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By Dina Yehia SC
Children give evidence in a wide range of cases. However, a significant proportion of the cases involving child witnesses are cases involving allegations of sexual assault. While this paper will deal with the legislative provisions relating to child witnesses in a general sense, it will focus on evidence in sexual assault cases.
The paper covers four areas relevant to the topic of cross-examination of child witnesses/complainants. It has therefore been divided into four sections:
ii. A discussion of the balance between protecting the right of an accused to a fair trial, on the one hand, and minimising the negative experiences of child witnesses, on the other.
iii. An analysis of the legislative provisions dealing with child witnesses.
iv. Practical suggestions for cross-examining children.
There can be little doubt that giving evidence in a criminal trial can be a stressful and difficult experience. This is so for Crown witnesses, Defence witnesses and accused persons. That this is particularly so for children is irrefutable. Many child witnesses give evidence as complainants in sexual assault cases. Often their account is the only evidence or the primary evidence against an accused. Their evidence is therefore subject to challenge and testing by way of cross-examination.
It is a daunting task for a defence lawyer representing an accused in such a criminal trial. Often the allegations are extremely serious. Significant standard non-parole periods apply on conviction. Your client is protesting innocence. You are tasked with testing the child’s account, undermining the reliability and credibility of that account and thereby the child. The only real armoury available is that of cross-examination.
Over the years there has been much criticism of the failure of the criminal justice system to deal fairly and sensitively with sexual assault complainants, particularly child complainants. Delays in cases proceeding; intimidating cross-examination; and a lack of awareness of children’s cognitive, linguistic and emotional development, have been cited as reasons for legislative change. “Therapeutic Jurisprudence, child complainants and the concept of a fair trial”, M.S King (2008) 32 Crim LJ 303 at 305. Furthermore, there is some evidence that the court process causes children to be anxious and fearful. “NSW Health Education Against Violence, Nothing but the Truth: Court room Preparation for Adult and Child Witnesses in Sexual Assault Proceedings” (The Education Centre Against Violence, 2002).
The Child Sexual Assault Specialist Jurisdiction was established on a trial basis on 24 March 2003 in Sydney West District Court Registry. The establishment of the Specialist Jurisdiction was the principal recommendation of the Report on Child Sexual Assault Prosecutions (NSW) Legislative Council Standing Committee on Law and Justice 2002.
The aim of the Specialist Jurisdiction was to reduce delays; to increase the skills of the legal professionals involved in such cases; and to improve the court environment to assist children. Some of the initiatives included:
The use of CCTV.
Education of the professionals involved, eg the use of judicial education packages.
Case management to avoid delays.
An evaluation of the Specialist Jurisdiction was conducted by the Bureau of Crime Statistics and Research (BOCSAR) in 2005. The findings can be summarised as follows: “An Evaluation of the NSW Child Sexual Assault Specialist Jurisdiction Pilot” Judy Cashmore and Lily Trimboli, NSW Bureau of Crime Statistics and Research, 2005.
The use of pre-recorded interviews and CCTV facilities had positive benefits for children, although technical difficulties with the tapes limited the effectiveness of these measures.
Delays continued to exist due to last minute editing of the tapes after legal argument.
The evaluation process did not produce any clear findings as to the effect, if any, of the judicial education packages.
While there was introduction of case management measures, overall this was limited. Amongst the difficulties identified was the late appointments of Crown prosecutors to a case; problems with technology; and the insistence of some judicial officers that child complainants/witnesses be at court long before they were required to give evidence.
Although the Pilot came to an end, a number of legislative amendments have come into force over the last decade in response to the concerns raised on behalf of sexual assault complainants including child witnesses.
There is little doubt that some of the concerns raised in relation to the negative experiences of sexual assault complainants are valid. As one of my former colleagues once wrote:
“No one questions that it is difficult for a legitimate sexual assault complainant to participate in the prosecution of an alleged offender”.
However, it was also noted:
“Despite this, great care must be taken to ensure protections traditionally afforded to an accused are not sacrificed in an endeavour to make the process less confronting for complainants.” “A defence Lawyer’s Perspective” Leonie Flannery UNSW Law Journal Forum, Volume 11 No 1 at p 6.
