witnesses, as follows:

1. How the evidence is obtained;
2. How evidence is presented; and
3. Whether they are competent to give evidence;

These issues are detailed below.

Is the Child witness Competent to Give Evidence?

Prior to any consideration being given to how evidence is obtained, the court must first be satisfied that the child is competent to give evidence. This also goes for any witness who is to give evidence in court.

The legislation provides that all persons are assumed to be competent to give evidence unless there is a reason that they are not. The prosecution or the defence can raise any concerns they have with respect to the competency of a witness, and competency must be established prior to the witness giving evidence.

With respect to children, the court must be satisfied that the child witness understands what it means to tell the truth. The court must establish that the child can distinguish the truth from a lie.

Taking evidence from a child witness

Evidence is obtained from children differently to adults.

The evidence-in-chief of a child is obtained by police at an early investigation stage of the matter and prior to charges being laid. The police will ask questions of the child in a child-friendly manner and allow the child to answer. The conversation will be video recorded so that all parties to the proceeding can see and hear the child giving their evidence. This recorded evidence is then referred to as a ‘93A statement’.

The 93A statement is then later played in court as the evidence-in-chief of the child witness, rather than the witness attending court and telling their version of events on the day, as an adult would. This allows the evidence-in-chief to be provided in a less formal manner and for the experience to be less traumatic for the child involved.

The defence has the opportunity to cross-examine all witnesses in a contested criminal matter in order to challenge the evidence and expose inconsistencies. Cross-examination of prosecution witnesses aims to raise a reasonable doubt about the allegations. If the court is satisfied that there is reasonable doubt, then the accused cannot be found guilty.

The cross-examination of a child witness is also pre-recorded. However, this is done in court. The child is in another room, and the judge, prosecution and defence are in the courtroom. The child appears by video link and is asked questions by the prosecution and defence. The child cannot see the accused. The cross-examination is recorded and is referred to as ‘pre-recorded evidence’.

The pre-recorded evidence is then edited and played before the judge and jury when the trial commences. Editing of the 93A statement and pre-recorded evidence is agreed upon by the prosecution and defence prior to the trial commencing. This is done to remove any irrelevant commentary, or comments made that are contrary to the rules of evidence and could prejudice the defence.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.