Children and young people

6.1 Some information

6.1.1 Definitions[1]

Legally, a “child” is generally defined as a person who is under the age of 18 years.[2] The Children (Criminal Proceedings) Act 1987 (NSW) (s 3), the Bail Act 2013 (NSW) (s 4), the Young Offenders Act 1997 (NSW) (s 4),[3] the Children (Community Service Orders) Act 1987 (s 3) and the Children (Detention Centres) Act 1987 (s 3) all define a child as under the age of 18 years.[4] However, for the purposes of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (s 3) a distinction is made between a “child” — a person under 16[5] and a “young person” — a person who is aged 16 or 17. For the purposes of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), a “child” is defined in s 3 as under the age of 16 years.

Other Acts make special provision for young people up to the age of 21. For example, under s 19 of the Children (Criminal Proceedings) Act, a young person who is under 21 when charged before the court with an indictable offence but who was under 18 at the time of the offence, subject to some exceptions, may be sentenced to serve any term of imprisonment in a juvenile detention facility rather than an adult gaol.

Similarly, the scheme under the Young Offenders Act, which provides an alternative process to court proceedings through the use of youth justice conferences, cautions and warnings, is available to a young person under the age of 21 years when dealt with, provided he or she was a child at the time of the offence.[6]

Because “child” is not a descriptor that is generally acceptable to older children, the term “children and young people” or “child and young person” is used below to include anyone under 18 — unless otherwise stated.

6.1.2 The capacities of children and young people

Children and young people face particular difficulties in our adversarial system — whether appearing as witnesses or as alleged offenders largely because of a mismatch between their capacities and the adult-oriented court environment and processes.[7] If these difficulties are not taken into account, the evidence that the court obtains from them may be of poorer quality and less complete.[8]

The main points to note about the capacities of children and young people in relation to court appearances are that:

  • Children and young people are not adults, and depending on their age and development:[9]

  • their ability to understand language, concepts, the meaning behind events and court processes differs from that of adults.[10]

  • their ability to communicate their evidence is generally different from that of adults because of:

    • differences in the way they understand the world, especially time, context, and causality

    • differences in what aspects of past events they remember and how they recall and report them[11]

    • their greater dependence on context for comprehending language and concepts

    • their less developed capacity to sequence events and report them in order

    • differences in their understanding of vocabulary and grammar, especially personal pronouns and referents (for example, “here”, “there”, “how” and “then”)

    • their shorter attention span especially under stress

    • the fact that by the time they appear in court their developmental age (or stage of development) may have altered substantially (which will affect how they present their evidence and how they are viewed by those in court)

    • their relative lack of power in an adult world. For example, a child may be subject to implied or express family or peer pressure to give or not to give evidence.[12]

  • Children’s and young people’s comprehension and communication abilities can vary considerably, even among children of the same age, depending on their background and experiences.

  • Children’s and young people’s ability to give cogent evidence is significantly affected by stress and anxiety, and by the way they are treated in court.

  • Adolescents may have more difficulty dealing with the emotional impact of court proceedings than younger children, especially in relation to child sexual assault allegations. They may also have more negative attitudes to the legal system as a result of testifying before, especially if they have had to do so more than once.[13]

  • Children and young people facing criminal charges are likely to have significant difficulties in presenting their evidence adequately — because many come from disadvantaged socio-economic and educational backgrounds and a significant proportion have intellectual, physical and mental health problems. They may also have experienced physical and emotional abuse and neglect, or sexual abuse. In addition, some will have come to the attention of the police because of homelessness, or because they are working as prostitutes to pay for their drug and/or alcohol addiction.[14]

    See “Fetal alcohol spectrum disorders” in Section 5, People with disabilities at 5.2.2.8.

6.1.3 Examples of difficulties experienced by children and young people when appearing before court[15]

There is a considerable body of research both in Australia and overseas demonstrating the difficulties faced by children and young people in giving evidence.[16]

The main difficulties which can jeopardise the reliability and comprehensiveness of their evidence include:

  • Long delays in getting to court — delays exacerbate children’s and young people’s stress and adversely affect their memory of events.

  • Long waits at court — often in an environment that is not child or young-person friendly, resulting in increased stress, boredom, tiredness and restlessness. These delays are often due to preliminary legal argument, equipment failures and court schedules.

  • Formal and intimidating court environment and procedures that take little or insufficient account of a child’s or young person’s needs — including their need for breaks to allow them to rest, go to the toilet or get a drink.

  • Having to confront the accused — even when children and young people use CCTV or video link, they sometimes come face to face with the accused or his or her supporters in the court precincts, causing distress and intimidation.

  • Having to repeat their story over and over again — frustration and incomprehension about why they need to keep doing this increases their stress and decreases their willingness to answer questions. Some children may have told their story many times before they get to court.

  • Incomprehensible processes and procedures — for example, they may not understand what the court is trying to do, why they have to answer the same questions again (questions they may have already answered many times before they got to the court), what can and cannot be said in evidence, the importance of intent and what bail means.

  • Complex language — this may cause children and young people to respond with many more “I don’t knows”, silences, or to present confused or contradictory evidence.[17]

  • Confrontational questioning — if children and young people are intimidated, they may “shut down” and become unable to respond, or become distressed and break down.

  • The presence or absence of their parent(s) or guardian(s) — while some children will be helped by having their parent(s) or guardian(s) present, others will feel inhibited by their presence.

6.1.4 The impact of these difficulties

Many of the difficulties listed in 6.1.3 can be substantially mitigated if appropriate measures are taken by the court to be sensitive and responsive to the needs of children and young people.

If appropriate measures are not taken, it is likely that children, young people and their parents or guardians will:

  • Not feel safe or secure enough to testify to the best of their abilities.

  • Not understand the court’s needs or questions to enable them to give their evidence adequately.

  • Feel that they have been treated unfairly or an injustice has occurred.

  • In some cases be treated unfairly and/or unjustly.

Section 6.3, below, provides additional information and practical guidance about ways of treating children and young people so as to reduce the likelihood of these problems occurring and help ensure that a just outcome is achieved.

