Evidence from vulnerable persons

[81-000] Children and cognitively impaired — competence to give evidence

Except as provided in ss 13 to 19 inclusive of the Evidence Act 1995 (the Act) every person is competent to give evidence and a person who is competent to give evidence about a fact is compellable: s 12 of the Act.

So far as “vulnerable persons” are concerned, there may be an issue as to competence to give evidence. Section 306M(1) Criminal Procedure Act 1986 defines a “vulnerable person” as a child or cognitively impaired person. Section 306M(2) provides that “cognitive impairment” includes:

  • an intellectual disability

  • a developmental disorder, (including an autistic spectrum disorder)

  • a neurological disorder

  • dementia

  • a severe mental illness, and

  • a brain injury.

The first step is to establish that a witness who is a vulnerable person is competent to give evidence, whether sworn or unsworn, about a fact. The next step is to establish whether that witness is competent to give sworn evidence about that fact.

Competence generally

Section 13(1) says, a person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability):

(a) 

the person does not have the capacity to understand a question about the fact, or

(b) 

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.

Competence to give sworn evidence

Section 13(3) says that 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 they have an obligation to tell the truth. A person who is not competent to give sworn evidence about a fact, may be competent to give unsworn evidence if the court has told the person.

(a) 

that it is important to tell the truth, and

(b) 

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

(c) 

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: s 13(5).

The logical starting point of s 13 is the presumption, established by s 13(6) that a person is “not incompetent” unless the contrary is proved: RJ v R (2010) 208 A Crim R 174 at [16].

See the Criminal Trial Courts Bench Book at [1-105]–[1-118] for a discussion of the relevant case law concerning competence and sworn and unsworn evidence.

Generally, unsworn evidence is not given less weight than sworn evidence: The Queen v GW (2016) 258 CLR 108 at [56]. Different considerations may apply where the witness is not a young child: GW at [57].

A person who is competent to give evidence about a fact is nonetheless not competent to give sworn evidence if that person is incapable of understanding that he or she is under an obligation to give truthful evidence. The test formulated in this section focuses on the capacity to understand the duty to tell the truth: R v JTB [2003] NSWCCA 295; RJ v R (2010) 208 A Crim R 174. A court should not presume a child is not competent to give sworn evidence only because of the age of the child without making an inquiry.

Establishing competence

Even if a person is not competent to give evidence about a particular fact, that person may be competent in the terms of s 13(1) of the Act to give evidence of other facts: s 13(2) of the Act. For example, a child might be able to respond to simple factual questions, but not to questions that require inferences to be drawn. Accordingly, rulings as to competence may be made not only before the witness gives evidence, but also as the evidence proceeds.

In determining competence, the court may inform itself as it thinks fit, including by reference to expert evidence: s 13(8) of the Act. Mostly, the parties will alert the court to a competence issue. With a young child or cognitively impaired witness, it is prudent for the court to enquire of the parties, if represented, whether there is any issue as to the competence of the witness to give evidence generally and, more specifically, to give sworn evidence. If the response is suggestive of an issue or is equivocal, or if a party is unrepresented, the court should satisfy itself as to the competence of the witness. That issue should be explored in a voir dire: s 189(1)(c) of the Act.

The questions to establish competence to give sworn evidence, (that is, to establish that the witness understands the obligation to give truthful evidence), will often also assist in establishing the competence to give evidence generally, (that is, the capacity to understand a question and give an answer that can be understood). There should, however, be some questions separately concerned with those respective tests.

For example, the court might ask the following series of questions, depending on whether the witness is a young child, an older child or cognitively impaired:

  • how old are you?

  • who lives with you?

  • do you have a pet? What is its name?

  • when is your birthday?

  • do you go to school/work?

  • what class are you in?

  • what is the the name of your teacher/boss?

  • what things do you like doing when you are not at school/work?

  • do you like to watch television?

  • do you have a favourite television show?

  • do you know that you are going to be asked some questions today about something from a while ago?

  • do you understand that you have to tell the truth here today, or

  • do you know that a court room is a special place where people must tell only the truth?

If it is established that the witness is competent to give sworn evidence, the witness can then be sworn as a witness. An oath or affirmation can then be given. If you are not so satisfied, but you are satisfied that the witness is competent generally, then the requirements of s 13(5) of the Act for the witness to give unsworn evidence must be satisfied. These requirements are that the court must tell the witness that:

(a) 

it is important to tell the truth,

(b) 

if you are asked a question and you don’t know the answer, then you should say, “I don’t know”,

(c) 

if you are asked a question and you can’t remember the answer, then you should say, “I can’t remember”,

(d) 

it does not matter if you don’t know the answer or cannot remember something; the important thing is that you tell the truth,

(e) 

if you are asked something that you do believe is true, then you can say, “That’s right”, and

(f) 

if someone asks you a question you don’t agree with, you can say, “I don’t agree”, or, “That is not true”.

Even despite reaching this point, there may be an issue as to whether a person is competent to give evidence about a particular fact. Those particular questions could be asked on a voir dire. It is best to have the witness informed as required in s 13(5) of the Act to give unsworn evidence before the particular questions are asked. This is because if the witness is found to be competent to answer these particular questions, the answers given in the voir dire can be imported into the substantive hearing.

Compellability to give evidence

Furthermore, s 14 of the Act provides that a person is not compellable to give evidence on a particular matter if:

(a) 

substantial cost and delay would be incurred in ensuring that the person would have the capacity to understand a question about the matter or give an answer that can be understood to a question about the matter, and

(b) 

adequate evidence on that matter has been given, or will be able to be given.

[81-020] Unreliability of evidence

Sections 165–165A of the Act are concerned with warnings about unreliable evidence. While the sections are concerned with jury trials, it is instructive to magistrates in evaluating evidence.

The types of evidence which may be unreliable include, “evidence the reliability which may be affected by age, ill health (whether physical or mental), injury or the like”: s 165(1)(c).

Children, as a class, are not to be regarded as unreliable witnesses: s 165A. A child’s evidence might be regarded as unreliable because of their age, but only if there are circumstances particular to that child in those proceedings that affect the reliability of the child’s evidence that warrant a warning. It is for the party requesting such a warning to satisfy the court that such circumstances exist and warrant such a warning to the tribunal of fact: s 165A(2).

[81-060] The ways in which evidence of a vulnerable person may be given

The Criminal Procedure Act provides that the evidence of a vulnerable person (that is, a child or cognitively impaired person within the meaning of s 306M) may be given wholly or partly:

(a) 

in the form of a sound and/or visual recording of an interview of the witness by an investigating official: s 306S,

(b) 

orally in the courtroom: s 306S,

(c) 

if the evidence is given in any proceeding to which Pt 6 Div 4 applies, then the evidence may be given in accordance with alternative arrangements made under s 306W: s 306S,

(d) 

by closed circuit television for certain proceedings, such as personal assault offences and AVOs: see s 306ZA, or

(e) 

a written statement for the purposes of committal proceedings: Ch 3 Pt 2 Div 3.

[81-080] Evidence by way of pre-recorded interview

The main features of the provisions in the Criminal Procedure Act are as follows:

1. 

Vulnerable persons of any age are entitled to give evidence in chief by pre-recorded interview. This applies if a person is no longer a child and is not cognitively impaired, but his or her interview was recorded when that person was younger than 16 years: s 306U.

2. 

The court may only order that the evidence not be given by means of a pre-recording if it is not in the interests of justice to have the evidence given by pre-recording: s 306Y.

3. 

A vulnerable person must not be called to give evidence in chief by means other than a pre-recording, unless the person calling the witness has taken into account the wishes of the vulnerable person. The vulnerable person is not required to express his or her wishes: s 306T.

4. 

If evidence is given by way of a pre-recording, then, except for committal proceedings, the vulnerable person must be available for cross-examination and re-examination, either orally in the courtroom or by way of closed circuit television ifPt 6 Div 4, (for personal assault offences, AVOs, etc), applies: ss 306U(3) and 306ZA.

5. 

Subject to the vulnerable person wishing to be in court when the pre-recording is played, that person must not be present in or visible or audible to the court, while the recording is being played to the court: s 306U.

6. 

Such pre-recorded evidence is only admissible if:

(a) 

the defendant and his or her lawyer, (if any), have had a reasonable opportunity in accordance with the regulations to listen to or to view the pre-recording, or

(b) 

the parties consent to the pre-recording being admitted, or

(c) 

the defendant and his or her lawyer, (if any), were given a reasonable opportunity otherwise than in accordance with the regulations to listen to or to view the pre-recording and it would be in the interests of justice to admit the pre-recording: s 306V.

See the discussion of Tikomaimaleya v R (2017) 95 NSWLR 315 at [54], [56] in the Criminal Trial Courts Bench Book at [1-372] concerning the proper approach to s 13(1) Evidence Act 1995 if an issue is raised about a vulnerable person’s competence during a recorded interview.

