The recent article (‘Ineffective’ system sees sexually abused children re-traumatised) has shone a light on a persistent issue in the criminal justice system: how children give evidence.
It is now well accepted in our legal system that the evidence of children is not inherently less reliable than the evidence of adults. Indeed a case I recently took to the High Court, The Queen v GW, was an important development in that area. The High Court held that unsworn evidence (which generally means evidence given by children) is not any less reliable than sworn evidence.
There have been some significant advances for children giving evidence in the ACT, which is in fact ahead of most Australian jurisdictions. Child witnesses in serious offences (including of course child complainants in sexual offence cases) are interviewed by trained police officers and this interview becomes their “evidence in chief” in court proceedings. This means they don’t have to keep repeating what happened. Further, for sex offences, the cross examination of the child is pre-recorded - it takes place before the trial and is re-played to the jury during the trial. The advantage to this is that the child’s involvement with the case is over well in advance of the trial.
However, it is the cross examination which can re-traumatise child victims of sexual offences (as, indeed, it can with adults). There has been a growing realisation that our traditional adversarial model of questioning is not working with vulnerable witnesses, and that their voices are not being heard at all, or are not being heard clearly.
A particular problem with child witnesses is suggestibility. Children are not inclined to disagree with propositions put to them by adults, particularly those in authority. Questions in cross examination are often phrased in complex or obscure ways, which can be unfair to the child witness. However, if questions are couched in a way the child witness can understand, the child is able to respond truthfully.
Finding a way properly to communicate with children requires skill and planning, and a willingness to challenge traditional approaches.
This led the Royal Commission into Institutional Responses into Child Sexual Abuse to recommend the use of intermediaries when children or other vulnerable witnesses are giving evidence. Such a scheme already operates successfully in England and Wales, and is being trialled in one region in NSW.
The intermediaries have professional qualifications to assist in communication with children and other witnesses with a communication difficulty. The intermediary assesses the witness’s abilities, and - as a professional and impartial adviser - assists the court and the parties in how best to communicate with the witness. The intermediary can intervene in a court examination where they observe that a communication breakdown has occurred.
As part of the scheme, the court holds a “ground rules” hearing, to ensure that the court and the parties receive advice from the intermediary concerning the child witness, such as the level of development of the child, and the form of age appropriate questions. The process enables a focus on the key questions that need to be put to the child witness. This not only ensures a less stressful experience for the child, it narrows the issues in the trial, which promotes the efficiency of the court process.
The involvement of intermediaries removes the need for defence counsel to “Browne v Dunn” the child witness, that is, to put their instructions from their client to the child. Children always find this arcane procedure confusing – having given evidence that something happened, an adult is suggesting that it did not. Instead, under the proposed system, the focus for the child will be on what happened.
The reforms in England and Wales introducing intermediaries into the criminal process are now integrated into the justice system there, and are accepted by the courts, prosecutors and defence counsel, without any diminution of the right to a fair trial. Indeed as the Royal Commission noted, drawing on the British experience, the long term benefits of an intermediary scheme are likely to extend beyond assisting in the provision of accurate evidence in individual cases: “the frequent exposure to the assistance that can be provided by an intermediary has assisted in generating cultural change throughout the legal profession regarding the appropriateness of courtroom questioning, particularly in relation to children and people with disability”.
The concept of intermediaries for child witnesses was recently discussed in the ACT at an extraordinary meeting of the Domestic Violence Prevention Council. The meeting was particularly focused on improving outcomes for children in the criminal justice system. The concept of the appointment of intermediaries was very well received.
All Australian governments including the ACT government are currently considering the recommendations of the Royal Commission on this and many other matters. I and my fellow directors of public prosecutions have welcomed the Royal Commission Report as a landmark in the area of sexual offending.
The ACT government has recently sought the community’s views on intermediaries and other suggested reforms arising out the Royal Commission.
The recommendation concerning intermediaries for child witnesses certainly deserves support.
Jon White, SC, director of public prosecutions ACT