[1-100] Definition of “child”
Part 6 Criminal Procedure Act 1986 provides for the giving of evidence by vulnerable persons. Section 306M(1) in Pt 6 defines a “vulnerable person” to mean “a child or a cognitively impaired person”. In the absence of a contrary intention, Pt 6 applies to evidence given by a child who is under the age of 16 years at the time the evidence is given: s 306P(1). Where the provisions of the Criminal Procedure Act do not apply because the witness is over the age of 16, the court can still utilise s 26(a) Evidence Act 1995 if necessary: R v Hines (No 2) (2014) 242 A Crim R 316. Section 26(a) permits the court to control the way in which a witness can be questioned.
The Table and text in Evidence given by alternative means at [1-360]ff addresses the Criminal Procedure Act provisions and directions for:
operational guidelines for the use of remote witness video facilities, at [1-384].
The Children (Criminal Proceedings) Act 1987, defines “child” to mean a person who is under the age of 18 years: s 3(1). The Evidence Act 1995 defines “child” in the Dictionary to mean “a child of any age”.
[1-105] Competence generally
Competence is the capacity of a person to function as a witness. Section 12 Evidence Act 1995 provides:
Except as otherwise provided by this Act:
every person is competent to give evidence, and
a person who is competent to give evidence about a fact is compellable to give that evidence.
[1-110] Competence of children and other witnesses
If a question arises about whether the presumption of competency of a witness to give evidence, or competency to give sworn evidence, has been displaced, the procedural framework for deciding that question is found in s 189(1) Evidence Act 1995. It is a preliminary question decided in the absence of the jury, unless the court orders that the jury should be present: s 189(4). Neither the defence nor the prosecution carries an onus. It is for the court to determine whether it is satisfied on the balance of probabilities that there is proof that a person is incompetent: RA v R (2007) 175 A Crim R 221 at  referred to in RJ v R (2010) 208 A Crim R 174 at . The Evidence Amendment Act 2007 recast the s 13 Evidence Act competence provisions as follows:
13 Competence: lack of capacity
A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability):
the person does not have the capacity to understand a question about the fact, or
the person does not have the capacity to give an answer that can be understood to a question about the fact,
and that incapacity cannot be overcome.
See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.
A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.
A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact.
A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person:
that it is important to tell the truth, and
that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and
that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.
It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.
For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience.
The logical starting point of s 13 is the presumption of competency established by s 12 and s 13(6): RJ v R at . The s 13(6) presumption applies to both competence to give evidence and competence to give sworn evidence. In either case, the presumption will be displaced where the court is satisfied on the balance of probabilities (s 142 Evidence Act) of the contrary: The Queen v GW (2016) 258 CLR 108 at . From there, the provision as a whole is expressed in obligatory terms and compliance requires a sequential mode of reasoning explained in RJ v R at – and MK v R  NSWCCA 274 at .
Section 13(1) enacts a general test for competence to give sworn and unsworn evidence based on the witness’ “capacity to understand a question” and “give an answer that can be understood”. Sections 13(1) and (2) recognise that a person may be competent to give evidence about one fact, but not competent to give evidence about another fact. Accordingly, the question of competence to give evidence must be decided on a fact-by-fact basis, or by reference to classes of facts, unless there is reason to believe that the person is not competent in respect of any facts, and that incapacity cannot be overcome: RJ v R at .
[1-115] Sworn evidence
If s 13(1) does not apply, the court is required to first determine whether the witness is competent to give sworn evidence: MK v R  NSWCCA 274 at . Section 13(3) provides the witness is not competent to give sworn evidence “if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence”. Notwithstanding the position of the parties, it is necessary for the court to be satisfied that the witness does not have the requisite capacity under s 13(3) before proceeding to s 13(5) and receiving the evidence unsworn: The Queen v GW (2016) 258 CLR 108 at .
The “obligation” in s 13(3) is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound to give truthful evidence: The Queen v GW at .
