The Case in Australia for Further Reform to the Cross-Examination and Court Management of Child Witnesses

AuthorTimothy Cross,David Caruso
DOI10.1350/ijep.2012.16.4.412
Published date01 October 2012
Date01 October 2012
Subject MatterArticle
THE CASE IN AUSTRALIA FOR FURTHER REFORM TO CROSS-EXAMINATION OF CHILD WITNESSES
The case in Australia for
further reform to the
cross-examination and
court management of
child witnesses
By David Caruso*and
Adelaide Law School, The University of Adelaide
Timothy Cross**
LLB Honours Candidate, The University of Adelaide
Abstract Recent legislative reforms in Australia designed to address the
difficulties attending the reception and treatment of child evidence will have
little, if any, success because they do not address the reasons for the difficulties,
nor introduce improvements to existing practice for the child witness, counsel
or court.
Keywords Child witnesses; Cross-examination; Difficulties with; Failure of
legislative reform; Case for intermediaries
t is trite to say that the treatment of child complainants has been an
ongoing concern of the criminal justice system, but crucial to know why.
Part 1 considers the work relating to child witnesses as complainants of
doi:10.1350/ijep.2012.16.4.412
364 (2012) 16 E&P 364–XXX THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
I
* Special Counsel, Fisher Jeffries Barristers and Solicitors, a member of the Gadens Group; Associate,
South Australian Centre for Economic Studies; email: dcaruso@fisherjeffries.com.au. This article
derives from a paper presented to the Conference on Criminal Justice in Australia and New
Zealand, convened by the Australasian Institute of Judicial Administration, Sydney, September
2011. My thanks to Samuel C. Joyce and Michelle K. Richards for their assistance.
** Clerk, Fisher Jeffries Barristers & Solicitors; email: tcross@fisherjeffries.com.au
t is trite to say that the treatment of child complainants has been an ongoing
concern of the criminal justice system, but crucial to know why. Part 1 considers
the work relating to child witnesses as complainants of sexual offending as it has
developed in Australia from the late 1980s. The difficulties they face are that:
1. cross-examination unduly and improperly upsets, confuses and/or
traumatises the child;
2. cross-examination affects the accuracy and reliability of the child’s
evidence in a way contrary to the interests of the court;
3. cross-examination affects the credibility of the child in a way contrary
to the interests of the court; and
4. the adversarial system is not conducive to the court (the presiding
judge) bearing the onus to protect the child against such improper and
unhelpful cross-examination.
It is argued that the particular features of cross-examination, and the trial process,
which cause these difficulties are attributable to:
1. the style and technique of questioning employed in cross-examination;
2. the uncertainty of the child witness with respect to how they can
respond to their questioner or respond to other difficulties faced whilst
giving evidence; and
3. the uncertainty of the court in knowing why, when and how to
intervene in the examination of a child, or adjust their procedures
accordingly.
Part 2 examines the legislative reforms introduced in New South Wales (NSW),
Victoria and South Australia. NSW and Victoria follow the uniform evidence law
that has developed in Australia.1Consequently the analysis has application to the
other uniform jurisdictions, namely the Australian federal jurisdiction, its
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 365
THE CASE IN AUSTRALIA FOR FURTHER REFORM TO CROSS-EXAMINATION OF CHILD WITNESSES
1 The uniform evidence law began with the Evidence Act 1995 (Cth), to which there was Royal Assent
on 23 February 1995. Virtually identical legislation shortly followed in NSW, Evidence Act 1995
(NSW), and the Victorian adoption, the Evidence Act 2008 (Vic), entered into force on 1 January
2010. Tasmania adopted the uniform laws in 2001 and the Australian Capital Territory recently
moved to independently adopt it, Evidence Act 2011 (ACT), as has the Northern Territory, Evidence
(National Uniform Legislation) Bill 2011 (NT). There are differences between the evidence Acts of
the jurisdictions that follow the uniform law, as will be seen from certain differences between the
provisions of NSW and Victoria discussed below, but ostensibly the laws are uniform. Queensland,
South Australia and Western Australia have not adopted the uniform laws. They follow the
common law as modified by their respective evidence Acts.
2 See Evidence Act 1906 (WA).
3 See Evidence Act 1977 (Qld).
mainland territories and Tasmania. Consideration is also given to the evidence
laws of Western Australia,2Queensland,3and overseas jurisdictions which have
influenced and shaped the reforms in the focus jurisdictions of NSW, Victoria and
South Australia. These legislatures have most recently sought to take aim at the
problems with child examination and evidence. The central focus is on the South
Australian reforms, introduced by the Statutes Amendment (Evidence and
Procedure) Act 2008 (SA) (hereafter ‘the EPA’), because they are the most recent and
follow the reforms in NSW and Victoria.
The EPA reforms which are the concern of this article4are those aimed at the
particular difficulties identified in Part 1, namely those designed to:
1. specify what constitutes improper questioning of a child complainant;
2. impose a duty on the court to disallow improper questioning;
3. prohibit a defendant from personally cross-examining a child com-
plainant;
4. admit out-of-court statements of the child for their truth and, poten-
tially, as the child’s evidence in chief; and
5. restrict the nature and extent of cross-examination of the child.
The reforms which variously have these aims are examined in turn. They are
argued to fail as improvements to pre-existing practice on two fronts. First, they do
not assist in remedying the difficulties attending the examination and evidence of
children because they do not address the reasons, as identified in Part 1, for those
difficulties. This is supported by analysis of the reforms which shows that: they do
not change existing practice or relevant judicial powers and obligations; to the
extent that they do introduce change, that change introduces new problems;
and/or they require revision or redrafting as their present form is unworkable.
This analysis supports the second criticism that, putting aside whether the
reforms address the particular difficulties identified in Part 1, they do not improve
existing practice per se from the perspective of the child witness, counsel or the
court. It is apposite to measure the free-standing success of these reforms with
regard to these three groups as the reforms were aimed at improving practice and
procedure for them.
366 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
THE CASE IN AUSTRALIA FOR FURTHER REFORM TO CROSS-EXAMINATION OF CHILD WITNESSES
4 Certain EPA reforms are not aimed at or relevant to the difficulties identified in Part II and are
therefore not the concern of this article. Reference is made to them as necessary to the focus
discussion.

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