In other words, what is the extent of the problem and are reforms really necessary?
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Over the past 14 years, a number of inquiries have been conducted into the prosecution of child sex offences and the experiences of children as witnesses within the criminal justice system. These inquiries, together with other reports, provide the most detailed information about the way children are treated as witnesses in the Australian criminal justice system.
They have found that:. Some might argue that these problems only existed in child sexual assault trials before technological changes were made to the way children give evidence in court.
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The most common response from the reports and inquiries into how children are treated by the criminal justice system has been to recommend the education of judges and lawyers about the dynamics of child abuse and child development. These include the use of:.
Did he grab hold of your hand or do anything with your hand? Q: It should be West Hampton. You did not see the defendant at any time when he put his penis in your bottom, did you? There is a distinction between errors of reporting due to internal factors, such as memory changes, and errors of reporting due to external or social forces.
Another assumption is that the dishonest witness will betray themselves by their demeanour. Leading and suggestive questions are known to be the most unreliable method for eliciting information from children. The view that the adversarial system is not about the child or the truth, and is designed to make life difficult for witnesses, should ring alarm bells for the administration of justice and the welfare of children. Not surprisingly, there was a positive correlation between juror perceptions of consistency and credibility, so that children who were considered to give consistent testimony were rated as more credible.
The study found that:. Not only does this study support the findings made by Eastwood and Patton and Cashmore and Trimboli about treatment of children by defence counsel,  it also provides empirical evidence to confirm what has long been suspected: that there is a positive correlation between juror perceptions of complainant consistency, credibility and verdict.
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The most common types of defence questions were leading and closed questions. When comparing the accuracy of the control group with the misled group, Zajac and Hayne reported that the misled group was significantly less accurate during direct examination than the control group. The next question addressed by Zajac and Hayne was whether the changes made by 85 per cent of the children were changes that corrected earlier mistakes, or whether the children made changes to answers that were originally correct.
Rather, in a majority of the children who participated in the study, it achieved what has long been thought to be its main aim in sexual assault trials — producing inconsistencies or retractions. The question is whether these inaccuracies are produced within the actual courtroom.
Where these patterns have the effect of constructing the child as an unreliable witness by tapping into common myths and stereotypes about the reliability of children, this may mean that a jury is more likely to acquit the accused by relying on such myths and stereotypes. Sometimes defence counsel construct particular stories containing elements of the myths that are commonly associated with sexual assault. Some of the suggestions used to create this story all of which were refuted by Tegan are set out below:.
Melbourne University Law Review
There are no court personnel responsible for monitoring the welfare of the child during their court appearance. In , the NSWSCLJ considered that these controls were insufficient and recommended that a duty should be imposed on trial judges to control improper questioning. As a result, s A of the Criminal Procedure Act NSW was enacted,  which, for the first time in Australia, imposed a positive duty on judges to intervene in relation to a range of improper questions, irrespective of whether or not the other party raised an objection.
As a result, s 41 the provision governing improper questions under the uniform Evidence Acts was amended to adopt the terms of s A of the Criminal Procedure Act NSW. Section 41 and the duty to disallow an improper question has also been incorporated, albeit in a slightly reorganised fashion, into s 25 of the Evidence Act SA.
Questions that are annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive have to be unduly so, requiring another value judgement by the trial judge.
In common law jurisdictions, the regulation of improper questions varies from jurisdiction to jurisdiction, although most do not place a duty on the trial judge to mandatorily disallow an improper question, as is the case under s 41 of the uniform Evidence Acts and in South Australia. Like the uniform Evidence Acts , these jurisdictions stipulate the matters that the court may take into account in disallowing an improper question, such as age or mental disability.
As a result, a specific recommendation was made by the VLRC to impose a duty on trial judges to intervene to protect witnesses with a cognitive impairment and those under the age of 18 years  — in contradistinction to the approaches taken by the Commonwealth, New South Wales and South Australia. This was subsequently enacted as s 41F of the Evidence Act Vic. As of 17 September , Victoria is a uniform Evidence Act jurisdiction,  and this provision was incorporated into the new Evidence Act Vic.
The VLRC also suggested that, at the time the child is instructed to tell the truth, the trial judge should also inform the child that they:. The VLRC believed that the duty to disallow questions combined with the requirement to tell children how they may answer questions would be sufficient to ensure that child witnesses will be treated fairly. Further, lawyers and judges who are untrained in child development will not necessarily recognise that a child is stressed or confused or is responding to questions they do not understand. A package of five recommendations for legislative reform is set out below.
They are based on the earlier recognition that the legitimate expectations of an accused under the fair trial principle must be balanced against the needs of complainants and the expectations of the community at large. The first recommendation is to prohibit suggestive questions or statements that are designed to persuade the child to agree with the proposition or suggestion put to them.
This would have the effect of enhancing the fairness of the trial from the perspective of the complainant, the defendant and the community since it would reduce the extent to which juries base their verdict on inaccurate testimony. Aug 26 Choose how you want to contribute Monthly One time. Name First Last. A receipt of your contribution will be emailed to you. Credit Card Paypal. Required for State Tax reporting purposes. No Yes. American Express. Yes, keep posted about ITNJ updates. Contact Information All information provided here will be private, confidential and only accessible by vetted ITNJ personnel.
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