In criminal cases down in New South Wales, courts often listen to evidence from young witnesses. These kids might be the ones who reported the crime, or they might be helping out in family law or other criminal trials. When kids are called to the stand, there are special rules and safeguards to make sure they feel at ease and aren’t left feeling upset by the experience.

Under NSW law, children are presumed competent to give evidence, provided they can demonstrate an understanding of the difference between truth and lies. The court establishes a child’s competency on a case-by-case basis, taking into account factors like age and maturity. This article will explore in detail the special measures and considerations that apply when children give evidence in NSW criminal proceedings, including competency requirements, evidence-giving arrangements, support provisions, and judicial warnings.

Understanding Child Witness Competency in NSW Court Proceedings

Child witnesses are presumed to be competent to give evidence under Section 13 of the Evidence Act. However, either the defence or prosecution can raise the issue of competency if they believe it is in doubt.

Determining Competency Under the Evidence Act

A child witness is considered not competent to give evidence about a fact if they are unable to understand a question about it or provide an answer that can be understood. Importantly, a child can be competent to testify about some facts but not others.

The court will assess a child’s competency based on their age and maturity level. This process differs from case to case, taking into account the individual child’s abilities and understanding.

Unsworn Evidence for Child Witnesses

If a child is unable to take an oath, they may still give their evidence as per criminal law. In these situations, the court must inform the child that they are required to tell the truth and should not feel pressured to agree with statements they believe are untrue.

The court plays a crucial role in explaining to child witnesses the importance of being truthful in their testimony. This helps ensure the reliability and integrity of the evidence provided by children, even when given in an unsworn capacity.

Special Protections for Child Witnesses

Child witnesses are afforded special protections and accommodations when giving evidence in the court process. These measures aim to minimise the trauma and stress associated with testifying in an adult-oriented court system.

Vulnerable Person Classification

Under the Criminal Procedure Act 1986, children under the age of 16 are classified as ‘vulnerable persons’ along with cognitively impaired individuals, such as those with intellectual disabilities or severe mental illnesses. This status entitles them to certain protections designed to facilitate their participation in the legal process.

For instance, vulnerable witnesses are generally not required to give oral evidence in relation to violent offending unless there are exceptional circumstances. This provision shields the particular child from the potentially intimidating experience of being questioned in open court.

Pre-recorded Evidence in Chief

One of the key accommodations for child witnesses is the ability to provide their evidence-in-chief (the initial testimony given by a witness called by the prosecution) through a pre-recorded police interview. This measure allows the child’s account to be captured in a less formal and pressurised environment, outside the courtroom setting.

Any inadmissible statements can be edited out of the pre-recorded video before it is played in court, ensuring that only legally permissible evidence is presented to the jury. This approach minimises the time child witnesses must spend in court and reduces the stress of recounting potentially traumatic events multiple times.

Closed-Circuit Television Arrangements

When child witnesses are required to participate in cross-examination, special provisions are made to alleviate the psychological burden. In most cases, the questioning is conducted via closed-circuit television (CCTV) link, with the child situated in a separate room from the accused and the formalities of the courtroom.

The cameras are strategically positioned to prevent the child from seeing the defendant, creating a more child-friendly environment. Throughout the process, child witnesses are permitted to take as many breaks as needed to manage their comfort levels and minimise distress.

In situations where CCTV facilities are unavailable, alternative arrangements can be made, such as erecting screens in the courtroom to shield the child from direct view of the accused or conducting the proceedings in a more informal venue away from the court precinct.

These accommodations are designed to create a less intimidating atmosphere for child witnesses, allowing them to provide their best evidence while minimising the risk of further trauma.

Support Measures for Child Witnesses

Giving evidence in court can be a daunting experience for child witnesses. To help alleviate some of the stress and trauma, NSW courts provide various support measures to ensure children feel more comfortable throughout the process.

Support Persons

Child witnesses are permitted to have a support person present while giving evidence. This could be a parent, friend, or a professional court support officer. The support person’s role is to provide emotional support and reassurance to the child, helping them feel more at ease in the unfamiliar court environment.

However, support persons are not allowed to interfere with the child’s evidence or coach them on what to say. Their presence is solely for the child’s comfort and well-being.

Court Environment Modifications

In cases where closed-circuit television (CCTV) facilities are not available, the court may approve alternative arrangements to make the environment less intimidating for child witnesses. This could include:

• Setting up screens in the courtroom to shield the child from the accused
• Allowing the child to give evidence from a different room or location
• Rearranging the courtroom layout to be more child-friendly

The goal of these modifications is to minimise the child’s exposure to the formal and potentially scary aspects of the courtroom, helping them feel more relaxed while testifying.

The specific arrangements will depend on the individual case and the facilities available at each courthouse. The court will work with the child, their support persons, and legal representatives to determine the most appropriate modifications to ensure the child’s comfort and well-being during the evidence-giving process.

Judicial Considerations and Warnings

When it comes to evidence of children in NSW courts, there are certain restrictions and considerations that judges must keep in mind. These are designed to ensure fairness in the proceedings and protect the rights of both the child witness and the accused.

One key restriction is that judges are not allowed to warn juries or suggest that children’s evidence is inherently less reliable or credible than adult testimony. This means judges cannot make blanket statements implying that children are more likely to lie or be mistaken in their accounts.

However, judges do have the discretion to warn juries about the potential unreliability of a particular child’s evidence if there are specific reasons to doubt its accuracy. In such cases, the judge must clearly explain to the jury why they believe caution is warranted when considering that child’s testimony.

For example, if there is evidence that a child witness has a history of fabricating stories or has given inconsistent accounts of the alleged offence, the judge may alert the jury to approach their evidence with care. The reasoning behind any such warning must be made explicit.

Judges also have a role in preventing unfair cross-examination of child witnesses. They may disallow questions that are misleading, confusing, or unnecessarily aggressive in tone. The court has a duty to ensure the child can give their best evidence without being subjected to undue stress or intimidation.

In making decisions about the admissibility and weight of children’s evidence, judges must balance the need to protect vulnerable witnesses with the accused’s right to a fair trial. This involves carefully considering the child’s age, maturity, and individual circumstances.

Ultimately, while there are safeguards in place to support child witnesses, it remains the jury’s role to assess the credibility and reliability of their evidence in light of all the facts presented. The judge’s task is to ensure this assessment is made fairly and without preconceptions.

Conclusion

Child witnesses in NSW courts are afforded special protections and procedures to ensure their well-being and the reliability of their evidence. These measures recognise the unique vulnerabilities of children and aim to minimise the trauma associated with testifying in criminal proceedings.

Key protections for child witnesses include the presumption of competence, the ability to give unsworn evidence, and classification as vulnerable persons. Pre-recorded interviews, CCTV arrangements, and court environment modifications help shield children from the accused and the intimidating courtroom setting. Support persons and judicial restrictions on questioning further safeguard child witnesses during the legal process.

By implementing these special provisions, the NSW criminal justice system seeks to balance the rights of the accused with the need to protect child witnesses and ensure their evidence can be effectively heard in court. Understanding these procedures is essential for legal professionals, families, and anyone involved in cases where children are called upon to give evidence.

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