Child Witnesses (ACT)

In criminal matters, a child is sometimes called to give evidence. This may be because they are the victim of the alleged offence or because they witnessed an offence that did not involve them. There are special rules that exist to protect children who give evidence and to minimize the trauma they suffer as a result of doing so. This page deals with child witnesses in the ACT.

Presumption of competency

Under section 12 of the Evidence Act 2011, all persons are presumed to be competent to give evidence. This applies to adults and children regardless of age.

When a child is called as a witness, rather than being asked to take an oath or affirmation, the child will be asked to promise to tell the truth to the court. If there is doubt as to whether the child is sufficiently mature to understand that promise, they will be asked questions to ascertain whether they know the difference between truth and lies and know that it is wrong to lie.

If a child is found not to be a competent witness, they will not give evidence. Any prior statements they have made will be precluded.

Process of giving evidence

The process of giving evidence is different for a child witness than for an adult witness.

When a child witness gives evidence in the ACT, they must do so via audio-visual link, unless the court orders otherwise. This usually means that the child will give evidence from another room within the court and their evidence will be played on a screen in the courtroom. This process is designed to protect the child from the court environment and from the accused.

Where a child is the victim of an alleged sexual or violent offence, their evidence may be given in the form of a video-recording of the interview they completed with the police. The child will still be required to undergo cross-examination by the defence (via audio-visual link).

When a child is cross-examined in sexual offence proceedings, their cross-examination may be pre-recorded. The child will attend court for cross-examination prior to the trial and will not attend at the trial itself.

Attitudes to child witnesses

Attitudes towards child witnesses have changed a lot in recent years. Traditionally, children were viewed as inherently less reliable than adults and their evidence was thought to be likely to be less accurate. Courts used to warn juries that it was dangerous to convict on the uncorroborated evidence of a child, even where a child witness had been found to be capable of giving evidence under oath. This meant that juries often acquitted in child sex cases.

It is now recognized that even very young children can remember large amounts of information. However, as with anyone, their memories deteriorate over time.

Warnings

Under section 165A of the Evidence Act 2011, judges are now prohibited from warning juries that children are unreliable witnesses or that their evidence is inherently less credible, less reliable or requires more scrutiny that that of adults.

Judges may not give a warning about the evidence of a particular child purely because of the age of the child and must not warn about the danger of convicting of the uncorroborated evidence of a child.

However, a judge can give a warning about the evidence of a particular child if there are particular reasons for doing so. They may warn about the need for caution before accepting the testimony of a particular child if there are circumstances (other than the age of the witness) that warrant doing so.

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