There is a concern that in some of the literature advocating legislative change the presumption of innocence is afforded little weight. This is particularly so when the argument is put forward that legislative intervention is warranted as one of the ways to increase the likelihood that “child abusers will be successfully prosecuted”. “Particularisation of Child Abuse Offences: Common Problems With Questioning Child Witnesses”, Martine Powell, Kim Roberts, Belinda Guadagno Current Issues In Criminal Justice July 2006 Volume 19 No 1 p 64 at p 65.
Advocates of legislative intervention cite the low rates of conviction in sexual assault cases as reason for further “reform”. It is argued that the conviction rate in sexual assault cases is lower in Australia in comparison with other offences. “Child Complainants and the Court Process in Australia”, Kelly Richards, Australian Institute of Criminology, No 380 July 2009 citing a study by J Fitzgerald “The Attrition of Sexual Assault Offences from the NSW Criminal Justice System”, BOCSAR, No 92 January 2006
For example, in an article published by the Bureau of Crime Statistics and Research in 2006, the author wrote:
“Each year NSW Police receive reports of more than 7,000 sexual and indecent assault incidents. Only about one in ten of these incidents result in someone being found guilty in court”. “The attrition of Sexual Offences from The NSW Criminal Justice System”, J Fitzgerald, Crime and Justice Bulletin No 92 BOCSAR January 2006.
While this figure, at first blush, appears to indicate an extremely low conviction rate in sexual assault cases, it is in fact a figure based on the total of reported incidents. That is, all cases reported to police. However, not all cases reported to the Police come before the courts. Fifteen per cent of cases involving a child complainant and nineteen per cent of cases involving an adult complainant result in the initiation of criminal proceedings. Ibid
An analysis of conviction rates based on the percentage of all reported sexual assault incidents, as opposed to all cases where proceedings are instituted, is somewhat misleading in the context of an argument that the court system is to blame.
While every effort must be made at the investigation stage by the comprehensive gathering of evidence and support of complainants to improve the response of investigate authorities to allegations of sexual assault, we must be careful not to use language that assumes that just because someone is charged, they are guilty. Furthermore, there must be diligent regard for the right of a person, assumed innocent, to a fair trial.
A number of changes to the law have taken place over the past decade in response to the call for improving conditions for sexual assault complainants in the criminal justice system and increasing the likelihood of convictions. The following is not an exhaustive list:
Some or all of these changes may be warranted. Minds will differ as to whether we have struck the right balance or whether we have gone so far in one direction as to seriously undermine the right of an accused to a fair trial. The point is that we must always be mindful that in sexual assault cases, like any other case, an accused is presumed innocent. Witnesses and complainants do lie on occasion. Witnesses and complainants may not always be telling the whole truth.
For example, in R v GB (1998) 148 FLR 222, the complainant, after the trial had concluded, wrote to the accused admitting that the allegations had been untrue and apologising for the harm that they caused. At the trial, it was contended that the complainant had made false accusations due to resentment at the break down of a relationship between his mother and the accused. His mother had previously accused her own father of being a serial rapist but the falsity of those allegations was conclusively established by DNA evidence.
In R v KW A NSW case where the complainant was dealt with in the Children’s Court. The matter was raised in the NSW Parliament, Parliamentary debates, Legislative Assembly, 16 November 1994, 5167 (Peter Anderson), a thirteen year old girl made allegations against Mr W. He was charged. After a number of charges were dismissed at committal, she made further allegations. This time Mr W had an alibi. He was not charged. Further allegations were made. He again had an alibi. The girl was charged and convicted of public nuisance.
In R v G (unreported) District Court of NSW, Judge Hosking April 28 2004, Ms G was sentenced after pleading guilty to perjury. She had made what she later admitted was a false complaint that the father of her child had raped her. She gave that evidence at his trial. He was convicted and sentenced to a term of imprisonment of eight years. He served one year and 15 days of the sentence before she admitted that she had lied. She explained:
“..prior to going to the police I hadn’t given any pre-thought as to the story I was going to give regarding how or what happened at the rape. I then went to the hearings. Once I had lied I had to continue lying because I had taken it too far”.
