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Part 1 the Receipt of Evidence by Queensland Courts: the Evidence

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Part 1 the Receipt of Evidence by Queensland Courts: the Evidence To: Foreword To: Table of Contents THE RECEIPT OF EVIDENCE BY QUEENSLAND COURTS: THE EVIDENCE OF CHILDREN Report No 55 Part 1 Queensland Law Reform Commission June 2000 The short citation for this Report is QLRC R 55 Part 1. Published by the Queensland Law Reform Commission, June 2000. Copyright is retained by the Queensland Law Reform Commission. ISBN: 0 7242 7738 2 Printed by: THE RECEIPT OF EVIDENCE BY QUEENSLAND COURTS: THE EVIDENCE OF CHILDREN Report No 55 Part 1 Queensland Law Reform Commission June 2000 To: The Honourable Matt Foley MLA Attorney-General, Minister for Justice and Minister for the Arts In accordance with section 15 of the Law Reform Commission Act 1968, the Commission is pleased to present Part 1 of its Report on The Evidence of Children. The Honourable Mr Justice J D M Muir The Honourable Justice D A Mullins Chairman Member Mr W G Briscoe Professor W D Duncan Member Member Mr P J MacFarlane Mr P D McMurdo QC Member Member Ms S C Sheridan Member COMMISSIONERS Chairman: The Hon Mr Justice J D M Muir Members: The Hon Justice D A Mullins Mr W G Briscoe Professor W D Duncan Mr P J MacFarlane Mr P D McMurdo QC Ms S C Sheridan SECRETARIAT Director: Ms P A Cooper Acting Secretary: Ms V Mostina Senior Research Officer: Ms C E Riethmuller Legal Officers: Ms K Schultz Ms C M Treloar Administrative Officers: Ms T L Bastiani Mrs L J Kerr The Commission’s premises are located on the 7th Floor, 50 Ann Street, Brisbane. The postal address is PO Box 312, Roma Street, Q 4003. Telephone (07) 3247 4544. Facsimile (07) 3247 9045 E-mail address: [email protected] Internet home page address: http://www.qlrc.qld.gov.au Previous Queensland Law Reform Commission publication in this reference: Discussion Paper: The Receipt of Evidence by Queensland Courts: The Evidence of Children (QLRC WP 53, December 1998) FOREWORD The Queensland Law Reform Commission was requested, as part of its Fifth Program of references, to review: … the capacity of the judicial system, both in its criminal and civil aspects, to properly receive the evidence of children. The terms of reference were settled in April 1997. The project involves areas of law and procedure which are complex and, in some cases, controversial. There are difficult issues which require a careful balancing of competing interests. The Commission has carried out extensive research into these areas and has undertaken detailed analyses of reforms and proposals for change in other comparable jurisdictions. The Commission commenced its review by advertising for preliminary submissions to assist it in identifying relevant issues for consideration. Approximately 50 submissions were received from interested organisations and individuals. In December 1998, the Commission completed a Discussion Paper which was widely distributed throughout Queensland. It was also made available on the Commission’s home page. The purpose of the Discussion Paper was to stimulate and encourage community debate about the need for, and the most appropriate way of achieving, measures to assist children to be able to give evidence whilst, in a criminal proceeding, at the same time respecting the rights of the accused. More than 50 submissions were received in response to the Discussion Paper. The Commission has spent a great deal of time considering the views that were put forward and the legal issues involved, and the Report containing all of its final recommendations is in an advanced state of preparation. The Report of the Taskforce on Women and the Criminal Code, presented to the Attorney- General and the Minister for Women’s Policy in February this year, made a number of recommendations which overlap with some of the issues being considered by the Commission as part of its reference. The Taskforce was established as a joint initiative of the two Ministers in November 1998. Recently, the Premier of Queensland announced an intention to introduce legislation to implement recommendations made by the Taskforce. Although the Commission’s Report is not finalised, it has presented the Attorney-General with the recommendations contained in this document in order that they may be considered in the context of the present reform initiatives. These recommendations should be seen in the context of the entirety of the Commission’s proposed legislative scheme for the evidence of children. They will be incorporated in the Commission’s final Report, which the Commission anticipates completing in the second half of this year. That Report will deal with many other issues of significance to the way in which children give evidence. It will include recommendations in relation to the admissibility of out-of-court statements made by a child witness, the use of pre-recorded evidence and closed-circuit television for child witnesses, the requirement for child witnesses to give evidence at committal proceedings, expert evidence, support for child witnesses, the need for professional awareness about factors affecting children’s evidence, children with special needs and children charged with criminal offences. TABLE OF CONTENTS CHAPTER 1 POWER TO RESTRICT INAPPROPRIATE CROSS-EXAMINATION...................................1 1. INTRODUCTION............................................................................................1 2. CROSS-EXAMINATION AT COMMITTAL......................................................2 (a) The purpose of a committal hearing....................................................2 (b) Cross-examination of child witnesses..................................................3 3. CROSS-EXAMINATION AT TRIAL.................................................................5 4. THE COMMISSION’S VIEW...........................................................................5 5. RECOMMENDATIONS...................................................................................8 CHAPTER 2 COMPETENCY.....................................................................................................................9 1. INTRODUCTION............................................................................................9 2. COMPETENCY TO TAKE THE OATH.........................................................10 (a) The traditional test.............................................................................10 (b) Alternative approaches.....................................................................10 3. UNSWORN EVIDENCE...............................................................................12 (a) Existing Queensland legislation.........................................................12 (i) Oaths Act 1867 (Qld).............................................................12 (ii) Evidence Act 1977 (Qld)........................................................12 (b) The law in other Australian jurisdictions............................................13 4. ISSUES FOR CONSIDERATION.................................................................14 (a) Retention of the distinction between sworn and unsworn evidence...14 (b) Criticisms of the traditional oath competency test..............................15 (c) Modification of the oath competency test..........................................18 (d) Competency to give unsworn evidence.............................................19 (i) Should there be a test?..........................................................19 (ii) What is an appropriate test?..................................................25 5. IMPAIRED ABILITY TO COMMUNICATE.....................................................26 6. THE COMMISSION’S VIEW.........................................................................28 (a) Retention of the distinction between sworn and unsworn evidence...28 (b) The oath competency test.................................................................28 (c) Competency to give unsworn evidence.............................................29 (d) Impaired ability to communicate........................................................30 7. RECOMMENDATIONS.................................................................................30 CHAPTER 3 UNREPRESENTED ACCUSED..........................................................................................32 1. INTRODUCTION..........................................................................................32 2. ALTERNATIVE APPROACHES....................................................................33 (a) United Kingdom................................................................................33 (b) New Zealand.....................................................................................35 (c) Canada.............................................................................................35 (d) Western Australia..............................................................................35 (e) New South Wales..............................................................................36 3. ISSUES FOR CONSIDERATION.................................................................38 (a) A legislative prohibition on direct cross-examination by an unrepresented accused.....................................................................38 (b) Circumstances in which the prohibition should apply.........................40 (i) Witnesses who should be protected......................................41 (ii) The age of protected witnesses.............................................42 (iii) Type of proceeding................................................................42 (c) Cross-examination
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