Children and young people
Children and young people face particular difficulties in our adversarial system — whether appearing as witnesses or as alleged offenders, largely because of a mismatch between their developmental and linguistic capacity, and the adult-oriented court environment, processes and language used. The purpose of this chapter is to:
-
identify some of the difficulties experienced by children and young people when appearing before court and the barriers they face; and
-
provide guidance about how judicial officers may take account of this information in court — from the start to the conclusion of court proceedings. This guidance is not intended to be prescriptive.
6.1 Some information
6.1.1 Definitions
Legally, a “child” is generally defined as a person who is under the age of 18 years.1 The Children (Criminal Proceedings) Act 1987 (NSW) (s 3), the Bail Act 2013 (NSW) (s 4), the Young Offenders Act 1997 (NSW) (s 4),2 the Children (Community Service Orders) Act 1987 (s 3) and the Children (Detention Centres) Act 1987 (s 3) all define a child as under the age of 18 years.3 However, for the purposes of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (s 3), administered by the Children’s Court, a distinction is made between a “child” — a person under 16 and a “young person” — a person who is aged 16 or 17. For the purposes of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), a “child” is defined in s 3 as under the age of 16 years.
Other Acts make special provision for young people up to the age of 21. For example, s 28 of the Children (Criminal Proceedings) Act 1987 confers jurisdiction on the Children's Court to hear and determine proceedings if the offence is alleged to have been committed by a person who was a child when the offence was committed or was under the age of 21 years when charged before the Children’s Court with the offence. Under s 19 of the Children (Criminal Proceedings) Act, a young person who is under 21 when charged before the court with an indictable offence but who was under 18 at the time of the offence, subject to some exceptions, may be sentenced to serve any term of imprisonment in a juvenile detention facility rather than an adult gaol.4
Similarly, the scheme under the Young Offenders Act, which provides an alternative process to court proceedings through the use of youth justice conferences, cautions and warnings, is available to a young person under the age of 21 years when dealt with, provided he or she was a child at the time of the offence.5
Because “child” is not a descriptor that is generally acceptable to older children, the term “children and young people” or “child and young person” is used below to include anyone under 18 — unless otherwise stated.
6.1.2 Barriers to participation in court
Children and young people face particular difficulties in our adversarial system — whether appearing as witnesses or as alleged offenders largely because of a mismatch between their capacity and the adult-oriented court environment and processes.6 Even where a child has the developmental and legal capacities to participate in legal processes, appropriate participation can be extremely difficult because the processes themselves are not designed for participation by children. Laws and regulations are made and implemented by adults, and the attributes, decision-making processes and language used in legal processes reflect this fact.7 If these difficulties are not taken into account, the evidence that the court obtains from them may be of poorer quality and less complete.8
A Child Rights Impact Assessment (CRIA) tool, 9developed by the Australian Human Rights Commission with support from UNICEF, is designed to help governments and service providers assess how children's rights and wellbeing will be affected by new laws and policies. The tool is an 18-question checklist which can be used to measure the impact of any new laws or policies on the wellbeing of Australian children and families and to determine whether the proposed laws and policies support their best interests.
The main points to note about the capacity of children and young people in relation to court appearances are that:
Children and young people are not adults, and depending on their age and development:10
-
The ability of children and young people to understand language, concepts, the meaning behind events and court processes differs from that of adults.11
-
Their ability to communicate their evidence is generally different from that of adults because of:
-
differences in the way they understand the world, especially time, context, and causality
-
differences in what aspects of past events they remember and how they recall and report them12
-
their greater dependence on context for comprehending language and concepts
-
their less developed capacity to sequence events and report them in order
-
differences in their understanding of vocabulary and grammar, especially personal pronouns and referents (for example, “here”, “there”, “how” and “then”)
-
their shorter attention span especially under stress
-
the fact that by the time they appear in court their developmental age (or stage of development) may have altered substantially (which will affect how they present their evidence and how they are viewed by those in court)
-
differences in their level of maturity and therefore how they react to situations and interact with people
-
their relative lack of power in an adult world. For example, a child may be subject to implied or express family or peer pressure to give or not to give evidence.13
-
-
Children’s and young people’s comprehension and communication abilities will vary considerably, even among children of the same age, depending on their background, physical and mental health and experiences.