6.2 Legal status in relation to court processes

6.2.1 Competence to give evidence[18]

Competence is the capacity of a child or young person to function as a witness. The rules for children and young people in relation to their capacity to give evidence are no different from those for adults. Sections 12 and 13(6) of the Evidence Act 1995 create a statutory presumption of competence to give unsworn or sworn evidence. The presumption is only displaced where the court is satisfied on the balance of probabilities (s 142 of the Evidence Act) of the contrary: The Queen v GW.[19] The Evidence Act does not give primacy to sworn evidence; it is neutral in its treatment of the weight that may be accorded to evidence whether it is sworn or unsworn: The Queen v GW. [20]

A child or young person must satisfy the general test of competence to give sworn or unsworn evidence as follows:

  • A child or young person is competent to give evidence about a fact unless proven to the contrary that he or she does not have the capacity:

    (a) 

    to understand a question about the fact, or

    (b) 

    to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome.[21]

    A child or young person who is not competent to give evidence in relation to one fact nevertheless may be competent to give evidence about other facts.[22] The Australian Law Reform Commission stated that this flexible approach is intended to allow the court to hear evidence from a witness on certain matters but exclude evidence about matters they are not competent to deal with.[23]

  • Sworn evidence

    A child or young person is competent to give sworn evidence if they have the capacity to understand that they are under an obligation to give truthful evidence: s 13(3). A question to the child: “Do you know why it’s important to tell the truth?” by itself was held to be insufficient in MK v R[24] to ascertain the child complainant’s understanding of the test in s 13(3). The court held in MK v R that some further testing of the child witness’ understanding of the obligation to give truthful evidence should have been carried out by the use of simple and concrete terminology, such as that described in R v RAG.[25] It is necessary to be satisfied that a child does not have the requisite capacity under s 13(3) to give sworn evidence before instructing the child pursuant to s 13(5) and admitting evidence as unsworn.[26]

  • Unsworn evidence

    A child is presumed competent to give unsworn evidence about a fact if the court has told the child:

    (a) 

    that it is important to tell the truth, and

    (b) 

    that the child may be asked questions that he or she does not know, or cannot remember, the answer to, and that the child should tell the court if this occurs, and

    (c) 

    that the child may be asked questions that suggest certain statements are true or untrue and that the child should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that the child believes are untrue.[27]

    The above may be too difficult for a child if it is merely paraphrased, and could be simply rephrased as follows:

    (a) 

    “It is important to tell the truth.”

    (b) 
    (i) 

    “If you are asked a question and you don’t know the answer then you should say ‘I don’t know’.”

    (ii) 

    “If you are asked a question and you can’t remember the answer then you should say ‘I can’t remember’.”

    (iii) 

    “It does not matter if you do not know an answer or cannot remember something. The important thing is that you tell the truth.” and

    (c) 

    “If someone asks you a question that you don’t agree with, you can say you don’t agree with it because it is not true.”[28]

The court need not direct the prospective witness in a particular form but must give effect to the terms of s  13(5)(a)–(c).[29] 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.[30] It is up to the court to determine the weight to be given to unsworn evidence.[31]

For more on this, see the Criminal Trial Courts Bench Book[32] and 6.3.2 below.

6.2.2 Criminal responsibility

The law conclusively presumes that a child under 10 years cannot be guilty of an offence.[33] For those aged between 10 and 14, the prosecution must rebut the common law presumption of “doli incapax” or criminal incapacity and prove beyond reasonable doubt that the child or young person understood that what they were doing was wrong.[34]

For those aged 10 years or more at the time the crime was allegedly committed, the court must have regard to the principle that “children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance”.[35]

6.2.3 Compellability

The rules about compellability in relation to a child or young person giving evidence in criminal proceedings about a parent who is a defendant are the same as those for compellability between spouses or de facto partners.[36]

Under the Children and Young Persons (Care and Protection) Act 1998, s 96(3) a child or young person is not required to give evidence in the Children’s Court.[37]

6.2.4 Requirement to obtain the views of children and young people

Whenever the outcome of a matter will have an impact on a particular child or young person or their interests, it is important to try to obtain the views of that child or young person. It is also required by law in various proceedings and available in criminal proceedings to child victims by way of a victim impact statement.[38] Both the Crimes (Sentencing Procedure) Act 1999 and the common law require a sentencing court to have regard to the effect of the crime on a victim.[39] Article 12 of the UN Convention on the Rights of the Child requires that children or young people who are capable of forming their own views have the right to express those views freely in all matters affecting them, and that they must be provided with the opportunity to be heard in any judicial and administrative proceedings affecting them, either directly, or through a representative.

In criminal matters, where a child or young person is the defendant, s 6(a) of the Children (Criminal Proceedings) Act 1987 (NSW) reflects this principle in stating that “children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them”.

In care and protection matters, s 10(1) and (2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) reflects this principle even more cogently:

(1) 

To ensure that a child or young person is able to participate in decisions made under or pursuant to this Act that have a significant impact on his or her life, the Secretary is responsible for providing the child or young person with the following:

(a) 

adequate information, in a manner and language that he or she can understand, concerning the decisions to be made, the reasons for the Department’s intervention, the ways in which the child or young person can participate in decision-making and any relevant complaint mechanisms,

(b) 

the opportunity to express his or her views freely, according to his or her abilities,

(c) 

any assistance that is necessary for the child or young person to express those views,

(d) 

information as to how his or her views will be recorded and taken into account,

(e) 

information about the outcome of any decision concerning the child or young person and a full explanation of the reasons for the decision,

(f) 

an opportunity to respond to a decision made under this Act concerning the child or young person.

(2) 

In the application of this principle, due regard must be had to the age and developmental capacity of the child or young person.

6.3 Practical considerations[41]

6.3.1 Minimise delays

It is important to try to keep any delays in cases involving a child or young person (as either a witness or alleged offender) to a minimum — so as to reduce the stress on the child or young person and enhance the chances of obtaining the best possible evidence.

In child protection proceedings, it is important to minimise unnecessary adjournments and delays to provide speedy resolution of a child’s status, as far as possible.

6.3.2 Oaths, affirmations and declarations

Children and young people who are competent to give evidence can be sworn in if they understand that in giving evidence they are under an obligation to tell the truth.[43] Whether a child or young person takes an oath or an affirmation and the type of oath or affirmation they should take will largely depend on their religious affiliation or lack of religious affiliation — see 4.4.2.

Most children and young people will be able to give unsworn evidence if they do not give sworn evidence. Competence to give unsworn evidence is presumed unless proven to the contrary that the child or young person does not have the capacity to understand a question about a fact or to give an answer that can be understood to a question about a fact.[44] A child or young person who is incapable of giving evidence in relation to one fact may nevertheless be competent to give evidence about other facts. The court must tell the child or young person giving unsworn evidence the specific matters listed in s 13(5) Evidence Act (see above at 6.2.1) including that is it important to tell the truth.

Research shows that in general: [45]

Children as young as 4 or 5 recognise deliberately false statements as lies.

Children up to the age of 11 or so tend to be more stringent than adults in their assessment of what constitutes a lie — for example, they may describe incorrect guesses and exaggerations as lies.

