OVERVIEW

7.1 Despite a finding of fitness to be tried (in the case of an accused) or of competence (for a witness), people with an intellectual disability may still be significantly disadvantaged giving evidence in court, through communication difficulties or lack of understanding of the court process. This chapter will analyse existing and proposed procedures to assist a person with an intellectual disability to give evidence in court. The chapter first considers general issues such as increasing understanding of the court process, the need for witness support, the use of interpreters, appropriate examination and cross-examination, case management options and the new provisions in the exposure draft of the Evidence Bill 1993 (NSW). The chapter then discusses special procedures for giving evidence (such as screens, closed-circuit television and videorecording) which have already been implemented for certain “vulnerable” witnesses, including, in some jurisdictions, people with an intellectual disability, and questions whether these should be extended in New South Wales. Chapter 8 will consider issues relating to the reliability of the evidence of the person with an intellectual disability, whether the accused or a witness, and the role of expert evidence. Many of the procedures discussed have been previously recommended for children, who are also considered to be particularly vulnerable in the criminal justice system. The Commission believes that it should not be assumed that alternate arrangements for children will automatically assist people with an intellectual disability, as the two groups have different needs, experiences and abilities.

UNDERSTANDING THE COURT PROCESS

7.2 A witness with an intellectual disability may have difficulty understanding the court procedure, their role in it, and overcoming the anxiety involved in giving evidence. Submissions have stated that greater effort is required to ensure that the court system is comprehensible to such witnesses.¹ Procedures for preparing the witness for the trial and supporting him or her in the court room are considered below. The questioning techniques which are used, particularly in cross examination, may also affect the witness’ ability to give evidence, and this is discussed further at paras 7.14-7.19.

Witness support - before court

7.3 In South Australia, the Police Department has prepared guidelines for its police prosecutors about intellectual disability² to allow them to assist witnesses to feel more at ease before giving evidence. The police prosecutors are encouraged to show witnesses through the court room, to explain what the witness should expect and to use the Court Companion service offered by the Victims of Crime Service.³ In New South Wales there have been several recent initiatives involving witness support. For example, the Office of the Director of Public Prosecutions (“DPP”) has established a Witness Assistance Service and prepared brochures about the court experience. The DPP has employed three counsellors to provide information and assistance to victims and witnesses, and to recruit community volunteers to provide additional assistance.⁴ The DPP has commented that social workers within the prosecution service are believed to be far more effective in dealing with victims and witnesses pre-trial than external social workers who do not understand the constraints of the law.⁵

7.4 A case study presented to the Commission commented on the efforts made by the DPP and one of the Crown Prosecutors involved to make a witness with an intellectual disability [“X”] feel comfortable and to gain X’s trust. Time was spent explaining court procedures and getting to know X’s communication skills. The DPP allocated an additional solicitor known to the witness for support throughout the trial, to overcome the difficulties caused by unavoidable changes in personnel, even though that solicitor was not directly involved in the conduct of the trial. The support continued after the trial.⁶ The submission commented on the need to prepare the witness with an intellectual disability before going to court, but noted the danger that, if this was not done properly, the preparation could be used to suggest the contamination of evidence. Though the submission commented that the DPP’s video for young people going to court was extremely effective for a child with an intellectual disability, it was suggested an appropriate video for adults should be prepared.⁷ Accused persons with an intellectual disability could also benefit from such a video.

7.5 There are also a variety of general witness support or “court companion” initiatives, largely provided by volunteers, attached to particular courts throughout New South Wales. These include services provided by the Redfern Legal Centre,⁸ by a number of church groups and by specific government agencies, such as the NSW Police Service.⁹ A community-based organisation, the CRC Justice Support Inc, operates a Court Support Scheme in 16 Local Courts.¹⁰ The Scheme’s volunteers offer emotional support for defendants, victims, witnesses, families or friends during the court experience and provide information on court procedure, the availability of legal and interpreter services and about welfare or other community agencies in the local area. They also make representations on behalf of clients to appropriate agencies. In six courts a domestic violence support service is also offered, but they do not have any specialist service for people with an intellectual disability.¹¹ The Commission is unaware of any witness support service with particular expertise in intellectual disability issues. Special programs for the preparation of child witnesses have been recommended.¹² Similar proposals would be helpful for the witness with an intellectual disability. (Witness support in the court room itself is discussed as part of the special procedures for vulnerable witnesses at paras 7.24-7.25 below.)

PROVISIONAL PROPOSALS FOR REFORM

27. The Office of the Director of Public Prosecutions, New South Wales should develop guidelines for preparing witnesses with an intellectual disability for court. A video explaining court procedures to adults with an intellectual disability should be produced.

CASE MANAGEMENT OPTIONS

Closed courts and adjournments

7.6 In court, a witness with an intellectual disability is likely to find giving evidence mentally exhausting and to lose concentration more quickly than a non-disabled witness. The Commonwealth Office of Legal Aid and Family Services suggested that frequent adjournments and closing the court during the giving of evidence by a witness with an intellectual disability might be valuable protections.¹³ In New South Wales the court can hear evidence relating to certain defined offences “in camera” (that is, excluding the media and the general public).¹⁴ This provision is used, for example, in many child sexual assault cases. Other jurisdictions have similar provisions. The Law Reform Commission of Western Australia (“WALRC”) has also recommended, where child witnesses were giving evidence, that courts should remain closed.¹⁵ This option may minimise stress for the witness but provides limited additional protection to the witness. The Commission believes that these issues should be left to the discretion of the courts and that no further proposal is necessary.

Expedition of cases involving people with an intellectual disability

7.7 A number of submissions have suggested the need to “fast track” cases involving people with an intellectual disability, whether a witness or the accused. The Redfern Legal Centre Intellectual Disability Rights Service (“IDRS”), for example, recommended priority listings, owing to the fact that many people with an intellectual disability have difficulty recalling events in sequential order after the event and the longer the delay between the event and the trial, the more difficult it was for the person to give their evidence.¹⁶ The Kingsford Legal Centre also commented that the time people with an intellectual disability spend in custody awaiting trial should be kept as short as possible, owing to their vulnerability in custody.¹⁷ The advantage of expedition of cases involving witnesses with an intellectual disability is that there is no disadvantage to the accused, other than the fact that delay can sometimes advantage the accused in dulling a (prosecution) witness’ memory.

7.8 Other submissions have commented on the need to minimise court appearances and delays, due to the difficulty for the person with an intellectual disability (whether the accused or a witness) in comprehending what is happening.¹⁸ For the accused with an intellectual disability, proceedings may have been considerably delayed by fitness issues. In New South Wales, so-called “paper committals” are now available¹⁹ for an “offence involving violence” to reduce the distress to the alleged victim in having to give evidence at both the committal and the trial. For such offences, the victim’s written statement is provided and the victim is not required to attend at the committal hearing unless the court is satisfied there are “special reasons” for oral evidence. This will reduce the number of court appearances and will remove the stress of giving evidence twice. The Commission proposes that matters involving an accused or a victim with an intellectual disability should be expedited wherever practicable, but seeks submissions from the agencies involved such as the NSW Police Service, the DPP, the Legal Aid Commission of NSW and the Department of Courts Administration about the logistical and other difficulties involved and how these may best be overcome.

PROVISIONAL PROPOSALS FOR REFORM

28. Matters involving an accused or a victim with an intellectual disability should be expedited wherever practicable.

THE LANGUAGE USED IN THE COURT ROOM: QUESTIONING AND “INTERPRETERS”

“Interpreters” for people with an intellectual disability

7.9 People who come from non-English speaking backgrounds or who are deaf often use an interpreter to give evidence in court. The use of interpreters for such people has been considered in detail.²⁰ The use of interpreters and communication boards to assist people with limited verbal speech, however, needs to be clarified.²¹ The New South Wales Sexual Assault Committee, for example, submitted that the right to an interpreter must be provided by legislation and extend to the use of communication translators.²² A person with an intellectual disability may not be able to communicate in a conventional manner, but may be able to use simple sign language, a communication board, or a combination of speech, gestures and pointing to symbols (for example, “Compic” symbols) to communicate. A person familiar with the means used can “interpret” the answers of the witness.²³ Alternatively the person may not need to use such methods as a communication board, but his or her language may still be limited or hard to understand. It has therefore been argued that appropriate support people should be recognised in the same way as a court interpreter in those cases.²⁴ The Canadian Roeher Institute commented that support:

may be especially important for witnesses who have a severe intellectual disability. Often these persons have limited use of language, and can only be understood by those familiar with their speech patterns and vocabulary. They may also have difficulty understanding strangers and may need someone to interpret counsel’s questions.²⁵

The Institute, however, also recognised the possibility of bias (actual or perceived) where a close relative acts as the interpreter of a victim in a criminal trial. This is a difficult issue as only someone well known to the person (usually a family member or a carer) may be able to provide the interpretation needed.²⁶ Difficulties also arise because each person’s method of communication may be different, depending upon their level of disability and, in some cases, the effect of an additional physical disability.

7.10 Currently there is no general right to an interpreter in court; the decision to provide one or not is a matter of judicial discretion.²⁷ In a criminal trial, fairness to the accused is paramount; both the accused and the judge/jury must be able to hear and understand a witness’ evidence.²⁸ The Commission is not aware of any cases where the role of an “interpreter” for a witness with an intellectual disability has been considered. However, a conviction for rape was upheld in a 1907 case²⁹ after the mother of a complainant of “weak intellect” repeated unintelligible parts of her testimony for the benefit of the judge. She was not required to have been sworn as an interpreter. The situation of deaf and mute witnesses has been raised by way of analogy, though the two are not directly comparable, as the low level (or complete absence) of spoken language for a person with an intellectual disability involves more than a physical disability. The use of an interpreter to explain the court proceedings in general to a deaf and mute applicant (rather than to just translate questions and answers involving the applicant) was recognised by the New South Wales Court of Appeal in a civil matter, where Kirby J noted that the entitlement to due process of law:

... normally includes an entitlement to be informed, in a language which the litigant understands, of the nature of the case. Where the litigant cannot communicate orally in English it also normally includes, in my opinion, the entitlement to the assistance of an interpreter.³⁰

While such rulings do not directly provide for special “interpreters” to be used for witnesses whose intellectual disability affects their ability to communicate and understand proceedings, they provide a strong policy argument for their use.

The Evidence Bill

7.11 Following the recommendations of the Australian and New South Wales Law Reform Commissions³¹ the use of interpreters is now contained in the exposure draft of the New South Wales Evidence Bill 1993 (“the Bill”), which, if passed by Parliament, will replace the present Evidence Act 1898 (NSW). The Commonwealth has already introduced into Parliament its Evidence Bill 1993, which is in almost identical terms to the New South Wales Bill, to ensure uniformity between the treatment of federal and state offences. The provisions in relation to interpreters are found in cl 31-32 of the New South Wales Bill,³² which are set out in full in Appendix C. In brief, the Bill provides a general right to a witness to give evidence by an interpreter, provided that he or she cannot “understand and speak English sufficiently to enable the witness to understand, and to make an adequate reply to, questions”. This creates a presumption in favour of the availability of an interpreter, though the decision rests with the court, not the witness. Further, witnesses who cannot either hear and/or speak adequately may be questioned or give evidence by any appropriate means, which presumably would include the use of recognised communication systems.

