4.2 - Child Witnesses

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Overview

  1. The Jury Directions Act 2015 contains two sets of provisions concerning the evidence of children.
  2. First, Jury Directions Act 2015 s44N contains a mandatory direction about the evidence of children, to be given in a case where a child’s credibility or reliability is in issue, unless there are good reasons not to give the direction.
  3. Second, Jury Directions Act 2015 s33 prohibits certain statements or directions about the evidence of children.
  4. Section 33 expands upon the former Evidence Act 2008 ss165(6) and 165A, which were implemented in response to the finding of the Australian, Victorian and New South Wales Law Reform Commissions that although research shows that children’s evidence is not inherently less reliable than adults’ evidence, juries and the community often underestimate it (Uniform Evidence Law: Report, ARLC 102 (2005) at [18.64]).

    Mandatory Direction about Child Witnesses (s44N direction)

  5. Jury Directions Act 2015 s44N was introduced by the Victims and Other Legislation Amendment Act 2018 and commenced operation on 29 October 2018. It applies to all trials that commence on or after that date (Jury Directions Act 2015 Schedule 1, clause 5).
  6. Under s44N, if the trial judge considers that the reliability or credibility of a child witness is likely to be in issue, the judge must direct the jury in accordance with s44N(4), unless there are good reasons for not doing so (Jury Directions Act 2015 s44N(1), (2)).
  7. The Act identifies that good reasons may include that the child is 17 years old and the judge considers the direction is unnecessary because the child has well developed language and cognitive skills (Jury Directions Act 2015 s44N(1)(a)).
  8. The s44N direction must be given before the child gives evidence if the judge forms the necessary view before hearing any evidence and after hearing submissions from the prosecution and defence. Otherwise, the judge must give the direction as soon as practicable if the judge considers the child’s credibility or reliability is in issue at any other time (Jury Directions Act 2015 s44N(1), (2)).
  9. The Act states that in giving a direction under s44N, the judge must inform the jury that:

    (a) children can accurately remember and report past events; and

    (b) children are developing language and cognitive skills, and this may affect—

    (i) whether children give a detailed, chronological or complete account; and

    (ii) how children understand and respond to the questions they are asked; and

    (c) experience shows that, depending on a child's level of development, they—

    (i) may have difficulty understanding certain language, whether because that language is complicated for children or complicated generally; and

    Examples

    1 Hypothetical, ambiguous, repetitive, multi-part or yes/no questions.

    2 The use of the passive voice, negatives and double negatives.

    (ii) may have difficulty understanding certain concepts, whether because those concepts are complicated for children or complicated generally; and

    Example

    Relative concepts such as time, duration, measurement or frequency.

    (iii) may not request the clarification of a question they do not understand; and

    (iv) may not clarify an answer they have given that has been misunderstood.

    Prohibited Statements and Directions

  10. The judge, prosecution and defence must not say or suggest in any way that:
  11. The judge must correct any statement or suggestion by prosecution or defence counsel that is contrary to the above prohibition, unless there are good reasons not to (Jury Directions Act 2015 s7).
  12. Section 33 preserves the statutory abolition of the common law rules that children are an unreliable class of witness and that judges must warn the jury about the danger of acting on the uncorroborated evidence of a child (compare Hargan v R (1919) 27 CLR 13; DPP v Hester [1973] AC 296; R v Pahuja (1987) 49 SASR 191; B v R (1992) 175 CLR 599).
  13. Where a child gives sworn evidence, and the judge has ruled that the child is competent, the issue having been raised, the judge must not tell the jury that he or she has found that child capable of understanding the obligation to give truthful evidence, and therefore able to give sworn evidence. Such a direction may suggest that the judge has determined that the child is a credible witness, which may improperly influence the jury’s decision making (R v Caine (1993) 68 A Crim R 233). If a party attacks a witness’ competence (which a party should not do), rather than a witness’ reliability, the judge will need to address the issue by an appropriate direction or comment.

    Other Permissible Directions and Comments

    General directions

  14. The language and policy of Jury Directions Act 2015 s33 precludes judges from expressing generalised concerns about the reliability of children’s evidence (see Clarke v R [2013] VSCA 206).
  15. At common law and under the Evidence Act 2008, courts held that where a party argues that the jury should give less weight to the evidence of a child witness because of the general qualities of children, the judge could direct the jury, as a matter of law, that the experience of the court is that the age of a witness is not determinative of his or her ability to give truthful and accurate evidence. However, a judge could not put evidence before the jury in the guise of directions of law, or make comments about controversial subject matter (CMG v R [2011] VSCA 416; R v Barker [2010] EWCA Crim 4; RGM v R [2012] NSWCCA 89; KRI v R [2012] VSCA 186).
  16. The need for directions about how the age of a witness is relevant may be more limited now, because the Jury Directions Act 2015 s44N authorises general directions about the evidence of children and s33 prohibits an argument that the evidence of children is inherently less credible or reliable. However, s44N(5) states the section does not limit what the trial judge may include in any other direction about the evidence of a child witness.