Children often expect to be found out if they lie and to be punished for doing so. They know that it is generally hard for them to look innocent when they are lying. (In fact, adults are better at telling whether a child is lying than at telling whether an adult is lying.) Young children may also have a greatly exaggerated view of what will happen to them if they lie in court, believing that they will go to gaol if they lie in court.

One of the main reasons why children and young people lie is to avoid trouble, rather than to create it — for example, they may have been pressured by the alleged offender to keep a secret, or they may want to protect someone they love or to avoid shame, embarrassment or guilt about, for example, something sexual.

It is hard for a child to explain the conceptual difference between the truth and a lie (in fact, it is hard for some adults to do this too) — so, asking them to do this will not generally help the court to be satisfied that they understand the difference.

6.3.3 Alternative ways to obtain a child or young person’s evidence

The Criminal Procedure Act 1986, Pt 6, Ch 6, which applies to children and young people under 16 at the time the evidence is given, prescribes alternative ways to obtain a child’s or young person’s evidence. These provisions apply to “vulnerable persons” defined as “a child or cognitively impaired person”: s 306M. These alternative arrangements are intended to make the process less stressful for child witnesses and to improve the quality of their evidence. Audio-taped or video-taped recordings of the investigative interviews preserve verbatim the child’s early report of events after disclosure and increase the accuracy and completeness of the child’s statement and the questions they were asked. They may help also to overcome some of the difficulties associated with the long delays between complaint and determination. Video-recordings have an additional benefit over audio-recordings by showing how the child presented at that time.

6.3.3.1 Video and/or sound recordings of previous representations [51]

The use of video-technology allows a pre-recorded video-tape or audio-tape of the child’s or young person’s investigative interview to be presented as all or part of their evidence-in-chief.

This is allowed where the child or young person was under 16 at the time the recording was made. The recording may be admitted no matter what age the child or young person who made the recording is at the time of the hearing.[52]

The child or young person must not be present in, or be visible or audible to the court by closed-circuit television or by means of any similar technology, while the court is viewing or hearing the recording — unless they choose to be so.[53] But if the child or young person is not the accused person, they must be available for cross-examination or re-examination.[54]

The accused party and their legal representative(s) must have been given prior opportunity to view/hear the recording, and, in criminal cases, must have been told of the prosecution’s intention to rely on it.[55]

Any such recording must not be used if the court orders that to use it would be contrary to the interests of justice.

The Child Sexual Offence Evidence Pilot Scheme, operating at the District Court, Downing Centre and Newcastle District Court, provides that the evidence (including evidence in cross-examination and re-examination) of a child under 16 who is a complainant in an indictable proceeding in relation to a prescribed sexual offence must be given at a pre-recorded hearing in the absence of the jury (if any) unless there is a contrary court order. Evidence may also be given with respect to a prescribed sexual offence in a pre-recorded evidence hearing by a child under 18. The pilot scheme operates for three years from 31 March 2016. District Court Criminal Practice Note 11 specifies procedures to be followed at the Downing Centre District Court.[56]

6.3.3.2 Closed-circuit television (CCTV) or “live link”[57]

Closed-circuit television (CCTV) or “live link” allows children and young people to testify from a separate room or remote facility away from the courtroom.

A child or young person has a right to give evidence by CCTV in any proceedings related to victims’ compensation, apprehended violence orders, personal assault offences or child protection prohibition orders, where the child or young person was under 16 at the time of the incident(s) or when the charges were laid, although there are some restrictions for accused children in the Children’s Court.[58]

It is up to the child or young person to decide whether they want to give their evidence this way, or in some other way — unless the court orders that to give evidence by CCTV would be contrary to the interests of justice.[59]

The court can order that a court officer, interpreter and/or support person be present with the child or young person — that is, at the location of the CCTV (which may be outside the court building).

6.3.3.3 Additional arrangements
  • In accordance with s 291 of the Criminal Procedure Act 1986 (NSW), the court should be closed while the complainant or sexual offence witness in proceedings for prescribed sexual offences matters is giving evidence, whether or not the child complainant or witness is present in the court room or giving evidence via CCTV.

  • If CCTV facilities are not available at the particular court, the court may adjourn the proceeding to a court that does have CCTV facilities.[60] If a child or young person declines to give evidence by these means, the court must provide alternative arrangements to restrict the contact (including visual contact) between the child and any other people in the court — unless the child or young person chooses not to have any such arrangements made.[61] Alternative arrangements could include using screens, and/or changing seating arrangements to restrict the line of vision between the child and others.

  • A child or young person is entitled to have a support person of their choice present while they give evidence — irrespective of whether they do or do not use CCTV.[62] This is generally allowed in any criminal proceeding, and in any proceedings related to sexual offences, victims’ compensation, apprehended violence orders, personal assault or care and protection. The support person should be allowed to be near the child/young person and/or within their sight.

  • Note also that a court may make a direction, on its own motion or on the application of a party that called the witness, that the witness give evidence in narrative form — this may be the best approach for some child or young person witnesses.[63]

  • Witness intermediaries (also called children’s champions in the legislation) may be appointed to assist the parties and the court to communicate and explain questions and answers of child complainants in accordance with the Child Sexual Offence Evidence Pilot. The pilot scheme commenced at the District Court, Downing Centre and Newcastle District Court on 4 April 2016.[64] The pilot scheme will operate for 3 years from 31 March 2016. Witness intermediaries are officers of the court. For more information, see Sexual Assault Trials Handbook at [7-250].

6.3.3.4 Managing the manner in which a child or young person gives evidence

6.3.4 Language and communication

Procedural fairness and the integrity of the court process demand that all witnesses understand what is going on, and the meaning of any questions they are asked. They also need to know that their evidence and responses to questions need to be understood by the court.

The level and style of language, any explanations about what is going on, and any cross-examination must be appropriate to the developmental age and understanding of the particular child or young person. It is easy for those who are familiar with the court and the language used there to underestimate how intimidating a court can be for those who are unfamiliar with its language and procedures. The Children’s Court of NSW has developed a quick reference guide to help court staff communicate with children in the criminal jurisdiction. The guide gives examples of alternate definitions/explanations which may be used when explaining complex legal terms to children.[67]

6.3.4.1 Explain court proceedings and processes adequately

Several pieces of legislation specifically require you to explain court proceedings and processes to ensure that the child understands the proceedings.[68]It also makes sense to do so to ensure that the court can get the best possible evidence from the child or young person.

6.3.4.2 Level and style of language

6.3.5 Cross-examination[70]

Cross-examination is generally seen by children and young people as the hardest part of the court process. It is often conducted using complex language and leading questions and in a style which is confronting and intimidating. Children and young people find it very distressing to have their motives misconstrued and to be accused of lying.

