Child Witnesses (NT)
Children sometimes become witnesses in criminal proceedings in the NT. This may be because they are the victim of a crime or because they happen to witness an offence that they are not involved in. When children are asked to give evidence, there are strict rules that must be followed to ensure the experience is not unnecessarily traumatic for the child. A child’s evidence is generally given in the form of a Child Forensic Interview (CFI) that is conducted by the police and later played in court. This article deals with child witnesses in the Northern Territory.
Is a child a competent witness?
Every person is presumed to be a competent witness, and therefore capable of giving evidence unless there is evidence to the contrary.
When a child is asked to give evidence in a court proceeding, they will be asked questions to establish whether they understand the obligation to tell the truth and to make sure that they know the difference between the truth and a lie.
When a child gives evidence, they must make a promise to tell the truth. This can be given in any format that is appropriate to the age and level of maturity of the child. It does not need to be given in the form of a formal oath or affirmation, as usually occurs when an adult gives evidence.
Child Forensic Interviews
When the police become aware that a child is a witness in a criminal matter, they will generally conduct a Child Forensic Interview, where they video the child giving an oral statement at a police station.
A CFI allows the child to give their evidence when the experience is still fresh in their mind and to do so in an informal setting, rather than in the traditional format in a courtroom.
After the police have recorded a CFI, the CFI will be provided to the prosecution. If the matter is proceeded with, the CFI will eventually be provided to the defence as part of the brief of evidence.
Child witnesses attending court
A CFI takes the place of examination-in-chief for the child witness. If the matter does not resolve with the accused pleading guilty and goes to a contested hearing or a jury trial, the child will be required to undergo cross-examination by the defence. This will occur after the CFI has been played in court.
A child witness will be classed as a vulnerable witness, meaning that various safeguards can be put in place to make them feel as safe and comfortable as possible while they are giving their evidence.
The child may undergo cross-examination by video-link, from another room within the court precinct. This avoids the child having to give evidence in the courtroom in the presence of the accused.
Alternately, the child may be permitted to give evidence from behind a screen or partition in the courtroom so that they do not have to look at the accused.
The child may have a support person with them while they are giving evidence.
The Queen v Brown
In the 2020 NT Supreme Court matter of The Queen v Brown, the admissibility of three Child Forensic Interviews was challenged by the defence because of the way that the material had been obtained. The court in that matter excluded the contents of the CFIs because of the manner in which the child had been questioned, and for other reasons.
In that case, the accused was charged with having aggravated indecent dealing with a child under 16. The accused was a worker in a child care centre and the complainant was a five-year-old girl. The accused was alleged to have touched the child in the vaginal area outside her underpants while in the kitchen at the centre.
The police had subjected the child to persistent and suggestive questioning over the course of three interviews within a single day. The questioning included making suggestions to the child that the accused was a bad person, had hurt her, had touched her in the vaginal area and that she was scared of him.
After denying that such things had occurred in the first two interviews, the child stated in the third interview that the incident had occurred but gave very little detail about it.
The court found the contents of the CFIs to be inadmissible because of the degree of unreliability entailed when the evidence of a very young witness may have been contaminated, because of inconsistencies between statements by the child and because of a lack of corroboration for some of her claims.
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