Child Witnesses: The New South Wales Experience
CHILD WITNESSES: THE NEW SOUTH WALES EXPERIENCE
Justice James Wood AO
Chief Judge at Common Law
Supreme Court of New South Wales
A paper presented at
The Australian Institute of Judicial Administration:
CHILD WITNESSES – BEST PRACTICE FOR COURTS,
District Court of New South Wales, Parramatta,
Friday 30 July 2004
I am not at all sure that I can speak of the New South Wales experience as representing best practice at this stage.
Almost inevitably, and sadly, when we come to this topic we are principally concerned with children who are required to give evidence in criminal cases, particularly sexual assault cases. Obviously this is an area that arose for consideration during the paedophile segment of the Royal Commission into the NSW Police Service. More recently it became the subject of examination in NSW by the Legislative Council’s Standing Committee on Law and Justice.
So far as he will deal with the Specialist Child Sexual Assault Jurisdictional Pilot Project, which was introduced in 2003, I do not want to cover the same ground as that which is the subject of Lloyd Babb’s presentation. Rather I thought it more relevant to articulate, at the beginning of this seminar, those areas where particular difficulties exist in relation to child witnesses, and to identify briefly the steps that have already been taken, independently of the pilot project, or which it seems to me still need to be addressed.
In no particular order the areas for interest include the following:
1. The obtaining of an accurate and prompt account by a child witness, free of external influence, and before the memory becomes faded, or embellished, or affected by subsequent influences.
The key to the presentation of reliable evidence from children lies in its initial collection, and preservation. This has not always been appreciated by police, or by social workers who have been called in to investigate complaints.
The Royal Commission turned up numerous cases where lack of attention to detail, or over zealous encouragement, or a simple inability to understand how to speak to, and to obtain information from a child, hopelessly compromised the collection of the evidence.
Specialisation and training in the difference between eliciting facts, and in using a form of questioning that suggests a desired answer, or involves an embellishment is critical. In NSW that has, to some degree, been met, at least in the child sexual assault field, by the establishment of the Child Protection Enforcement Agency, whose members are specially trained.
The problem continues since insufficient attention has been given to the circumstance that, ideally, there should be one comprehensive debriefing, and not multiple interviews by different agencies. Sometimes this is inevitable where a medical practitioner, or social worker, or other person associated with care or Family Court proceedings, may need to intervene in a case of urgency.
What seems to me to be important for the debriefing, is that those responsible be in possession of as many background and surrounding circumstances as can possibly be independently gathered. Otherwise, there is a terrible risk of the child being misled by questions for which the factual basis is incorrect, but which the child might accept and then modify an account, out of respect for the position of the interviewer. How often is it that a child gets forced into a precise time frame, or place, by a zealous interviewer who has not checked the facts or understood that, for children, times and dates are of little moment?
I strongly favour the use of a video recorded interview for the initial debriefing, and I similarly favour its use at trial, that is, provided the interviewer is in command of the case, does not seek to push a particular line or prejudice, and is sufficiently trained to deal with the child in a way which is comfortable and age appropriate.
Accordingly, I support legislation that permits the initial interview to be recorded and used as the evidence in chief of the child. This can now be done in NSW pursuant to ss 9 and 11 of the Evidence (Children) Act 1997, subject to compliance with the Regulations made under the Act, which require the Prosecution to give notice of its intention to tender the recorded interview, and to allow suitable access so that the accused and his or her lawyer can listen to, or view, the recording in advance of the trial.
The Act also allows the evidence of children (persons under the age of 16 years) to be given orally in the courtroom, or by closed circuit television in the case of the proceedings to which the relevant part (Part 4) applies, that is, proceedings concerned with personal assault offences or apprehended violence orders.
Suggestions have been made as to the desirability of the accused or opposing party being able to participate in the initial interview. I would oppose any such entitlement, as it would convert the initial debriefing into an adversarial event, and hinder full and fair closure.
The right to cross-examination at trial, and the required jury warning (s 14) not to use the fact of pre recording, as giving rise to any inference adverse to the accused, or as either elevating or decreasing the weight of the evidence, provides a suitable safeguard.
I am not entirely convinced by recommendations that would require the entirety of the child’s evidence to be taken pre-trial and recorded, so as to avoid the potential stress of being confronted at trial by the accused, and a jury, although I would defer to the evaluation of those who have experience of trials being conducted in this fashion. I can appreciate the advantages in taking the evidence while it is fresh, and bringing the complainant’s participation in the proceedings to finality as soon as possible in order to allow the child to move on, and also to receive prompt therapy and counselling, without the risk of it tainting the evidence. Nevertheless there is a potential for unfairness in the event of new evidence emerging, which may assist an accused, but could not be used at trial to challenge the child’s evidence unless leave was given. Any such scheme would seem to depend upon full and timely disclosure of the Prosecution case.