-
Children’s and young people’s ability to give cogent evidence is significantly affected by stress and anxiety, and by the way they are treated in court.
-
Adolescents may have more difficulty dealing with the emotional impact of court proceedings than younger children, especially in relation to child sexual assault allegations. They may also have more negative attitudes to the legal system as a result of testifying before, especially if they have had to do so more than once.14
-
Children and young people facing criminal charges are likely to have significant difficulties in presenting their evidence adequately — because many come from disadvantaged socio-economic and educational backgrounds and a significant proportion have intellectual, physical and mental health problems. They may also have experienced physical and emotional abuse and neglect, or sexual abuse. Being exposed to family violence can have a wide range of detrimental impacts on a child’s development, mental and physical health, housing situation and general wellbeing.15 Some may have come to the attention of the police because of homelessness, or because they are working as prostitutes to pay for their drug and/or alcohol addiction.16
6.1.3 Mitigating difficulties experienced by children and young people when appearing before court17
There is a considerable body of research both in Australia and overseas demonstrating the difficulties faced by children and young people in giving evidence.18
The main difficulties which can jeopardise the reliability and comprehensiveness of their evidence include:
-
Long delays in getting to court — delays exacerbate children’s and young people’s stress and may adversely affect their memory of events. Note however research of the Royal Commission into Institutional Responses to Child Abuse drew attention to fundamental misconceptions about memory held by legal professionals, including judicial officers, which may adversely affect decision-making and which form the basis of rules of evidence and legal procedures.19 For example, a prevalent misconception is the belief that recall of specific details reflects a more reliable memory on core information,20 or older children’s memories are more reliable than younger children.21 (Also note s 294AA(1) Criminal Procedure Act which provides that the judge “must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses”).
-
Long waits at court — often in an environment that is not child or young-person friendly, resulting in increased stress, boredom, tiredness and restlessness. These delays are often due to preliminary legal argument, equipment failures and court schedules.
-
Formal and intimidating court environment and procedures that take little or insufficient account of a child’s or young person’s needs — including their need for breaks to allow them to rest, go to the toilet or get a drink.
-
Having to repeat their story over and over again — frustration and incomprehension about why they need to keep doing this increases their stress and decreases their willingness to answer questions. Some children may have told their story many times before they get to court.
-
Incomprehensible processes and procedures — for example, they may not understand what the court is trying to do, why they have to answer the same questions again (questions they may have already answered many times before they got to the court), what can and cannot be said in evidence, the importance of intent and what bail means.
-
Complex language — this may cause children and young people to respond with many more “I don’t knows”, silences, or to present confused or contradictory evidence.22 See 6.8 — Appendix A to this chapter for recommended language use when communicating with children.
-
Confrontational questioning — if children and young people are intimidated, they may “shut down” and become unable to respond, or become distressed and break down. See 6.9 — Appendix B to this chapter for recommended communication style when interviewing/questioning children.
-
The presence or absence of their parent(s) or guardian(s) — while some children will be helped by having their parent(s) or guardian(s) present, others will feel inhibited by their presence.
Many of these difficulties can be substantially mitigated if appropriate measures are taken by the court to be sensitive and responsive to the needs of children and young people.
Section 6.2, 6.4 and the Appendices below, which provide practical strategies for judicial officers when children and young people appear in the court room as a party or witness to help ensure a just outcome is achieved.
