Sexual Assault Trials Handbook — The judicial role

R Ellis, “Judicial Activism in Child Sexual Assault Cases” paper presented to National Judicial College of Australia, Children and the Courts Conference, 5 November 2005, Sydney.

Editor’s note: To the extent the author discusses Common Law warnings at [26]–[27] of this article, these are now found in s 165A (Warnings in relation to children’s evidence) of the Evidence Act 1995. See also District Court Criminal Practice Note 5, Management of Prescribed Sexual Offence Proceedings.

This paper argues that appropriate judicial activism is a positive thing. Trial judges should be more hands on in their approach to child sexual assault cases in pre-trial management and trial process.

The paper provides that judicial activism should begin with effective case management of child sexual assault trials. The longer the delay the greater the impact on a child complainant and the more likely the child will decide he or she does not wish to proceed or does not wish to remember and the more damaging the memory loss. A large number of “causes” of delay can be prevented or minimised by better management practices, however, not without the co-operation of judicial officers.

Awareness of the inhospitable nature of a court room environment, especially for children is an essential starting point. If a child feels uncomfortable the judge needs to be personable. The judge needs to readily, clearly and pleasantly introduce the child to the court process and to demonstrate approachability, fairness and understanding of the child’s predicament.

Judicial activism should address the practical issues of court attendance by children. Use of remote location facilities should be encouraged. Judges should actively seek to minimise the waiting time and ensure that adult support is available. Appropriate comfort breaks should be enforced having regard to lower concentration levels, shorter attention spans and the greater impact of bodily needs upon children.

Further it is important that trial judges recognise the need to monitor the language used by trial counsel as there can be no procedural fairness if a child does not understand the question, if the question is ambiguous, if double negatives are used or if the question contains multiple propositions. It is argued that continuing judicial education should be enforced upon judicial officers.