I would, however, strongly support the video recording of any evidence which is given at trial, plus the pre-recorded evidence in chief being tendered at a retrial, without the need for the child to be recalled. In such a case any portion of the evidence that was held inadmissible on appeal could be edited.
2. The use of CCTV, screens and other alternatives
In New South Wales, as I have observed, children are entitled in the case of proceedings to which Part 4 of the Evidence (Children) Act applies, to give the evidence by CCTV or similar technology (section 18 of the Act), either from a location within or external to the court (section 20) if they so wish.
The court can order that evidence not be given in this way but only if it is satisfied that it is not in the interests of justice for it to be done, or if the urgency of the matter makes it inappropriate.
Identification evidence cannot be given by CCTV or similar technology (s 21), although the consequent potential stress thereby arising is ameliorated by the requirement that the court ensure that the child is not in the presence of the accused for any longer than is necessary, when giving the identification evidence.
There is a requirement, where evidence is given by CCTV, or by similar technology, that the persons who have an interest in the proceedings be able to see the child (and any person present with the child) on the same or another TV monitor.
Where CCTV or similar technology is not available, or where the child does not wish to use that medium, or where the court orders that it should not be used, then the court is required to make alternative arrangements in order to restrict contact (including visual contact) by the use of screens or planned seating arrangements (s 24). Again the child may elect not to use these alternatives.
Where CCTV or alternative arrangements are used, a similar warning for pre-recorded evidence needs to be given, along with an explanation that the procedure followed is standard practice (s 25).
3. Support persons
In proceedings to which Part 3 of the Evidence (Children) Act applies, the child is entitled to choose a support person to be nearby while giving evidence. Such person may include, but is not necessarily confined to, a parent, guardian, relative, or friend, and that person may sit with the child as an interpreter, for the purpose of providing assistance where difficulty in giving evidence might arise which is associated with a disability, or for the purpose of giving other support.
This kind of provision is helpful, although there is a nice line to be drawn between the support person prompting and correcting the witness, and intervening where there is a genuine difficulty in understanding or in expression. The advantage of a parent or close relative having sufficient familiarity with the child to recognise that the witness is out of his or her depth, or that the words used are not words that the witness will understand, can outweigh the personal interest of the support person, depending upon that person’s sense of responsibility and acceptance of the obligations attaching to the role.
Proposals have also been developed for ongoing legal representation for child complainant/witnesses during trials, although precisely what that role should be, that is, if it extends beyond ensuring that they have access to appropriate information as to their rights, and the course of the proceedings, is unclear.
4. Cross-examination where the accused is Unrepresented
Where the accused or a defendant is charged with a personal assault offence, and is unrepresented, then that person is unable personally to examine, cross-examine or re-examine, any child witness called in the case, but may have that done through a person appointed by the Court (s 28 Evidence (Children) Act). The person so appointed can only ask the questions that the accused or defendant requests, and cannot give any legal or other advice.
A similar provision now applies to other serious sexual assaults by reason of section 294A of the Criminal Procedure Act, and it became somewhat contentious in a recent trial, where the accused refused point-blank to allow the court to appoint a person to conduct the cross-examination of the complainant.
This form of provision raises difficult questions as to:
(i) the selection of an appropriate person, who need not be a qualified legal practitioner;
(ii) whether the court can decline to appoint an inappropriate intermediary, such as a convicted criminal or a close friend or relative of the accused;
(iii) whether the person can decline to ask questions that would be offensive, irrelevant or otherwise objectionable;
(iv) how the accused can be prevented from exploiting the provision and attracting jury sympathy by way of assertions as to unfairness or racial prejudice.
5. Committal
The potential for the emergence of inconsistency in detail, the potential significance of which may be overrated by jury, and the trauma of being exposed to more than one cross-examination, without much value being added, which formerly existed where lengthy committal hearings were held, has fortunately passed. In New South Wales, paper committals are now the norm, and child sexual assault complainants are exempted from having to attend committal proceedings (s 91 Criminal Procedure Act).
6. Court intervention
Under the Evidence Act, the court has the power to disallow a question, or to inform a witness that it need not be answered, if the question is misleading, or unduly annoying, harassing, intimidatory, offensive, oppressive or repetitive (s 41). In exercising that power, the court can take into account any relevant conditions or characteristics of the witness, including age, personality, education, or mental, intellectual or physical disability. Recommendations have been made that would require courts to take special care to protect child witness from harassment or embarrassment, to make certain that the questions are age appropriate and not to allow unnecessary repetition.
The careful exercise of this power, and proper control of the cross-examination of child witnesses, has not always been well managed by judges, who very often have felt reluctant to interfere, particularly in the absence of an objection. This may well have arisen from lack of experience, or training, or even attention, on the part of trial judges to the inherent disadvantages of child witnesses. It is a matter which requires careful consideration, and vigilance to intervene when questions are put that are age inappropriate, or overly complex (involving for example double negatives), or unduly offensive or aggressive.
For similar reasons, related to the reduced attention span of children, and the respect that they are accustomed to extending to their elders, judges need to be astute to step in and provide breaks, when attention seems to wander, or where the child seems too ready to acquiesce in anything that is put. Particularly is this so if it appears that the child is willing to give any answer in order to end the ordeal.
A related area where the court has a role to perform is for it to provide suitable child friendly facilities, which can ensure separation from the accused, and to adopt hearing practices that can minimise the stress of waiting to give evidence.
Similarly of importance is the need for the establishment of a witness liaison service of the kind that was created in the United Kingdom and Scotland, in recent years, and for prosecution authorities to ensure close communication and consultation with complainants and their families in relation to important decisions concerning the abandonment of charges, or the acceptance of pleas to lesser charges and so on.
7. Competency to give sworn evidence
Competency has raised its head in New South Wales, in that judges have sometimes failed to give sufficient attention to the circumstances which determine respectively whether the child is competent on the one hand to give sworn evidence, or on the other hand, competent to give unsworn evidence.
The question is not one to be decided on the basis of age alone, there being no presumption either way under the New South Wales law that is dependent on that factor. Rather, there has to be a careful inquiry before the witness gives evidence as to whether:
(i) the child is capable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence (sworn) or;
(ii) the child understands the difference between the truth and a lie, and, when asked, indicates by an appropriate response that he or she will not tell lies (unsworn).
Interesting questions arise as to the manner in which a judge should determine these questions, and as to whether reference to external testing or to expert opinion should be admissible. The reaching of a correct decision is important since permission to allow a witness to give unsworn evidence where he or she should have been sworn, will give rise to a fundamental, and fatal defect in the trial: R v JTB [2003] NSWCCA 295 and R v Brooks (1998) 44 NSWLR 121.
8. The silent accused
Without suggesting that the right to silence should be abrogated in any general sense, I retain a considerable sense of unease that, in cases involving child victims, the accused can cross-examine them vigorously as to the truth of the allegations, and their credibility, yet remain silent.
Two options are worthy of legislative consideration, either to:
(i) make it a condition of cross-examination of the child witness, that the accused give evidence, or at least to limit the kind of questions that can be put so as to exclude, for example, unsupported allegations;
(ii) permit a qualified comment to the effect that, where the Crown case depends upon the version of the child witness, whose veracity has been challenged, then the jury can properly take into account when judging that witness's evidence, the fact that they have not heard the version of the accused, nor seen it tested.
In this context I retain a concern as to the impermissible raising before a jury of the question "why would the complainant lie" (that is unless it has been ventilated in the cross-examination or defence case, as a matter going to motive). The legal basis for it, which relates to the fact that the onus of proof rests upon the Prosecution, can be readily understood. Nevertheless, the reality is that it is the very question which, arising out of their own exprience of life, the jury will inevitably ask of themselves.
This is particularly cogent where the accused has not entered the witness box, yet has vigorously challenged the complainant, although without venturing into motive.
9. Expert evidence concerning child witnesses
This has become relevant in two possible areas because of the limited knowledge, of at least some segments of the population, concerning children. First, there is the circumstance that very often children will truthfully describe a penetrative assault without any medical injury having been observed. An understanding of why this may be the case depends upon an informed understanding of the physical aspects of sexual assault, including matters of anatomy and healing processes which can be very rapid in the case of children.
Secondly there is the circumstance that, by reason of their restricted vocabulary, or embarrassment, or parental instructions, children will often use play words to describe the human genitals and may be somewhat ignorant of the relevant anatomical structures, as well as sexual activities involving them. Without care, and an appreciation of the problems that children can have in these respects, there is always a risk of the evidence being misunderstood. This does, however, have a wider dynamic in that there is accumulated knowledge and expertise available in relation to the diagnosis of child sexual assault, and of human sexual behaviour, and also in relation to the circumstances in which complaints may be made or alternatively withheld (that is, victim response) which is not apparent to most lay persons.
