Investigations and pre-trial processes

Introduction

14.26 Although children can give reliable accounts of events that they have witnessed, they should not be treated as miniature adults when they become involved in the legal process. Children face significant pressures from the moment they become involved in the legal process as witnesses, such as multiple inter-views and lengthy delays between the incident and trial.^[73] Investigatory and pre-hearing processes must be adjusted to the needs and capacities of the child to ensure that he or she can give the best evidence possible at the formal proceeding.

The initial interview of a child witness

14.27 Pre-trial investigations of cases involving children can require investigative interviews of potential child witnesses by police, social workers, court counsellors, doctors or lawyers. Some investigations involve interviews by a number of these professionals. For example, allegations of child abuse within the family can require investigation by family services department workers and police officers, health care providers and Family Court counsellors. The Inquiry received evidence that children in this situation are often subjected to multiple interviews over extended periods of time.^[74]

14.28 Multiple interviews are potentially harmful to the child required to recount traumatic events and to the reliability of that child’s evidence. Even when a repeatedly interviewed child is able to give accurate testimony, a belief that the child is giving over-rehearsed or contaminated evidence may diminish the child’s credibility in the eyes of the court. Multiple interviews may also diminish the child’s confidence and co-operation.^[75] In extreme cases, multiple interviews can amount to systems abuse.^[76]

14.29 We have also been told that, even where there is a single interviewer, the questioning can be lengthy and insensitive and can involve multiple interviews conducted by a person with little experience in dealing with children.^[77] Children’s evidence is important in many cases, particularly where the child’s evidence is the only or the most significant evidence of alleged abuse or mistreatment. Many of these cases are strenuously contested. The investigation of abuse must be conducted so as to support the child’s ability to give reliable accounts of the relevant events. The interests and the physical and emotional well-being of children must be protected during this process. All interviews of children who are potential witnesses should be conducted by people trained in questioning children, particularly when that questioning is likely to be about sensitive or traumatic subjects. In DRP 3, we proposed that national interview standards requiring this training be developed.^[78] Most submissions agreed.^[79]

14.30 Many submissions said that children should be allowed to have a support person of their choice present during any interviews, suggesting that a support person can safeguard the child from undue trauma during interviews.^[80] No Australian jurisdiction currently requires this, although many jurisdictions permit support persons at the discretion of the interviewing police officer or social worker.^[81] Some submissions and young people expressed concern, however, that children may be uncomfortable or unwilling to discuss sensitive issues in the presence of certain people, particularly their parents.^[82] Giving children the decision as to whether to have a support person present during some or all of the interview and the choice as to who that person should be could address this problem.

Specialist investigation teams

14.31 One way of limiting multiple interviews of child witnesses is to establish appropriately trained teams of investigative interviewers to investigate abuse cases and interview children who would otherwise have to tell their stories to a number of different people. These teams would be particularly helpful where children are the alleged victims of or witnesses to actions that may result in several proceedings, such as criminal charges, care and protection proceedings and Family Court applications.

14.32 Existing initiatives internationally and in Australia could serve as a starting point for the development of these teams. In Australia, most of the initiatives have focused on joint interview teams, consisting of a police officer and a family services department worker, or on protocols between these two agencies that detail information sharing and interviewing requirements.

14.33 For example, the Northern Territory Police and the Territory Health Service have developed a protocol for a co-ordinated response to child maltreatment allegations, involving the establishment of an investigating team of a police officer and a family services department worker.^[83] The protocol’s guidelines state that where the allegations concern both child protection and criminal matters the team should conduct a joint interview of the child whenever possible. The police officer has the primary responsibility for gaining evidence and the family services worker for providing a supporting or counselling role, although these roles should be determined on a case-by-case basis. This investigating team is also responsible for keeping the child and family informed about the actions proposed to be taken and for preparing the child for court should the child be required to give evidence.

14.34 In Queensland, Suspected Child Abuse and Neglect (SCAN) Teams consist of a family services department worker, a police officer, a medical representative and, if required, representatives from the Department of Education and Legal Aid. These teams co-ordinate the initial intervention in cases of alleged child maltreatment, including joint interviews of the child by the family services department worker and the police officer, and appoint a case manager to ensure that the legal requirements are met for all proceedings. Some of these teams are hospital-based and are limited to cases where the allegations are associated with medical intervention.