While it is important that a child’s or young person’s evidence is properly tested, it is also important that over-zealous cross-examination does not intimidate the witness “into silence, lead to contradictions in their responses and produce emotional disorganization and distress”.[71] Research has consistently shown that many of the strategies which lawyers use to cross-examine children are “stress-inducing, developmentally inappropriate, suggestive and evidentially unsafe.”[72] One barrister, for example, described the cross-examination technique he uses with children to intimidate children:

You want them to sweat a bit … My technique is to … extend the time for cross-examination … you’re deliberately making it as long as possible … Tactically you want to put them under as much pressure as possible. I want them to crack.[73]

Research also shows that many children and young people feel that they were unable to get their evidence across in court because of the way they were questioned — because they were confused by the language and the framing of the questions, were cut off or interrupted, and told “just answer the question asked”. Restrictions on the admissibility of some evidence — where, for example, there are other defendants or complainants in separate but related trials — can also mean that children or young people can find it very difficult to answer questions out of their proper context.

Note that where the accused or defendant is not represented by an Australian legal practitioner in criminal proceeding in any court, or a civil proceeding arising from the commission of a personal assault offence, a child witness (other than the accused or the defendant) is to be examined in chief, cross-examined or re-examined by a person appointed by the court instead of by the accused or the defendant.[74]

6.3.5.1 Improper cross-examination[75]

Section 41 of the Evidence Act 1995 (NSW) provides for the statutory control of improper cross-examination in both civil and criminal proceedings. Section 41 imposes an obligation on the court to disallow a “disallowable question” and is expressed in terms of a statutory duty whether or not objection is taken to a particular question (s 41(5)). The section specifically refers to the need to take account of the witness’s age and level of maturity and understanding (s 41(2)(a)). Sections 26 and 29(1) of the Evidence Act 1995 also enable you to control the manner and form of questioning of witnesses, and s 135(b) of the Evidence Act 1995 allows you to exclude any evidence that might be misleading or confusing.

A line of cross-examination may be rejected by applying s 41: “Judges play an important role in protecting complainants from unnecessary, inappropriate and irrelevant questioning by or on behalf of an accused. That role is perfectly consistent with the requirements of a fair trial, which requirements do not involve treating the criminal justice system as if it were a forensic game in which every accused is entitled to some kind of sporting chance”.[76]

The careful exercise of s 41 and the proper control of the cross-examination of child witnesses is “a matter which requires careful consideration, and vigilance to intervene when questions are put that are age inappropriate, or overly complex (involving for example double negatives), or unduly offensive or aggressive”.[77]

6.3.6 Regular breaks

6.3.7 Jury directions — points to consider

Section 165A of the Evidence Act 1995 restricts the warning a judge can make to a jury about children’s evidence generally, and about a particular child’s or young person’s evidence, as follows. These provisions expressly prohibit a warning about unreliability “solely on account of the age of the child”:

165A Warnings in relation to children’s evidence:

(1) 

A judge in any proceeding in which evidence is given by a child before a jury must not do any of the following:

(a) 

warn the jury, or suggest to the jury, that children as a class are unreliable witnesses,

(b) 

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,

(c) 

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,

(d) 

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.

(2) 

Subsection (1) does not prevent the judge, at the request of a party, from:

(a) 

informing the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable, and

(b) 

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.

(3) 

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 that:

(6) 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).

6.3.8 Sentencing, other decisions and judgment or decision writing — points to consider

6.4 Further information or help

The following agencies can provide further information about children and young people and the issues that may affect them when they are involved in legal proceedings:

Advocate for Children and Young People
Level 2, 407 Elizabeth Street
Surry Hills NSW 2010
Ph: (02) 9286 7231
Fax: (02) 9286 7267
Email: acyp@acyp.nsw.gov.au
www.acyp.nsw.gov.au/publications/law-and-justice

Department of Family and Community Services (FACS)
Head Office

4–6 Cavill Avenue
Ashfield NSW 2131
Ph: (02) 9716 2222
Fax: (02) 9716 2999
www.community.nsw.gov.au

Children’s Court Clinic
2 George Street (cnr O’Connell Street)
Parramatta NSW 2124
DX 8257
Locked Bag 4001
Westmead NSW 2145
Ph: (02) 8688 1530
Fax: (02) 8688 1520
Email: schn-childrenscourtclinic@health.nsw.gov.au

Juvenile Justice NSW
Level 2, Henry Deane Building
20 Lee Street
Sydney NSW 2000
GPO Box 31
Sydney NSW 2001
Ph: (02) 8346 1333
Fax: (02) 8346 1560
juvenilejustice@djj.nsw.gov.au

National Children’s and Youth Law Centre
Law Building
First Floor
University of NSW 2052
Ph: (02) 9385 9588
Fax: (02) 9385 9589
Email: admin@ncylc.org.au
www.ncylc.org.au

6.5 Further reading

M Aldridge and J Luchjenbroers, “Linguistic manipulations in legal discourse: Framing questions and ‘smuggling’ information” (2007) 14 International Journal of Speech, Language and the Law 85-107.

M Allerton, “Young people in NSW juvenile justice custody” (2004) 16(7) JOB 49.

Australasian Institute of Judicial Administration Inc, Bench Book for Children Giving Evidence in Australian Courts, 2nd edn, 2015.

Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and heard: priority for children in the legal process, ALRC Report No 84, Australian Government Publishing Service, 1997.

CA Carter, BL Bottoms and M Levine, “Linguistic, social and emotional influences on the accuracy of children’s reports” (1996) 20 Law and Human Behaviour 335–358.

J Cashmore, “Child witnesses” in L Young, MA Kenny, G Monahan (eds) Children and the law in Australia, LexisNexis Butterworths, 2nd edn, Sydney, 2017, pp 563–586 and the articles cited therein.

J Cashmore, “Child witnesses: the judicial role” (2007) 8(2) TJR 281 and other articles in the Judicial Commission of NSW, Sexual Assault Trials Handbook, 2007—.

J Cashmore and P Parkinson, “Judicial conversations with children in parenting disputes: the views of Australian judges” (2007) 21 International Journal of Law, Policy and the Family 160.

J Cashmore and P Parkinson, “The competency of children to give evidence” (1991) 3(1) JOB 1.

J Cashmore and L Trimboli, An evaluation of the NSW child sexual assault specialist jurisdiction pilot, 2005, NSW Bureau of Crime Statistics and Research, Sydney.

R Ellis, “Judicial activism in child sexual assault cases”, Judicial Commission of NSW, Sexual Assault Trials Handbook, 2007—, Sydney.

GS Goodman et al, “Testifying in criminal court: emotional effects on child sexual assault victims” (1992) 57(5) Monographs of the Society for Research in Child Development 1.

J Goodman-Delahunty, MA Nolan and EL van Gijn-Grosvenor, Empirical guidance on the effects of child sexual abuse on memory and complainants’ evidence, Royal Commission into Institutional Responses to Child Sexual Abuse, 2017, Sydney, Commonwealth of Australia.

E Henderson, “Persuading and controlling: the theory of cross-examination in relation to children” in H Westcott, G Davies and R Bull (eds), Children’s testimony: a handbook of psychological research and forensic practice, John Wiley & Sons, 2002, pp 279–293.

P Johnson, “Controlling unreasonable cross-examination” (2009) 21(4) JOB 29.

Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, 2002—, Sydney, under “Child witness/accused”, at [1–100]ff and “Evidence given by alternative means” at [1-360]ff.

ME Lamb et al (eds), Children’s testimony: a handbook of psychological research and forensic practice, 2nd edn, Wiley-Blackwell, 2011.

Law Society of NSW, Representation principles for children’s lawyers, 4th edn, 2014, Sydney.

TD Lyon and AD Evans, “Young children’s understanding that promising guarantees performance: The effects of age and maltreatment” (2014) 38 Law and Human Behavior 162.

Judicial Commission of NSW, Sentencing Bench Book, 2006—, Sydney, [15-000].

Judicial Commission of NSW, Sexual Assault Trials Handbook, 2007—, Sydney.

M Powell, M Garry and N Brewer, “Eyewitness testimony” in I Freckleton and H Selby (eds) Expert evidence, 2nd edn, Thomson Reuters, 2013.

M Powell, N Westera, J Goodman-Delahunty and AS Pichler, An evaluation of how evidence is elicited from complainants of child sexual abuse, Royal Commission into Institutional Responses to Child Sexual Abuse, 2017, Sydney, Commonwealth of Australia.

JA Quas et al, “Childhood sexual assault victims: long-term outcomes after testifying in criminal court” (2005) 70(2) Monographs of the Society for Research in Child Development 1.

L Sas, “The interaction between children’s developmental capabilities and the courtroom environment: the impact on testimonial competency”, paper presented at the Canadian Judicial Council Seminar, November 2002.

R Shackel, “Overcoming misconceptions in the courtroom on how children disclose sexual abuse” (2011) 23(4) JOB 29.

R Shackel, “How child victims respond to perpetrators of sexual abuse” (2009) 16 (supplement) Psychiatry, Psychology and Law, S55–S63.

Supreme Court of Queensland, Equal Treatment Benchbook, Ch 13.

L Trimboli, An evaluation of the NSW Youth Justice Conferencing Scheme, New South Wales Bureau of Crime Statistics and Research, Attorney General’s Department of NSW, 2000.

H Westcott, G Davies and RHC Bull (eds), Children’s testimony: a handbook of psychological research and forensic practice, John Wiley & Sons, 2002.

HL Westcott and M Page, “Cross-examination, sexual abuse and child witness identity” (2002) 11(3) Child Abuse Review 133.

R Zajac, S O’Neill, H Hayne, “Disorder in the courtroom? Child witnesses under cross-examination” (2012) 32 Developmental Review 181.

6.6 Your comments

The Judicial Commission of NSW welcomes your feedback on how we could improve the Equality before the Law Bench Book.

We would be particularly interested in receiving relevant practice examples (including any relevant model directions) that you would like to share with other judicial officers.

In addition, you may discover errors, or wish to add further references to legislation, case law, specific Sections of other Bench Books, discussion or research material.

Section 11 contains information about how to send us your feedback.

Appendix — Recommended script for use in hearings with children or cognitively impaired witnesses[88]

Judge: Hello (name of witness), can you hear me?

Can you see me?

My name is Judge ……… and I am in charge here today. You can call me Judge if you want to say something to me.

Are you comfortable on that seat?

In the room with you is Mr/Ms ………… (tipstaff/associate) or (first name). His/her job is to help me at your end because you are in a different room to me.

Also in the room with you is ………… (support person) who will be with you while you answer questions.

In the court room with me are some other people even though you might not be able to see them. You have probably met one of them before – the prosecutor, Mr/Ms …….……

I will ask the prosecutor to stand in front of the camera. Can you see him/her now? He/she will ask you questions soon.

There is another lawyer who will ask you questions later, Mr/Ms ……………

I will ask him/her to stand. Can you see him/her now?

(To child) …….…., you have come to court today to:

  • (if complainant) talk about what happened to you

  • (if witness) tell the court what you know about …

Before we start, there are some rules about how things happen in court.

Does your teacher have rules in your classroom?*

OR Do you play any sport? Tell me about that.

What are some of the rules in that sport?*

Note:

* Very young children and children with expressive language difficulties may have difficulty describing or explaining the rules. It may be best to provide examples.

Do you have a rule at school or pre-school or child care, for example: no running in the hallway? OR eg “no play outside without a hat in summer?”

Now I want to talk to you about being in court.

Well, in court there are some rules as well.

A very important rule at court is that you tell the truth when you answer questions.

Do you promise to tell the truth, and no lies, in court today?

Now I want to talk to you about some other rules in court.

I will try to make sure the questions the lawyers ask you are not too hard.

If you do not know the answer, that is fine/ok/all right.

Just say “I don’t know”.

If you do not understand the question/if you do not know what the question means, that is fine/ok/all right.

Just say “I don’t understand/I don’t know what that means.”

The lawyers might say something and ask you if it is true or not true (or for older children – if you agree or disagree).

  • If you think something is true, say “It is true” (or “I agree”).

  • If you think something is not true, say “It is not true” (or “I disagree”).

There is a need to exercise some caution about using examples with questions which require the child to tell the judge that the judge is telling a lie.

Better to say “if someone said… would” rather than “If I said…” if using an example (ie it is better not to use “If I say your shirt is red, do you agree or disagree?”.



[1] RJR Levesque, “Childhood as a legal status” in GB Melton et al (eds), The Sage handbook of child research, Sage Publishing, 2014, p 38.

[2] This is in line with the definition of a child as a person under the age of 18 in the United Nations Convention on the Rights of the Child, which Australia ratified in 1990 — unless national laws recognise the age of majority earlier.

[3] Which defines “child” as “a person who is of or over the age of 10 years [age of criminal responsibility] and under the age of 18 years”.

[4] Under the uniform evidence legislation, “child” is defined as “a child of any age”. For example, the Evidence Act 1995 (NSW), s 3, Dictionary, Pt 1.