The provisions that deal with the giving of evidence in sexual assault cases and those relating specifically to children can be found, for the most part, in the Criminal Procedure Act 1986 (CPA). These provisions apply to proceedings held in the Local Court as well as the higher courts. Annexure “A” to this paper contains a Table setting out the “personal assault offences” under s.306M CPA and identifies those offences that can be dealt with in the Local Court.
Part 5 Division 1 of the CPA deals with evidence in sexual assault proceedings:
Proceedings must be held in camera when a complainant gives evidence: s.291.
Part 6, Division 1, deals with the giving of evidence by vulnerable persons:
A vulnerable person means a child or a cognitively impaired person: s.306M.
Part 6 applies in relation to evidence given by a child who is under the age of sixteen years at the time the evidence is given: s. 306P(1).
A child may give evidence-in-chief by way of the previous representation made in a recorded interview: s.306S.
Evidence in the form of a recording is not required to be served on a party to any proceedings: s.306S(2). It should be noted that s.185 of the CPA states that if the prosecutor intends to call a child, the brief of evidence may include a transcript of the interview. The prosecutor is not required to serve a copy of the actual recording: s.185(5).
In DPP v SW [2009] NSWSC, Adams J 1. June 2009 the magistrate had ordered the DPP to produce a copy of the tape to the defence so they could check the translation. The decision was appealed. Adams J ruled that s.185 did not prevent a court from making such an order.
A child must not be present in court, or be visible or audible to the court by way of CCTV while the court is viewing the recording, unless the child otherwise chooses: s.306U(1).
The hearsay rule and the opinion rule do not prevent the admission and use of the evidence by way of the pre recorded interview: s.306V.
Whilst there is no requirement to serve a copy of the tape on the defence, such evidence is not to be admitted unless it is proved that:
The accused and his representative were given a reasonable time to view the recording: s.306V(2).
The changes to the way in which children’s evidence is received is based on a number of policy considerations put forward by the ALRC: ALRC Report No 84, p 332.
The first recorded account may be the most graphic and complete account.
The recorded interview may be the only evidence against the accused in the absence of eyewitnesses or medical evidence.
Reduction of the overall trauma for the witness.
Before you get to the point of cross-examination there are a number of important
Considerations:
(i) Objecting to the interview on the ground of reliability:
The quality and reliability of the contents of a pre-recorded interview with a child depends upon the skill of the interviewer. Leading or unfair questions may elicit unreliable answers. When viewing a pre-recorded interview consider whether the manner in which the questions are put to the child unfairly impact upon the position of the accused. The court does have the power to exclude the whole or any part of the contents. The tapes can and often are edited accordingly.
(ii) Unfair prejudice to the accused:
Pre-recorded interviews are conducted when the complaint is made to Police. Often, the child is not cross-examined at trial until months, or even years later. Such delay may constitute a significant unfairness to an accused. The jury will view a recording containing an account given at a point of time proximate to the alleged offence. By the time the trial takes place and the child is cross-examined the child might have little or no recollection of the events in question. How then can there be effective cross-examination?
(iii) Transcripts and tapes not exhibits
Section 306Z allows for the provision to the jury of a transcript of the pre-recorded interview. The New South Wales Supreme Court had occasion to consider the status of the tapes and transcript of the tapes in a trial. In Regina v NZ [2005] NSWCCA the accused and co-accused, both juveniles, were charged with offences under s61J of the Crimes Act. The complainant was also a juvenile.
During the trial the evidence in chief of the complainant and several other child witnesses was given substantially by way of pre-recorded interviews. Transcripts of the interviews were given to the jury and remained with them. Further evidence in chief and cross-examination was conducted by way of CCTV.
The jury found the accused guilty of the s 61J count and the co-accused guilty of an alternative count under s 66C.
Two of the four grounds of appeal concerned the use of the video taped interviews:
There was no objection taken at the trial to the use of the procedure (then under the Evidence (Children) Act 1997). There was no objection to the tender of the videotapes as exhibits. There was no objection to the provision of the transcripts to the jury; and, no objection to the videotapes being available with the rest of the exhibits in the jury room.
