Child Witnesses (SA)
Children may be summonsed to give evidence in criminal matters in South Australia. This may be because they are the alleged victim of an offence or because they were a bystander who witnessed a crime. The rules of evidence apply to children in the same way as to adult witnesses but the Evidence Act 1929 also contains some provisions that apply specifically to child witnesses. This article outlines the law surrounding child witnesses in South Australia.
Where child is a victim
If a child has been the victim of a crime and is required to give evidence in court, it is likely that they will be asked to attend a proofing meeting with the Office of the Director of Public Prosecutions (ODPP). At this meeting, the child and their parent/s will be given information about the criminal justice process, the role of the ODPP and giving evidence at trial.
The child may be asked to read over the statement they made to the police (or watch the video of the interview they completed with the police) and check that the contents are true and correct.
Are children competent witnesses?
All persons are presumed to be competent to give sworn evidence unless the court determines that they do not have sufficient understanding of the obligation to be truthful that this entails. There is no minimum age requirement for a child to be able to give sworn evidence.
If a child is not capable of giving sworn evidence, they may give unsworn evidence. Before this can occur, the court will need to establish that the child understands the difference between truth and lies, understands that they must tell the truth in their evidence, and agrees to do so. This can be established in whatever way is appropriate for the age and level of maturity of the child. It does not need to be done in the form of a formal oath or affirmation, as with an adult witness.
If a witness gives unsworn evidence, the court must approach the evidence with caution and may not give it as much weight as it would give to sworn evidence.
Child witnesses under 14
A child under 14 who gives evidence in a criminal matter in South Australia is allowed to have an emotional support person of their choice present while they are doing so. This must generally not be another person who is giving evidence in the proceeding.
Child witnesses under 16
Child witnesses who are under 16 are classed as vulnerable witnesses. When a vulnerable witness is to give evidence in court, special arrangements may be made. These include:
- Allowing the witness to give evidence from outside the courtroom and for the evidence to be transmitted to the court via closed-circuit TV;
- Allowing the evidence to be taken outside of court, with an audio-visual record of the evidence to be played in court;
- Allowing the witness to give evidence from behind a screen or partition;
- Ordering the defendant to be excluded from hearing or seeing the witness give their evidence;
- Ordering that the evidence be taken in a particular way, to minimise the witness’s distress.
After a child witness has given their evidence in court, or the recording of their evidence has been played, they will be required to be cross-examined by the other party. If the child is an alleged victim, they will be cross-examined by the defence.
Cross-examination consists of the witness being asked questions that challenge and test their evidence. The party cross-examining the witness will try to expose inconsistencies and other weaknesses in the evidence and will also put to the witness any parts of the accused’s case that are inconsistent with the account they have given. For example, if a witness has stated that the accused hit them, the defence may put to them during cross-examination that this did not happen and that their statement was a lie or that they got it wrong.
When lawyers are cross-examining child witnesses, they will try to do so in a way that avoids distressing the child insofar as possible. Questions will be put to the child in a simple and non-confrontational way.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.