Sexual Assault Trials Handbook — Child sexual abuse and the criminal law

Child witnesses: the judicial role

Abstract

This paper discusses the problems child witnesses face in an adversarial adult-orientated system. These include children being required to answer questions from a number of different people about what happened, waiting months and even years before the case gets to court, having to face the alleged offender and being asked complex and difficult questions by lawyers unaccustomed to speaking to children in language they can understand.

[1]Dr Cashmore examines the role of the judiciary in the experience of child witnesses in the courtroom and ways in which judicial leadership can improve the experience such as appropriate intervention in relation to questioning, case management to minimise delays, and fitting use of technological aids.

[2]With the easing of the restrictions associated with competence and corroboration requirements, children now appear more frequently as witnesses in child sexual assault prosecutions than they did several decades ago. As more children and younger children have come before the courts as witnesses, the problems they face in an adversarial adult-oriented system have become more evident. A multitude of research studies, government reports and inquiries in Australia and other common law countries have documented the difficulties. These include children being required to answer questions from a number of different people about what happened, waiting months and even years before the case goes to court, having to face the alleged offender, and being asked complex and difficult questions by lawyers unaccustomed to speaking to children in language they can understand.1 Quite often children will to go through this process more than once, having to testify in pre-trial hearings or when there are multiple trials, with demonstrated adverse consequences.2

[3]Concerns about the stressful and potentially harmful effects on children and the possibly detrimental effect on the reliability and completeness of their evidence have led to a number of changes in investigative and court procedures to try to accommodate the needs of child witnesses while still protecting the rights of the accused.3 These changes fall into three categories:4

  • modifications to the court environment and innovative procedures to alleviate the main stressors for children in court;

  • empowering children by preparing them for the court experience; and

  • increasing the skills of the professionals involved in the investigative and court process.

[4]In particular, the use of technological aids in the form of closed-circuit television and pre-recorded interview evidence now allow children’s evidence to be fully or partially presented in the form of a pre-recorded interview5 and to testify via closed-circuit television away from the court room itself, and the gaze of the accused.6

[5]Despite these changes, child witnesses — and for that matter, many adult complainants in sexual assault matters — indicate dissatisfaction with their experience as witnesses, reporting in particular that they feel they were not heard. The recent evaluation of the pilot specialist child sexual assault jurisdiction in Sydney found, for example, that most children had difficulty with the questions they were asked and did not feel that they had the chance to say what they wanted to say or tell what happened in a coherent story.7

[6]There were several reasons children felt they could not give a full and proper account of their evidence. First, they were constrained by the questions and by the directions they were given about how they could answer. Several children were upset that they could not “tell the truth, the whole truth, and nothing but the truth”, because they were told by either the judge or the lawyer, to “just answer the question that was asked”. They also reported being cut off or interrupted by the lawyer. For example:

It was very hard because he [lawyer] would not let me speak. He would ask me a question and he would not let me respond to it. He’d just cut me off. (15-year-old complainant)

Like I’d go to tell him what happened and he’d just say, “No, just answer the question”. Like, you want to tell them the whole story, and they say, “No, you can’t say that. If you don’t say it this way, you can’t say it at all”. Who was saying that? The other guy, the defence guy. (11-year-old complainant)

[7]Second, some felt constrained by admissibility issues and by having to carefully edit their ‘stories’ to suit. For example, Alice, a 16-year-old, was giving evidence in relation to a series of sexual assaults against her in one trial, and in relation to assaults against several other complainants in two other separate trials. She spoke of her difficulty in trying to answer questions ‘out of context’ — without referring to the other complainants — and her consequent discomfort at appearing hesitant and unreliable before the jury.

No, I had been told that I could not mention any other cases but some questions that they asked, you couldn’t answer without mentioning the other people because that’s how it worked, that’s how it happened. So I was thinking, “Am I going to look like I am lying because I am hesitating? — because I didn’t know how to answer without mentioning them. I feel negative about the court experience now because there are just so many things you can’t say which makes it very hard for the jury to understand a lot of other things you know are connected to them” (15-year-old complainant)

[8]Third, some children had difficulty in understanding the questions, consistent with the findings of numerous other studies on the difficulty of “legal language”.8 For example:

It was quite hard … and a bit annoying. They were speaking mumbo jumbo. Words I could not understand (15-year-old complainant)