7.12 Some witnesses with an intellectual disability may have speech that is impaired to the degree that they cannot make adequate replies in English. The level of speech incapacity required before an interpreter can be used, however, would seemingly preclude the assistance of people playing an essentially supportive role. The Commission supports cl 31-32 of the Bill but seeks submissions about whether any further provisions are necessary to encompass the range of communication techniques used by people with an intellectual disability. The Commission also seeks further information about the numbers of people with an intellectual disability who may require some form of interpreter assistance. Some witnesses with an intellectual disability who cannot “understand and speak the English language sufficiently” may be found to be incompetent to give evidence in any event. The more difficult area is people with an intellectual disability with limited language skills.

7.13 Three other issues which arise in relation to interpreters are: whether only accredited interpreters should be used; whether they should be available to an accused for the whole criminal trial: and, if so, who should pay for this. In its 1992 Report on Multiculturalism and the Law, the Australian Law Reform Commission (“ALRC”) stated:

The arguments in favour of using only a professional interpreter are very clear in the context of a criminal trial. Given the potential consequences of a conviction of a criminal offence, it is particularly important that there should be no misunderstanding. The evidence of witnesses in a criminal trial should be interpreted by a professional interpreter if interpretation is necessary.³³

The Commission seeks submissions about whether accreditation is possible or appropriate for the types of interpreters necessary for witnesses with an intellectual disability. The ALRC also recommended that if the accused cannot understand what is said in court, he or she should be entitled (at the expense of the government) to an interpreter to interpret the whole of his or her trial for the offence, whether or not her or she chooses to give evidence.³⁴ It is likely that most accused persons with an intellectual disability will have difficulty understanding the level of language used in a court room. The Commission seeks submissions about whether some form of interpreter should be provided for the accused with an intellectual disability for the whole criminal trial (not just for the giving of their evidence) and, if so, what should be the test for the provision of such assistance.

Appropriate questioning

7.14 Even if an interpreter is not necessary, the language used in court will be particularly hard to understand for a person with an intellectual disability. Difficult questions for such people include leading or lengthy questions, those spoken rapidly, or containing many concepts or double negatives.³⁵ Such questions are likely to arise in cross-examination. The need for lawyers to use appropriate questioning or communication techniques has already been discussed in Chapter 3 in relation to interviews.

The Evidence Bill

7.15 Under the present Evidence Act 1898 (NSW) the court has a discretion to forbid indecent or scandalous questions, questions intended to insult or annoy and questions which only affect the credit of the witness if, in the court’s opinion “the matter is so remote in time, or of such a nature that an admission of its truth would not materially affect the credibility of the witness.”³⁶ Such protections are not likely to provide much assistance to a person with an intellectual disability. The Bill (see excerpts in Appendix C) provides for additional court control over the questioning of witnesses,³⁷ for example:

• the court can make orders about the way witnesses are to be questioned and the presence and behaviour of any person in connection with the questioning of the witness (cl 27);
• a witness can give evidence in “narrative” form rather than by questions and answers (cl 30); and
• the court can take a number of matters into account in disallowing “improper” questions or leading questions in cross-examination, including the witness’ intellectual disability (cl 42 and cl 43).

7.16 The above clauses, if they become law, are likely to lessen the disadvantages faced by the witness with an intellectual disability. Their effectiveness, particularly in relation to the disallowing of leading and improper questions in cross-examination, will only become apparent after use. Being able to tell their story in narrative form may assist some witnesses and may lessen the potential for misunderstanding, or being confused by, questions. It may also lead to an increase in accuracy for some witnesses, as research has suggested that the accuracy of child witnesses, including children with “learning difficulties” decreases in comparison to adult witnesses when specific (but not leading) questions were used, rather than free recall or general questions.³⁸ Limits on the use of leading questions in cross-examination are important as it has been stated that, for people with an intellectual disability, “more accurate information is likely to be obtained if leading questions are not used ... general questions appear to yield the most accurate information.”³⁹ The question remains whether the provisions in the Bill are sufficient. It has been recognised that some of the disadvantages faced by witnesses with an intellectual disability, such as susceptibility to authority figures, difficulty with abstract concepts or double negatives, and the possibility that they may answer “yes” to a question they do not understand are difficult to overcome by legislation. It is unclear whether counsel could object to a question involving an abstract concept under cl 42 on the ground that it is “misleading” or “unduly annoying, harassing, intimidating, offensive, oppressive or repetitive”. Therefore the legal education and court support proposals outlined in Chapter 3 and above become crucial.

Limited cross-examination

7.17 It has been stated that cross-examination is particularly difficult for witnesses with an intellectual disability⁴⁰ and that there should be additional limits on the cross-examination of such witnesses. This is an extremely contentious issue, as it has been argued that any such limitation would adversely affect the rights of the other party. One submission stated that the use of interpreters (see above) to assist in the comprehension of questions asked of a witness with an intellectual disability was preferable, as it may not be possible to limit cross-examination and remain fair to the accused in all cases.⁴¹

7.18 Another submission provided a review (from transcripts) of the cross-examination of an alleged victim with an intellectual disability. The submission commented on the fact that the language used by the cross-examiner served “to obfuscate, confuse, unsettle and negate the testimony the witness has to give.” The cross-examination included: indeterminate language (not defining the scope of the question and thus confusing the possible answers); repetition of the witness’ answers; sudden topic changes; questions relating to conversations about the experience rather than the experience itself; multifaceted or over-general questions; imprecise use of expressions such as “often” or “lots”; negative rhetorical questions; misinterpretation of the witness’ use of “I don’t know”; and specialist legal terms such as “lower court”. The cross-examiner then submitted that the witness was “incapable of giving coherent evidence” and had given numerous unresponsive answers.⁴² Another submission on cross-examination commented on the numbers of questions relating to time, distance and sequence, which had been identified as difficult areas for the witness, and the long periods spent in the witness box despite the short attention span (15-20 minutes) of the witness. The submission concluded that not limiting cross-examination led to injustices for the person with an intellectual disability.⁴³

7.19 The Commission at this stage of its enquiry supports the provisions of the Evidence Bill 1993 (NSW) in the area of cross-examination. It is difficult to comment on how effective the Bill will be to overcome the disadvantages discussed above until it is in operation. The Commission seeks submissions about whether any further protections, other than those outlined in the remainder of this chapter, are necessary to ensure that people with an intellectual disability are not disadvantaged by questioning techniques.

SPECIAL PROCEDURES FOR “VULNERABLE” WITNESSES’ EVIDENCE

7.20 Apart from the above issues relating to what questions can be asked and whether the witness needs an interpreter, there remains the issue of how his or her testimony ought to be given. For instance, should it be given in the witness box in the usual way with the accused present in the court, or should some special procedure be adopted, such as giving evidence from another room by way of closed-circuit television (“CCTV”), or giving evidence with a screen shielding the accused from the line of vision of the witness. The criminal justice system assumes that witnesses will not be unduly intimidated by the court process, otherwise the meaning and weight to be properly attributed to their evidence may be distorted. It is increasingly recognised, however, that some witnesses may be unusually intimidated by the court setting or the presence of the accused (and therefore disadvantaged) when giving evidence. Such witnesses often include children (particularly where crimes of sexual and/or physical violence are concerned), those with an intellectual disability, sexual assault victims, and those from minority cultural and/or linguistic backgrounds.⁴⁴ In most Australian States there is legislation to allow witnesses who fall within some of these categories to give evidence in a way which is designed to be less intimidating.

7.21 The Commission has been asked by the Attorney General to examine whether the Crimes Act 1900 (NSW) should be amended so that the alternate arrangements for giving evidence which currently exist in New South Wales for certain child victims, are available for all witnesses of whatever age.⁴⁵ It has been suggested that courts in New South Wales have the inherent power to make such orders in any event,⁴⁶ but it may be advantageous to give that inherent power statutory force. The focus of this section will be on the existing procedures in New South Wales (screens/alternate seating arrangements and the use of CCTV) and whether, as has been suggested in several submissions to the Commission,⁴⁷ these procedures should be extended to the witness with an intellectual disability. It has also been argued that such procedures should be extended to other adult witnesses, for example, victims of sexual assault, but consideration of other potentially vulnerable witnesses, apart from people with an intellectual disability, extends beyond the scope of this reference. This section will also consider the use of evidence which is videotaped prior to the trial, as this procedure has been proposed in other jurisdictions for “vulnerable” witnesses. It must also be noted that such procedures are not without their critics, for example the Legal Aid Commission of NSW has expressed concerns about the rights of the accused when such procedures are used.⁴⁸ The Commission believes that such procedures should not be seen as a panacea for the difficulties facing vulnerable witnesses in court and that any reforms must be considered in the context of making the whole process of giving evidence more accessible, as the first part of this chapter illustrated. The Commission’s proposals for special procedures for giving evidence are found at the end of this chapter.

Existing procedures

New South Wales

7.22 In New South Wales, the courts have a discretion to adopt special procedures, including CCTV, screens and other alternative arrangements, for receiving evidence from some child victims of certain specified offences who are under the age of 16 years at the time of giving evidence in the proceedings. The purpose is “to assist children to give more effective testimony and to reduce the trauma associated with doing so.”⁴⁹ A warning must be given by the judge to the jury that no adverse inferences against the accused are to be drawn from the use of special procedures.⁵⁰ These procedures, found in s 405D-I of the Crimes Act 1900 (NSW), are set out in full in Appendix C. They are also currently being reviewed by a Children’s Evidence Task Force set up by the Attorney General. People with an intellectual disability may be particularly fearful about having to face the alleged offender in a court room, or may satisfy the current requirements for the use of CCTV by children, namely that “it is likely that the child would suffer mental or emotional harm if required to give evidence in the ordinary way; or that it is likely that the facts would be better ascertained if the child’s evidence is to be given in accordance with such an order” (s 405D(3)). However, the procedures outlined above are not applicable in New South Wales if the person is aged 16 or over.

Other jurisdictions

7.23 Other States have not limited their procedures to child victims. For example, in Victoria “alternative arrangements” can also be made for the giving of evidence by witnesses who have “impaired mental functioning” where the proceedings relate to a sexual or other assault.⁵¹ “Alternative arrangements” include CCTV and screens.⁵² In Queensland a “special witness” can include a witness with “intellectual impairment”. When a special witness is giving evidence a list of special measures is available, for example, the exclusion of the accused from the court room, the provision of a support person for the special witness and the use of videorecorded evidence. CCTV is not specifically mentioned, but is now available in Queensland courts. Such an order may not be made if it “would unfairly prejudice any party to the proceeding or, in a criminal proceeding, the person charged or the prosecution.”⁵³ The Queensland Attorney-General, the Hon Dean Wells, commented in December 1993 that lawyers were not making full use of these provisions and that anecdotal evidence from the Office of the Director of Prosecutions showed the provision had been used only 20 times since it was introduced in 1989.⁵⁴ Recently such procedures have been introduced in evidence legislation in South Australia,⁵⁵ the Northern Territory⁵⁶ and, following the recommendations of the WALRC, in Western Australia,⁵⁷ and proposed for Tasmania.⁵⁸ However, it must be stressed that all these amendments are extremely recent, and the Commission is unaware of any detailed evaluation of such provisions.