[5] Except for the purposes of Ch 13 (children’s employment).

[6] Young Offenders Act 1997 (NSW), s 7A.

[7] D Kenny, “The adolescent brain: implications for understanding young offenders” (2016) 28 Judicial Officers Bulletin 23; P Johnstone, “Criminal matters — the grey matter between right and wrong: neurobiology and young offending” paper presented at Children’s Legal Service Conference, 11 October 2014, Sydney, published in Judicial Commission of NSW, Children’s Court Handbook at [5-0140]; see also “Piaget’s stages of cognitive development” at [1-0075] and M Allerton, “Apart from shortness, vegephobia and addiction to technology, how are children different?” at [1-0100].

[8] K McWilliams et al, “Children as witnesses” in Melton et al (eds), above n 1, p 285.

[9] Center on the Developing Child, “Core concepts in the science of early childhood development”, Brief, 2009; ME Lamb, LC Malloy and DJ La Rody, “Setting realistic expectations: developmental characteristics, capacities and limitations” in ME Lamb et al (eds), Children’s testimony: a handbook of psychological research and forensic practice, 2nd edn, Wiley-Blackwell, 2011, p 15; N Bala, A Evans and E Bala, “Hearing the voices of children in Canada’s criminal justice system: recognising capacity and facilitating testimony” (2010) 22(1) Child and Family Law Quarterly 21; K Richards, “What makes juvenile offenders different from adult offenders”, Trends & Issues in crime and criminal justice, No 409, Australian Institute of Criminology (AIC), February 2011; Judicial Commission of NSW, Children’s Court of NSW Handbook, 2013–.

[10] DJ Miller et al, “Prolonged myelination in human neocortical evolution” (2012) 109(41) Proceedings of the National Academy of Science USA 16480; BC Partridge, “The mature minor: some critical psychological reflections on the empirical bases” (2013) 38(3) Journal of Medicine and Philosophy 283.

[11] For a useful discussion about children’s memory, see DJ La Rooy, LC Malloy and ME. Lamb, “The development of memory in childhood” in ME Lamb et al (eds), Children’s testimony: a handbook of psychological research and forensic practice, 2nd edn, Wiley-Blackwell, 2011; P Bauer and R Fivush, The Wiley handbook on the development of children’s memory, Wiley, 2013, Vol 2; G Monahan and L Young (eds), Children and the law in Australia, Lexis Nexis, 2008; ME Pipe et al, “Recent research on children’s testimony about experiences and witnessed events” (2004) 24 Developmental Review 440. See also Law Society of NSW, Representation Principles for Children's Lawyers, 4th edn, 2014.

[12] Department of Attorney General WA, Equality Before the Law Bench Book, Children and young people”, at [5.2.2].

[13] JA Quas et al, “Childhood sexual assault victims: long-term outcomes after testifying in criminal court” (2005) 70(2) Monographs of the Society for Research in Child Development 1.

[14] See, for example, M Marien, “Cross-over kids — childhood and adolescent abuse and neglect and juvenile offending” (2012) 11(1) TJR 97; K Richards, “Children’s exposure to domestic violence in Australia”, Trends and Issues in crime and criminal justice, No 409, AIC, June 2011; P Murphy et al, A strategic review of the NSW juvenile justice system, Report for the Minister for Juvenile Justice, Noetic Solutions Pty Ltd, Manuka, 2010; J Cashmore, “The link between child maltreatment and adolescent offending: systems neglect of adolescents” (2011) 89 Family Matters 31; K McFarlane, “From care to custody: young women in out-of-home care in the criminal justice system” (2010) 22(2) CICJ 345; J Delima and G Vimpani, “The neurobiological effects of childhood maltreatment: an often overlooked narrative related to the long-term effects of early childhood trauma?” (2011) 89 Family Matters 42; Center on the Developing Child, “The science of neglect, InBrief, 2013; M Allerton, “Young people in NSW juvenile justice custody” (2004) 16(7) JOB 49; A Stewart, S Dennison and E Waterson, “Pathways from child maltreatment to juvenile offending”, Trends & issues in crime and criminal justice, No 241, AIC, 2002; D Indig et al, 2009 NSW young people in custody health survey: full report, Justice Health and Juvenile Justice, Sydney, 2011.

[15] The information in this Section is drawn from the following main sources — J Cashmore, “Child sexual assault in court”, presentation to the Local Courts Conference, September 2005, Sydney; J Cashmore and L Trimboli, An evaluation of the NSW Child Sexual Assault Specialist Jurisdiction Pilot, NSW Bureau of Crime Statistics and Research (BOCSAR), 2005; HL Westcott and M Page, “Cross-examination, sexual abuse and child witness identity” (2002) 11(3) Child Abuse Review 133 at 137–152; Supreme Court of Queensland, Equal Treatment Benchbook, 2005, Ch 13; Australian Law Reform Commission (ALRC) and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, (ALRC) Report No 84, 1997; Quas et al, above n 13; and GS Goodman et al, “Testifying in criminal court: emotional effects on child sexual assault victims” (1992) 57(5) Monographs of the Society for Research in Child Development 1. See also Judicial College (UK) Bench checklist: young witness cases, 2012; Permanent Judicial Commission on Justice for Children, New York State, Tools for engaging children in their court proceedings, a guide for judges, advocates and child welfare professionals, 2008.

[16] See for example Lamb et al, above n 11; and Quas et al, above n 13, J Cashmore “Child witnesses: the judicial role” (2007) 8(2) TJR 281; L Sas, “The interaction between children’s developmental capabilities and the courtroom environment: the impact on testimonial competency” Research Report, November 2002, Department of Justice, Canada, also published in the Judicial Commission of NSW, Sexual Assault Trials Handbook, 2007–, at [7-460].

[17] R Zajac, S O’Neill, H Hayne, “Disorder in the courtroom? Child witnesses under cross-examination” (2012) 32 Developmental Review 181.

[18] TD Lyon, “Assessing the competency of child witnesses: best practice informed by psychology and law” in ME Lamb et al (eds), above, n 11; R Marchant, “How young is too young? The evidence of children under five in the criminal justice system” (2013) 22(6) Child Abuse Review 432.

[19] (2016) 90 ALJR 407 at [14].

[20] (2016) 90 ALJR 407 at [46].

[21] Evidence Act 1995, s 13(1).

[22] Section 13(2); RJ v R (2010) 208 A Crim R 174 at [18].

[23] ALRC, Uniform evidence law, ALRC Report 102, 2005 at [4.73].

[24] [2014] NSWCCA 274 at [69].

[25] [2006] NSWCCA 343 at [26].