[9]Finally, some child witnesses were clearly frustrated by what they saw as unnecessary questioning about irrelevant details by the defence lawyer and dissatisfied that their attempts to give honest answers were used to make them appear to be an unreliable witness. For example:

There were so many questions that you cannot possibly remember the details over two years. He asked questions about things that were really irrelevant, like how long did Petra stay for, so he got me saying a number of times “I don’t really remember”. And it worked; so then he could say to the jury that she doesn’t remember. (16-year-old complainant)

Telling the truth — if the court allows it

[10]Children’s frustration and dissatisfaction with the process, and with cross-examination in particular, means that the legal system does not meet their expectation that they should be able to “tell the truth, the whole truth, and nothing but the truth”; it also diminishes their faith in the fairness of that system.9 Their perceptions that they have not been able to give full and reliable evidence are also supported by research that indicates that the consistency and completeness of their testimony, and their emotional state, are affected by the way they are questioned.10

[11]Research also highlights the significant imbalance of power, language, skills, and familiarity with the court process between child witnesses and the legal professionals involved. The assumption underpinning the adversarial process is that “persistent questioning” and challenging a witness’s account of events during cross-examination will expose the unreliability of witness evidence. There is, however, good reason to question this and research evidence that this assumption is invalid and unwarranted in the case of children.11

[12]As Carter, Bottoms and Levine concluded:12

attorneys are skilled at discrediting child witnesses in the courtroom by using conversational strategies that intimidate them into silence, contradictions, or general emotional and cognitive disorganization … 

[13]Indeed, the various strategies that lawyers use to cross-examine children are often stress-inducing, developmentally inappropriate, suggestive and “evidentially unsafe”.13 They are, however, widely used and generally acceptable to lawyers and judicial officers as an integral part of the adversarial process.

Judicial intervention in relation to questioning

[14]Judicial intervention to prevent inappropriate or oppressive questioning is an obvious and important means by which judges and magistrates can ensure that questioning is fair and understandable to child witnesses, and indeed to all witnesses. However, research and various inquiries here in New South Wales and in other jurisdictions indicate that a number of judges show a marked reluctance to intervene or simply do not intervene to assist or protect vulnerable witnesses during cross-examination.14 Several inquiries in Australia have also commented on the reluctance of judges to intervene.15 The New South Wales Royal Commission noted, for example, that:16

Our adversary system has not encouraged judges to intervene in the conduct of the examination of witnesses unless objection is taken, or the advocate has plainly exceeded the bounds of proper questioning. Some judges fear that undue intervention, even if justified, will excite concern as to prejudice, or cause the jury to be sympathetic to the accused.

[15]One judge explained his reluctance in the following way:17

I think it’s very important when cross-examination is proceeding … to permit the evidence to be properly tested and if that means, as it inevitably does, that the child has to be distressed, I’m afraid it’s part of the system.

[16]Similarly, the court observation study that was undertaken as part of the recent evaluation of the specialist jurisdiction for child sexual assault trials in Sydney found that there was considerable variation between judicial officers in their rate of intervention, and their style of interaction with child witnesses.18 While judges intervened more often when there were more objections from the prosecuting lawyer, they were not likely to intervene more for younger children or where the linguistic style of the defence lawyer was rated by the research observers as more difficult.19 This suggests that most judges were reluctant to intervene in the absence of any objection and/or were not sensitive to the difficulties that child witnesses had with the linguistic style of the defence lawyer during cross-examination.20

[17]Legislative change may, however, help to overcome appeal-driven judicial concern about intervening. Recent amendments to the Evidence Act 1995 in New South Wales now require judicial officers to disallow inappropriate questioning, whether or not objection is made.21 Inappropriate questions include those that are misleading or confusing, unduly annoying, intimidating, offensive, oppressive, humiliating repetitive, or harassing, intimidating, offensive, oppressive, humiliating or repetitive and asked in a manner or tone way that is belittling, insulting22 or otherwise inappropriate.23 At the same time, there is encouragement for judges to take a more active role from leading judges and those within their own ranks as well as academic lawyers and commentators.24 The Chief Justice of New South Wales has indicated clear approval for greater judicial intervention:25

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.

[18]Similarly, Judge Ellis of the District Court of New South Wales stated:26

It is a very moot point whether the presently accepted defence questioning styles and methods effectively test the efficacy of evidence. Arguably, it is more likely that it allows lawyers to unfairly discredit evidence without providing any genuine enlightenment as to the truth or otherwise of testimony.