Witness support - in court

7.24 IDRS suggested that in some cases it may be appropriate for a support person to sit with a person with an intellectual disability while they are giving evidence.⁵⁹ Similar provisions already exist in Victoria⁶⁰ and Queensland⁶¹, South Australia,⁶² Northern Territory⁶³ and Western Australia.⁶⁴ The more difficult issue is whether that support person should play a more active role in the proceedings. The use of an interpreter was considered above, but other, more interventionist, roles for a support person have been suggested. For example, one submission suggested that a support person, similar to that used for police interviews, be used in court, with the power to intervene in questioning and to ask that a question be re-phrased.⁶⁵ Such a proposal was also raised in consultations by intellectual disability interest groups. It should be noted that where the accused is unrepresented, the English Court of Appeal in McKenzie v McKenzie has held that a party has the right to have a friend with him or her, to assist by prompting, taking notes and quietly giving advice.⁶⁶ Such a person is therefore known as a “McKenzie friend”. The McKenzie friend has been recognised in Australia.⁶⁷ Recently in Western Australia a law student was permitted to address the court on behalf of the accused from a written statement prepared on his behalf.⁶⁸ Presenting submissions, however, is of a different nature to allowing a person to intervene in the examination and cross-examination of witnesses.

7.25 The Commission proposes that a support person should be available for a witness with an intellectual disability, but that the support person should be court approved, that is, only available where the court believes it is necessary. Nor should such a person be a witness in the proceedings. The Commission does not believe that the involvement of such a person should involve, during the taking of the witness’ evidence, intervention in the questioning of the witness with an intellectual disability, unless the support person is required as an interpreter. Any further role, for instance involving challenges to questions, is more appropriately undertaken by the prosecution or, where the person giving evidence is the accused, by his or her lawyer. The Commission, however, seeks further submissions on the role of an “in court” support person including issues such as in what circumstances (if any) such a person should be able to speak to the witness while the witness is being questioned (over the period including both time spent in the witness box and in adjournments).⁶⁹ Should the support person be able to indicate to the court that the witness has not understood a question and should the support person be able to provide any clarification to the court, for example by interpreting a particular word used by the witness? A limited role may actually make giving evidence harder for the witness, for example the witness may find it difficult to understand why their support person will only answer their questions at certain times. The Commission also seeks submissions about the advantages and disadvantages of such a support person being independent. As with the role proposed for the support person in the Policing Issues Discussion Paper, a person known to the witness is much more likely to be able to provide emotional support for the witness than an independent stranger, but such a close relationship also has disadvantages. The Commission is also concerned that such a role is not exploited to disadvantage an accused or to provide an advantage to one witness which is not available to another. It is also obviously not to the advantage of victims with an intellectual disability (or of the justice system) if convictions are overturned for lack of procedural fairness. Thus, if provision for a support person is enacted, clear guidelines about its usage are needed.

Screens and other “alternative arrangements”

7.26 A screen may be used while a witness is giving evidence to prevent visual contact between the witness and the accused. The witness remains visible to other people in the court room, including the judge, jury and lawyers. As discussed above, the court has the power to make “alternative arrangements” for children’s evidence where the accused has allegedly abused the child or has committed any other personal offence against the child.⁷⁰ The section does not limit the possible special arrangements, but they include screens, changed seating arrangements for persons involved (including the level at which they are seated and persons in the child's line of vision) or adjournment to other premises. Screens appear to be frequently used in the Local Courts, where juries are not used, though there are no New South Wales statistics available. The prosecution does not have to establish that the child would suffer any emotional harm if the alternative arrangements were refused.

Advantages and disadvantages

7.27 Advantages of screens (and some other seating arrangements) are:

• both the accused and the witness remain in the court room and can be seen by the court, but the accused cannot be seen by the witness;
• the accused can communicate with his or her lawyers while the witness is giving evidence; and
• screens are relatively easy and inexpensive to set up.71

7.28 Disadvantages include:

• the inability of the accused to observe the witness while giving evidence. (This could be overcome by the more expensive alternative of one-way mirrors instead of a screen.);
• screens cause special difficulties where the accused conducts his or her own defence, and where the witness is required to identify the accused;
• a witness who is aware that the accused is behind the screen may remain intimidated in any event; and
• even with judicial warnings, the use of a screen could create a presumption of guilt against the accused person, as the jury may interpret the need to separate the witness from the accused as an indication that the accused did, in fact, commit the offence charged as the Court considers it necessary to “protect” the child from the accused.⁷²

Closed-circuit television (“CCTV”)

7.29 The use of CCTV has aroused considerable interest in both Australian and overseas jurisdictions. The Australian Capital Territory was the first Australian jurisdiction to introduce CCTV for giving evidence.⁷³ CCTV involves setting up an audio-visual link between the court room and another room from which the witness gives his or her testimony. Monitors for viewing the proceedings are set up in both rooms. Thus, witnesses who use CCTV to give evidence avoid the trauma of a court room appearance and contact with the accused, yet the accused can still hear and see the witness and communicate with lawyers as desired. The child can also view parts of the court room on the monitor if necessary, for example if identification of the accused is required. It has also been suggested that the use of CCTV “can be explained to the jury as a measure to safeguard the child from the drama, emotions and trappings of an adult court, rather than from the accused”.⁷⁴

Use of CCTV in New South Wales

7.30 Since 1990, CCTV has been available in New South Wales, though only for the evidence of victims under 16 years of age in cases where the accused is alleged to have committed a “prescribed sexual offence” on the child.⁷⁵ Before the child can give evidence by CCTV, the court must be satisfied either that the child would be likely to suffer mental or emotional harm if required to give evidence in the usual manner, or that it is likely that the facts would be better ascertained if given by CCTV.⁷⁶ The court may also order that a court officer or other person be present with the child to provide support or to act as an interpreter.⁷⁷ Originally this procedure was only available in one Supreme Court and one Local Court. Facilities for CCTV are now available across the State in 16 courts at eight locations.⁷⁸ In 1993 it was used 36 times in District Courts and nine times in Local Courts statewide. (It was not used at all in the Supreme Courts as the relevant matters are heard in the District Courts.)⁷⁹ Though CCTV is presently limited to prosecutions for certain offences, the Attorney General’s Second Reading Speech suggested that this was primarily due to the limited facilities available and the need for evaluation of the procedures. He commented: “I hope that its application will be extended not only to additional courts but also to additional offences.”⁸⁰ Until recently CCTV appeared to be more widely used in the Local Courts for committals and summary hearings, but its use appears to be decreasing due to the availability of s 48EA of the Justices Act 1902 (NSW).⁸¹ This section allows a victim’s written statement to be tendered at the committal hearing and a prohibition on his or her cross-examination unless the Magistrate finds that the victim should give oral evidence “in the interests of justice”.

Advantages and disadvantages of CCTV

7.31 As far as the Commission is aware, there are only two Australian⁸² research studies of the use of CCTV for child witnesses: a Research Paper prepared for the ALRC and a Western Australian study.⁸³ The Western Australian study is not particularly useful for comparison purposes as it involved the removal of the accused from the court room, not the child. While the findings of the ALRC study are specifically concerned with obtaining evidence from children, the study identified positive and negative aspects of the use of the procedure that may be relevant to any proposal to extend the provisions to include people with an intellectual disability. As the study was limited to Magistrates’ courts, the impact on juries were not addressed. Though a total of 56 children were involved in the study, only 26 actually used the CCTV facilities.⁸⁴

7.32 Advantages. The ALRC study found that, generally, children wanted to use CCTV to avoid intimidation by the accused, and to eliminate the embarrassment of being aware of everyone watching them in court. The child’s emotional state was influenced more by whether they were able to use CCTV when they wanted to, than by whether they actually used it. Thus, children who wanted to use CCTV but were denied the opportunity to do so tended to be in a worse emotional state and perform more poorly than either the children who used it or refused it. The study found that children performed better as witnesses if they were under less stress; and being allowed to use the CCTV procedure when desired was a means of minimising the stress.⁸⁵ A further indirect effect of the use of the CCTV procedure was that the behaviour of magistrates and lawyers altered when it was used. It was reported that both groups were more supportive of child witnesses when CCTV was used, and that magistrates intervened more often, especially to clarify language.⁸⁶

7.33 Disadvantages. In the ALRC study most of the magistrates, lawyers, social workers, psychologists, and police who had been involved in the use of CCTV generally supported the use of the technology,⁸⁷ and the majority of legal professionals did not believe that the use of CCTV prejudiced the conduct of the defence case.⁸⁸ The actual effect on convictions is impossible to determine. However the following disadvantages, from the ALRC study and other sources, have been noted:

• both defence and prosecution lawyers have expressed concern about the changed impact of the evidence given by CCTV.89 For example it has been suggested that the elimination of some of the trauma of giving evidence (through CCTV) may unwittingly remove the distress which is perceived as supporting the veracity of the witness’s evidence. Conversely, it has been argued that the witness’s isolation from the confronting court room environment may make it easier for him or her to lie undetected;90
• video can distort the physical appearance and apparent maturity of the witness, a relevant factor where children are concerned;91
• the focus of the trial might be shifted away from the evidence of the witness to disputes concerning the manner in which the testimony is recorded and received in the court. The ALRC study found considerable variation in the way the decision to order CCTV was made:
  
  In some cases submissions from the bar table were accepted as enough. In other cases, formal assessments of the child’s psychological state had to be provided. Parents, social workers, psychologists, doctors or police had to give oral evidence in some cases. Sometimes they were cross examined at length. Defence counsel disputed the meaning of “mental and emotional harm” in some cases. Lawyers and magistrates had a range of views on whether a “common sense” assessment of the “likely” effects of a child’s testifying in court was enough, or whether expert evidence was needed. Magistrates took different approaches to the question whether less or any evidence was needed if the defence consented to the use of closed circuit TV. Finally, the evaluation showed that magistrates and lawyers had a range of views about, and approaches to, the question whether or not the court can take into account the wishes of the child in deciding whether to order closed circuit TV;⁹²
• a minority of lawyers interviewed by the ALRC claimed that the accused was prejudiced by the inability to confront the witness, face-to-face, with the allegations that had been made against him or her. The majority of respondents, however, believed that the right to confront the witness consisted of the ability to test the evidence, rather than face-to-face confrontation;93
• CCTV is relatively expensive to implement, requiring the installation of high quality audio and video equipment. Possible technical and sound problems may also arise;94 and
• The English Report of the Advisory Group on Video Evidence (the “Pigot Report”) stated that it was possible that in some cases CCTV:
  
  could make children feel more isolated and insecure. It may place a greater burden upon the child witness, who must cope with intrusive technology and a sense of remoteness from contemporaneous proceedings, than other solutions which we have considered.⁹⁵

It has also been commented that studies on the effect of child witnesses using CCTV leave a number of questions unanswered, for example the impact of video testimony on jurors, the impact on the withdrawal of the witness from the court room on the perceived guilt of the accused and whether the judge’s required warning is sufficient to eliminate prejudice in the eyes of the jury. It has also been questioned whether CCTV actually enhances the status of the evidence by making it seem more authoritative than conventional oral testimony.⁹⁶

7.34 The Commission has discussed this issue with a number of officers from the New South Wales DPP and the Department of Courts Administration,⁹⁷ who generally have been supportive of the CCTV procedure for child witnesses, as it usually puts children at ease and they are not as afraid of court. It was commented that, as the Crown Prosecutor goes through the procedure before the trial with the child (usually in the presence of a parent), the child is actually better prepared for court than usual. There is, however, a perception that some Crown Prosecutors believe the procedure makes a conviction less likely, by reducing the impact of the evidence on the jury, and are therefore loath to use it.⁹⁸ The Commission has also been told that some children find the procedure artificial and difficult to use; they find it hard to concentrate or to understand what they are doing in a separate room. However, other people have commented that after the first five minutes the technology is forgotten and the questioning progresses smoothly. The Commission has not received any comments about current technical problems, for example distortion, through the CCTV procedure.