There are many ways to explore whether a child understands what it means to give evidence in a court and the obligation referred to in s 13(3): The Queen v GW at . The decision of R v RAG  NSWCCA 343 remains of assistance in determining the s 13(3) issue: MK v R at . The questions asked need to be framed in a way that young children, with their limited language skills, can understand: R v RAG at –, –. The court should use simple and concrete terminology and avoid complicated and abstract questioning of a child witness. Latham J said at :
Assessing a child or young person’s understanding of the difference between the truth and a lie can only be reliably undertaken by posing simple questions, preferably after putting the child at ease by a series of questions concerning their age, schooling and favourite pastimes. Simple questions assume that the language within the question is as simple and direct as possible. Phrases including “regarding” or “concerning” should be avoided, along with phrases which suggest agreement, or include the use of the negative, for example, “it’s true isn’t it?” or “is that not true?” Hypothetical questions, questions involving abstract concepts, multi-faceted questions (questions incorporating more than one proposition), legal jargon and passive speech should also be avoided: see Cashmore, Problems and Solutions in Lawyer-Child Communication (1991) 15 Crim L J 193–202.
It may be prudent, in some cases, for the court to ask the prosecution whether there would be any problem if the child discloses personal details such as where they live or the school they attend.
The court, in R v RAG at , referred to the Judicial Commission of NSW publication Equality before the Law Bench Book 2006–, “Oaths, affirmations and declarations” at 6.3.2 as providing “practical guidance”. A question “Do you know why it’s important to tell the truth?” by itself was insufficient: MK v R at .
It is erroneous for a court to reach a conclusion that a witness cannot give sworn evidence without asking the questions addressing the matters referred to in s 13(3): MK v R at . The judicial officer’s view of the reliability of the child’s evidence is not relevant to the inquiry: R v RAG at .
The determination requires a matter of judgment and inevitably includes assessment and impression: Pease v R  NSWCCA 136 at . There is no fixed rule at common law or by statute as to the age a child will be presumed to be incompetent to give sworn evidence: R v Brooks (1998) 44 NSWLR 121; Pease v R at . It is wrong to assume incapacity only by reason of age but it is relevant for the purpose of assessing maturity: R v JTB  NSWCCA 295; Pease v R at ; and see The Queen v GW at .
Competence testing and other issues relating to child witnesses generally is also discussed in J Cashmore “Child witnesses: the judicial role” (2007) 8(2) TJR 281.
[1-118] Unsworn evidence — conditions of competence
Where it is found, in accordance with s 13(3), that a person does not have the capacity to give sworn evidence about a fact they may, subject to s 13(5), be competent to give unsworn evidence about the fact: s 13(4). Further steps must be taken before that person is competent to give unsworn evidence about that fact: RJ v R (2010) 208 A Crim R 174.
Although s 13(4) uses the term “may”, there is no residual discretion to decline to allow unsworn evidence to be given once the terms of s 13(4) have been met: SH v R (2012) 83 NSWLR 258 at .
Section 13(5) created a new test for unsworn evidence and introduced “the idea of a condition of competence”: SH v R at . A witness is only competent to give unsworn evidence “if” the court has told the person the matters referred to in s 13(5)(a)–(c). Careful and strict compliance by the court with s 13(5) is required: SH v R at . The court must give full directions to the prospective witness: SH v R at . The directions need not be given in a particular form but must give effect to the terms of s 13(5)(a)–(c): SH v R at . The specific instruction in s 13(5)(c) must be provided by the court and not the person likely to be doing the questioning: SH v R at . A failure to comply strictly with s 13(5)(c), by omitting to tell the witness that she should feel no pressure to agree with statements that she believed were untrue, resulted in a conviction being set aside in SH v R. Similarly, in MK v R  NSWCCA 274, the failure to instruct the child witnesses that they should agree with statements they believed to be true was also regarded as a failure to comply with s 13(5)(c).
[1-120] Jury directions — unsworn evidence
Where a witness is a young child there is no requirement to direct the jury to take into account the differences between sworn and unsworn evidence in assessing the reliability of unsworn evidence: The Queen v GW (2016) 258 CLR 108 at . The fact that the child in that case did not take an oath or make an affirmation (and was not exposed to the consequences of failing to adhere to either) was held to be not material to the assessment of whether the evidence is truthful and reliable: The Queen v GW at . Nor is there a requirement under the common law to warn the jury of the need for caution in accepting evidence and in assessing the weight to be given to it because it is unsworn: The Queen v GW at . The Evidence Act does not treat unsworn evidence as a kind of evidence that may be unreliable. If a direction is requested under s 165(2), there is no requirement to warn the jury that the evidence may be unreliable because it is unsworn: The Queen v GW at .