[19]But changes in the law and other encouragement to intervene are not sufficient. The ability to recognise that questioning is developmentally inappropriate, oppressive or intimidating for a child witness is not intuitive and needs to be part of legal training27 and judicial education.28

The importance of judicial leadership in improving the experience of child witnesses

[20]Judicial intervention to prevent inappropriate or oppressive questioning and to ensure that questioning is fair and understandable to a child is not the only way that judges and magistrates can improve the court experience for child witnesses. Importantly, judges and magistrates set the tone of the courtroom and can model appropriate behaviour and ways of interacting with child witnesses that are respectful and allow children to testify in a full and fair manner.

[21]Clearly the judicial role in the criminal trial process is pivotal. Judicial officers exercise considerable discretion in the use of special measures, the admissibility of evidence, controlling questioning, “modelling child conscious court practice”, and giving directions and warnings to the jury.29 Their key role is well accepted by children who perceive them to be the most important “player” in court and one of whom they have high and sometimes unrealistic expectations.30 Sas, for example, states that:31

Children’s feelings of goodwill and their high expectations of the adults in court are especially extended towards the judiciary. Children cannot understand how a judge will not believe them when they are telling the truth. Many children have unrealistic expectations of the judge, seeing the judge as some one who will right all the wrongs that have been committed by the accused. It is not surprising that explanations of how a judge arrives at a decision employing a standard of beyond a reasonable doubt is so hard for child witnesses to comprehend. They expect the judge to see the events from their perspective. This is one of the reasons why court preparation is so important for child witnesses.

[22]As Sas pointed out, it is important that children are properly prepared for their role as a witness but it is equally important that the professionals — judicial officers and lawyers — whose interaction with them is critical to the reliability of their evidence and their perceptions of the court process are well prepared. It is important that they know and understand what is reasonable to expect from children in these circumstances, and what they are capable of in relation to language and conceptual understanding.

[23]Judicial leadership is probably the most effective means within the existing adversarial system of changing the culture of the courtroom to offset the imbalance between professional lawyers and child witnesses. There are a number of relatively minor changes that can be made to provide a more equal playing field for child witnesses without disturbing the rights of the accused to a fair trial.

Minimising delay

[24]Children testifying in child sexual assault matters often have to wait many months and even years before the case goes to court. In the child sexual assault specialist jurisdiction evaluation, the overall time from arrest to outcome for the 45 cases ranged from 166 to 1523 days (median of 405 days). While the time from arrest to committal is clearly outside the control of the court system, the time in the court system from committal to outcome was still lengthy (median of 209 days), especially in terms of children’s sense of time.32 Such long delays for children can exacerbate the difficulties they face and may have adverse effects on children’s testimony and effects on children’s long-term outcomes.33

[25]Measures to minimise delays and adjournments in cases involving children are therefore important. Appropriate case management by judicial officers can assist greatly in ensuring that the various parties and professionals are prepared, that preliminary legal issues are resolved, and that the special arrangements for child witnesses are in place. Where adjournments are requested, the likely effect on the child and the number of prior adjournments and delays need to be considered. In the evaluation of the child sexual assault specialist jurisdiction, the cases were listed on average 5.1 times for arraignment and trial prior to the trial being held or the defendant pleading guilty. When children are prepared and expecting to attend court and testify, it is very stressful to have the matter adjourned, especially on several occasions as happens in some cases. Where adjournments are unavoidable, major events in the child’s or young person’s life such as school examinations, holidays, significant sporting or cultural events may also need to taken into account.

[26]It is also very helpful to children and their families if they can be given some reasonably accurate estimate of when the child will testify so that they are not kept waiting at court for long periods before they give evidence. This is particularly important if the court does not have a separate waiting space that is specially designed to be child/young person-friendly (that is, with suitable distractions, appropriate décor and a support person or people present). Not surprisingly, the worst aspect of the court process for some children and their parents is “all the waiting”.34

Competence testing

[27]Children are presumed to be competent and can give unsworn evidence if the court is satisfied they understand the difference between the truth and a lie.35 This presumption is reasonable given the research findings on children’s understanding of truth and lies, and promises.36 Children as young as four or five recognise deliberately false statements as lies but tend to be over-inclusive and more stringent than older children and adults because they tend to include incorrect guesses and exaggerations as lies. They also expect to be caught out and to be punished if they lie.37

[28]Despite the presumption of competence, some children are still subjected to inappropriate questioning about their understanding of truth and lies. Several children and a parent/carer in the child sexual assault specialist jurisdiction evaluation study38 commented on the confusing nature of the questions about truth-telling. One 15-year-old with a learning difficulty said, for example:

He made me confused. He asked me what the truth was, and I was thinking about it and he said “Did you listen to me, young man?” and he just kept asking the same thing.