Extension of CCTV

7.35 As discussed, CCTV is presently available in New South Wales only for child victims, and not, for example, for the sibling of the alleged victim, who may be the only other witness to the sexual offence. The New South Wales Child Protection Council has recently recommended that the availability of CCTV be extended to all child witnesses. It also recommended that the requirement to show either that the child would suffer from mental or emotional harm if required to give evidence in the ordinary way or that the child’s evidence would be better ascertained by CCTV be abolished. The Council commented that this requirement was unsatisfactory because: additional interviews are required to assess the child’s emotional reaction to giving evidence in court; there was uncertainty about the proof required; the child may believe that they have been labelled as having a “mental” disorder; it may lead to uncertainty for the child about how their evidence will be given and to delays while the matter is argued. Rather, the Council proposed that the procedure be available whenever the child wished, unless the defence could demonstrate the use of CCTV would prejudice the defendant’s right to a fair trial or would lead to an unreasonable delay.⁹⁹ Extending the use of CCTV to all victims of sexual assault has also been proposed.¹⁰⁰

7.36 Following the research study discussed above, the ALRC released its Report, recommending that the evidence of all children (under the age of 18 years) for all legal proceedings be presented in court through CCTV as a matter of course, subject to the wishes of the child or to the existence of some other convincing reason why it should not be used, rather than requiring that the judge or magistrate first be satisfied that it is likely the child will suffer mental or emotional harm if required to give evidence in the normal way or that the facts will be better ascertained if the evidence is given by CCTV. The ALRC’s reasons included:

• the research study and the submissions to the Commission indicated that the CCTV procedure led to benefits for the children (less anxiety, some sense of control over their role in the proceedings and more support from lawyers and magistrates) and for the court processes (enabling cases to proceed which may not have proceeded without the use of CCTV, improved quality of evidence without prejudicing the conduct of the defence case, and, according to some magistrates, a better “close-up” opportunity to see the child and assess demeanour);
• the wishes of the child witness were still able to be heard and respected;
• any age limit lower than the age of majority (18 years) would be arbitrary and would give the impression that CCTV was a less valid way of giving evidence;
• there was no reason to exclude a particular class of case from using the procedure or to make a distinction between a victim or a witness, as “the benefits of reducing the stress on children involved in court proceedings are the same whatever the capacity in which the child is involved”; and
• reversing the presumption will remove some of the uncertainty and difficulty involved in deciding whether or not to apply the procedure.101

7.37 Protections for the accused were retained by recommendations that the judge be required to warn the jury not to draw any inference adverse to the accused from the use of CCTV, and that the court’s duty to ensure a fair trial be expressly preserved.¹⁰² The ALRC also recommended certain practical changes to the procedure, such as improving sound quality, training lawyers, familiarising children with the equipment and informing parents and children about the procedure to avoid misconceptions,¹⁰³ and procedural safeguards to prevent cases being unduly delayed.¹⁰⁴ Following the ALRC’s Report, amendments have been made to the Australian Capital Territory’s legislation.¹⁰⁵ The amendments now provide that the general rule is that, where the equipment is available, all children (under 18 years) give evidence by CCTV in criminal and related proceedings,¹⁰⁶ unless the child wishes to give evidence in the usual way or the proceedings would be unreasonably delayed or the court believes that “there is a substantial risk of the court being unable to ensure that the proceedings are conducted fairly”.¹⁰⁷ The ALRC research study also indicated general support for the extension of CCTV procedures to other groups of people who have been identified as being vulnerable witnesses, including people with an intellectual disability.¹⁰⁸ The ALRC’s Report did not, however, consider the issue of extending the procedures to other witnesses.

7.38 A 1990 report by the New South Wales Women’s Co-ordination Unit¹⁰⁹ proposed that the option of CCTV be extended to adults with an intellectual disability who are victims of sexual assault to avoid the victim facing the accused in court. The WALRC also recommended that CCTV also be available for a “special witness” (which may include a witness with “intellectual handicap”) if the court was satisfied that the person would be likely to suffer emotional trauma or would be so likely to be so intimidated or stressed as to be unable to give evidence if required to give evidence in the usual way.¹¹⁰ Several submissions to the Commission have also supported the extension of CCTV to adults with an intellectual disability.¹¹¹ One submission outlined a case in which a teenager with an intellectual disability who was allegedly sexually assaulted was unable to take advantage of the provisions, because the witness was 16 at the time of committal. It was alleged that the accused had threatened the witness on a number of occasions about disclosing the assault and legal advisers believed that the witness’ preoccupation with the threat of violence was such that the matter should be heard by CCTV. The submission argued that if the defence could claim (in relation to competence and reliability) that a witness was functioning intellectually at the same level as a child, then surely the defence should not object to the use of protections which currently exist for children for giving evidence.¹¹²

7.39 The Commission believes that it should not be assumed that the alternate arrangements for children, such as CCTV, will automatically assist people with an intellectual disability, as the two groups have different needs, experiences and abilities. The Commission is hesitant to propose, on the basis of the ALRC study alone, that the procedure should be adopted for all witnesses with an intellectual disability. The Commission is not aware of any study of the use by people with an intellectual disability of CCTV. In consultations people have commented that they would wish to see research data that suggested that people with an intellectual disability were likely to be assisted, not disadvantaged by, such a procedure. For example, in some cases it may be more beneficial for the jury to see the witness’ “foibles”, which may not be as apparent via CCTV. The range of disabilities which exist were commented upon, and the concern that many people with an intellectual disability generally want to participate in any process in as normal a way as possible, and therefore would be likely to oppose making such a procedure mandatory. It was questioned whether, if the courts were too protective of the witness with an intellectual disability, the jury may query the weight to be given to his or her evidence, though at the same consultation examples were given of cases where CCTV would have helped the witness, for example a 35 year old person with an intellectual disability who was terrified of the court environment.¹¹³ In favour of proposing that the procedure be extended to witnesses with an intellectual disability is the fact that it is only likely to be sought in a small number of cases and that the current judicial discretion involved does allow the judge or magistrate to allow the procedure to be used only in what he or she considers to be appropriate circumstances, which should alleviate some anxiety about the use of the section. The wide range of issues for consideration involved in extending and evaluating special procedures such as screens and CCTV are considered further below.

Extending and evaluating special procedures: issues for consideration

7.40 The ALRC in its evaluation of the operation of CCTV identified four key questions which are useful to any evaluation of alternative procedures for giving evidence:

1. Did the innovation reduce the stress of testifying for witnesses and improve the quality of their evidence?

2. Did those involved in its use believe that it had positive effects?

3. Did they see it as a fair procedure and one that they were prepared to use?

4. What, if any, were the negative aspects of its use?¹¹⁴

Implicit in the third and fourth considerations is the issue of ensuring fairness to the accused person, whose right to a fair trial is regarded as more important than protecting a witness from distress. The importance of a fair trial is reflected in the traditional right of accused persons to be present when the case is being made out against them, and to test the evidence against them, by way of cross-examining the witness and observing the witness’ demeanour.¹¹⁵ As discussed, it has been argued that these rights are compromised by some special procedures. The Commission would wish to be satisfied that the right of the accused to a fair trial is not abrogated by the extension of these procedures.

7.41 Apart from the rights of the accused, the issues which need to be carefully addressed in considering the extension of these procedures are:

• Which offences? - should the special procedures for giving evidence be available for all criminal offences, or only certain offences such as sexual assault;
• Victims only? - should the procedures only be available to alleged victims of crime, or to all witnesses excluding the accused, or to all witnesses including the accused;
• Which witnesses? - to which witnesses should the procedure apply, that is, to all witnesses, or only to certain categories of witnesses, such as people with an intellectual disability;
• Which categories? - if the procedures are only to be available to certain categories of witness, such as people with an intellectual disability, which categories should be included (and where do you draw the line), and how will these be defined;
• What availability? - is the procedure to be available to all people within the listed categories, for example to all people with an intellectual disability, or only to those who satisfy an additional test, for example, on a “needs” basis, that they would be unable to give evidence in any other way. This question raises the issue of the numbers of necessary specialist facilities available (or likely to be available) to the courts;
• What test? - if the procedure is to be limited in availability, what is the most appropriate test and how is it to be satisfied (through psychological evidence or otherwise) and then explained to the jury;
• When is the decision made? - should the vulnerable witness have to try to give evidence in the usual way first, or should the issue of how the witness is to give evidence be resolved in pre-trial directions;
• Discretions given to the judge? - presumably the judge should have some discretion to reject the use of the procedure in the interests of justice: what form therefore should that discretion take;
• Warnings by the judge? - under the present procedure in New South Wales the judge is to warn the jury not to draw any inference adverse to the accused from the use of the procedures. Is such a warning sufficient to overcome the possible prejudice to the accused; and
• Evaluation or sunset clauses? - should there be an evaluation undertaken, either before the legislation is passed (though this presents logistical difficulties) or during a defined period of operation? Should the legislation have a “sunset clause” that is, be only introduced for a set period, to allow for evaluation after that period for fairness and effectiveness? Evaluations in this area present enormous difficulties because of the range of variables and the difficulty of comparing individual cases. For example, if the conviction rate either increases or decreases after the introduction of the procedures, this could be explained by a variety of factors. In any event, an increase in conviction rate may not be seen as desirable, as it could be argued that the procedure may have led to an increase in wrongful convictions. As the ALRC study recognises, the procedure is usually assessed by asking the witnesses how they felt about it and by observing the court proceedings to see how the witness performed. Even if all witnesses said they felt better using the procedure, is that necessarily a sufficient justification for its availability? The effect on the jury is impossible to determine in an actual trial, particularly as, even if you could question the jury after the trial, they would not be able to compare the witness’ CCTV evidence, with that of the same witness given in the box.