The appeal was dismissed in proviso but general principles were established:
The videotape evidence of a Crown witness should not become an exhibit and, therefore, should not be sent with the exhibits to the jury on retirement.
In the case of Gately (2007) 232 CLR 208 (an appeal from Qld CA) per Hayne J (Gleeson CJ, Heydon and Crennan JJ agreeing), the Court considered the question of whether a jury is entitled to unsupervised access to the recording. The Court held that the recording itself does not become evidence and should not therefore be tendered as an exhibit:
[94]” Moreover, when the effect of the relevant provisions is understood in the manner described, it also follows that a request by a jury for access to evidence pre-recorded in accordance with those provisions should ordinarily be dealt with in the same way as any request by a jury to be reminded of evidence that has been led at trial. Seldom would it be appropriate to meet a request of that kind by giving the jury unrestrained access to the recording to play and replay. The reasons for not allowing access of that kind lie in the need to preserve fairness and balance in the conduct of the trial.
[95] Replaying the evidence given by one witness, after all the evidence has been given, carries risks. First, there is a risk inherent in the form in which it is presented. As was said in Butera, there is the risk that undue weight will be given to the evidence of which there is a verbatim record when it must be compared with evidence that has been given orally. Secondly, there is the risk that undue weight will be given to evidence that has been repeated and repeated recently. Other risks may arise from the circumstances of the particular trial.
[96] The purpose of reading or replaying for a jury considering its verdict some part of the evidence that has been given at the trial is only to remind the jury of what was said. The jury is required to consider the whole of the evidence. Of course the jury as a whole, or individual jurors, may attach determinative significance to only some of the evidence that has been given. And if that is the case, the jury, or those jurors, will focus upon that evidence in their deliberations. While a jury’s request to be reminded of evidence that has been given in the trial should very seldom be refused, the overriding consideration is fairness of the trial. If a jury asks to be reminded of the evidence of an affected child that was pre-recorded under subdiv 3 of Div 4A of the Evidence Act and played to the jury as the evidence of that child, the request should ordinarily be met by replaying the evidence in court in the presence of the trial judge, counsel, and the accused. Depending upon the particular circumstances of the case, it may be necessary to warn the jury of the need to consider the replayed evidence in the light of countervailing evidence or considerations relied upon by the accused.
Seldom, if ever, will it be appropriate to allow the jury unsupervised access to the record of that evidence”.
(1) The court must disallow a question put to a witness in cross examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a "disallowable question"):
(ii) in a criminal proceeding - the nature of the offence to which the proceeding relates, and
(iii) the relationship (if any) between the witness and any other party to the proceeding.
(4) A party may object to a question put to a witness on the ground that it is a disallowable question.
(5) However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.
(6) A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.
In Libke v The Queen [2007] HCA 30, Heydon J discussed a number of common law rules relating to cross-examination: See reference in Uniform Evidence Law, Stephen Odgers, Eighth edition, Lawbook Company 2009 at p 135.
Compound questions. Heydon J stated at [127]:
The Institute of Judicial Administration has set out several examples of language that should be avoided in questioning children:
| Language | Examples |
|---|---|
| Legal References | Q: You told His Worship... Q. No, I’ll withdraw that... Q. I put it to you that... |
| Specific and difficult vocabulary |
Q: You walked perpendicular to the road? Q: It’s pure fabrication, isn’t it? Q: You did that to taunt him? |
| Use of the negative |
Q: It’s the case, is it not, that you didn’t...? Q: Do you not dispute that? Q: Are you saying none of that ever happened? -->Child shakes head -->Does that mean it did happen or it didn’t? |
| Ambiguous questions |
Q: How many times did you tell the policeman X did...? Q: How do you say he forced you to? A: I was forced to. (repeated) -->How do you say you were forced to? -->I just said it. |
| Conceptually difficult | Q: For how long did he touch you? - A: Frequently answered ‘for 5 minutes.’ |
| Challenging | Q: It’s all a pack of lies, isn’t it? Q: You don’t like your step-father, do you, Mary? You’ve invented all this, haven’t you Mary in order to get him out of the house? |
Section 293 CPA and its predecessors prevent cross-examination of a complainant about sexual experience with some limited exceptions. Cross-examination and evidence to show that the complainant was a “fantasiser” in relation to sexual matters and had made false complaints of sexual assault previously in order to indicate that her account was unreliable, was held to infringe the section and was not permissible as it did not come within any of the specified exemptions: M v R (1993) 67 A Crim R 549; R v Bernthaler NSWCCA unreported 17 December 1993.
[2-s 293] Admissibility of evidence relating to sexual experience.
293 (1) This section applies to proceedings in respect of a prescribed sexual offence. [subs (1) subst Act 25 of 205 s 3 and Sch 1, opn 12 Aug 2005].
(2) Evidence relating to the sexual reputation of the complainant is inadmissible.
(3) Evidence that discloses or implies:
(b) has or may have taken part or not taken part in any sexual activity, is inadmissible.
(4) Subsection (3) does not apply:
(5) A witness must not be asked:
(b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.
(6) If the court is satisfied:
(7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.
(8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.
Appellant was convicted of sexual offences against a youth - defence was that the complainant engaged in homosexual activity with a second youth at the appellant’s house then made allegations against the accused to cover the activity - application to ask questions under s.293(4)(a) refused - not temporal enough - activity involved different person - not allowed to question complainant further once activity denied.
Appellant convicted of sexual offences against step-daughter - complainant made comment to brother that “daddy will rape you” - referred to biological father as “daddy” and appellant as “Mark” - subsequent questioning by mother led to complaint - although initial comment probably not caught under s.293 no error in defence counsel deciding evidence inadmissible and deciding not to seek admission - any suggestion that complainant fantasising about sexual assault by father or appellant inadmissible under s.293.
Appellant charged with sexual offences against female acquaintance - sought to lead evidence of complainant’s experience as an exotic dancer and consensual sexual intercourse with boyfriend several hours prior to alleged offences - sought to explain injuries to complainant and reason for unusual (rough) nature of sexual activity.
At [153] per McClellan CJ at CL, Grove J agreeing (Smart J dissenting) - Appellant charged with three acts of intercourse - agreed those acts of intercourse had taken place but claimed consent - complainant gave evidence of further, uncharged acts of intercourse - denied by appellant - uncharged acts of intercourse do not open up s.293(4)(c) - section applies only where appellant denies acts that have been charged.
Charged with sexual offences against 15y girl - sought to have evidence admitted under s.293(6) - sought to lead evidence that complainant involved in prostitution prior to and at time of offences.
Lengthy consideration of the section with different judgments.
Appellant’s sought to lead evidence the complainant had worked as a prostitute and had asked if she was to be paid for the intercourse - appellants argued matter went to question of belief in consent not reputation.
[60] That the material now canvassed was inadmissible and accordingly not appropriate for cross-examination on the basis now contended for is made plain in McGarvey where Hunt J said:
“...the argument was...the complainant had been prepared to consent to intercourse with twenty men...led him to believe that she was consenting to intercourse with him...”
[61] Consensual intercourse with twenty men and prostitution convey comparable matters of repute. Hunt J went on to observe:
“That, however, is the very sort of evidence that s.409B was designed to exclude...the evidence...would appear to have been inadmissible on an issue of belief in consent even prior to the introduction of s.409B...Gregory 1983 151 CLR 566”.
[62] Any former admissibility on the issue of credit is plainly the subject now of statutory bar.
...
[129] The first proposition argued on behalf of Zugecic is that the remark “Am I going to get paid for this?” is not evidence of sexual reputation but evidence upon the issue of whether RB did in fact consent to the sexual acts which took place.
[130] The remark, if made, suggests that RB was a person who would provide sexual services for payment. Such a person is a reputed prostitute. The remark relates to sexual reputation and is therefore inadmissible.
Appellant’s charged with sexual assault on 7y neighbour - sought to lead evidence of prior sexual experience on basis that jury would consider complainant’s evidence outside normal experience of 7y child - questioning of complainant’s prior sexual experience restricted - Crown unfairly referred to complainant’s account as being outside experience of 7y child - unfair to defence - appeal allowed.
Dina Yehia SC
Public Defender
Carl Shannon Chambers
22 February 2010
19 Sep 2024