[29]His foster mother also commented on his difficulty:

His speech goes when he is really nervous, and he was struggling to talk. That was hard for him because the judge did not give him time to answer. He said “Are you listening, can you understand what I’m saying” and that just flustered him more and he could not get his answers out. And when that happens, he just clams up, and he just says “yep”, “nup”.

[30]It is very difficult, even for adults, to respond to abstract questions asking them to explain the conceptual difference between the truth and a lie. Attempts to ask more concrete questions may, however, raise other difficulties.39 For example:

  • Would it be the truth or a lie if I said (if asked by a judge/magistrate)? There are two problems with this question. First, it asks the child to call the judge/magistrate a liar. Secondly, asking children whether a given statement matches reality (for example, colour of clothing) does not indicate whether they know the difference between a truth and a lie. A lie requires the intention to deceive or mislead.

  • If I said there were eight people in the room, and if there were only …? This question requires the child to keep in mind two conditional or hypothetical statements, in addition to the problem alluded to above.

  • Have you ever told a lie? No. Children are likely to be very uncomfortable admitting that they have lied, especially in court to a judge or lawyer.

  • What would happen to you if you told a lie here today? A child who answers by saying “nothing” may be seen as not understanding the consequences of lying but some children do not accept the premise of the question — they have no intention of lying — so they may say “nothing”.

  • For example, one exchange between an adult and a child: If you tell a lie, will you get into trouble? No.

[31]You won’t get into trouble? No … But I am not going to tell a lie.

[32]Since some children may not elaborate and give a reason for their answer, it would therefore be better to ask — “If your brother/sister/friend broke a plate and said you broke it to save getting into trouble, would that be the truth or a lie?

Ensuring the appropriate use of special measures

[33]The use of special measures such as pre-recorded interviews, closed-circuit television, and support persons are intended to make the court experience easier and less stressful for child witnesses. Sometimes, however, poor management of the practical aspects of these measures counteracts the benefits for the child and the reliability of their testimony.40 In terms of the technology, judges and magistrates need to be sure that the child is able to hear properly and can see the person who is asking the questions if closed-circuit television (CCTV) is being used41 because children will not necessarily say that they cannot. Children should also not be able to see the accused and should not be visible to the court.42 Nor should they be required to watch the tape while their pre-recorded investigative interview is played to the court. The child is entitled to a support person if they so choose. That person should be allowed to be near the child and/or within their sight, and under new guidelines43 may “bring to the attention of the sheriff/court officer issues affecting the child such as their need for a break, need to go to the toilet, health problems etc. The sheriff/court officer should inform the court (via phone connection) if there is any malfunction of the equipment in the remote witness room (such as problems with the sound quality or vision, or the accused being in sight, or the failure of air-conditioning, heating etc).”

Making the unfamiliar less intimidating

[34]While judicial officers and legal professionals are likely to feel quite comfortable in an environment that they know well, courts are formidable and intimidating environments for witnesses and others unfamiliar with their facilities and the processes. It is therefore important for children to feel welcome and to be introduced to the process. While court preparation can clearly help, judicial officers are well placed at the start of a child’s testimony to introduce themselves and the main players in court to the child, and to explain how things will be done — in developmentally appropriate language.44 Children should also be informed when the link to the courtroom via CCTV is about to be broken for legal argument or other reasons. With the child in another room, or in other remote facilities, those in the courtroom can be forgetful of the child’s experience — “out of sight, out of mind”. Children have been left “out of contact” and unsure when the CCTV link is to be switched on again, in some cases even after the court has adjourned for lunch.45

Providing breaks

[35]The court observation study in the child sexual assault specialist jurisdiction evaluation found that children’s testimony lasted on average between two to three-and-a-half hours hours.46 While the scheduled breaks for morning tea and lunch provided some respite for children from the questioning and being “on show”, sessions that extend beyond 90 minutes are well beyond the attention span of most children and many adolescents, particularly when they are under this level of stress.47 Judicial officers can assist, however, by telling children they can have a break if they need one (to go to the toilet, for example) but also by monitoring the child’s state and offering a break rather than requiring the child to ask for one. Some signs to watch for include fidgeting, evasiveness, an increasing number of “I don’t knows”, silence/stopping answering altogether, hyperventilation, confused answers, trying harder and harder to find an answer they think might be wanted, and increasing distress or crying.48 These signs indicate that the child or young person may be “tuning out” or distressed and that some judicial intervention is necessary.