The Commission’s proposal

7.42 Though the Commission recognises that there is now considerable support for the use of procedures such as CCTV, at least for children, it repeats its earlier comment that the rights of the accused should be paramount. The Commission believes that children can be considered as a different category to other vulnerable witnesses and does not propose to enter the debate about what is appropriate for them. In relation to extending the use of the special procedures outlined above (support person, screens and seating arrangements and CCTV) to other vulnerable witnesses, the Commission sees no logic in limiting the procedure to victims, or to particular categories of witnesses or to particular offences, as it is easy to identify examples of where such distinctions cause injustices: witnesses may be just as intimidated as victims (for example in domestic violence situations), an elderly victim may also be distressed or intimidated giving evidence, giving evidence about relatively minor (as well as serious) offences can also cause distress and embarrassment to the witness. Similarly, the procedures may be just as necessary for the accused as for any other witness. The Commission therefore proposes that the full range of procedures should be available to all witnesses on a needs basis, not by membership of any particular group, avoiding arguments about whether or not a person falls within a particular category. The disadvantage to be addressed by alternate ways of giving evidence is the distress or difficulty of giving evidence due to intimidation by the atmosphere of the court room, the presence of the accused, or the nature of the proceedings. The judge (or magistrate) would need to be addressed by both sides, about the need for particular special procedures and any alleged detriment to the accused, before making such an order, and would have a discretion to refuse an application. Such an application would desirably be made at a pre-trial hearing in order to limit the uncertainty for the witness and as a matter of convenience. This proposal does not overcome the problem, identified by the ALRC and others, of the variation in application which arises by differing judicial attitudes to the level of disadvantage necessary before making the procedures available, or the evidence necessary to establish this, but it is impossible to overcome this problem using a needs-based rather than a category-based test. The Commission suggests that the current position in relation to warnings be retained, that is that the judge must warn the jury not to draw any inference adverse to the accused. This proposal is set out at the end of the chapter.

7.43 The special procedures for children are currently contained in the Crimes Act 1900 (NSW) not, the Evidence Act 1898 (NSW). As discussed above, wide-ranging reforms of the whole area of evidence law are proposed under the exposure draft of the Evidence Bill 1993 (NSW), including additional measures for witnesses with an intellectual disability. It is likely to be confusing to have issues affecting the ways of giving evidence by vulnerable witnesses contained in two different pieces of legislation. The Commission’s preference would be for any reforms for vulnerable witnesses to be introduced as a package in one piece of legislation to avoid additional confusion in this area.

Videorecording before the hearing

7.44 Apart from CCTV, another possible application of audio-visual technology to vulnerable witnesses is videorecording their testimony before the trial and showing this to the court instead of requiring a witness to give evidence in person. An important distinction should be drawn between the use of videorecordings of statements by witnesses (usually made in police interviews) and the admission of videorecordings of the witness’ testimony (questions by lawyers from both sides in court). As with other alternative procedures for giving evidence, most discussion about the use of video technology has been concerned with the experiences of children¹¹⁶ and, as discussed, it should not be assumed that the same considerations apply for people with an intellectual disability. The Commission proposed in the Policing Issues Discussion Paper¹¹⁷ that police interviews be electronically recorded for all victims with an intellectual disability, and for other witnesses where a detailed interview is necessary. The Commission referred to the limitations of such videorecorded interviews for court purposes and stated that it would consider such issues further in this Discussion Paper.

Videorecorded police interviews with the witness

7.45 Videorecording of police interviews with the victim or witness preserves an account of the relevant events soon after the crime has been reported. Many criminal trials take place long after the events in question, during which time the witness’ recollection may have been diminished or distorted by repeated questioning and, in some cases, by media reports of the case. Videorecording interviews provides a means of capturing information when the events are still fresh in the witness’ mind. It may also provide more information than a written statement, for example, recording the exact words used and by revealing tone of voice, hand gestures and facial expressions, though the weight that can be placed on these is controversial. Videorecording may reduce the number (and length) of interviews involved for many witnesses. The videorecorded interview could also provide a source of information for a variety of agencies after the conclusion of one interview, though confidentiality and the conflict between therapeutic and evidentiary needs must be considered.¹¹⁸ Repeated interviews with police, counsellors, medical personnel and social workers could lead to a loss of spontaneity in the evidence by the time the witness recounts their experiences to the court, and could lead to claims that the testimony has been “contaminated”.¹¹⁹ It has been stated, however, that “most research to date indicates positive or null effects of repeated interviewing on children’s testimony”.¹²⁰ This finding is important “because of the belief, held by many in our legal system, that repeated interviewing of children increases the likelihood of obtaining a false accusation due to increased suggestibility.”¹²¹ The videotape may also assist the accused to determine whether the person’s story was obtained by improper questioning and may reduce complaints of coaching and contamination.

7.46 The Policing Issues Discussion Paper¹²² also referred to other possible benefits of electronic recording of the statements of victims with an intellectual disability. A person with low literacy skills may be able to use their video statement, rather than a written statement, to refresh their memory prior to the court appearance. The use of such a videotape to refresh memory appears to be permissible under the exposure draft of the Evidence Bill 1993 (NSW), as the definition of “document” in the Bill’s “Dictionary” is broad enough to include a videotape. Such a use may, however, cause practical difficulties. For example, cl 35 of the Bill¹²³ enables a court, at the request of a party, to direct the production of notes used by a witness for another party to revive his or her memory out of court. It may be difficult, but not impossible, for a witness to revive their memory in court - see cl 33.¹²⁴ It has also been questioned whether using a tape in this way would actually refresh, not supplant the witness’s memory, though the same concerns could be raised about the effects of prior written statements. It was commented that the effects of using videotapes in this way are untested and should be treated with caution.¹²⁵ Additionally, though police videorecording equipment is designed to minimise the risk of tampering, the possibility that tapes by police or by other interviewers may be altered should not be ignored and any extension of videorecording will need to consider security issues.¹²⁶

7.47 Admissibility in court. Generally, videorecorded interviews are inadmissible, because of the rule against hearsay evidence.¹²⁷ Such interviews can, in certain circumstances, be raised in cross-examination as a previous inconsistent statement to discredit the testimony of the witness.¹²⁸ Even if admissible under an exception to the general rule, videorecorded statements, under present law, cannot be a substitute for the witness’s testimony. This reflects the difference between a statement to police, which may include irrelevancies and material which would be inadmissible, and the witness’ evidence in answer to the prosecution’s questions at a much later stage of the investigation with the presence (hopefully) of the accused’s lawyer to protect the accused’s interests. To admit such an interview instead of the direct testimony of the witness may be more prejudicial than probative. It also contradicts the traditional emphasis in the common law trial (that all material facts are inferred from the oral testimony of witnesses, which is “tested” through the process of cross examination). A police officer may be less likely than a crown prosecutor to be skilled in obtaining an account from the witness in a way which is admissible in court. In the context of people from a non-English speaking background, it has been commented:

[w]e should be circumspect about the benefits of video-taping of police questioning. There is some evidence to suggest that, in an adversarial system, technological tools are deployed strategically. Video-tapes can confer an advantage on prosecution or defence, depending on the impression that [a defendant from a non-English speaking background] makes on tape. It may be difficult for the judge, magistrate or jury to distinguish their assessment of the defendant during a court proceedings from the images conveyed by the earlier taped questioning. In the absence of empirical research, it is still too early to predict the impact [of] technology on criminal proceedings.¹²⁹

7.48 Other jurisdictions. Following the recommendations of the WALRC, children’s prior statements (written or electronic) in sexual and domestic violence offences are admissible if the child victim is also called as a witness and the accused is provided with details of the statement and time to prepare.¹³⁰ The prior statement of a child under the age of 12 years is also admissible in Queensland and South Australia subject to certain conditions.¹³¹ The position in England is discussed below. The Commission is not aware of any such provisions for witnesses with an intellectual disability.

Videorecorded witness testimony

7.49 In considering the prior videorecording of a witness’ testimony, a distinction should be drawn between the witness’ examination in chief and the cross-examination of the witness by the other side. This distinction is important because, even amongst those who approve of the use of videorecorded testimony, there is disagreement between those who would restrict its use to examination in chief, and those who would also make the procedure available for the purpose of cross-examination.

7.50 Other jurisdictions. The use of pre-recorded examination in chief has been proposed and, in some cases, introduced in other jurisdictions. In Western Australia, children’s evidence in chief may be presented to the court by a videorecording of oral evidence previously given by the child. Alternatively, the child’s entire evidence (including cross-examination and re-examination) may be given at a pre-trial hearing, presided over by the judge and videorecorded to be played at the later trial.¹³² The Western Australian legislation also allows “special witnesses”, which may include a person with a “mental disability” to give videorecorded evidence at a pre-trial hearing, but does not provide for just their statement or evidence in chief to be admitted in this way.¹³³ These new procedures have only been recently introduced and their effectiveness has not been tested. In Queensland the court may order that a videotape be made of the evidence (or any part of it) of a “special witness” “under such conditions as are specified in the order and that the videotaped evidence be viewed and heard in the proceeding instead of the direct testimony of the special witness”.¹³⁴ Presumably such an order would include provision for cross-examination.

7.51 In Victoria, the Evidence Act 1958 was amended in 1991¹³⁵ to allow recorded examination in chief to be given in proceedings for sexual offences or indictable offences involving an assault, injury or threat of injury to any person.¹³⁶ It allows the examination in chief of a prosecution witness, who is under the age of 18 or who has impaired mental functioning, to be given in the form of an audio or visual recording of the witness answering questions. The defendant must be provided with transcripts of the recording, and be given an opportunity to view or listen to the recording.¹³⁷ Further, the witness must identify his or herself at the proceeding, attest to the truthfulness of the contents of the recording, and be available for cross-examination and re-examination.¹³⁸ However, the relevant provisions are yet to be proclaimed, and are therefore not in force.

7.52 In England and Wales, a videorecording of a child’s statement may be admissible as examination in chief during proceedings for certain sexual or violent offences, provided that the child is available for cross-examination at the trial and the court is satisfied that videorecording would be in the interests of justice.¹³⁹ The report preceding the enactment of this legislation, the Pigot Report, also recommended that cross-examination be undertaken on video, before a judge in chambers, as soon as possible after the recording of the videorecorded interview which was to be treated as examination in chief, so the child would not generally be required to attend the court to give evidence at all. The proposal concerning cross-examination, however, was never enacted.¹⁴⁰

7.53 Advantages and disadvantages of videorecorded testimony.¹⁴¹ It is unclear (and probably impossible to determine) what the effect of videorecorded evidence is upon a jury. Proponents of videorecording have primarily focused on the benefit to the witness, usually a child. The Pigot Report’s preference for video-recording was based on the belief, at para 2.12, that “a majority of children are adversely affected by giving evidence at trials for serious offences under existing circumstances”. Such children:

ought never to be required to appear in public as witnesses in the Crown Court, whether in open court or protected by screens or closed circuit television, unless they wish to do so. This principle, we believe, is not only absolutely necessary for their welfare, but is also essential in overcoming the reluctance of children and their parents to assist the authorities.¹⁴² [emphasis added]

The Pigot Report also supported the extension, at a later stage, of its proposals to “other vulnerable witnesses”.¹⁴³

7.54 Under the Pigot proposals, as cross-examination would also occur before the trial, videorecording would (in the absence of supplementary questions) avoid the trauma of the court appearance and allow all the evidence to be given while the events are fresh in the victim’s mind. It could also have an important therapeutic aspect, in allowing the victim to put the incident behind him or her at an earlier point of time and to perhaps seek forms of counselling or treatment which could be otherwise seen as likely to contaminate the evidence, such as group therapy involving a number of alleged victims of the same sexual offender. These later benefits would not arise if only the examination in chief occurred prior to court and it could also be argued that there is a possible grave injustice in separating the examination and the cross-examination in this way. If, as seems likely, a significant gap in time occurs, the witness’ memory is likely to be much fresher in the examination than the cross-examination, which could act to the detriment of either the accused or the prosecution. The defence is likely, however, to argue that requiring cross-examination at this early stage of the proceedings may be inappropriate as they may not be aware, at this stage, of all the aspects of the accused’s case. There are likely to be matters which only arise within the course of the trial about which the defence may wish to cross-examine. There would also have to be an allowance for supplementary questions.

7.55 The possible advantages of using pre-recorded video evidence to replace examination in chief alone are the reduction of time spent in court by the witness and the freshness of that part of the testimony, as the examination can occur as soon as possible after the alleged offence. It has also been suggested that presenting the defendant with the victim’s evidence on video leads to an increase in guilty pleas, thus sparing the child from cross-examination in court.¹⁴⁴ The South Australian Task Force on Child Sexual Abuse considered that the disadvantage of the child being immediately confronted with cross-examination in court outweighed the advantages that would result from the introduction of the child’s videorecorded examination in chief, namely reducing time spent by the child in court and providing a valuable additional source of information to the jury.¹⁴⁵

7.56 The New South Wales Bar Association also commented strongly about the general disadvantages of the use of videorecorded evidence of witnesses:

There are good reasons why our system of criminal justice has as its fulcrum the assessment of evidence given in the witness box. In assessing that evidence, the tribunal of fact considers the demeanour of the witness. ... It is absolutely fundamental to our system of justice that the accuser give his or her evidence in the presence of the accused, and those who will adjudicate. This is a most important safeguard not just for the accused but for public confidence in the criminal justice system.¹⁴⁶

Provisional views: videorecording

7.57 The Commission’s provisional view, based on the material considered to date, is that there should be no change to the general existing rules in relation to the use of videorecorded police interviews with witnesses with an intellectual disability in court, other than those proposed by the Evidence Bill 1993 (NSW).¹⁴⁷ In particular it believes that an interview with a police officer should not be used as a substitute for the witness’ testimony. In relation to videorecorded testimony, it also believes that the disadvantages outweigh the advantages of the use of both pre-trial videorecorded evidence in chief alone or pre-trial videorecorded evidence in chief with cross-examination. The Commission believes that it would be particularly unjust for the examination in chief to be separated in time from the cross-examination. It believes that the key advantages of freshness of evidence and reducing trauma can be realised through other means, such as through the expedition of cases involving vulnerable witnesses and the use of procedures such as screens and CCTV. The Commission, however, seeks further submissions in this area.

Unsworn (“Dock”) statements

7.58 In considering the issue of giving evidence, this chapter has so far focussed on the position of all people giving evidence, whether as the accused, the victim or any other witness. There are, however, obvious differences between these different types of witness. The accused, not the victim, is on trial, and faces the sanction of the court. Therefore different treatment of the accused person can be justified in some areas to ensure a fair trial.

7.59 In court, accused persons have the right to remain silent and may choose not to give evidence at all. Alternatively they may give evidence on oath and be cross-examined. Until recently, they also could give evidence by way of a “Dock” statement - an unsworn statement by the accused, the reliability of which could not be tested under cross-examination. The Commission recommended in its 1985 Report that the right to make an unsworn statement at trial be retained by an accused in New South Wales, though it also recommended certain changes, for instance that the judge should be entitled to inform the jury of an accused person’s options in giving evidence and of the legal characteristics of each option.¹⁴⁸ The unsworn statement in New South Wales was abolished, after extensive debate, by the Crimes Legislation (Unsworn Evidence) Amendment Act 1994 (NSW), which commenced on 10 June 1994, but which only applies to people charged after that date. Many of the arguments in favour of the abolition of the unsworn statement, for example, the exploitation of the right by the “clever accused”, and the danger of excessively long and complicated statements, have little relevance for the accused with an intellectual disability. Even supporters of the abolition of the unsworn statement recognised that there were concerns about the impact of its abolition for such persons.¹⁴⁹ The Commission does not propose to enter into the general debate about unsworn statements. The Commission does, in light of the abolition of the unsworn statement, propose to raise concerns which have been expressed about the present position of the accused with an intellectual disability, namely:

• the particular disadvantage faced by the accused with an intellectual disability in cross-examination; and
• the likely relevance to his or her defence of expert evidence about his or her level of intellectual functioning, for instance to establish the defences of diminished responsibility and mental illness, and the difficulties involved in using expert evidence if the accused does not give evidence.

The Commission therefore proposes to consider whether any other provision should replace the unsworn statement to overcome the disadvantages faced by the accused with an intellectual disability in court. There may be other groups disadvantaged by the abolition of the unsworn statement, but the Commission confines its comments to the accused with an intellectual disability.

7.60 As discussed at paras 7.14-7.19, people with an intellectual disability are likely to be severely disadvantaged under cross-examination. Chapter 8 also refers to the absence of provisions to enable expert evidence about any witness’ intellectual disability to be admitted in examination in chief to explain to the jury, where relevant, the link between the way the person gave their evidence and their disability. Such expert evidence is seen as bolstering the witness’ credibility and is therefore inadmissible (see paras 8.2-8.4). Lawyers may therefore advise clients who are likely to perform poorly in the witness box, in the absence of a statement not subject to cross examination, not to give evidence at all. A failure to testify, however, may suggest to the jury that the person has something to hide, and will also deny the defence the opportunity of leading expert evidence on his or her intellectual disability and history.¹⁵⁰ According to Mark Ierace, a Public Defender, remaining silent:

will impede their option of relying on the expert evidence of psychologists and psychiatrists, which may be relevant to issues such as whether questions asked by an interrogating police officer could have been understood by the accused, whether the accused had the intellectual capacity to understand the right to silence and whether the accused’s disability makes available various defences, such as the [defence of mental illness].

To the extent that such evidence is based on the history gathering, skilled questioning and the administration of tests by the expert in conference with the accused, it is necessary for the accused to formally state to the court that what has been said to the expert is the truth. At present [that is, before the abolition of the unsworn statement] this can be done either during a statement from the dock or during the course of sworn evidence. Without that verification, the expert’s evidence would be withheld from the jury, because the history would be inadmissible hearsay and the opinion would thus be of no weight.

So if the accused cannot make a dock statement and does not enter the witness box, he or she is effectively abandoning the defence, or challenge to the confessional evidence, even though it is in fact unreliable.¹⁵¹

7.61 Option 1: Greater control over cross-examination. The accused with an intellectual disability who is otherwise fit to be tried could be protected to some extent at trial by greater judicial control over the cross-examination process. Some protections are found in the provisions of the exposure draft of the Evidence Bill 1993 (NSW), see paras 7.15-7.16. This Bill is yet to be introduced into Parliament, and, even if passed, its utility is yet to be tested. Such procedures have limits. They cannot, for instance, overcome the risk of a question being totally misunderstood, or an accused simply answering “yes” to questions if he or she does not know the answer or if the questions are asked by a person perceived as an authority figure. Similarly, as suggested above, many questions which would be found difficult by a person with an intellectual disability, such as those containing abstract concepts, would not necessarily be able to be objected to under the proposed provisions. The risk of putting such an accused in the witness box may still be seen by the defence as too great.

7.62 Option 2: Reintroduce the unsworn statement for people with an intellectual disability as part of a prescribed group of vulnerable accused. This would raise the difficulty of deciding the basis for inclusion within the group. To base inclusion on “vulnerability” alone would allow many accused persons to assert that they fall within the exception. The resulting strain on the criminal justice process may be unacceptable. It would not overcome some of the difficulties associated with the unsworn statement.

7.63 Option 3: Allow people with an intellectual disability to make a statement to the court not subject to cross-examination. The definition of “intellectual disability” for the purposes of this proposal would be that proposed in Chapter 2. Thus, by definition, the accused would have an intellectual capacity significantly below the norm. Unlike the “vulnerable accused” option, this option has the advantage that an expert can simply testify about whether or not the person has an intellectual disability and thereby avoid lengthy arguments about who should have the benefit of the statement.

Provisional views and further issues for consideration

7.64 The Commission proposes that the accused with an intellectual disability (as defined in Chapter 2 and established by expert evidence) should have the right to make a statement which is not subject to cross examination (Option 3 above). Such a statement may be as simple as “What I said to the doctors is true”, to enable weight to be given to the relevant expert evidence about the accused’s intellectual functioning and level of understanding where that is relevant to the case. Such a procedure, though likely to be seen as giving an advantage to the accused with an intellectual disability which is not available to other accused persons, should rather be seen as a means of addressing the severe disadvantage such an accused faces compared to other accused persons in the criminal justice system. The accused’s disability and disadvantage when subject to cross-examination cannot be completely addressed by the proposals discussed above, such as controls over cross-examination, the use of interpreters, giving evidence by CCTV or even by greater understanding of the legal process.

7.65 The question remains whether such a statement should be unsworn or be sworn/affirmed. If the statement is given on oath or affirmation, the accused, if he or she lied, could be prosecuted for perjury. If a person is not competent to swear or affirm then presumably, as discussed in Chapter 4, the accused is unlikely to be fit to be tried in any event. (The appropriate procedure for an accused who has been found unfit to be tried, and is giving evidence in the context of a special hearing, should also be considered further.) If the statement is sworn, however, then it would have to be given more weight than an unsworn statement. This would be reflected in the comment that could be made by the judge and the prosecutor about the statement, in comparing the accused’s evidence against other evidence in the trial. This additional weight could be seen as inappropriate and unfair, considering that the statement is not subject to cross examination. There are obviously arguments on both sides and the Commission invites further submissions on this issue. There are other unresolved issues in this area, for instance the comments which can be made about such a statement by lawyers and the judge and the need for other safeguards such as provision for attacks by the accused on a prosecution witness. These issues should also be a matter of further discussion.

PROVISIONAL PROPOSALS FOR REFORM: SPECIAL PROCEDURES FOR VULNERABLE WITNESSES

7.66 The Commission proposes that, rather than amending the provisions of the Crimes Act 1900 (NSW) which provide for the use of such measures as screens and closed-circuit television by children to other witnesses, that a range of measures for “vulnerable” witnesses be introduced into the Evidence Bill 1993 (NSW). There seems no reason to limit such provisions to criminal proceedings alone. As discussed in paras 7.42-7.43, generally such measures should not be available simply because of a person’s membership of a particular group, for example the fact that a person has an intellectual disability or comes from a non-English speaking background, but should be needs-based, that is, that a person would be disadvantaged as a witness without such procedures. The Commission believes that such an approach is more appropriate than a membership or category-based approach. The Commission believes that a wide range of measures should be available, including the presence of a support person, the use of screens and CCTV. The Commission’s proposal allows the judge to control which procedures should be available, and when, after submissions from the parties in the absence of the jury. Parties should also be able to make submissions about the warnings and directions to the jury which should accompany the use of such measures (see Proposal 29).

