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Part 2 the Receipt of Evidence by Queensland Courts To: Table of Contents This publication contains bookmarks that can be viewed by depressing the display bookmarks and page button. There may be a slight variation in pagination. Copyright is retained by the Queensland Law Reform Commission. THE RECEIPT OF EVIDENCE BY QUEENSLAND COURTS: THE EVIDENCE OF CHILDREN Report No 55 Part 2 Queensland Law Reform Commission December 2000 The short citation for this Report is QLRC R 55 Part 2. Published by the Queensland Law Reform Commission, December 2000. Copyright is retained by the Queensland Law Reform Commission. ISBN: 0 7242 7739 0 Printed by: Watson Ferguson & Company THE RECEIPT OF EVIDENCE BY QUEENSLAND COURTS: THE EVIDENCE OF CHILDREN Report No 55 Part 2 Queensland Law Reform Commission December 2000 To: The Honourable Matt Foley MP Attorney-General, Minister for Justice and Minister for the Arts In accordance with section 15 of the Law Reform Commission Act 1968 (Qld), the Commission is pleased to present Part 2 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 Assoc Prof P J M MacFarlane Member Member Mr P D McMurdo QC Member COMMISSIONERS Chairman: The Hon Mr Justice J D M Muir Members: The Hon Justice D A Mullins Mr W G Briscoe Assoc Prof P J M MacFarlane Mr P D McMurdo QC SECRETARIAT Director: Ms P A Cooper Secretary: Ms S Pickett Senior Research Officer: Ms C E Riethmuller Legal Officers: Ms M Collier Mrs C A Green Ms C M Treloar Administrative Officers: Mrs T L Bastiani Mrs L J Kerr The Commission wishes to acknowledge the contribution made to this Report by former members Professor W D Duncan and Ms S C Sheridan, whose terms of appointment expired on 25 September 2000, and by Legal Officer Ms K Schultz, who was on leave from the Commission at the time of publication. 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 publications in this reference: Discussion Paper: The Receipt of Evidence by Queensland Courts: The Evidence of Children (QLRC WP 53, December 1998) Report: The Receipt of Evidence by Queensland Courts: The Evidence of Children (QLRC R 55 Part 1, June 2000) TABLE OF CONTENTS SUMMARY OF RECOMMENDATIONS.................................................................................i CHAPTER 1 INTRODUCTION...................................................................................................................1 1. THE TERMS OF REFERENCE......................................................................1 2. THE HISTORY OF THE REFERENCE...........................................................2 3. THE SCOPE OF THIS REPORT....................................................................4 4. THE COMMISSION’S APPROACH................................................................5 CHAPTER 2 THE COURT ENVIRONMENT...............................................................................................7 1. INTRODUCTION............................................................................................7 2. THE NEED FOR SEPARATE FACILITIES.....................................................8 3. THE COURTROOM......................................................................................12 4. POWER TO EXCLUDE PEOPLE FROM THE COURT................................15 5. ROBES AND WIGS......................................................................................19 6. THE COMMISSION’S VIEW.........................................................................21 (a) Waiting facilities................................................................................22 (b) The courtroom...................................................................................22 (c) Power to exclude people from the court............................................23 (d) Robes and wigs................................................................................23 7. RECOMMENDATIONS.................................................................................24 CHAPTER 3 DELAYS..............................................................................................................................26 1. INTRODUCTION..........................................................................................26 2. DELAY PRIOR TO CHARGE.......................................................................26 3. DELAY BETWEEN CHARGE AND COMMITTAL.........................................27 4. DELAY BETWEEN COMMITTAL AND TRIAL..............................................28 5. THE EFFECT OF DELAYS BEFORE TRIAL................................................29 6. MINIMISING THE EFFECTS OF DELAY BEFORE TRIAL...........................34 7. DELAYS IN THE COURSE OF COURT PROCEEDINGS............................36 8. OTHER CONSEQUENCES OF DELAY.......................................................37 9. THE COMMISSION’S VIEW.........................................................................37 10. RECOMMENDATION...................................................................................39 CHAPTER 4 FACILITATING COMMUNICATION WITH A CHILD WITNESS..........................................40 1. INTRODUCTION..........................................................................................40 2. REFORM INITIATIVES IN OTHER JURISDICTIONS...................................41 (a) Western Australia..............................................................................41 (b) New South Wales..............................................................................43 (c) Commonwealth.................................................................................44 (d) Ireland...............................................................................................44 (e) New Zealand.....................................................................................45 (f) South Africa......................................................................................47 (g) England.............................................................................................49 3. ISSUES FOR CONSIDERATION.................................................................49 (a) Should there be provision for a child communicator..........................50 (b) The scope of a child communicator’s role.........................................54 (c) Qualification to act as a child communicator......................................55 (d) The time for determining issues relating to the use of a child communicator...................................................................................56 4. THE COMMISSION’S VIEW.........................................................................56 5. RECOMMENDATION...................................................................................57 CHAPTER 5 SUPPORT FOR CHILD WITNESSES.................................................................................58 1. INTRODUCTION..........................................................................................58 2. COURT FAMILIARISATION AND PREPARATION.......................................59 (a) The need for preparation...................................................................59 (b) Existing Australian services...............................................................61 (i) Queensland...........................................................................61 (ii) Western Australia..................................................................62 (c) Issues for consideration....................................................................65 3. SUPPORT IN COURT..................................................................................66 (a) Existing legislation.............................................................................66 (i) Queensland...........................................................................66 (ii) Victoria..................................................................................67 (iii) Northern Territory..................................................................68 (iv) Western Australia..................................................................68 (v) South Australia......................................................................69 (vi) Tasmania...............................................................................70 (vii) New South Wales..................................................................70 (b) Issues for consideration....................................................................70 (i) Entitlement to a support person.............................................71 A. A legislative entitlement.............................................71 B. The age of the witness...............................................73 C. Types of proceeding...................................................73 D. Right to refuse support...............................................74 (ii) Identity of the support person................................................74 A. The need for training or professional qualifications....74 B. Family members as support persons.........................75 C. Other factors..............................................................76 D. Ineligibility to act as a support person........................76 E. The child’s
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