    Comments

  17. A judge may comment on the evidence in a way that does not express any generalised concerns about the reliability of children’s evidence. In making such remarks, the judge must make it clear that the jury are not bound by the comments (KRI v R [2012] VSCA 186; Clarke v R [2013] VSCA 206).
  18. A judge must be careful in making any comments that he or she does not trespass on the prohibitions in Jury Directions Act 2015 s33. These prohibitions apply to both directions, comments and suggestions.
  19. In some cases, judges may choose to remind the jury that children think and speak differently to adults and that the jury should not expect adult standards from a child. Jurors should use their own experiences and common sense when evaluating the evidence of a child (R v Muller [1996] 1 Qd R 74; R v B(G) [1990] 2 SCR 30; R v F(C) [1997] 3 SCR 1183; R v W(R) [1992] 2 SCR 122).
  20. In the case of sexual offending against children where there has been a delay in complaint, any comment on possible reasons for delay should be based on the particular child’s evidence in the trial, rather than on generalised assumptions about the behaviour of children. See also Section 53 direction in Effect of Delayed Complaint on Credit.

    Directions about unreliability

  21. Under Jury Directions Act 2015 s32(2)(b), counsel may seek a direction that the evidence of a child is unreliable, and must identify the significant matters, other than solely the age of the child, that may make that evidence unreliable. See also Unreliable Evidence Warning.
  22. Where a party requests such a direction, the judge must:
    1. Warn the jury that the evidence may be unreliable;
    2. Inform the jury of the significant matters, other than solely the age of the child, that the trial judge considers may make the evidence unreliable; and
    3. Warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it (Jury Directions Act 2015 s32(3)).
  23. Circumstances that may indicate that a particular child’s evidence is potentially unreliable include:
  24. Counsel’s inability to meaningfully cross-examine a child witness may also be a circumstance that justifies a s32 unreliability direction (see R v NRC [1999] 3 VR 537; R v Hart (1999) 135 CCC (3d) 377).[3]
  25. The fact that a particular child has not experienced full cognitive development is unlikely, by itself, to provide a reason for giving a s32 unreliability direction. Children who are not fully cognitively developed may be able to give reliable evidence if questions are tailored to their level of cognitive development. The impact of cognitive development is addressed by the s44N directions. In addition, s33 prohibits any generalised direction or suggestion that a child’s evidence is unreliable, such as an assertion that children are unable to distinguish between fact and fantasy (see R v FAR [1996] 2 Qd R 49; Reference of a Question of Law Pursuant to the Criminal Code s693A [1999] WASCA 53).
  26. As with other section 32 directions, the judge should only inform the jury about matters that are outside their common sense and experience (see R v Stewart (2001) 52 NSWLR 301; R v Relc (2006) 167 A Crim R 484; R v Baartman [2000] NSWCCA 298. See also TN v R [2005] QCA 160; Tully v R (2006) 230 CLR 234 per Crennan J; R v Tichowitsch [2007] 2 Qd R 462).
  27. At least in the case of children, the fact that evidence is unsworn is not a basis for finding that the evidence may be unreliable. The Evidence Act 2008 and the Jury Directions Act 2015 do not treat unsworn evidence as a kind that may be unreliable. There was also no requirement or rule of practice under the common law that judges warn the jury to take into account the differences between sworn and unsworn evidence when assessing reliability (R v GW (2016) 258 CLR 108 at [55]-[57]).

    Related Directions

  28. In cases where a child gives evidence, a judge may also need to direct the jury about the following issues:

    Notes

[1] Following amendments introduced by the Jury Directions Act 2015, a judge must not warn a jury that it is dangerous to convict on the uncorroborated evidence of any witness, except in proceedings for perjury or a similar or related offence (Evidence Act 2008 s164)

[2] Children can be more suggestible than adults and they may be especially vulnerable to leading questions in police interviews or while giving evidence. This means that they may give answers designed to please the questioner. They also may not be able to distinguish between original memory and a later-acquired suggestion (R v FAR [1996] 2 Qd R 49. See also Myers J, Saywitz K, Goodman G, Psychological Research on Children as Witnesses: Practical Implications for Forensic Interviews and Courtroom Testimony 28 Pacific Law Journal 3 (1996-1997) and compare Ceci S and Friedman R, Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell Law Review 33 (2000-2001)).

[3] While a child witness’s evidence may be excluded if he or she cannot be effectively cross-examined, there is no inflexible rule requiring the exclusion of such evidence (R v NRC [1999] 3 VR 537).

[4] A court may receive opinion evidence based on specialised knowledge of child development and child behaviour, including the impact of sexual abuse on children and child development (Evidence Act 2008 s79).

[5] The prosecution may lead pre-recorded evidence of a complainant in a sexual offence case if the complainant was under 18 at the time the recording was made (see Division 5 of Part 8.2 of the Criminal Procedure Act 2009). In addition, the whole of the complainant’s evidence must be pre-recorded at a special hearing if the complainant was a child when the proceedings were commenced, unless the court otherwise orders (see Division 6 of part 8.2 of the Criminal Procedure Act 2009).

[6] A court may receive evidence of a complainant’s previous representations where he or she is available to give evidence and was under 18 when he or she made the representation (Evidence Act 2008 s66(2)).

Last updated: 29 October 2018

In This Section

4.2.1 - Charge: Child Witnesses (s44N direction)

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings