Rules of evidence

Introduction

14.57 In general, rules of evidence attempt to ensure that the trial process is fair for the parties. However, these same rules often prevent witnesses from fully explaining their evidence. They often interfere with the ability of the judge and/or jury to hear the words of a child witness and the special context in which they are spoken. Competency rules, judicial warnings regarding children’s evidence, rules against hearsay and prohibitions on expert testimony and on tendency and coincidence evidence are significant ways in which children can be effectively silenced as witnesses.

14.58 The following recommendations attempt to address these problems. Some of the recommendations incorporate existing provisions of the Commonwealth Evidence Act and other State and Territory legislation. These recommendations are addressed to those jurisdictions in which the relevant amendments have not been made. Although the Evidence Act was designed to provide ‘model’ evidence legislation to permit a more coherent approach to the rules of evidence across jurisdictions, for a variety of reasons not all jurisdictions have followed the model. The recommendations are directed not so much to securing uniform, general evidence law as to encouraging a more appropriate approach to child witnesses across jurisdictions.

Competence

14.59 In most Australian jurisdictions the law considers certain children not competent to give sworn evidence. Most State and Territory legislatures have fixed a specific age below which children are presumed incompetent to give sworn evidence unless there is a judicial determination of a particular child’s competency.^[154]

14.60 In making this determination, judges undertake different investigations in different jurisdictions. For example, Queensland and South Australia adhere to the traditional common law definition of competency to give sworn evidence.^[155] The common law defines competency as a requirement that the child witness understand the nature of the oath. It defines this understanding as a belief in God and in divine vengeance, a formulation arising from eighteenth century cases.^[156] On the other hand, Tasmania and Western Australia have followed the English approach which determines competency on the basis of a secular assessment of the witness’ reliability.^[157] This approach requires proof of the witness’ cognitive ability to distinguish between truth and falsity and an acknowledgement from the witness that he or she accepts a higher obligation to tell the truth in court than in everyday life.^[158]

14.61 The Evidence Act and the Evidence Act 1995 (NSW) mark a clear change in the direction of the law in this area. Both Acts deal with competency without reference to children. They state that every person is prima facie presumed psychologically and physically competent to give sworn evidence in civil and criminal proceedings.^[159] This presumption is rebutted if a person is ‘incapable of understanding that in giving evidence he or she is under an obligation to give truthful evidence’.^[160]

14.62 The Evidence Act recognises that a witness may be competent to give evidence about some but not all facts.^[161] This is particularly important for children who may have differing language skills, abilities to make inferences, conclusions or estimates or capacities to understand concepts such as time and spacial perspective.^[162] This approach to competency allows a young child to respond under oath to simple questions but not to questions beyond the child’s capacity that cannot be reframed in simpler terms.

14.63 In all Australian jurisdictions a child who is incompetent to give evidence on oath may give unsworn evidence.^[163] In general terms, the law requires that the judge ascertain whether the child can understand and respond rationally to questions and give an intelligible account. Additionally, the child must promise to tell the truth. In some States there is also the additional requirement that the witness appreciate the duty or obligation that the promise entails.^[164] Under the Evidence Act a witness who is found incompetent may give unsworn evidence where

‘..the court is satisfied that the person understands the difference between the truth and a lie; the court tells the person that it is important to tell the truth; and the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding’.^[165]

14.64 Wherever a question regarding the competency of a witness arises, the trial judge is expected to undertake inquiries of the witness.^[166] The Evidence Act permits the court ‘to inform itself as it thinks fit’.^[167] This provision allows a child’s competency to be tested with the assistance of someone professionally qualified or with whom the child has a rapport. For example, expert evidence may assist the judge to determine whether a particular child is capable of understanding and responding to certain questions. As the formal surroundings of most courtrooms and the dress of the judge and counsel may be intimidating to a child and can make questioning children a difficult task,^[168] this provision may also permit the child’s competency to be tested out of court or in a modified courtroom setting.

Compellability

14.65 Subject to certain exceptions, such as the spouse of an accused in a criminal trial, every person competent to give evidence about a fact can be compelled to give that evidence.^[169] Under the Evidence Act and theEvidence Act 1995 (NSW) the child of a defendant may object to being required to give evidence in criminal proceedings, unless the proceeding involves an assault on a child or other domestic violence situations.^[170] In most other Australian jurisdictions it seems that a child who is competent to give evidence can be compelled to give evidence, regardless of the type of proceeding, just like any other person.^[171]

14.66 The Evidence Act provides that judges may require an objecting child witness to give evidence where the nature and extent of any harm to the witness or to the relationship between the witness and the accused is outweighed by the desirability of having the evidence given.^[172] This test is appropriate for handling objecting child witnesses not only in criminal proceedings but also in civil proceedings and those criminal proceedings previously exempted from the right to object provisions.