6.2 Court proceedings
6.2.1 Competence to give evidence23
Competence is the capacity of a child or young person to function as a witness. The rules for children and young people in relation to their capacity to give evidence are no different from those for adults. Sections 12 and 13(6) of the Evidence Act 1995 create a statutory presumption of competence to give unsworn or sworn evidence. The presumption is only displaced where the court is satisfied on the balance of probabilities (s 142 of the Evidence Act) of the contrary: The Queen v GW.24 The Evidence Act does not give primacy to sworn evidence; it is neutral in its treatment of the weight that may be accorded to evidence whether it is sworn or unsworn: The Queen v GW.25
A child or young person must satisfy the general test of competence to give sworn or unsworn evidence as follows:
A child or young person is competent to give evidence about a fact unless proven to the contrary that he or she does not have the capacity:
- (a)
to understand a question about the fact, or
- (b)
to give an answer that can be understood to a question about the fact.26
A child or young person who is not competent to give evidence in relation to one fact nevertheless may be competent to give evidence about other facts.27
The Australian Law Reform Commission stated that this flexible approach is intended to allow the court to hear evidence from a witness on certain matters but exclude evidence about matters they are not competent to deal with.28
Sworn evidence
A child or young person is competent to give sworn evidence if they have the capacity to understand that they are under an obligation to give truthful evidence: s 13(3). A question to the child: “Do you know why it’s important to tell the truth?” by itself was held to be insufficient in MK v R29 to ascertain the child complainant’s understanding of the test in s 13(3). The court held in MK v R that some further testing of the child witness’ understanding of the obligation to give truthful evidence should have been carried out by the use of simple and concrete terminology, such as that described in R v RAG.30 It is necessary to be satisfied that a child does not have the requisite capacity under s 13(3) to give sworn evidence before instructing the child pursuant to s 13(5) and admitting evidence as unsworn.31
Unsworn evidence
A child is presumed competent to give unsworn evidence about a fact if the court has told the child:
- (a)
-
that it is important to tell the truth, and
- (b)
-
that the child may be asked questions that he or she does not know, or cannot remember, the answer to, and that the child should tell the court if this occurs, and
- (c)
-
that the child may be asked questions that suggest certain statements are true or untrue and that the child should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that the child believes are untrue.32
The above may be too difficult for a child if it is merely paraphrased, and could be simply rephrased as follows:
- (a)
-
“It is important to tell the truth.”
- (b)
-
- (i)
-
“If you are asked a question and you don’t know the answer then you should say ‘I don’t know’.”
- (ii)
-
“If you are asked a question and you can’t remember the answer then you should say ‘I can’t remember’.”
- (iii)
-
“It does not matter if you do not know an answer or cannot remember something. The important thing is that you tell the truth.” and
- (c)
-
“If someone asks you a question that you don’t agree with, you can say you don’t agree with it because it is not true.”33
The court need not direct the prospective witness in a particular form but must give effect to the terms of s 13(5)(a)–(c).34 Where a witness is a young child, there is no requirement to direct the jury to take into account the differences between sworn and unsworn evidence in assessing the reliability of unsworn evidence.35 It is up to the court to determine the weight to be given to unsworn evidence.36
In establishing competency, the court is required to examine whether the witness has the basic comprehension skills to understand a question and provide intelligible answers. It is not an examination of whether a witness’s evidence is credible or reliable. It is purely a question about capacity, not whether a witness has the capacity to understand a particular question that may have been framed in a particular way. The question of competence is not dependent on any particular question asked. The proper consideration of s 13 issues may involve consideration on a fact by fact basis, but not on a question by question approach: Gray v R.37
For more on this, see the Criminal Trial Courts Bench Book38 and 6.4.2 Oaths, affirmations and declarations, below.