Conclusion

[36]There are therefore a number of ways that judicial officers can assist child witnesses and improve their court experience without affecting the rights of the accused to a fair trial. More importantly, by being sensitive to the needs of the child, they can model appropriate behaviour and set the tone of the court. While some aspects may appear to be little more than common sense, seeing the world through the “eyes” of a child is not intuitive and other aspects require more specialised knowledge — for example, understanding what children are capable of in terms of their language, their conceptual understanding of time, sequence, and causality and an understanding of the dynamics of child sexual assault and children’s likely reactions.

[37]There are a number of opportunities for judicial education and resources to assist judicial officers and others, including the recently published Equality before the Law Bench Book produced by the Judicial Commission of New South Wales. These resources and further discussion of the associated issues will hopefully increase the likelihood that judicial officers will see the need to intervene and do so appropriately to improve the reliability of children’s evidence and to make the court process fairer and less intimidating for child witnesses.


1See IM Cordon, GS Goodman and SJ Anderson, “Children in court” in PJ van Koppen and S Penrod (eds), Adversarial versus Inquisitorial Justice: Psychological Perspectives on Criminal Justice Systems, 2003, Kluwer Academic, Plenum Publishers, New York, pp 167–189; Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Report No 84, 1997, Australian Government Publishing Service, Canberra; New South Wales Legislative Council Standing Committee on Law and Justice, Report on Child Sexual Assault Prosecutions, Parliamentary Paper 208, 2002; 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, available at <http://canada.justice.gc.ca/en/ps/rs/rep/2002/interaction/inter.pdf> (accessed 24 January 2007); JR Spencer and RH Flin, The Evidence of Children: The Law and the Psychology, 2nd ed, 1993, Blackstone, London.

2Spencer and Flin, op cit n 1; JA Quas et al, Childhood Sexual Assault Victims: Long-term Outcomes after Testifying in Criminal Court, Monographs of the Society for Research in Child Development, 2005, Blackwell Publishing.

3While there are procedural and legislative differences across the various jurisdictions, the issues facing child witnesses in child sexual assault matters are strikingly similar across common law countries such as England, Scotland, Canada, and the United States. See N Bala, “Child witnesses in the Canadian criminal courts: recognizing their capacities and needs” (1999) 5(2) Psychology, Public Policy and Law 323–354.

M Brennan and RE Brennan, Strange Language: Child Victims Under Cross-Examination, 3rd ed, 1988, Charles Sturt University, Wagga Wagga, NSW; R Bessner, The Voice of the Child in Divorce, Custody and Access Proceedings, 2002, Background paper, Department of Justice Family, Children and Youth Section, Canada (available at <http://justice.gc.ca/en/ps/pad/reports/2002-fcy-1.html>, accessed 24 January 2007); GS Goodman et al, “Innovations for child witnesses: a national survey” (1999) 5(2) Psychology, Public Policy and Law 255–281; JEB Myers, “A decade of international legal reform to accommodate child witnesses: steps toward a child witness code”, in BL Bottoms and GS Goodman (eds), International Perspectives on Child Witnesses, 1996, Sage, Newbury Park, CA, pp 221–265; Spencer and Flin, op cit, n 1.

4J Cashmore, “Innovative procedures for child witnesses”, in H Westcott, GM Davies and R Bull (eds), Children’s Testimony: A Handbook of Psychological Research and Forensic Practice, 2002, John Wiley & Sons, Chichester, pp 203–218.

5Evidence (Children) Act 1997, ss 9–13.

6ibid, ss 9, 18.

7J Cashmore and L Trimboli, An Evaluation of the New South Wales Child Sexual Assault Specialist Jurisdiction Pilot, 2005, New South Wales Bureau of Crime Statistics and Research, Sydney.