Corroboration and judicial warnings

14.67 In most Australian jurisdictions a child’s sworn or unsworn evidence need not be corroborated before a person can be convicted of an offence.^[173] As a corollary to these provisions, a judge is not obliged to warn the jury that it is dangerous to convict a person based on the uncorroborated evidence of a child.^[174] However, although all jurisdictions have removed the common law’s requirement that corroboration warnings be given, some jurisdictions still permit warnings about the unreliability of children’s evidence. In addition, judges generally have a discretion to comment on a particular child’s evidence considering the circumstances of the specific case, just as judges may comment on the evidence of any witness.^[175] Judges continue to give strong warnings about child witnesses, showing that children’s evidence continues to be viewed with suspicion.

14.68 In Western Australia, Tasmania and the Northern Territory judges are prohibited from warning the jury that it is unsafe to convict on the uncorroborated evidence of a child by implying that children are an unreliable class of witness.^[176] In Victoria warnings that children are considered an unreliable class of witness are prohibited whether or not made in connection with any uncorroborated evidence of a child.^[177] In South Australia judges are not required to warn a jury of the dangers associated with children’s uncorroborated evidence but there is no prohibition on doing so.^[178]

14.69 The NSW and federal Evidence Acts permit judges to warn juries about evidence that is ‘of a kind that may be unreliable’.^[179] In fact, a warning must be given where ‘…the reliability of the evidence may be affected by…the age of the witness’ and a party requests that a warning be given.^[180] Under these provisions the judge must state that the evidence may be unreliable, give the reasons why and warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.^[181]

14.70 Judicial warnings concerning the evidence of children continue to be standard practice in many jurisdictions despite these changes in the law.^[182] For example, Western Australia’s Court of Criminal Appeal recently held that a seven year old girl should not have been allowed to give sworn evidence in a criminal trial about an incident of domestic violence. The court held that the trial judge should have permitted her to give unsworn evidence and then warned the jury about convicting on the uncorroborated evidence of the child given the circumstances of this case (the child had shown some hesitation about whether she really understood the difference between the truth and a lie).^[183] Parker J went further than the other two Justices, stating that the jury should have been warned about the ‘…dangers inherent in the evidence of a young child’. He based this on his assumption that the evidence was that of ‘…a seven year old child describing events that could only have been observed by her in circumstances of considerable emotional disturbance’.^[184] This was despite s 106D of the Evidence Act 1906 (WA) that specifically prohibits judges from suggesting to the jury that children are classified as unreliable witnesses or that their evidence requires corroboration.

14.71 Submissions to the Inquiry deplored judicial warnings that effectively discriminate against child witnesses, particularly where those warnings are based on individual judges’ assumptions and prejudices regarding the ability of children to give reliable evidence. It was repeatedly suggested that judges should be prohibited from giving these warnings.^[185]

14.72 In Murray v R,^[186] the NSW Court of Criminal Appeal suggested that, in exercising a discretion to comment on the evidence of a complainant in a sexual offence case, judges should warn the jury that

…in all cases of serious crime it is customary for Judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in.^[187]

14.73 This phrase has become a common form of comment for NSW judges in sexual assault cases.^[188] A similar approach could be taken when judges comment on the evidence of child witnesses.^[189] Where a judge decides to exercise a discretion to comment on the evidence given by a child, the Murray formula should be the only permissible form of comment.

Expert evidence

14.74 Expert witnesses often give evidence in cases involving children. In family law or care and protection cases, experts are regularly called upon to describe the effects of certain types of abuse and to correlate this with injuries to a particular child or to give their opinion about the child’s psychological or physical health.