6.2.2 Criminal responsibility
The law conclusively presumes that a child under 10 years cannot be guilty of an offence.39 For those aged between 10 and 14, the prosecution must rebut the common law presumption of “doli incapax” or criminal incapacity and prove beyond reasonable doubt that the child or young person understood that what they were doing, ie engaging in conduct that constitutes the physical element or elements of the offence, was morally wrong.40
For those aged 10 years or more at the time the crime was allegedly committed, the court must have regard to the principle that “children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance”.41
The presumption cannot be rebutted merely as an inference from the doing of the acts constituting the offence, although the “circumstances of the offending” may be capable of rebutting the presumption without evidence of the accused’s contemporaneous character or maturity: RP v The Queen;42 BC v R.43 See also BDO v The Queen,44 where the High Court held that, in some cases where it is proved a child had the capacity to know that an act was morally wrong, it may follow that the child is likely to know that to be the case. But whether this is so will depend upon the evidence in the particular case: BDO v The Queen.45 What was said in RP v The Queen46 about matters of proof is relevant to the question of a child's capacity to know or understand that the act in question is morally wrong.
6.2.3 Compellability
The rules about compellability in relation to a child or young person giving evidence in criminal proceedings about a parent who is a defendant are the same as those for compellability between spouses or de facto partners.47
Under s 96(3) Children and Young Persons (Care and Protection) Act 1998, a child or young person is not required to give evidence in the Children’s Court.48
6.2.4 Requirement to obtain the views of children and young people
Whenever the outcome of a matter will have an impact on a particular child or young person or their interests, it is important to try to obtain the views of that child or young person. It is also required by law in various proceedings and available in criminal proceedings to child victims by way of a victim impact statement (VIS).49 Both the Crimes (Sentencing Procedure) Act 1999 and the common law require a sentencing court to have regard to the effect of the crime on a victim.50 Article 12 of the UN Convention on the Rights of the Child requires that children or young people who are capable of forming their own views have the right to express those views freely in all matters affecting them, and that they must be provided with the opportunity to be heard in any judicial and administrative proceedings affecting them, either directly, or through a representative. Note that a court may receive a victim impact statement only if it is given in accordance with and complies with the requirements prescribed by Pt 3, Div 2 Crimes (Sentencing Procedure) Act 1999.51
In criminal matters, where a child or young person is the defendant, s 6(a) Children (Criminal Proceedings) Act 1987 reflects this principle in stating that “children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them”.
In care and protection matters, s 10(1) and (2) Children and Young Persons (Care and Protection) Act 1998 reflects this principle even more cogently:
- (1)
To ensure that a child or young person is able to participate in decisions made under or pursuant to this Act that have a significant impact on his or her life, the Secretary is responsible for providing the child or young person with the following:
- (a)
adequate information, in a manner and language that he or she can understand, concerning the decisions to be made, the reasons for the Department’s intervention, the ways in which the child or young person can participate in decision-making and any relevant complaint mechanisms,
- (b)
the opportunity to express his or her views freely, according to his or her abilities,
- (c)
any assistance that is necessary for the child or young person to express those views,
- (d)
information as to how his or her views will be recorded and taken into account,
- (e)
information about the outcome of any decision concerning the child or young person and a full explanation of the reasons for the decision,
- (f)
an opportunity to respond to a decision made under this Act concerning the child or young person.
- (2)
In the application of this principle, due regard must be had to the age and developmental capacity of the child or young person.