[26] The Queen v GW (2016) 90 ALJR 407 at [28].

[27] Section 13(5).

[28] Based on J Cashmore, Judicial Commission of NSW, “Managing child witnesses”, Local Court of NSW Magistrates’ Orientation Program, June 2009, Sydney.

[29] SH v R (2012) 83 NSWLR 258 at [22].

[30] The Queen v GW (2016) 90 ALJR 407 at [56].

[31] ALRC Report 102, above n 23, at [4.60].

[32] Judicial Commission of NSW, Criminal Trial Courts Bench Book, 2002—, Sydney, under “Trial Procedure — Child witness/accused” at [1–100]ff.

[33] Children (Criminal Proceedings) Act 1987 (NSW), s 5; Crimes Act 1914 (Cth), s 4M; Criminal Code (Cth), s 7.1.

[34] For proceedings involving Commonwealth offences by children this presumption is codified. See Crimes Act 1914 (Cth), s 4N; Criminal Code (Cth), s 7.2.

[35] Children (Criminal Proceedings) Act 1987, s 6(b).

[36] Evidence Act 1995 (NSW), s 18.

[37] Although s 96(4) of the Children and Young Persons (Care and Protection) Act 1998 provides that the Children’s Court may require a parent of the child or young person who is the subject of the proceedings who is himself or herself a child or young person to give evidence in the Children’s Court. See also Children’s Court Rule 2000, r 26.

[38] Crimes (Sentencing Procedure) Act 1999, Div 2, Pt 3 and Children (Criminal Proceedings) Act 1987, s 33C(2) provide for victim impact statements in criminal proceedings.

[39] Porter v R [2008] NSWCCA 145 at [54]; Siganto v The Queen (1998) 194 CLR 656 at [29]; Crimes Sentencing Procedure Act 1999, ss 3A(g) and Pt 3, Div 2 (victim impact statements).

[40] Judicial Commission of NSW, Local Courts Bench Book, 1988, under “Children’s Court — care and protection jurisdiction” at [47-000]ff; Judicial Commission of NSW, Children’s Court of NSW Resource Handbook, 2013–, under “Care and protection matters — practice and procedure”, at [2-0100]ff.

[41] See also Department of AG (WA), Equality before the Law Bench Book, 2009; Judicial College (England and Wales), Equal Treatment Bench Book, 2013, Ch 5, “Children and vulnerable adults”; Judicial College (England and Wales), Bench Checklist: Young Witness Cases, 2012.

[42] Note that s 56 of the Civil Procedure Act 2005 requires that the court manage proceedings in conformity with the overriding purpose set out in that section and in accordance with the objects set out in s 57. In deciding whether to make an order or direction for the management of proceedings, the court must seek to act in accordance with the dictates of justice: s 58. For further information about effective case management practices in relation to children and young persons, see R Ellis, “Judicial Activism in Child Sexual Assault Cases”, Sexual Assault Trials Handbook, Judicial Commission of NSW, 2007–, at [7-120].

[43] Evidence Act, s 13(3). Note, for proceedings commenced prior to 1 January 2009, the former version of s 13 applies to child witnesses. Note, a child may not understand the meaning of the word “obligation” but understands what it means in effect. Some further testing of the child witness' understanding of the obligation to give truthful evidence may need to be conducted by the use of simple and concrete terminology: MK v R [2014] NSWCCA 274 at [69], applying R v RAG [2006] NSWCCA 343 at [25]–[27], [43]–[45].

[44] Evidence Act 1995, s 13(1).

[45] See J Cashmore, “Child Witnesses” in G Monahan and L Young, Children and the law in Australia, Lexis Nexis, Sydney, 2008, and the articles cited therein. See also J Cashmore, “Child witnesses: the judicial role” (2007) 8(2) TJR 281 and other articles in the Judicial Commission of NSW, Sexual Assault Trials Handbook, 2007—; and J Cashmore and P Parkinson, “The competency of children to give evidence” (1991) 3(1) JOB 1. See also the Australasian Institute of Judicial Administration Inc (AIJA), Bench Book for Children Giving Evidence in Australian Courts, 2009, (updated September 2012 and February 2015), at [2.10.1]–[2.10.8] and [5.8]–[5.9].

[46] J Cashmore, above n 28; Cashmore and Parkinson, above n 45.

[47] See Pease v R [2009] NSWCCA 136 at [11] and R v Suarwata [2008] ACTSC 140 which deal with the need for the court to satisfy itself as to a person’s understanding of the nature of the obligation to tell the truth.

[48] ALRC Report 102, above n 23, at [4.38]. See also the questions and answers put by the Crown to the child witness in R v RAG [2006] NSWCCA 343 at [22].

[49] See ALRC Report 102, above n 23, at [4.45] adopting the advice of the Home Office (UK) and others, Achieving best evidence in criminal proceedings: guidance for vulnerable or intimidated witnesses, including children (2002), Vol 2, [5.22].

[50] J Cashmore, above, n 28.

[51] Criminal Procedure Act 1986, ss 306R–306Z; and see also Criminal Trial Courts Bench Book, above n 31, under “1.Trial Procedure — Child Witness/Accused” commencing at [1-100] and [1-362]. For guidelines as to the appropriate procedure where a complainant gives evidence by way of the playing of a pre-recorded interview, see R v NZ (2005) 63 NSWLR 628.

[52] Criminal Procedure Act 1986, s 306U(2).

[53] Criminal Procedure Act 1986, s 306U(1).

[54] Criminal Procedure Act 1986, s 306U(3).

[55] Criminal Procedure Act 1986, s 306V(2); Criminal Procedure Regulation 2017, r 17.

[56] Criminal Procedure Act 1986, Sch 2, Pt 29, cll 81–94 provides for the pilot. See also Judicial Commission, Sexual Assault Trials Handbook, at [10-260].

[57] Criminal Procedure Act 1986, ss 306ZA–306ZI; and see also Criminal Trial Courts Bench Book, above n 32, [1-362]ff.

[58] Criminal Procedure Act 1986, ss 306ZA, 306ZC; and Criminal Trial Courts Bench Book, above n 32 at [1-362]. Under ss 306ZB(2), the provisions apply to a child who is 16 or more but less than 18 years of age at the time evidence is given provided the child was under 16 years of age when charged for the personal assault offence. The Crimes Act 1914 (Cth), Pt IAD, Div 4 (ss 15YI–15YL) apply to children under 18 where the proceedings are for a Commonwealth sexual offence.

[59] Criminal Procedure Act 1986, s 306ZB(5).

[60] Criminal Procedure Act 1986, s 306ZF; and see also Criminal Trial Courts Bench Book, above, n 32 at [1–362].