14.75 However, little use is currently made of expert opinion evidence regarding child victim witnesses in criminal proceedings,^[190] perhaps because the prosecution cannot generally call a witness solely for the purpose of bolstering the credibility of the complainant.^[191] Issues surrounding patterns of disclosure or behaviour in child victims may also be considered to be within the ‘common knowledge’ of a jury^[192] or not a fit subject for expert evidence.^[193] In a number of recent cases in Australia expert evidence about such matters as child sexual abuse accommodation syndrome or the behaviour of child victims of sexual abuse has been excluded for these reasons.^[194]

14.76 The Evidence Act has abolished the common knowledge rule,^[195] remedying the common law restrictions in this regard. This is particularly important for cases involving child victim witnesses, as a child’s behaviour on the witness stand or during the investigation process may be contrary to a jury’s expectations of an ‘abused’ child’s behaviour.^[196] A US study suggests that expert testimony about the characteristics of sexually abused children does affect jurors’ decision making in both civil and criminal cases.^[197] It is not entirely clear, however, that the Evidence Act permits the type of expert evidence that would be needed to explain a child victim witness’ behaviour, such as evidence of patterns of children’s disclosure in abuse cases and the effects of child abuse on children’s behaviour or demeanour in and out of court.^[198]

14.77 This kind of evidence has been admitted occasionally to rehabilitate the credibility of a witness after significant impeachment during cross-examination.^[199] However, the current wording of the Evidence Act may prevent the admission of rehabilitative evidence of this sort.^[200] There may also be occasions where this kind of expert evidence should be lead before the child is cross-examined or presented as a witness rather than waiting until the child witness is discredited during cross-examination.^[201] The rules of evidence should clearly indicate that expert evidence, on such issues as patterns of children’s disclosures in abuse cases or the effects of child abuse on children’s behaviour or demeanour in or out of court, is admissible to explain why general assumptions about the behaviour of a child witness or a certain line of cross-examination might not reflect adversely on a particular child witness’ credibility.^[202]

Hearsay and evidence of recent complaint

14.78 The rule against hearsay evidence provides that evidence of a previous statement or representation by a person is not admissible to prove the fact that the person intended to assert by the statement or representation.^[203] Out-of-court statements are considered unreliable evidence of the facts stated because of the lack of an oath, the absence of cross-examination and the possibility of fabrication.^[204] However, hearsay evidence is often relevant to proceedings. For example, evidence of prior complaints may be admissible because they could ‘relate to a fact in issue’, namely whether the event had occurred.^[205] Hearsay evidence may be particularly important in cases involving child complainants. Many allegations of criminal acts against children are not prosecuted or do not proceed because the child is presumed incompetent to give evidence or does not understand the duty to tell the truth in court, or because the trauma of testifying at trial prevents the child from giving evidence satisfactorily or at all.^[206] The ability to introduce the hearsay statements of the child, in addition to or instead of the evidence of the child, might address these problems.

14.79 Where a child witness’ previous statement was made in certain circumstances, it may fall into an exception to the rule against hearsay. There are exceptions for contemporaneous and spontaneous statements about the maker’s health, feelings, sensations, knowledge and state of mind^[207] or statements made when the asserted fact was fresh in the maker’s mind.^[208] In sexual assault cases, hearsay statements by a complainant are admissible under the common law as ‘recent complaint’ evidence, to support the complainant’s credibility, if the complaint was made spontaneously at the first reasonable opportunity.^[209] Some children’s initial disclosures of abuse or descriptions of an event fall into these categories. However, as patterns of disclosure among child victims of abuse often include disclosure of small pieces of information over periods of time, the current exceptions are not sufficient to get all relevant previous statements by children into evidence to prove the fact in issue at a trial.

14.80 Some jurisdictions provide additional exceptions to rules against hearsay when children are involved in particular proceedings. For example, in Queensland documentary evidence of statements by children aged under 12 that tend to establish a fact are admissible as evidence of that fact.^[210] Care and protection proceedings in all States and Territories are not bound by the rules of evidence.^[211] The Family Law Act also suspends the rule against hearsay in relation to children’s evidence in Family Court proceedings.^[212]

14.81 The Supreme Court of Canada in R v Khan developed a special exception to the rule against hearsay for children’s statements.^[213] It held that hearsay statements by a child regarding the issue at trial may be admitted in evidence provided that admission of the statement is necessary and the hearsay statement is reasonably reliable. The admission is ‘necessary’ if the court decides that the child is incompetent to give either sworn or unsworn evidence, the child is unable or unavailable to testify or if the judge is satisfied, based on psychological assessments of the child, that giving evidence might be traumatic for the child or harm the child.^[214] In later cases, lower Canadian courts further explained the necessity requirement, holding that necessity could be established by the extreme youth of the child^[215] or by the inability of a young child, when appearing as a witness, to give a coherent or comprehensive account of the events.^[216]

14.82 The Inquiry recommends an additional exception to the rule against hearsay similar to that in R v Khan.^[217] However, in the interests of fairness to the accused, no person should be convicted of an offence based solely on the evidence of one statement admitted under this exception. Some corroborating evidence, for example other statements by the child, medical evidence or expert psychological evidence, must also be required.