7.67 The Commission, however, does not currently believe that the procedures suggested in para 7.66 will be sufficient to overcome the disadvantage faced by the accused person with an intellectual disability in presenting his or her story to the court. It therefore suggests, as discussed in paras 7.64-7.65, that an additional procedure should be available for an accused with an intellectual disability, namely that there be a limited right to make a statement to the court which is not subject to cross-examination (see Proposal 30). As discussed in para 7.65, a number of issues in this area require further consideration.

PROVISIONAL PROPOSALS FOR REFORM

29. That the following provisions in relation to vulnerable witnesses (where “witness” is defined to include the accused) be inserted into the Evidence Bill 1993 (NSW):
(a) If by reason of intellectual disability, age or any other factor the Court is satisfied that a witness may be unfairly subjected to embarrassment or distress in giving evidence in the ordinary way or may be so intimidated by the atmosphere of the court room and the nature of the proceedings as to be severely disadvantaged as a witness it may order that special arrangements be made for the taking of evidence of that witness.
(b) Special arrangements include, but are not limited to:
(i) the use of closed-circuit television;

(ii) screens; or

(iii) the presence of a support person.

(c) Without limiting the judge’s right to give any other warning, in any criminal proceedings in which the evidence of a witness is given by special arrangements, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those arrangements.

30. Where the court is satisfied, on expert evidence, that the accused has an intellectual disability, the accused shall have the right to make a statement not subject to cross examination.

1. For example, the New South Wales Sexual Assault Committee Submission (August 1992) at 4-5.

2. Policy No 51, Policy Statement: Prosecution Services, Intellectually Disabled, 1991, cited in J Philpott Towards Normalisation: People with Intellectual Disability Involved in the South Australian Criminal Justice System (Court Services Department, South Australia, 1991), Appendix E.

3. South Australia Police Department Submission (14 April 1992) at 2.

4. Office of the Director of Public Prosecutions, New South Wales Annual Report 1992-93 at 12.

5. Mr R O Blanch QC Letter (9 December 1993).

6. Confidential Submission (4 September 1992) at 14-15.

7. Confidential Submission (4 September 1992) at 39-40.

8. For a description of the “Redfern model” of court support for women victims of domestic violence see L Blazejowska “Court Support Schemes - Improving Women’s Access to the Legal System” in Criminal Law Issues, papers presented for the Continuing Legal Education Department of The College of Law on 14 May 1994. This model uses paid support workers and solicitors rather than volunteers.

9. For example, the Witness Watch Scheme coordinated by Maitland Police and attached to courts in the area. On each court day two volunteers are rostered to greet witnesses and answer their queries. See Police Service Weekly (6 September 1993) at 14. The New South Wales Department of Courts Administration is currently finalising a survey of such services.

10. The Court Support Scheme is primarily funded by the Legal Aid Commission through its Community Legal Centre Funding Scheme.

11. Mr T Katsigiannis, Coordinator, Court Support Service Personal Communication (9 February 1994).

12. The Law Reform Commission of Western Australia (“WALRC”) Report on Evidence of Children and Other Vulnerable Witnesses (Project 87, Report, 1991), Recommendation 18.

13. Australia. Attorney-General’s Department, Office of Legal Aid and Family Services Submission (28 August 1992).

14. Crimes Act 1900 (NSW) s 77A.

15. WALRC Report 87, Recommendation 22. The WALRC also recommended that formal court dress not be used where children were required to give evidence: Recommendation 23.

16. Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 7. Similar comments were made by the New South Wales Sexual Assault Committee Submission (August 1992) at 5.

17. Kingsford Legal Centre Submission (29 October 1992) at 5.

18. Mr P Hutten Submission (6 January 1992) at 8, 19-20. See also Confidential Submission (4 September 1992) at 20-24.

19. Justices Act 1902 (NSW) s 48EA, which commenced on 29 March 1992.

20. See, for example, K Laster and V L Taylor Interpreters and the Legal System (Federation Press, Sydney, 1994); Australia. Law Reform Commission Multiculturalism and the Law (Report 57, 1992); and Australia. Attorney General’s Department Access to Interpreters in the Australian Legal System (AGPS, Canberra, April 1991).

21. Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 6.

22. New South Wales Sexual Assault Committee Submission (August 1992) at 5.

23. A distinction needs to be made between communication boards used in this manner and the more controversial “facilitated communication”, which involves the “facilitator” actually holding the arm of the person using the board.

24. The New South Wales Council for Intellectual Disability Submission (16 September 1992) at 10.

25. The Roeher Institute No More Victims: A Manual to Guide the Legal Community in Addressing the Sexual Abuse of People with a Mental Handicap (The Roeher Institute, Ontario, 1992) at 26.

26. The New South Wales Council for Intellectual Disability Submission (16 September 1992) at 10.

27. Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458. For factors to be considered in determining whether to allow an interpreter to be used and to adjourn proceedings for that purpose, see Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75.

28. Johnson v R (1986) 25 A Crim R 433.

29. R v Roberts (1907) 24 WN (NSW) 55.

30. Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 at 414-415.

31. Australia. Law Reform Commission Evidence (Report 38, 1987) and New South Wales. Law Reform Commission Evidence (Report 56, 1988).

32. See also Evidence Bill 1993 (Cth) cl 30-31.

33. ALRC Report 57 at para 3.29. See also Australia. Attorney General’s Department Access to Interpreters in the Australian Legal System (AGPS, Canberra, April 1991) at para 6.16.1.

34. ALRC Report 57 at 3.36.

35. M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989) at 97. See also ACT Council on Intellectual Disability Submission (20 July 1993) at 3.

36. Evidence Act 1898 (NSW) s 56-58.

37. Many of these provisions merely set out, in statutory form, powers which the courts would consider to be within their inherent jurisdiction in any event.

38. H Dent “The effects of age and intelligence on eyewitnessing ability” in H Dent and R Flin (eds) Children as Witnesses (John Wiley & Sons, Chichester, 1992) at 7. According to Dent, all three groups of subjects in her research (children with learning difficulties, other children and adults): “gave equally accurate reports in response to Free recall and General questions. When Specific questions were asked, the accuracy of the children’s reports decreased to a level significantly lower than that of the adult’s reports”, except in one particular area of questioning. She noted, however, that this increased accuracy may be at the expense of completeness, particularly for both groups of children.

39. D Feben The Right to be Heard: Obtaining Evidence from Intellectually Disabled People (Office of the Public Advocate, Victoria, Discussion Paper, 1988) at para 4.65.

40. For example, Mr M Brennan, School of Education, Charles Sturt University Submission (13 July 1992) at 1; the New South Wales Sexual Assault Committee Submission (August 1992) at 5.

41. Australia. Attorney-General’s Department, Office of Legal Aid and Family Services Submission (28 August 1992) at 4.

42. Mr M Brennan, School of Education, Charles Sturt University Submission (10 August 1992).

43. Confidential Submission (4 September 1992) at 32-34.

44. See, for example J Cashmore “The use of video technology for child witnesses” (1990) 16 Monash University Law Review 228; WALRC Report 87; and the English Home Office Report of the Advisory Group on Video Evidence (Home Office, London, 1989) (“the Pigot Report”).

45. Letter from the then Attorney General, the Hon P E J Collins QC MP, to the then Chairman of the Commission, the Hon Mr Justice Hope AC CMG, dated 19 November 1991.

46. See, for example, O’Brien v McAuley (1920) 14 QJPR 100, referred to in the above letter from the Attorney General.

47. The New South Wales Council for Intellectual Disability Submission (16 September 1992) at 10; Queensland Department of Family Services and Aboriginal and Islander Affairs Submission (18 August 1992) at 4; Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 6; the NSW Sexual Assault Committee Submission (August 1992) at 5; and Confidential Submission (4 September 1992) at 19.

48. Legal Aid Commission of NSW Submission (24 July 1992) at 6.

49. New South Wales. Parliamentary Debates (Hansard) Legislative Assembly, 4 April 1990 at 1682, per the Hon J Dowd QC MP, Attorney General.

50. Crimes Act 1900 (NSW) s 405H.

51. Evidence Act 1958 (Vic) s 37C(2)(a).

52. Evidence Act 1958 (Vic) s 37C(3).

53. Evidence Act 1977 (Qld) s 21A.

54. “Special-care witness options ignored: Wells” The Courier Mail (9 December 1993) at 25. See also comments about these provisions in R v West [1992] 1 Qd R 227.

55. Evidence (Vulnerable Witnesses) Amendment Act 1993 (SA).

56. Evidence Amendment Act (No 2) 1994 (NT).

57. Acts Amendment (Evidence of Children and Others) Act 1992 (WA).

58. “Move to ease stress of sex trials” The Hobart Mercury (7 February 1994).

59. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 10.

60. Evidence Act 1958 (Vic) s 37C(3)(c).

61. Evidence Act 1977 (Qld) s 21A(2)(d).

62. Evidence Act 1929 (SA) s 13(2)(c).

63. Evidence Act 1939 (NT) s 21A(2)(c).

64. Evidence Act 1906 (WA) s 106R(4)(a).

65. ACT Council on Intellectual Disability Submission (20 July 1993) at 3.

66. McKenzie v McKenzie [1971] P 33.

67. Smith v R (1985) 159 CLR 532.

68. Schagen v R (1993) 8 WAR 410. In that case it was stated (at 412, per Malcolm CJ) that: “it is within the inherent jurisdiction of the court to determine to what extent a “McKenzie friend” may take part in the proceedings. It would be a rare and exceptional case, however, in which a person other than a duly qualified legal practitioner would be permitted to address the court or otherwise take an active part in proceedings. The court was prepared to go further in the present case because the court reporting service had found the appellant virtually incomprehensible and this difficulty of understanding was compounded because he also had a severe hearing problem.”

69. For concerns about the issue of discussions between the support person and the witness see the English case of R v Smith (Court of Appeal, Criminal Division, 21 December 1993, cited in [1994] Criminal Law Review 458) where it was held that “it is the judge’s task to order a procedure which reduces the strain on child witnesses without prejudicing the interests of the defendant. It is important that anyone providing comfort and support to a child witness should not talk to the complainant while she is giving evidence, and this should be made clear publicly. If a social worker talks or whispers more than a consoling word or two, the suspicion may be aroused that something is being said about the evidence. Anyone fulfilling that role should say as little as possible, preferably nothing, to the witness.”

70. Crimes Act 1900 (NSW) s 405F(1). Section 405F(5) defines “personal assault offence” to be any offence under Part 3 (“Offences Against the Person”) of the Crimes Act, or under s 25 of the Children (Care and Protection) Act 1987 (NSW).