14.35 In 1994 NSW piloted the use of joint investigation teams (JIT) to interview child victims of sexual or physical abuse in two areas of the State. JIT include a family services department worker and a police officer, each of whom has been specially trained to deal with these cases. In April 1997 JIT were established in eight new localities.^[84] They handle only those cases where a criminal offence is alleged to have occurred.^[85] In August 1997 the Wood Royal Commission recommended that, in addition to these initiatives, NSW should trial an Expert Children’s Centre, modelled on the Child Advocacy Centre in Dallas, for team-based investigation of child abuse in a single location.^[86]

14.36 In Victoria, protocol arrangements between the family services department and the Victoria police allow joint interviews of children where there are reasonable grounds to believe that a child has been sexually assaulted or has incurred serious physical harm.^[87] However, co-ordination problems have been identified in the implementation of the protocols.^[88] In 1995 a Victorian parliamentary committee recommended the establishment of Sexual Assault Response Teams, comprising police, ‘protective advocate’ (family services department worker), legal counsel and medical and counselling services, all in a single location.^[89] It recommended that police and protective advocates have the primary responsibility for intervening to investigate allegations of child sexual assault and protect children, with the other team members having a secondary and supportive role.^[90] This system was essentially modelled on Stuart House, the Child Advocacy Centre in Santa Monica, California. This recommendation has not been implemented in Victoria.^[91]

14.37 The Inquiry was impressed by the concept of Child Advocacy Centres as established in many jurisdictions in the United States. These centres aim to develop a comprehensive, multidisciplinary response to child abuse, to prevent or reduce trauma to children caused by multiple contacts with professionals and courts and to provide services to child victims and their families.^[92] They consist of representatives from the District Attorney, police and family services department as the core response team that investigates allegations of child abuse. They also employ a director and often additional persons are involved as trial co-ordinators or witness advocates, counsellors, doctors or nurses and mental health professionals.^[93] Child Advocacy Centres provide a single, child-friendly location for interviews and evidence collection away from hospitals and police stations, with all agencies sharing information and providing support and assistance to the individual child. They also provide continuing counselling and support for children and their families and most conduct witness support programs for child witnesses.^[94] Most Child Advocacy Centres have specially designed interview rooms with video-recording capabilities. Where possible, all interviews of the child are conducted at the centre and video-taped. Any medical examinations may also take place at the centre, with the physical evidence retained by police in the usual manner.^[95]

14.38 Submissions to the Inquiry generally supported interview teams jointly investigating cases involving child abuse allegations.^[96] There was some concern, however, that team interviews could prove intimidating for children when the team included a number of people.^[97] Many of these submissions supported the method used in many Child Advocacy Centres, whereby a specially trained interviewer, employed by the centre, conducts the interview with the members of the investigation team behind a one-way mirror and able to communicate to this person the information required from the child.^[98]

Video or audio taped interviews and children’s evidence

14.39 Video or audio taping of interviews with children by police or family services workers is undertaken in many jurisdictions in Australia.^[99] This can reduce the need to conduct further interviews with the child^[100] and can be used to inform family services department workers, police, counsellors, legal repre-sentatives and even expert witnesses of the substance of the child’s statements. In addition, taping is conclusive evidence of the manner in which the child was questioned and provides a better record of the interview than a written account.^[101] Where a child cannot read, the tape can be used before trial to refresh the child’s memory of his or her statement.^[102] A video-tape may also serve as the evidence of the child in a variety of legal forums, including in committal proceedings in criminal cases, reducing the need for the child to testify a number of times. Where there is a delay in bringing the case to trial, the video-tape can give a jury a more accurate understanding of the child at or near the time of the incident.^[103]

14.40 The Criminal Justice Act (1991) (England and Wales) allows video-recorded interviews with children to be used as the child’s evidence in chief in criminal prosecutions.^[104] An evaluation of 1199 trials involving a child witness from October 1992 to June 1994 has shown that in approximately 640 trials an application to show the video-taped interview was made and in 73% of these the application was granted. In 43% of the cases where the application was granted, that is, in 200 cases, the video was shown in court. There was no significant difference in jury verdicts between video-taped evidence and live examination in chief but children were much less anxious during the video-taped interviews than while giving live evidence at trial.^[105]

14.41 In Australia video-taped interviews of child witnesses are admissible in some legal proceedings in most States and Territories but most legislation provides that, in criminal proceedings, the child witness must be available for cross-examination in court.^[106] Cross-examination is the most traumatic part of the trial for child witnesses.^[107] Where the video-tape substitutes only for the evidence in chief, the child may not have been eased into the process of giving evidence through a relatively gentle direct examination. In addition, where there is a considerable time gap between the time of the video-taped interview and the cross-examination, the cross-examiner may be able to exploit any lapses in memory that have occurred during that period.