The possible admissibility of general expert evidence of this kind, which has normally been excluded, is worthy of closer consideration for cases involving child sexual assault. Otherwise there is always a danger of insufficiently informed juries bringing to their determination of these cases, their own prejudices, sexual orientation and experiences, or beliefs founded in the myths, which do surround conduct of this kind.
10. Jury directions with a particular impact for the evidence of children
Existing case law places a number of constraints in the way of trials that depend upon the evidence of child witnesses, which are worthy of review, and possibly of legislative intervention. In particular the multiplicity of the directions which are required, as summarised in R v BWT [2002] 54 NSWLR 241, and the fact that they are framed in terms which could only have been devised by lawyers, and which are potentially puzzling for a lay fact finder, are of concern.
(a) The Murray warning
The effect of the Murray direction (R v Murray (1987) 11 NSWLR 12) is that where there is only one witness asserting the commission of the crime, the evidence of that witness is to be scrutinized by the jury with great care before returning a verdict of guilty – whatever that might signify to a jury which has already been instructed not to convict unless satisfied beyond reasonable doubt.
(b) The Proper Separation of Relationship and Tendency/Coincidence/Guilty Passion Evidence
The authorities in this area are neither consistent nor easily capable of being reconciled, since the evidence of a wider range of sexual assaults concerning a child witness, or other children, may become admissible as:
(i) Coincidence evidence, that is, evidence of the occurrence of two or more related events which is tendered to show, because of the improbability of their occurrence being coincidental, that the accused did a particular act, or had a particular state of mind - in which case, subject to passing the various threshold tests under the Evidence Act, it can be received as evidence going towards the truth of the acts charged;
(ii) evidence going to explain the nature of the relationship between the accused and the complainant, so that the jury can better understand the context of the incidents charged, but not as proof of the truth;
(iii) tendency Evidence, that is, evidence designed to show that an accused has or had a tendency to act in a particular way, or to have a particular state of mind, which again subject to the Evidence Act threshold tests, can be received as proof of the truth of the acts charged;
(iv) evidence in rebuttal of good character.
See Gipp v The Queen (1998) 194 CLR 106 and R v BWT.
The capacity of a child witness to understand these distinctions, or of a jury for that matter, is doubtful in the extreme, and a question arises as to whether they should properly be drawn in this area of human behaviour, or are unduly artificial. Commonly trial counsel and judges fail to exercise sufficient care in determining the basis upon which evidence of this kind is tendered and admitted, and in explaining their limitations to the jury.
Proposals have been developed in relation to the admissibility of tendency and relationship evidence where it is relevant to the facts in issue, which would extend the range of matters relevant for consideration to include not only considerations of unfair prejudice, but also public interest considerations. There may be merit in their extension.
For a recent illustration of the problem that arises see R v Barton [2004] NSWCCA 229.
(c) The Longman/Crampton Direction
The Longman/Crampton (Longman v The Queen (1989) 168 CLR 79 and Crampton v The Queen (2000) 75 ALJR 133) directions to the effect that it would be unsafe or dangerous to convict on the uncorroborated evidence of the complainant where there has been delay in complaint, unless after careful scrutiny the jury was satisfied of its credibility, and that such delay has meant that the accused was unable adequately to test and meet the evidence, are problematic.
I adhere to the concern that I expressed in R v BWT that the irrebuttable assumption, which underlies Longman, has an area of illogicality. The assumption that the delay in making a complaint means that the accused was unable adequately to test and meet the evidence, may be correct where the accused has lost the opportunity to establish an alibi, or to find witnesses or records that may have assisted the defence. It may even have that effect where the complainant’s evidence lacks specificity, such that it cannot be tested.
However, it does not inevitably have that effect, and clearly it does not disadvantage the accused, where he was in fact guilty, or where there never was any evidence available that may have assisted the defence. In such an instance the direction is in fact misleading if not erroneous.
I would prefer that the direction be given in terms of a possibility of forensic difficulties having been occasioned, or that it be confined to cases where there is some positive evidence of disadvantage.
(d) The Crofts Direction
I also consider problematic the requirement that judges balance the explanation that evidence of failure to complain of an assault at the earliest reasonable opportunity was untrue, with the Kilby direction that the jury can take the delay into account, as reducing the witness’s credibility (Crofts v The Queen (1996) 186 CLR 427).