71. South Australian Attorney-General’s Department White Paper on the Courtroom Environment and Vulnerable Witnesses (November 1992) (the “SA White Paper”) at 11.

72. SA White Paper at 11-12.

73. The use of CCTV in ACT courts was introduced by the Evidence (Closed Circuit Television) Act 1989, which came into operation on 28 June 1989. An initial trial period, later extended, was included in the original legislation, but the Act has now been made permanent, and is now known as the Evidence (Closed-Circuit Television) Act 1991 (ACT). Further amendments to this Act, as a result of the ALRC Report (see paras 7.36-7.37) were passed on 18 May 1994. For the availability of CCTV in other States see the legislation referred to in para 7.23. CCTV is also available in England: Criminal Justice Act 1988 (UK) s 32.

74. SA White Paper at 15-16.

75. The interpretation section of the Crimes Act 1900 (NSW), s 4(1), lists all the offences which are considered “prescribed sexual offences”: Crimes Act 1900 (NSW) s 405D(1).

76. Crimes Act 1900 (NSW) s 405D(3).

77. Crimes Act 1900 (NSW) s 405D(2A).

78. New South Wales. Department of Courts Administration Annual Report 1992/93 at 38.

79. Mr B Marden, Department of Courts Administration, New South Wales Personal Communication (7 July 1994).

80. New South Wales. Parliamentary Debates (Hansard) Legislative Assembly, 4 April 1990 at 1686, per the Hon J Dowd QC MP, Attorney General.

81. Mr I Jordan, Department of Courts Administration, New South Wales Personal Communication (18 February 1993).

82. There is also a British study: G Davies and E Noon An Evaluation of the Live Link For Child Witnesses (Home Office, England, 1991).

83. Western Australia Department of Community Services Closed Circuit Television in the Perth Children’s Court (1990).

84. J Cashmore The Use of Closed-Circuit Television for Child Witnesses in the ACT (Children’s Evidence Research Paper 1, Australian Law Reform Commission, 1992) (“ALRC RP 1”) at Table 2.1.

85. ALRC RP 1 at paras 7.15-7.23.

86. ALRC RP 1 at para 7.24.

87. ALRC RP 1 at para 7.31.

88. ALRC RP 1 at para 7.49.

89. ALRC RP 1 at para 7.40.

90. ALRC RP 1 at para 7.49.

91. See, for example, the comments in A Fenbury “Video Witnesses” (April 1994) 21 (3) The Law Society of Western Australia: Brief 19-20.

92. ALRC Children’s Evidence: Closed Circuit TV (Report 63, 1992) at para 13.

93. ALRC RP 1 at para 7.49.

94. ALRC RP 1 at paras 7.59-7.62.

95. The Pigot Report at para 2.13.

96. G Davies and H Westcott “Videotechnology and the child witness” in Dent and Flin 211 at 216-217.

97. By telephone and through the Commission’s consultation with representatives of the DPP, Police Prosecutors, Legal Aid Commission of NSW, The Law Society of New South Wales, Public Defenders, Aboriginal Legal Service and the Judicial Commission on 1 March 1994.

98. See, for example, the comments made to Legislative Council Social Issues Committee Inquiry into Sexual Violence by Ms M Latham: L Morris “Evidence by TV less effective, inquiry told” The Sydney Morning Herald (25 May 1994) at 7. Ms Latham expressed a preference for the use of screens. See also M Knox “Video evidence ‘last resort’ in sex cases” The Sydney Morning Herald (23 July 1994) at 6, referring to evidence given by Mr P Conlon, Crown Prosecutor to a State Parliamentary inquiry into sexual violence. However, other Crown Prosecutors have referred to the usefulness of CCTV: Ms A Seeto Oral Submission (25 July 1994).

99. New South Wales Child Protection Council Position Paper on the Use of Closed-Circuit Television for Child Witnesses (March 1994) Recommendations 4.1, 5.1-5.3.

100. An evaluation of this proposal is to be undertaken by the Department of Courts Administration: see the Hon K Chikarovski MP, Minister for the Status of Women “Government measures to assist victims of sexual assault” Media Release (31 August 1993).

101. ALRC Report 63 at paras 20-24.

102. ALRC Report 63 at paras 27-29.

103. ALRC Report 63 at paras 30-33.

104. ALRC Report 63 at para 25.

105. Evidence (Closed-Circuit Television) (Amendment) Act 1994 (ACT), which commenced operation on 31 May 1994.

106. For the types of proceedings covered see Evidence (Closed-Circuit Television) Act 1991 (ACT) s 4.

107. Evidence (Closed-Circuit Television) Act 1991 (ACT) s 4A.

108. ALRC RP 1 at para 7.75.

109. NSW Women’s Co-ordination Unit Sexual Assault of People with an Intellectual Disability (Final Report, 1990), Recommendation 6.5.

110. WALRC Report 87, Recommendations 25 and 26.

111. Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992); Confidential Submission (4 September 1992) at 19; and The New South Wales Council for Intellectual Disability Submission (16 September 1992) at 10.

112. Confidential Submission (4 September 1992) at 18-19.

113. Consultation with the DPP, Police Prosecutors, Legal Aid Commission of NSW, The Law Society of New South Wales, Public Defenders, Aboriginal Legal Service and the Judicial Commission on 1 March 1994.

114. ALRC RP 1 at para 7.1.

115. ALRC Children’s Evidence by Video Link (Discussion Paper 40, 1989) at para 18.

116. See, for example, Cashmore at 234-250 and the New South Wales Child Protection Council Out-of-court Videotaping of the Statements of Children who are the Alleged Victims of Child Sexual Assault in New South Wales (Discussion Paper, July 1992).

117. New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Policing Issues (Discussion Paper 29, 1993), ch 9.

118. See Davies and Westcott in Dent and Flin 211 at 218-225 for some of the difficulties in this regard.

119. Cashmore at 238.

120. G S Goodman and B M Schwartz-Kenney “Why knowing a child’s age is not enough: Influences of cognitive, social, and emotional factors on children’s testimony”, in Dent and Flin 15 at 19. Goodman and Schwartz-Kenney’s own research, at 21, also came to this conclusion.

121. Goodman and Schwartz-Kenney at 21.

122. NSWLRC DP 29, ch 9.

123. Evidence Bill 1993 (Cth) cl 34.

124. Evidence Bill 1993 (Cth) cl 32.

125. Consultation with Mr G Craddock, Barrister on 11 March 1994.

126. See, for example, T Pitter “In video veritas?” (1992) 142 New Law Journal 1094.

127. Note that general changes are proposed to the hearsay rule in Part 3.2 of the Evidence Bill 1993 (NSW) which are likely to impact on the law in this area. In particular, cl 65 and cl 66 provide an exception to the hearsay rule in criminal proceedings where the maker of the statement is, respectively, unavailable or available. Where the maker of the statement is available, though there is a broad exception allowing certain representations which were made while fresh in the memory of the maker, that exception does not apply to evidence adduced by the prosecutor of representations “made for the purpose of indicating the evidence that the person who made it would be able to give in [proceedings] ... unless the representation concerns the identity of a person, place of thing.” The broad terms of this provision are likely to exclude many police interviews.

128. See, for example, A Ligertwood Australian Evidence (2nd ed, Butterworths, Sydney, 1993) at paras 7.58-7.77, which sets out a number of exceptions where a previous statement may be admitted.

129. Laster and Taylor at 160. See also K Warner “Child witnesses: Evidentiary reforms” in J Vernon (ed) Children as Witnesses (Australian Institute of Criminology, Conference Proceedings 8, Canberra, 1991) 168 at 174-177, in relation to the advantages and disadvantages of videorecorded interviews for child witnesses.

130. Evidence Act 1906 (WA) s 106H; WALRC Report 87, Recommendation 9 at para 3.33.

131. Evidence Act 1977 (Qld) s 93A; Evidence Act 1929 (SA) s 34ca. The South Australian provision applies to a child of or under 12 years. For a commentary on the Queensland provisions see A West “Admissibility of statements by children” (1994) 14 The Queensland Lawyer 166-168.

132. Evidence Act 1906 (WA) s 106I-M. See also WALRC Report 87 at paras 4.21-4.48.

133. Evidence Act 1906 (WA) s 106R. See also WALRC Report 87, Recommendations 25 and 26. The WALRC also recommended, at para 4.44, that a Code of Practice for the use of videotapes in judicial proceedings be developed and that, at para 4.47, an edited or altered version of the videotaped statement only be admitted if these changes were directed by the presiding judicial officer at a pre-trial hearing.

134. Evidence Act 1977 (Qld) s 21A(2)(e).

135. Crimes (Sexual Offences) Act 1991 (Vic).

136. Evidence Act 1958 (Vic) s 37B(1).

137. Evidence Act 1958 (Vic) s 37B(3)(a), (b).

138. Evidence Act 1958 (Vic) s 37B(3)(c)(i), (ii).

139. Criminal Justice Act 1988 (UK) s 32A, inserted by s 54 of the Criminal Justice Act 1991 (UK). The cut off age for a child varies depending on the particular offence: s 32A(7). See also P Smith and A Wilson “Children as witnesses: the Criminal Justice Bill and the Pigot proposals” [1991] Family Law 323-325.

140. J R Spencer “Reforming the law on children’s evidence in England: The Pigot Committee and after”, in Dent and Flin 113 at 119-129.

141. For a more detailed discussion in relation to children, see Cashmore at 234-236.

142. The Pigot Report at para 2.26.

143. The Pigot Report at ch 3, Recommendation 11.

144. See Smith and Wilson at 324, referring to American material.

145. SA White Paper at 17.

146. The New South Wales Bar Association Submission (12 January 1994) at 8.

147. See also the recommendations of the Law Reform Commissioner of Tasmania Child Witnesses (Report 62, 1989) at 26-28.

148. New South Wales. Law Reform Commission Unsworn Statements of Accused Persons (Report 45, 1985).

149. For example: the Hon Mr B Hazzard MP (New South Wales. Parliamentary Debates (Hansard) Legislative Assembly, 3 May 1994 at 1806-1807); and the Rev Hon F J Nile MLC (New South Wales. Parliamentary Debates (Hansard) Legislative Council, 19 April 1994 at 1353). See also the editorial “The death of Jasmin Lodge” The Sydney Morning Herald (23 March 1994) at 14: “From the perspective of preventing clever accused from using unsworn statements to plant false doubts in a jury’s mind the change is welcome and long overdue. From the perspective of allowing accused with an intellectual disability to put a simple statement in his or her defence, the change is controversial. Moves to broaden the protection of intellectually disabled accused in other ways as a result can be expected.”

150. See Ramsay v Watson (1961) 108 CLR 642 at 648-649, referred to in R v Bassett (unreported) Supreme Court, NSW, 20 May 1994, Hunt CJ at CL, 70082/93, at 14.

151. Letter from Mr M Ierace to the Hon J Hannaford MLC, Attorney General dated 13 April 1994. The letter was co-signed by the Redfern Legal Centre Intellectual Disability Rights Service and The New South Wales Council for Intellectual Disability. This letter was quoted at length during the debate in the New South Wales Parliament about the abolition of the unsworn statement.