14.42 Another problem is deciding which interview, or how many, should be taped for presentation in court as the child’s evidence in chief. Children often do not disclose all relevant information at the initial interview or at any one interview.^[108] Recording only those interviews in which disclosures are made can imply a bias in the maker of the tapes.^[109] Questions also arise about the manner and procedure for recording, storing and producing the tapes^[110] and privacy issues for the children involved.

14.43 Many submissions to the Inquiry supported the recording of children’s interviews by video-tape^[111] but others raised problems with the technology and its use.^[112] For example, one problem concerns the performance expectations of children during these video-taped interviews.

[T]he expectation is that all of a sudden [the child] is in a room with somebody [s/he] doesn’t know, a child who might be 5, and he is expected to, without [preparation], tell us what happened. [The expectation is] that a child will talk about details of the most personal thing in their life right there in the next half hour or forget it…The child loses the right to have that other form of statement…[where] a police person may come in plain clothes into the child’s room, may build up a relationship…[instead] they get sent to a place they’ve never seen before, somebody they’ve never met before and are expected to do it off pat.^[113]

14.44 Notwithstanding the problems in using video-taped interviews as the child’s evidence in chief, there are real advantages to the video or audio taping of interviews with children. The Inquiry supports the continuation of pilot interview taping programs and their evaluation. Evaluations of these programs should include research on in-court and out-of-court uses for such taped interviews, the means of interviewing children on tape and the maintenance and storage of tapes. One suggestion worth particular consideration is that each of the child’s first and subsequent interviews should be video or audio taped and that video-taping a child’s statement for use as the child’s evidence be reserved for when the child is ready to make a full statement of the events.^[114]

Video-taped pretrial hearings

14.45 Video-tape technology is also being used in other ways to reduce the traumas facing children who must give evidence in court. One option involves video-taping a child’s entire evidence, including direct and cross-examination, during a pretrial hearing, deposition or other proceeding held specifically for this purpose. This video-tape is then presented at the trial as the entire evidence of the child. Some jurisdictions are currently exploring this option.

14.46 For example, Western Australia’s Acts Amendment (Evidence of Children and Others) Act 1992 (WA) permits the video-recording of a child’s evidence in chief and cross-examination before trial.^[115] Fourteen children were scheduled to give their evidence in this manner in the past eight months.^[116] The provisions recognise that some children may still be required to appear at the trial for further questioning if deemed necessary, though this has rarely occurred.^[117] This process has particular advantages for child witnesses, including better controls over the arrangements to prevent the child coming into contact with the accused or family or supporters of the accused^[118] and as a means of capturing the child’s evidence closer to the event.^[119] It can also reduce the stress to a child witness by reducing the number of times he or she may come to court only to be told that the trial has been postponed. The video-tape could also be used in any retrials, rather than, or in addition to, having the child reappear to give evidence in the new trial.

14.47 Practitioners addressing the Inquiry were particularly interested in this system, seeing it as the future of children’s evidence.^[120] We recommend that all jurisdictions permit the video recording of the entire evidence of a child witness prior to the trial. Pretrial hearings for these purposes should be conducted whenever the interests of justice require, but particularly when the child may be at risk of prejudice or trauma due to lengthy delays.

Committal hearings

14.48 Committal hearings are meant to provide a filter in the criminal justice system, ensuring that no-one stands trial unnecessarily. Persons are required to stand trial before a jury only when a magistrate finds that there is a prima facie case against the accused.^[121]

14.49 The committal also discloses to the accused the prosecution case, providing the opportunity to test the strength of the evidence of a prosecution witness,^[122] allowing a more informed decision whether to plead guilty^[123] and giving an advance view of the likely testimony at trial.^[124] Defence counsel often use the committal as a ‘dress rehearsal’ for the trial.^[125] The absence of a jury at committal can leave defence counsel free to pursue aggressive and intimidating tactics without concern about the effects these tactics may have on the jury’s perception of their treatment of child witnesses.^[126] In addition, many defence counsel seem to proceed on the basis that the more intimidating and terrifying the committal is for a child witness, the less likely it is that a child witness will be willing or able to give evidence at the trial.^[127]