[81-100] Evidence by way of closed circuit television (CCTV)

The main features of the provisions in the Criminal Procedure Act are as follows:

1. 

The entitlement to give evidence by CCTV applies to personal assault offences (as defined), AVO proceedings and other matters referred to in s 306ZA.

2. 

The entitlement applies to a witness under 16 years at the time of giving evidence, or where the witness is 16 or 17 years at the time of giving evidence and the witness was under 16 years at the time the relevant charge was laid: s 306ZB.

3. 

The court may order that a vulnerable person not give evidence by way of CCTV if satisfied there are special reasons in the interests of justice for the evidence not to be given by such means: s 306ZB.

4. 

A vulnerable person may choose not to give evidence by means of CCTV: s 306ZB.

5. 

Where the defendant is a vulnerable person, the court may order that the defendant’s evidence is given by way of CCTV. Such an order may only be made in respect of a child defendant if:

(a) 

the child may suffer mental or emotional harm if required to give evidence in the ordinary way, or

(b) 

the facts may be better ascertained with use of CCTV: s 306ZC.

6. 

Where identification is a fact in issue, identification evidence is not permitted using CCTV. If a vulnerable person is otherwise giving evidence by CCTV, that person may refuse to give identification evidence until after the completion of the person’s evidence, including cross-examination and re-examination: s 306ZE.

7. 

If a vulnerable person chooses not to use CCTV or the facilities are not available, alternative arrangements must be made to restrict contact between the vulnerable person and any other person, unless the vulnerable person chooses not to have such arrangements. Those alternative arrangements may include:

(a) 

screens

(b) 

seating arrangements in the courtroom, and

(c) 

the adjournment of the proceedings to other premises: s 306ZH.

[81-120] Support persons

A vulnerable person (including a defendant), who gives evidence in proceedings named in s 306ZK Criminal Procedure Act (criminal proceedings, AVOs, civil proceedings arising from a personal assault offence etc), is entitled to choose a person to be present nearby when giving evidence. More than one support person may be permitted.

Note that s 306ZK does not apply if the vulnerable person giving evidence is a complainant in proceedings for a prescribed sexual assault or a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007. In that case, s 294C applies in respect of the entitlements to one or more support persons.

[81-140] Questioning by an unrepresented defendant

In criminal proceedings arising from a personal assault offence, where the defendant is not represented by a lawyer, a vulnerable person (other than the defendant), is to be asked questions by a person appointed by the court instead of by the defendant. In cases involving prescribed sexual offences, this obligation is mandatory: s 294A Criminal Procedure Act. In other cases, the court may choose not to appoint a person if it is not in the interests of justice to do so: s 306ZL.

[81-160] Publication of evidence and evidence in camera

A complainant in a prescribed sexual assault offence is to give evidence in camera, even if the evidence is given by way of CCTV or another alternative arrangement, unless the court otherwise directs: see s 291 Criminal Procedure Act. Section 294D extends the operation of the provision to any witness against whom a prescribed sexual offence is alleged to have been committed by the accused person.

Media representatives are entitled to enter and remain in the courtroom during proceedings or any part of proceedings held in camera where the complainant gives evidence via CCTV. Arrangements may also be made to allow media representatives to view or hear evidence given by a complainant during in camera proceedings from another place, so that they are not present in the courtroom or place from which the evidence is being given: see s 291C. However:

  • An automatic statutory restriction applies in relation to the identification of complainants and children involved in prescribed sexual offence proceedings. Section 578A Crimes Act 1900 prohibits the publication of any matter that identifies, or is likely to lead to the identification of, a complainant in proceedings for a prescribed sexual offence. It is also an offence to publish or broadcast the name of a child defendant or a person giving evidence who is, or was at the time of the offence, a child: see s 15A Children (Criminal Proceedings) Act 1987.

  • The Court Suppression and Non-Publication Orders Act 2010 empowers the court to make a suppression or non-publication order in respect of evidence given in criminal or civil proceedings, on the basis of any of the grounds set out in s 8 including that “the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency)”. See the discussion of what may satisfy the requirement of necessity in the Criminal Trial Courts Bench Book at [1-354] Grounds for and content of suppression or non-publication orders.

[81-180] Children’s evidence in committal proceedings

If the complainant in a child sexual assault offence is under 16 years when the offence is allegedly committed and currently under 18 years, a direction to attend to give evidence in the committal proceedings may not be given: see s 91(8) Criminal Procedure Act as in force before 30 April 2018 for proceedings which had commenced before that date; s 83(2) for proceedings commenced on or after 30 April 2018.