Tendency and coincidence evidence and joinder of trials

14.83 Rules restricting the use of tendency (propensity) evidence and coincidence (similar fact) evidence are designed to ensure that, particularly in criminal trials, a person accused of committing certain acts receives a fair trial. The Evidence Act has essentially restated the common law restrictions on the use of tendency and coincidence evidence.

14.84 The Evidence Act provides that evidence of a person’s character, reputation or conduct is generally not admissible to prove that he or she has a tendency to act in a particular way.^[218] However, the tendency evidence will be allowed if the party wishing to adduce it has given reasonable notice in writing to the other party of that intention or if the court considers that the evidence would have significant probative value.^[219] Furthermore, in criminal trials tendency evidence about a defendant can be adduced by the prosecution only if its probative value substantially outweighs any prejudicial effect that it may have on the defendant.^[220] Such evidence was permitted in Pfennig v R.^[221] Evidence was permitted in the defendant’s trial for the murder of a boy ‘M’ that the defendant had abducted and sexually abused another boy ‘H’ one year after M disappeared. H’s abduction was described as evidence that the defendant had a propensity to abduct and sexually abuse young boys and showed a tendency in the defendant which fitted very closely with the requisite tendency of the murderer.^[222]

14.85 The Evidence Act also provides that evidence that two or more related events occurred (similar fact or coincidence evidence) is generally not admissible to prove that, because of the improbability of the events occurring coincidentally, one person must have acted in both cases.^[223] Again, the evidence will be allowed if the party wishing to adduce it has given reasonable notice in writing to the other party of that intention or if the court considers that the evidence would have significant probative value.^[224] Again, in criminal trials coincidence evidence about a defendant can be adduced by the prosecution only if its probative value substantially outweighs any prejudicial effect that it may have on the defendant.^[225]

14.86 Coincidence evidence will be allowed, however, only if the party can demonstrate that the two or more events in question are ‘substantially and relevantly similar’ and that ‘the circumstances in which they occurred are substantially similar’.^[226] At common law, phrases such as ‘strikingly similar’, ‘underlying unity’, ‘unusual features’, ‘system’ or ‘pattern’ have been used to describe the improbability of two events occurring by coincidence.^[227] The High Court has commented on these terms in a few cases, all with the result that these requirements combined to exclude evidence about abuse of more than one child and to prevent the joinder of charges in a single trial.^[228] In addition, in Hoch v The Queen^[229] the High Court stated that, where there is a sufficient relationship between the victims and a motivation for possible concoction of the charges, one explanation for the similarity of events described by the victims is joint concoction of the offences. In such cases the evidence of one charge should not be admitted as evidence in the trial of other charges.

14.87 Rules against tendency and coincidence evidence play a significant part in criminal trials involving child witnesses, particularly when an accused is charged with sexually assaulting several children.^[230] In DeJesus v R,^[231] the High Court held that sexual offences form a special class of offences that should almost always be tried separately except where evidence on one count is admissible upon the other count under the ‘substantially and relevantly similar’ test. In addition, a possibility of joint concoction based solely on a ‘sufficient relationship between the victims’ as described in Hoch v R^[232] necessarily arises when the child victims are siblings or friends and are abused by a parent, relative, family friend or teacher. Together, these rules mean that separate trials are usually necessary in these cases and that the children involved may have to give evidence numerous times: in their own trial they must give evidence about what happened to them and in the other trials they must give evidence about what they witnessed happening to other children.

14.88 Submissions to the Inquiry demonstrated the problems these rules cause for child witnesses, particularly for siblings who give evidence in their own and their sibling’s trials regarding abuse by the same offender. One example was described by a mother of two children in this very situation.

The fact that there were two trials meant a duplicity [sic] of stress for my children. As it stands now, one daughter’s trial has been completed with a Not Guilty verdict brought in…[it was] very distressing for the girls to go back once more for the second trial two days later — back to back. The second trial was mistrialed after two days…Now my children have to go back to court [on a specific date] to suffer this hell once again.^[233]

14.89 In addition, these rules mean that when the complainant’s credibility is attacked, evidence that would support his or her credibility is disallowed and the jury are kept in ignorance of the fact that there are multiple allegations of abuse against the accused.^[234] As one submission noted, ‘[this] is a situation which would appear to offend common sense and experience, and has the potential to cause real injustice’.^[235]