[61] Criminal Procedure Act 1986, s 306ZH.

[62] Criminal Procedure Act 1986, ss 294C(1); 306ZK(2); Children and Young Persons (Care and Protection) Act 1998, s 102; and see also Criminal Trial Courts Bench Book, above, n 32 at [1–368].

[63] Evidence Act 1995 (NSW), s 29(2).

[64] Criminal Procedure Act 1986, Sch 2, Pt 29, cll 81-94 provides for the pilot.

[65] These are reproduced in the Criminal Trial Courts Bench Book, above n 32, at [10-670].

[66] See also Criminal Trial Courts Bench Book, above, n 32 at [1–366].

[67] NSW Courts and Tribunal Services, “Explaining legal terms to children: quick reference guide”, accessed 29 June 2016.

[68] See for example, Children (Criminal Proceedings) Act 1987 (NSW), s 12; Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 10, 95; see also Criminal Trial Courts Bench Book, above n 32 at [1–180].

[69] See A G Walker, J Kenniston, S Inada & C Caldwell, Handbook on questioning children: a linguistic perspective, 3rd edn, American Bar Association, 2014.

[70] P Bowden, T Henning and D Plater, “Balancing fairness to victims, society and defendants in the cross-examination of vulnerable witnesses: an impossible triangulation” [2014] 37(3) MULR 539; A Cossins, “Cross-examining the child complainant: rights, innovations and unfounded fears in the Australian context” in JR Spencer and ME Lamb (eds), Children and cross-examination: time to change the rules?, Hart Publishing, 2012; A Cossins, “Cross-examination in child sexual assault trials: evidentiary safeguard or opportunity to confuse?” [2009] 33(1) MULR 68; R Zajac and P Cannan, “Cross-examination of sexual assault complainants: a developmental comparison” (2009) 16 (Supplement 1) Psychiatry, Psychology and Law S36.

[71] CA Carter, BL Bottoms and M Levine, “Linguistic, social and emotional influences on the accuracy of children’s reports” (1996) 20 Law and Human Behaviour 335; L Sas, The interaction between children’s developmental capabilities and the courtroom environment: the impact on testimonial competency, Research Report (RR02-6e), November 2002, Department of Justice, Canada, also published in the Judicial Commission of NSW, Sexual Assault Trials Handbook, at [7-460]. See also S Andrews, M Lamb & T Lyon, “Question types, responsiveness and self-contradictions when prosecutors and defense attorneys question alleged victims of child sexual abuse” (2015) 25 Applied Cognitive Psychology, 253; R Zajac, S O’Neill, H Hayne, “Disorder in the courtroom? Child witnesses under cross-examination” (2012) 32 Developmental Review 181.

[72] E Henderson, “Persuading and controlling: the theory of cross-examination in relation to children” in H Westcott, G Davies and R Bull (eds), Children’s testimony: a handbook of psychological research and forensic practice, John Wiley & Sons, 2002, p 279.

[73] ibid.

[74] Criminal Procedure Act 1986, s 306ZL.

[75] See also Criminal Trial Courts Bench Book, above n 32 at [1-340].

[76] R v TA (2003) 57 NSWLR 444 per Spigelman CJ at [8].

[77] Wood CJ at CL, Child Witnesses -- Best Practice for Courts, Australasian Institute of Judicial Training, 30 July 2004, District Court of NSW.

[78] See P Johnson, “Controlling unreasonable cross-examination” (2009) 21(4) JOB 29; Criminal Trial Courts Bench Book, above n 26, at [1–340]ff; L Babb, “What does s 41 of the Evidence Act mean to you as a judicial officer”, Sexual Assault Trials Handbook, at [7-000]. For proceedings in the Children’s Court, see ss 107(2) (offensive and scandalous questions) and (3) (oppressive or repetitive cross-examination) of the Children and Young Persons (Care and Protection) Act 1998. Also under s 107(1), a Children’s Magistrate may examine and cross-examine a witness in any proceedings to such extent as the Children’s Magistrate thinks proper for the purpose of eliciting information relevant to the exercise of the Children’s Court’s powers.

[79] Criminal Trial Courts Bench Book, above n 32, at [1–135] and [1–140].

[80] See also Judicial Commission of NSW, Sentencing Bench Book, 2006—, at [2–200] and R v Henry (1999) 46 NSWLR 346 at [9]–[10].

[81] See the Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 2, s 30A; Crimes (Sentencing Procedure) Regulation 2017 (NSW), cl 10; Victims Rights and Support Act 2013 (NSW), s 6; and the “Charter of rights of victims of crime” (which allows the victim access to information and assistance for the preparation of any such statement). Note that any such statement should be made available for the offender to read, but the offender must not be allowed to retain it. A victim is entitled to read out their VIS via closed-circuit television if he or she was entitled to give evidence that way during the trial: ss 30A(3), (4). See Sentencing Bench Book, above n 79, at [12-790]ff.

[82] Children’s Court of NSW Resource Handbook, above, n 40 at [6-0150]ff; MS King, “Therapeutic jurisprudence, child complainants and the concept of a fair trial” (2008) 32 CLJ 303.

[83] Young Offenders Act 1997 (NSW), Pt 5, and Young Offenders Regulation 2016. Youth Justice Conferencing, for those who have admitted guilt and agree to it, is proving an effective means of reducing recidivism — see, for example, N Smith, D Weatherburn, “Youth Justice Conferences versus Children’s Court: A comparison of re-offending”, Crime and Justice Bulletin, No 160, BOCSAR, February 2012.

Note also that in Youth Conferencing the members of the group follow the same guiding principles about the range of available sentences as any other court.

[84] See “Youth Koori Court fact sheet” at www.childrenscourt.justice.nsw.gov.au/Documents/Youth%20Koori%20Court%20A4_Accessible.pdf, accessed 14 June 2018. S Duncombe, “NSW Youth Koori Court Pilot Program commences” (2015) 27(2) JOB 11; S Duncombe, “Expansion of the NSW Youth Koori Court program” (2018) 30 JOB 48.

[85] Children (Community Services Orders) Act 1987 (NSW), s 5.

[86] See Children (Criminal Proceedings) Act 1987 (NSW), s 14(1)(a) which provides that a court “shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years”. See also Young Offenders Act 1997, ss 17 and 33.

[87] See Children (Criminal Proceedings) Act 1987 (NSW), ss 24, and 33(1AA).

[88] Originally adapted with permission from Australasian Institute of Judicial Administration, Bench Book for children giving evidence in Australian courts, 2015; revised in 2018 by Professor J Cashmore drawing on experience of the pilot witness intermediary program which commenced at the District Court in March 2016.