Child witnesses in Australian jurisdictions

Child witnesses in federal proceedings

14.6 In the federal jurisdiction children give evidence in family law proceedings, administrative tribunals, civil law matters and federal criminal proceedings. Detailed statistics on the numbers of children giving oral evidence in these jurisdictions are not often kept. However, it seems that the number of children appearing as witnesses in federal jurisdictions is quite small.

• Family Court of Australia and State and Territory magistrates’ courts exercising federal family law jurisdiction. Children rarely give oral evidence in family law proceedings.^[12] Children may not be called as witnesses without prior leave of the court under the Family Law Act.^[13]

• RRT. According to an informal survey of Tribunal members, 52 children appeared as witnesses in the RRT from July 1993 to December 1996. These children appeared before the 16 Tribunal members who responded to the survey, an average of about one child witness per member each year.^[14]

• IRT. According to an informal survey of Tribunal members, two cases before the Tribunal from 1 January 1997 to 31 March 1997 involved children giving evidence. One case involved one child giving evidence and the other involved three children, although it is not clear whether all three children gave evidence.^[15]

• SSAT. Very few children attend the SSAT as witnesses. Indeed, the tribunal has few witnesses of any sort.^[16] In 1996 three instances were recorded of children appearing as witnesses in relation to appeals involving YTA.^[17] However, a large number of children are listed as applicants for review of decisions concerning YTA or Austudy. It is safe to assume that some of these would have appeared and spoken in the Tribunal in connection with their appeals.^[18]

• AAT. Anecdotal evidence suggests that there are few child applicants and witnesses before the AAT, although the Tribunal does not keep an age profile of clients or witnesses so this is impossible to verify.^[19]

• Federal criminal proceedings. Again, there were no statistics recording the numbers of child witnesses in federal criminal proceedings, although children could be witnesses to welfare fraud, drug offences, police corruption and customs breaches. In one recent case, two Cambodian children gave evidence in a federal prosecution under the Crimes (Child Sex Tourism) Amendment Act 1994 (Cth).^[20] Children charged with a federal offence themselves may also give evidence in federal jurisdictions on their own behalf.

14.7 Although children may give evidence infrequently in these jurisdictions, this is not to say that children do not participate in proceedings in federal courts and tribunals. Their participation in legal processes other than as witnesses — for example as applicants or subjects of the proceeding — is discussed in Chapters 9, 13 and 16.

14.8 The Evidence Act 1995 (Cth) (Evidence Act) contains most of the rules of evidence applicable to witnesses, including child witnesses, in federal courts.^[21] A federal court is defined in the Evidence Act as ‘a person or body…that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence’.^[22] This definition includes the Family Court of Australia, the Federal Court of Australia and certain State and Territory courts exercising federal jurisdiction but excludes the SSAT, the AAT, the IRT and the RRT which are not bound by the rules of evidence.^[23] However, as children also appear as witnesses in these tribunals, the Inquiry recommends that child witnesses in tribunals should be afforded protections and considerations similar to those recommended for federal courts.

Child witnesses in State and Territory proceedings

14.9 In State and Territory jurisdictions child witnesses are most likely to appear and give evidence in criminal proceedings. Many of these children are the victims of the alleged crime. Others are bystanders who have witnessed violence or crime perpetrated on other people. One study of domestic violence in Victoria found that, of 217 inquiries to one Clerk of Court that concerned domestic violence incidents, children were reported as being present during the incident in 45% of the cases. Further, the study reviewed Victorian police reports of domestic violence incidents and found that 79% of disputes involving a weapon and 65% of disputes involving a firearm were reported from households that contained children under the age of 5.^[24] Studies from other countries confirm that children can be frequent witnesses of criminal activities.^[25]

14.10 There are no comprehensive statistics on the level of children’s involvement as witnesses in criminal proceedings. Annual reports and other publications by State and Territory agencies and courts and statistics provided to the Inquiry by these agencies give an indication of the extent of this involvement.

• Victoria. In 1995–96 the Witness Assistance Service of the Victorian Office of Public Prosecutions assisted victim witnesses in approximately 73 matters that involved child sexual assault.^[26]

• Queensland. During the period from 1 February 1994 to 1 January 1997, 1 216 children gave evidence in criminal proceedings involving sexual assault charges in Queensland.^[27]

• Western Australia. From 1 January 1996 to 14 November 1996, 31 children gave oral evidence through Closed Circuit Television (CCTV) and 25 children gave evidence using a screen in criminal proceedings in Western Australian district and Supreme Court trials and preliminary hearings. Another 8 children had their evidence in chief taken prior to trial and videotaped for subsequent presentation in the trial.^[28] The Western Australian Child Victim Witness Service, in the two years since its establishment, has received 363 referrals for assistance.^[29]

• ACT. The ACT Supreme Court’s CCTV facilities were used three times by children giving evidence in the criminal jurisdiction during 1995–96.^[30] The children’s court CCTV facilities were also used, presumably by children, in an unknown number of criminal trials against adults during that year.^[31]

• Northern Territory. The Supreme Court’s CCTV facilities are used approximately five or six times a year by children and other ‘vulnerable witnesses’ in criminal trials.^[32] Similar facilities can be used by witnesses in some magistrates’ courts, although no statistics on the extent of their use are available.^[33]

• South Australia. In 1994 there were 18 criminal trials held in district courts and the Supreme Court in which the main charge was unlawful sexual intercourse — a crime in which the victim by definition is a child aged 16 or under.^[34] An additional 11 criminal trials were held in which the main charge was indecent assault of a person aged 16 or under.^[35] There is no data to show if and how many of the child victims gave evidence in these cases.

• Tasmania. In 1995–96, 58 children aged 17 and under were assisted by the Tasmanian Victims of Crime, Response and Referral Services.^[36]

• NSW. In 1995 there were 630 victims of child sexual assault involved in cases against 501 alleged offenders. Only 190 cases went to trial.^[37] The child victims were likely to have appeared in these trials and given evidence regarding the assault.

14.11 Some child witnesses to criminal offences may alternatively, or additionally, give evidence in care and protection proceedings, in civil actions to recover damages or compensation for injuries sustained as a result of the crime and in other related legal processes.

14.12 In care and protection proceedings, the rules of evidence are generally relaxed and children’s evidence is often heard indirectly with other witnesses telling the court what a child might have said or what injuries the child sustained. Therefore, children rarely appear in these proceedings to give evidence. In Western Australia only two or three children give evidence each year in care and protection proceedings.^[38] In Tasmanian care and protection proceedings children generally do not give evidence at all in the south and north west of the State. However, in the Launceston area children aged 12 and over give oral evidence in approximately 20% of cases and affidavit evidence (on which they are often cross-examined) in 50% of cases.^[39] In approximately 25% of care and protection cases in the Launceston area, the evidence of children under 12 is presented by videotapes of their interviews.^[40]

14.13 Children can also appear as witnesses in State and Territory civil proceedings, although most responses to the Inquiry’s requests for statistics on child witnesses in the civil jurisdictions indicated that children rarely give evidence in these jurisdictions.^[41] Of particular concern, however, is the number of children who claim compensation for injuries resulting from crime.^[42] These compensation claims can be made in a variety of forums, depending on the jurisdiction, and may include children giving evidence concerning their injuries in courts or tribunals. Children may also give evidence in State or Territory tribunals for other reasons, for example in proceedings concerning the revocation of a doctor’s licence to practise medicine or allegations of discrimination.^[43]

14.14 Each State and Territory has its own rules of evidence, court procedures and investigation practices that can affect how child witnesses are handled both before and during their participation in the trial. The federal Evidence Act applies in ACT courts^[44] and NSW has passed legislation that mirrors the Evidence Act.^[45] Many State and Territory jurisdictions are reviewing or have recently reviewed their rules of evidence and court procedure in light of concerns about the way these processes affect children. This has resulted in important changes in procedural law and practices associated with child witnesses in these jurisdictions. There are still significant variations, however, such that child witnesses in similar situations will be treated differently depending on where they live. In the following sections, the various legislative and procedural requirements regarding children’s evidence are discussed. We have pointed out changes that need to be made to meet a national standard of protection necessary for the well-being and effective participation of child witnesses in the legal process.