Experience shows that the assumption that victims of sexual assault will complain at the earliest possible opportunity is at least questionable in the case of children. There are many reasons why this is so, and there is room for the view that the balancing direction entirely negates the instruction which was intended to reform the law, and may even convert the dilatory child complainant in sexual assault cases into an especially untrustworthy class of witness. For a recent illustration see R v LTP [2004] NSWCCA 109.
I would prefer to see the balancing direction confined to those cases where there is at least a prima facie basis for suggesting that the delay was a sign of a want of credibility, for example where there is an absence of any evidence suggesting a reason for it.
(e) The KRM Direction
This requires the jury to be instructed that except where the evidence relating to one count charging sexual assault is admissible in relation to another count alleging a separate assault, the jury must not take it into account in relation to the other count as evidence going to the fact of its commission (KRM v The Queen (2001) 75 ALJR 550). However where they have a doubt concerning the credibility of the witness’s evidence on one count, they can take that doubt into account when they consider that person’s evidence on the other count, a direction which surely is designed to confuse, and is barely understandable by a lay person.
(f) The Mitchell Direction
This requires the judge to direct the jury that they cannot use the evidence of one complainant to assist in the determination of a charge that relates to another complainant (unless permitted as tendency/coincidence evidence), even though the accused can seek to use the evidence globally in trying to establish inconsistencies, between the witnesses, in areas where otherwise one might expect to see common features, or in suggesting collaboration (R v Mitchell NSWCCA 5 April 1995).
In this respect recent proposals have raised the possibility of a presumption for multiple complaints to be tried together, without any such limitation.
(g) Neutral Medical Examination
It is recognised that a medical examination of a child who claims to be a victim of sexual assault may turn out to be neutral. The tendency of medical examiners to give evidence to the effect that the finding was “consistent” with the complaint is problematic and involves a degree of looseness of expression, even if it is literally correct. Cross-examination to secure a concession that nothing was observed of an incriminating nature is also likely to leave the jury with a false impression, unless they have some experience in the field.
It seems to me that the proper course in the case of a neutral examination which can neither exclude or include an allegation of assault is better not called. One of two courses may be taken: the parties may consent to the trial judge directing the jury not to attach any attention to the absence of the evidence, or the defence might undertake not to comment on its absence.
(h) The ways in which complaint evidence can be put and the hearsay rule
Questions do arise as to the appropriateness of maintaining the test, as to recency or freshness of complaint, which has been developed as determinative of whether the complaint goes to the truth of the matter asserted or as to consistency and credibility, in the case of child witnesses where there are well recognised factors that can cause children to delay making a complaint. Moreover the current law is fraught with potential difficulties related to the difference between evidence of complaint admitted under s 66 of the Evidence Act and evidence of prior consistent representations admitted under s 108(3), and to the possibility of jury confusion where both kinds of evidence are led in a particular case.
(i) The Jones v Dunkel direction
Concern must exist as to the inability, or at least reluctance, of courts giving a Jones v Dunkel direction in a case involving children as witnesses, where the accused has suggested that there are witnesses who could support his case, yet has not called them and has provided no reason for not doing so (Dyers v The Queen (2002) 76 ALJR 1552 and R v Zreika [2001] NSWCCA 57.
11. Pre-Trial Defence Disclosure
Cases involving the sexual assault of children, which depend heavily on the word of the complainant, lend themselves particularly well to the defence approach of pre trial silence and even of trial by ambush. Rarely does the Crown know in advance whether the issue for trial is whether the act occurred at all, identification, or otherwise. The time may be ripe for re-examination in this area.
12. The Specialist Child Sexual Assault Jurisdictional Pilot
In essence the pilot envisages the following:
(i) child complainants giving evidence via CCTV from a secure remote witness facility;
(ii) the provision of specialist training for judicial officers;
(iii) the provision of child friendly facilities;
(iv) the admission of pre-recorded statements;
(v) pre-trial hearings to ensure readiness and to resolve admissibility questions.
While many of these initiatives were already available and supported by legislation, there was a lack of sufficient facilities or equipment in many courthouses, as well as a degree of judicial and practitioner reluctance to use them. In many instances the quality of the equipment provided was poor, and technical glitches were common, which in turn led to its disuse.
Left unaddressed, at this stage, has been the wider use of judge only trials, which might make more acceptable any relaxation of the rules and requirements for warnings of the kind previously mentioned, and might also be more attractive in the case of a specialist tribunal.
Evaluation of the NSW pilot will be important since overseas experience with specialist tribunals has tended to suggest that they can reduce disposition times, and stay rates (a matter of some importance for high profile cases or those that have attracted a great deal of publicity), can lead to an increase in pleas and conviction rates, and can also reduce child witness trauma.
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