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The Receipt of Evidence by Queensland Courts

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The Receipt of Evidence by Queensland Courts To: Table of Contents This document contains bookmarks which may be viewed by depressing the page/bookmarks button. THE RECEIPT OF EVIDENCE BY QUEENSLAND COURTS: THE EVIDENCE OF CHILDREN Discussion Paper WP No 53 Queensland Law Reform Commission December 1998 HOW TO MAKE COMMENTS AND SUBMISSIONS You are invited to make comments and submissions on the issues raised in this Discussion Paper. Written comments and submissions should be sent to: The Secretary Queensland Law Reform Commission PO Box 312 ROMA STREET QLD 4003 or by facsimile on: (07) 3247 9045 or by e-mail at: [email protected] or via the lodgment facility on the Commission’s Home Page at: http://www.qlrc.qld.gov.au Oral submissions may be made by telephoning: (07) 3247 4544 Closing date: 31 March 1999 It would be helpful if comments and submissions addressed specific issues in this Discussion Paper. CONFIDENTIALITY Unless there is a clear indication from you that you wish your submission, or part of it, to remain confidential, submissions may be subject to release under the provisions of the Freedom of Information Act 1992 (Qld). The Commission may refer to or quote from submissions in future publications. If you do not wish your submission or any part of it to be used in this way, or if you do not want to be identified, please indicate this clearly. COMMISSIONERS Chairman: The Hon Mr Justice J D M Muir Deputy Chairman: Mr P M McDermott RFD Members: Mr W G Briscoe Professor W D Duncan Mr P D McMurdo QC Mrs D A Mullins SC Ms S C Sheridan SECRETARIAT Secretary: Mrs S P Fleming Director: Ms P A Cooper Senior Research Officer: Ms C E Riethmuller Legal Officers: Ms J M Daley (part-time) Ms K Schultz (part-time) Ms C M Treloar (part-time) Administrative Officers: Ms M L Basile Ms L J van den Berg The Commission acknowledges Ms Joanna Fear for her assistance in the preparation of this Discussion Paper during her period of secondment to the Commission. The Commission’s premises are located on the 7th Floor, 50 Ann Street, Brisbane. Postal address: PO Box 312, Roma Street, QLD 4003 Telephone: (07) 3247 4544 Facsimile: (07) 3247 9045 E-mail: [email protected] Internet Home Page address: http://www.qlrc.qld.gov.au CONTENTS CHAPTER 1 INTRODUCTION...................................................1 1. THE TERMS OF REFERENCE..............................1 2. PRELIMINARY SUBMISSIONS.............................2 3. CONTEXTS IN WHICH CHILDREN MAY BE WITNESSES........2 4. FOCUS OF THIS REFERENCE.............................3 Philosophy adopted by the Commission.......................6 5. DEFINITION OF “CHILD” AND FACILITIES AVAILABLE TO CHILD WITNESSES IN AUSTRALIAN JURISDICTIONS BY AGE...7 (a) Definition of “child”..................................7 (b) Facilities available to child witness in Australian jurisdictions by age..................................8 6. THE INCIDENCE OF CHILD ABUSE........................14 (a) Introduction.......................................14 (b) Protection of the child...............................14 (c) Prosecuting the accused............................16 CHAPTER 2 THE LAW IN QUEENSLAND.........................................18 1. INTRODUCTION........................................18 2. AN INHERENT JURISDICTION IN THE COURT TO FACILITATE THE GIVING OF EVIDENCE....................18 3. COMPETENCY.........................................21 4. SPECIAL WITNESSES...................................22 5. EXPERT EVIDENCE.....................................24 6. OUT-OF-COURT STATEMENTS...........................25 7. CLOSED-CIRCUIT TELEVISION AND SCREENS..............26 8. SUPPORT.............................................27 9. CHILDREN WITH SPECIAL NEEDS........................28 (a) Cultural and linguistic...............................28 (b) Other needs......................................29 10. CORROBORATION AND WARNINGS.......................29 11. THE COMMITTAL.......................................32 12. CHILDREN’S EVIDENCE IN OTHER TYPES OF PROCEEDINGS.34 (a) Criminal proceedings against a child accused............34 (b) Welfare proceedings...............................35 13. SIMILAR FACT EVIDENCE, SEPARATE TRIALS AND MULTIPLE OFFENCES..................................36 14. OTHER ISSUES........................................37 (a) Communicating with a child witness....................37 (b) The court environment..............................38 (c) Professional education and awareness.................38 (d) Delays..........................................38 (e) Treatment before committal or trial.....................39 (f) Identification of the accused..........................39 (g) Pre-trial hearings..................................40 (h) The unrepresented accused..........................40 (i) Post-trial use of evidence............................41 (j) Evaluation of legislative reform.......................41 CHAPTER 3 COMPETENCY...................................................42 1. INTRODUCTION........................................42 2. SWORN EVIDENCE.....................................42 3. DUTY TO ADMINISTER OATH.............................45 4. THE EVIDENCE OF A CHILD INCOMPETENT TO SWEAR OATH.45 (a) Section 37 Oaths Act 1867 (Qld)......................45 (b) Unsworn evidence.................................45 5. THE INQUIRY AS TO THE CHILD WITNESS’S COMPETENCY...50 6. ALTERNATIVES TO THE COMPETENCY REQUIREMENT......50 7. RETENTION OF A MODIFIED COMPETENCY REQUIREMENT..55 8. QUESTIONS FOR DISCUSSION...........................58 CHAPTER 4 COMMUNICATING WITH A CHILD WITNESS...........................60 1. INTRODUCTION........................................60 2. THE USE OF LANGUAGE................................67 3. FACILITATING COMMUNICATION WITH CHILD WITNESSES: CHILD INTERPRETERS/INTERMEDIARIES..................68 4. THE USE OF EXPERTS..................................74 5. THE ROLE OF THE COURT IN FACILITATING COMMUNICATION......................................75 6. QUESTIONS FOR DISCUSSION...........................76 CHAPTER 5 EXPERT EVIDENCE...............................................78 1. INTRODUCTION........................................78 2. EXPERT EVIDENCE ON RELIABILITY......................80 3. EXPERT EVIDENCE ON CREDIBILITY......................81 (a) New Zealand.....................................81 (b) Canada..........................................82 4. APPOINTMENT OF AN EXPERT...........................83 5. COSTS...............................................85 6. QUESTIONS FOR DISCUSSION...........................85 CHAPTER 6 THE COURT ENVIRONMENT........................................87 1. INTRODUCTION........................................87 2. SHARING OF FACILITIES................................87 3. EXCLUDING THE PUBLIC................................89 4. “CHILD FRIENDLY” FACILITIES...........................90 5. QUESTIONS FOR DISCUSSION...........................93 CHAPTER 7 PROFESSIONAL EDUCATION AND AWARENESS.......................95 1. THE NEED FOR EDUCATION AND AWARENESS.............95 2. INITIATIVES AND PROPOSALS FOR JUDICIAL EDUCATION AND AWARENESS......................................98 (a) Canada..........................................98 (b) England.........................................99 (c) Australia.........................................99 (d) Western Australia.................................101 (e) New South Wales.................................102 (f) Queensland.....................................103 3. MANDATORY OR DISCRETIONARY EDUCATION AND AWARENESS PROGRAMS..............................104 4. QUESTIONS FOR DISCUSSION..........................105 CHAPTER 8 DELAYS........................................................106 1. INTRODUCTION.......................................106 2. DELAYS BETWEEN COMPLAINT AND COURT PROCEEDINGS.......................................106 (a) The extent of delay................................106 (b) The effect of delay................................107 (c) Proposals for minimising the effect of delay.............109 (d) Avoiding prejudice to the accused....................110 3. DELAYS IN THE COURSE OF COURT PROCEEDINGS.......110 4. QUESTIONS FOR DISCUSSION..........................111 CHAPTER 9 TREATMENT BEFORE COMMITTAL OR TRIAL........................112 1. INTRODUCTION.......................................112 2. LEGAL ISSUES ARISING FROM EARLY TREATMENT........112 3. POSSIBLE SOLUTIONS.................................114 (a) The nature of the therapy...........................115 (b) Communications inadmissible in certain circumstances...116 (c) Court appointed counsellors........................117 4. QUESTIONS FOR DISCUSSION..........................118 CHAPTER 10 OUT-OF-COURT STATEMENTS....................................119 1. INTRODUCTION.......................................119 2. ADMISSIBILITY OF OUT-OF-COURT STATEMENTS..........120 3. LEGISLATION ENABLING THE ADMISSION OF A CHILD’S OUT-OF COURT STATEMENTS..........................123 (a) Any statement made by a child......................123 (i) Queensland................................123 (ii) Western Australia...........................127 (iii) New South Wales...........................129 (iv) South Australia.............................130 (b) Court-ordered videorecording of evidence-in-chief.......131 (i) Western Australia...........................131 (ii) New Zealand...............................132 (iii) England...................................133 (c) Statements made at court-ordered pre-trial hearing......134
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