14.50 Many Australian jurisdictions have attempted to address these problems by permitting or requiring paper committals,^[128] by limiting the types of offences for which witnesses may be called at committal^[129] and by permitting written or recorded statements of children to be used at committal instead of live evidence.^[130] However, children are still required to give evidence at committal hearings in some jurisdictions, whether because there is no legislative protection^[131] or because it is still common practice to require the attendance of child witnesses despite legislative provisions.^[132] The Inquiry heard extensive evidence that committal hearings were exceedingly traumatic for children.^[133]

My children, at the time of the [committal] were 12 and 14…when my 14 year old daughter was put up to be cross-examined, she was up for 5 hours…when cross-examining her [the defence counsel] accused her of doing this for gain of money. He told her that he thought she reacted like she did because she was sleeping around. Mind you, at the time of the assault, she was 9 years old…he told her he believed something happened, he then accused her father and said her father had really done it but she was blaming this man instead…in two sentences he ruined my daughter… She came out of court, she was sick, she could not stop vomiting.^[134]

I spent 3 days being examined and cross-examined [at the committal hearing] and the cross-examination was pretty brutal and the other people involved said it was one of the most brutal cross-examinations they’ve ever seen… I was prepared quite extensively for the committal hearing by the child care officer and a psychiatrist, but I do not think anything could have prepared me for what I went through. To this day I still tell Dr. H that if she ever asks me to recommend to a young girl to go on with the prosecution I would tell her to run south as fast as she can.^[135]

DRP 3 proposed that children no longer be required to give evidence in person at committal hearings.^[136] Many submissions to the Inquiry supported this recommendation.^[137]

Consequences of pretrial delays

14.51 There are frequently lengthy delays before matters involving child witnesses are brought to trial. A recent NSW study found that for criminal matters the average time from charge to committal was six months and from committal to trial was about 11 months.^[138] Even where courts are required to give priority to criminal proceedings involving child victims, long delays are still common.^[139] In addition to backlogs, a case may be listed for hearing on a number of occasions. In NSW approximately 30% of cases involving child witnesses are not heard on the first listing.^[140]

14.52 Delays may be detrimental to children’s evidence, prompting children to refuse to give evidence or be less impressive in the witness box than they would otherwise be.^[141] In addition, as psychological research has shown, young children’s memories may be less reliable over long periods of time.^[142] All cases involving children as witnesses should be given priority in case listings and a fixed hearing date at which the child will give evidence. When delay cannot be avoided, measures such as the pre-recording of a child’s entire evidence prior to trial should be arranged.^[143]

14.53 Delays often hamper attempts to treat children who give evidence of child abuse or other traumatic experiences. Victims of child abuse or witnesses to other traumatic events often need professional therapeutic counselling.^[144] However, it is argued that therapeutic counselling may contaminate a child’s evidence and provide an opening for extensive cross-examination by defence counsel.^[145] Therapy is frequently postponed until after the trial to avoid accusations that the child’s evidence has been contaminated. The longer the delay between the abuse and the trial, the longer the waiting time for these children who may need professional counselling.^[146]

14.54 Many submissions to the Inquiry favoured children accessing counselling when they need it rather than when the trial dictates.^[147] Several submissions were concerned, however, about trial results and cross-examination in these circum-stances.^[148] The Inquiry considers that, consistent with CROC, the child’s best interests should be paramount rather than ‘winning’ the trial at the expense of the child’s mental health.

14.55 One solution adopted in many overseas jurisdictions is to confer a privilege on communications made for the purposes of therapeutic counselling, in recog-nition of the desirability of encouraging people with emotional, behavioral and psychological problems to seek assistance.^[149] NSW has recently circulated a draft bill that provides a privilege for communications made by an alleged victim of sexual assault to a sexual assault counsellor.^[150] Evidence of the communications is not to be adduced in court unless the court gives leave. The court must not give leave unless the evidence has substantial probative value, other evidence of the matters in the communication is not available and the public interest in protecting the confidentiality of the communications or in protecting the alleged victim from harm is substantially outweighed by the public interest in admitting the evidence.^[151] Should the court give leave to adduce the evidence, the court may make ancillary orders to limit the possible harm or the extent of the harm to the alleged victim.^[152]

14.56 Critics of a legal privilege for these communications argue that it ‘…deprives the judicial proceedings of information which would be relevant to the determination of the issues’.^[153] However, the NSW approach permits the judge to determine the relevance and admissibility of this evidence. The legislation is not a panacea, but it does help to protect and provide counselling options for children who all too often have a real and pressing need for these services. The NSW option, when combined with early video-taping of children’s evidence, can help to ameliorate some of the mischief caused to children by trial delays.