8Brennan and Brennan, op cit, n 3; CA Carter, BL Bottoms and M Levine, “Linguistic, social and emotional influences on the accuracy of children’s reports” (1996) 20 Law and Human Behavior 335–358; E Davies, E Henderson and F Seymour, “In the interests of justice? The cross-examination of child complainants of sexual abuse in criminal proceedings” (1997) 4 Psychiatry, Psychology and Law 217–229; E Henderson, “Persuading and controlling: the theory of cross-examination in relation to children”, in H Westcott et al, op cit n 4, pp 279–293.

9Quas et al, op cit, n 2. While adolescents may have less trouble with lawyers’ language, Quas et al found that those who were adolescents at the time of the trial were more likely than younger children to have longer-term adverse outcomes 12 years later, and also to have less faith in the legal system.

10Brennan and Brennan, op cit, n 3; Davies et al, op cit, n 8; GS Goodman et al, Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims, Monographs of the Society for Research in Child Development, 1992, University of Chicago Press; R Zajac, J Gross and H Hayne, “Asked and answered: Questioning children in the courtroom” (2003) 10(1) Psychiatry, Psychology and Law 199–209.

11Carter et al, op cit, n 8; Cordon et al, op cit, n 1; Henderson, op cit, n 8; Zajac et al, op cit, n 10.

12Carter et al, op cit, n 8, p 336.

13Henderson, op cit, n 8, p 280.

14J Cashmore and K Bussey, “Judicial perceptions of child witness competence” (1996) 20(3) Law and Human Behavior 313–334. Similar findings are reported in Queensland: C O’Kelly et al, “Judicial intervention in court cases involving witnesses with and without learning disabilities” (2003) 8(2) Legal and Criminological 229–240; and the United States: Cordon et al, op cit, n 1; T Hafmeister, “Protecting child witnesses: judicial efforts to minimize the trauma and reduce evidentiary barriers” (1996) 11 Violence and Victims 73–91.

15Royal Commission into New South Wales Police Service, 1996; Victorian Law Reform Commission, 2004.

16Royal Commission into the New South Wales Police Service, 1996, Vol 5, p 1110.

17Cashmore and Bussey, op cit, n 14, p 325.

18Cashmore and Trimboli, op cit, n 7.

19The number of judicial interventions was significantly “correlated with the number of objections by the prosecution lawyer during cross-examination … It was not related to the age of the child … nor was it associated with the defence lawyers’ linguistic and questioning style, as rated by the researchers”: Cashmore and Trimboli, op cit, n 7, p 52. O’Kelly et al, op cit, n 14 reported similar findings in relation to judicial intervention during the cross-examination of witnesses with an intellectual disability.

20Cashmore and Trimboli, op cit n 7, p 54. Only one in five judicial interventions in the child sexual assault specialist jurisdiction evaluation study were interventions to control cross-examination and to protect the child complainant from questions which were deemed unreasonable, intimidating or harassing.

21s 41.

22While the defence clearly needs to be able to challenge the veracity of a witness’s account of events, it is worthwhile noting that repeated accusations of lying can be very stressful for children and their level of distress can interfere with their capacity to respond to the questions. In the words of one child in the child sexual assault specialist jurisdiction evaluation: “He called me a liar. He made me really angry because he’s an adult and he did not have respect.” (11-year-old complainant)

23Section 41 of the Evidence Act 1995 (NSW) provides that, in any criminal proceedings, the court must disallow a question put to a witness in cross-examination or inform the witness that it need not be answered if the court is of the opinion that the question is a “disallowable question”, see L Babb, “What does s 41 of the Evidence Act mean to you as a judicial officer?” at [7-000] of the Sexual Assault Handbook.

24In their comparison of adversarial and inquisitorial systems, van Koppen and Penrod, op cit, n 1 highlighted the importance of fairness and equality in the “contest” inherent in adversarial systems: a contest is only a real contest if it is played in a fair way and the essential feature of fair play is the formal equality of the contestants (p 2). See also Chief Justice Spigelman in R v TA (2003) 57 NSWLR 444; R Ellis, “Judicial activism in child sexual assault cases”, paper presented at Children and the Courts Conference, National Judicial College of Australia, Sydney, 5 November 2005.

25R v TA (2003) 57 NSWLR 444 at [8], per Spigelman CJ.

26Ellis, op cit, n 24, p 10.

27While the New South Wales Law Society now has specialist accreditation for children’s lawyers, there are few specialist course available in law schools in New South Wales or Australia and specialist training in the particular areas concerning child witnesses is quite circumscribed.