Different considerations may apply in the case of a witness other than a young child: The Queen v GW at . Depending on the circumstances, the court may need to give some further directions: The Queen v GW at .
[1-122] Use of specialised knowledge
Section 13(8) provides that the court “may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge” in determining competence. Section 79(2)(a) also provides that “specialised knowledge” for the purposes of s 79(1) includes “knowledge of child development”. Section 79(2)(b)(i) provides that a reference in s 79(1) to an opinion includes one relating to “the development and behaviour of children generally”. Section 108C(2)(a) specifically provides that this type of opinion evidence is not subject to the credibility rule.
[1-125] Evidence in narrative form
Section 29(2) Evidence Act 1995 permits the court to make a direction, on its own motion, for a witness to give evidence partly or wholly in narrative form. The previous form of the section required an application to be made by the party that called the witness. The Australian Law Reform Commission envisaged this provision may have some application to child witnesses: ALRC, Uniform Evidence Law, ALRC Report 102 (Final Report), 2005 at [5.18]–[5.36].
[1-135] Warnings about children’s evidence
Section 165A Evidence Act 1995 governs warnings in relation to children’s evidence, as follows:
165A Warnings in relation to children’s evidence
A judge in any proceeding in which evidence is given by a child before a jury must not do any of the following:
warn the jury, or suggest to the jury, that children as a class are unreliable witnesses,
warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults,
give a warning, or suggestion to the jury, about the unreliability of the particular child’s evidence solely on account of the age of the child,
in the case of a criminal proceeding — give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child.
Subsection (1) does not prevent the judge, at the request of a party, from:
informing the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable, and
warning or informing the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it,
if the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child’s evidence and that warrant the giving of a warning or the information.
This section does not affect any other power of a judge to give a warning to, or to inform, the jury.
Section 165(6) provides:
Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child’s evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A(2) and (3).
A discussion of warnings concerning the evidence of children under the Evidence Act can be found in The Queen v GW (2016) 258 CLR 108 at –, . Generally speaking, a trial judge should refrain from suggesting to the jury how to approach the assessment of a child’s evidence in a manner that has the appearance of a direction of law: RGM v R  NSWCCA 89 at . The exception to this is where s 165A(2) is engaged and there is a need for the jury in the particular case to exercise caution in assessing the child’s evidence: RGM v R at . Any warning can only focus on matters relevant to the particular child complainant in the particular circumstances of the case and not upon the mere fact that the witness is a child or an inherent feature of children more generally: AL v R (2017) 266 A Crim R 1 at . A warning of the latter kind contravenes s 165A and s 294AA Criminal Procedure Act 1986: AL v R at . It is within the judge’s discretion to decline to give a warning for matters evident to the jury which the jury can assess without assistance: AL v R at  (see specific matters listed in AL v R at ) citing The Queen v GW at . There is a distinction between the need for a warning about matters of which the jury have little understanding or appreciation, but where the court would have such an understanding, and matters which the jury are able to assess without particular assistance: AL v R at .
The comments of the judge about children in RGM v R (extracted at ) were capable of breaching the prohibition in s 165A(1). Other comments about the child deflected the jury from its task of assessing the complainant’s credibility: RGM v R at , . It is not appropriate for a prosecutor to offer an opinion concerning his or her own experience and expertise with children giving evidence in court to suggest that children are generally truthful: Lyndon v R  NSWCCA 112 at . The trial judge may be put in the awkward position of needing to correct any inappropriate or distracting statement without infringing the prohibition in s 165A(1): Lyndon v R at .
In RELC v R (2006) 167 A Crim R 484 at –, the court applied the previous version of s 165A concerning warning about children’s evidence. The court held that the trial judge had erred by warning the jury that the evidence of an eight-year-old witness called by the defence was potentially unreliable by reason of the child’s age. There was nothing in the evidence given by either the defence witness or the complainant that, by reason of their age, justified a warning to the jury: RELC v R at . The other matters (apart from age) relied upon by the judge to give the warning (that the witness was giving evidence for her father; had given inconsistent accounts of the events; had told the police that she had lied to them; and, that she had given untrue answers in cross-examination) were not “matters … within the kind or type of evidence which may be unreliable as contemplated in s 165”: R v RELC at –. The court in ML v R  NSWCCA 27 rejected a submission that the judge erred by failing to warn the jury under s 165A(2) of the forensic disadvantage the appellant suffered by not being able to cross-examine the complainant (aged six years) due to her lack of memory.
As to warnings in relation to forensic disadvantage: see further Complaint evidence at [2-640]–[2-650].
[1-140] Directions where general reliability of children in issue
Trial counsel for the appellant in CMG v R  VSCA 416 submitted to the jury that it should regard aspects of a child’s evidence as unreliable or unworthy of weight given the different cognitive functioning of children, their susceptibility to suggestion, desire to appease adults and their tendency to confuse reality and fantasy. The court in CMG v R held that the judge needed to instruct the jury that counsel’s views were not evidence and that the experience of the courts is that the age of a witness is not determinative of his or her ability to give truthful and accurate evidence (see a discussion of the case in RGM v R  NSWCCA 89 at ff.) However, the trial judge’s instructions to the jury (quoted in CMG v R at ) in response to the submissions “were not properly within the scope of directions of law”: CMG v R per Harper JA at . The court in CMG v R observed, however, that had the judge repeated the essence of the direction suggested in R v Barker  EWCA Crim 4, no complaint could have been made. The relevant passage from R v Barker at  was quoted in CMG v R at  as follows:
Like adults some children will provide truthful and accurate testimony, and some will not. However children are not miniature adults, but children, and to be treated and judged for what they are, not what they will, in years ahead, grow to be. Therefore, although due allowance must be made in the trial process for the fact that they are children with, for example, a shorter attention span than most adults, none of the characteristics of childhood, and none of the special measures which apply to the evidence of children, carry with them the implicit stigma that children should be deemed in advance to be somehow less reliable than adults. The purpose of the trial process is to identify the evidence which is reliable and that which is not, whether it comes from an adult or a child ... In [a] trial by jury, his or her credibility is to be assessed by the jury, taking into account every specific personal characteristic which may bear on the issue of credibility, along with the rest of the available evidence.
[1-150] Other procedural provisions applicable to children
As to the:
general public being excluded from hearing criminal proceedings to which a child is a party
restrictions on disclosure of evidence in prescribed sexual offence proceedings, and
publication and broadcasting of names,
see Closed court, suppression and non-publication orders at [1-349]ff.
[1-160] Alternative arrangements when the accused is self-represented
In any criminal proceedings in which the accused is not represented by a lawyer, a child who is a witness is to be examined in chief, cross-examined or re-examined by a person appointed by the court instead of by the accused or defendant: s 306ZL(1), (2) Criminal Procedure Act 1986.
The court may choose not to appoint such a person if the court considers that it is not in the interests of justice to do so: s 306ZL(5).
The section applies whether or not CCTV is used to give evidence, or alternative arrangements have been made, although the appropriate warnings must be given where this has occurred: s 306ZL(6).
For proceedings in respect of a prescribed sexual offence, however, s 294A Criminal Procedure Act outlines the alternative arrangements that are to be made for a complainant giving evidence where an accused is self-represented. The important difference is that s 294A(5) provides that the court does not have a discretion to decline to appoint a person to ask questions of the complainant. Section 306ZL(5) applies to complainants/alleged victims in respect of offences other than prescribed sexual offences: s 294A(5). See also Self-represented accused at [1-840]–[1-845].
[1-180] Court to take measures to ensure child accused understands proceedings
Section 12(1) Children (Criminal Proceedings) Act 1987 was amended by the Children (Criminal Proceedings) Amendment Act 2008 to provide:
12(1) If criminal proceedings are brought against a child, the court that hears those proceedings must take such measures as are reasonably practicable to ensure that the child understands the proceedings.
The phrase “understands the proceedings” could include, inter alia, the nature of the allegations and the facts the prosecution must prove. An accepted “measure” where a child is represented, is for the trial judge to request the child’s barrister or solicitor to assure the court that the child understands the proceedings. A court is to give the child the fullest opportunity practicable to be heard, and to participate, in the proceedings: s 12(4).