28In the absence of a “child interpreter” who can play this role as happens in some civil law jurisdictions, see Cordon et al, op cit, n 1; K Müller, “An inquisitorial approach to the evidence of children” (2001) 4(4) Crime Research in South Africa, available at: <www.crisa.org.za/downloads/ia.pdf> (accessed 24 January 2007), or other arrangements to present children’s evidence, judicial education is necessary to assist judges and magistrates to understand what children are capable of. In various jurisdictions in Europe, and in Western Australia, for example, the whole of the evidence of the child is taken in advance of the trial, stored and eventually presented to the court without requiring the child to be present at trial to testify: Cordon et al, op cit, n 1.

29Hafmeister op cit, n 14; J Hunter and K Cronin, A Criminal Trial Commentary: Evidence, Advocacy and Ethical Practice, 1995, Butterworths, Sydney.

30J Cashmore and K Bussey, “Children’s conceptions of the witness role” in JR Spencer et al (eds), Children’s Evidence in Legal Proceedings: An International Perspective, University of Cambridge, 1989, pp 177–188; Cashmore and Bussey, op cit, n 13; R Flin, Y Stevenson, and G Davies, “Children’s knowledge of legal proceedings” (1989) 80 British Journal of Psychology 285–297; Sas, op cit, n 1.

31Sas, op cit, n 1, p 24.

32These figures combine the 27 cases in the specialist jurisdiction and the 18 cases in the comparison registry. These figures were in line with the New South Wales Bureau of Crime Statistics and Research figures for delays between arrest and committal (median time = 160–180 days, depending on whether guilty or no plea) and between committal and outcome (median time = 150–250 days). See Cashmore and Trimboli, op cit, n 7, pp 26–27.

33Quas et al, op cit, n 2. For example, in a long-term 12-year follow-up of 174 child witness complainants (aged 4 to 17 at the time of trial) example, Quas et al reported that these complainants had more adverse mental health and adjustment and negative attitudes to the court system if they had to testify more than once, and if they experienced greater distress while waiting and testifying, and did not have the support of their mothers.

34Cashmore and Trimboli, op cit, n 7.

35Evidence Act 1995 (NSW), s 13.

36JW Astington, “Children’s understanding of the speech act of promising” (1988) 15 Journal of Child Language 157–173; F Maas and L Abbedutto, “Young children’s understanding of promising: methodological considerations (1998) 25 Journal of Child Language 203–214.

37Children tend to lie to avoid getting into trouble themselves or because they are scared of the consequences of telling the truth. See P Wagland and K Bussey, “Factors that facilitate and undermine children’s beliefs about truth telling” (2005) 29(6) Law and Human Behavior 639–655; TD Lyon et al, “Reducing maltreated children’s reluctance to answer hypothetical oath-taking competency questions” (2001) 25(1) Law and Human Behavior 81–92.

38Cashmore and Trimboli, op cit, n 7.

39Lyon et al, op cit, n 37.

40Guidance is now available to assist effective use of the technology in the New South Wales Attorney General’s Department’s publication Remote Witness Video Facilities Operational Guidelines for Judicial Officers. There are also similar guidelines for sheriff’s/court officers, and support persons attending the witness room, and legal representatives, as well as a system setup checklist.

41The small screen on the bench allows the judge/magistrate to see what the child is able to see (and sometimes that is only part of the person who is talking to them), and if the lawyer or judge/magistrate is looking to the wrong camera in court, the child sees only the back of their head.

42Evidence (Children) Act 1997 (NSW), s 11.

43New South Wales Attorney General’s Department, Operational Guidelines for Sheriff’s/Court Officers Attending the Witness Room.

44Not only should the language be developmentally appropriate, it should also be appropriate for children who are complainants in child sexual assault matters. Well-intentioned “kindly” requests to children to speak up or remove their hand from their face are not appropriately couched with references to “your pretty little mouth” for children who have allegedly been the victims of child sexual assault.

45Cashmore and Trimboli, op cit, n 7.

46ibid.

47It is suggested that 20 minutes is probably the length of children’s attention span under these stressful circumstances although this may vary with age, temperament and the circumstances under which they are giving evidence: E Matthews and K Saywitz, The Child Victim Witness Manual, 1992, California Center for Judicial Education and Research.

48See Equality before the Law Bench Book, Section 6 — Children and young people, Judicial Commission of New South Wales, available at <www.judcom.nsw.gov.au/publications/benchbks/equality/>