6.3 Child care and protection
6.3.1 Some statistics
-
In NSW in 2019–2020, 58,567 children were receiving child protection services (or 32.9 per 1,000); nationally the figure was 174,719 (31 per 1,000).52
-
In NSW in 2019–2020, 20,359 children were on care and protection orders (11.4 per 1,000). Of those, 8,191 were First Nations (72.3 per 1,000) which is 9.9 times the rate for non-First Nations children; nationally 60,903 children were on care and protection orders (10.8 per 1,000).53
-
Of those 20,359 children, 515 were with parents; 6,423 with foster care; 5,960 with relatives/kin care; 2,517 were in other home-based care; 3,097 were in third-party parental care; 467 were in residential care; 26 in family group homes; 139 in independent living and 1,221 unknown.54
-
In NSW in 2019–2020, 16,160 (or 9.1 per 1,000) children were in out of home care (OOHC); nationally the figure is 46,000 (8 per 1,000).55
-
In NSW, 2,051 children were admitted to care and protection orders in 2019–2020; nationally, this figure was 13,062.56
-
In NSW as at 30 June 2020, 16,160 children were in OOHC.57 Of those, 6,688 were First Nations children or 41.4% (10.4 times more than non-First Nations children).58 Of these, 35.3% were living with First Nations relatives or kin; 14.8% were living with other First Nations carers; and 22.5% were living with non-First Nations relatives or kin.59
-
In NSW in 2019–2020, 2,521 children were discharged from care and protection orders; nationally this figure was 11,750.60
-
Children in NSW accounted for 12,919 of the 30,600 that had been in out-of-home care for 2 or more years (23% of the national figure). Of the total 16,160 children in out-of-home care in NSW at 30 June 2020, 52.9% of had been in continuous out-of-home care for longer than 5 years.61
-
Children with a disability are a particularly vulnerable group, especially those in the out-of-home care system. In NSW, 16.3% of children in out of home care were reported as having a disability (nationally 15.3%).62 See further Section 5 — People with disabilities.
6.3.2 Out-of-home care63
A nationally consistent definition for out-of-home care was agreed in 2019, and all jurisdictions now report out-of-home care data according to this national definition.64 Out-of-home care is defined as overnight care for children aged under 18 who are unable to live with their families due to child safety concerns. This includes placements approved by the department responsible for child protection for which there is ongoing case management and financial payment (including where a financial payment has been offered but has been declined by the carer). Out-of-home care includes legal (court-ordered) and voluntary placements, as well as placements made for the purpose of providing respite for parents and/or carers.65
Children in out-of-home care are generally on care and protection orders that confer most or all legal responsibility for their welfare to a child protection department. These children receive ongoing case management with a view to achieving a permanent placement or reunification where appropriate.66
When the national definition was implemented in 2019, children on third-party parental responsibility orders were excluded from out-of-home care as the minister or executive no longer has guardianship of children on these orders, although in NSW the State continues to fund the carers and provide some level of case management.67
6.3.3 Aboriginal and Torres Strait Islander Child Placement Principles (ATSICPP)
Aboriginal and Torres Strait Islander children are over-represented in out-of-home care (OOHC) in NSW, representing over 43.47% of children entering care as at 30 June 2023, despite being 5% of the population. This over-representation of Aboriginal children entering care has increased in proportion despite overall numbers entering OOHC decreasing since 2015–2016 in NSW.68Aboriginal children living in remote and very remote areas were 11 times as likely as non-Aboriginal children to be in OOHC.69
The Aboriginal Case Management Policy (ACMP)70 is the operational framework adopted by the Department of Communities and Justice (DCJ) for all practitioners working with Aboriginal children, young people and families in NSW. This policy is stated to provide a framework for Aboriginal-led and culturally embedded case management practice to safeguard the best interests of Aboriginal children and young people.71
The purpose of the Aboriginal and Torres Strait Islander Child Placement Principle (ATSICPP), enshrined in Ch 2, Pt 2 of the Children and Young Persons (Care and Protection) Act 1998 (the “Care Act”),72 and s 35 of the Adoption Act 2000, is to ensure Aboriginal and Torres Strait Islander children remain connected to their family, community, culture, and country.73 Section 11 of the Care Act provides that Aboriginal people are to participate with the care and protection of their children “with as much self-determination as is possible”. Section 12 states that Aboriginal families, kinship groups, representative organisations and communities are to be given the opportunity to participate in placement decisions and other significant decisions under the Act. Section 13 of the Care Act provides for a hierarchy of preferred placement options for Aboriginal or Torres Strait Islander children and young people if they are to be removed from their parents and sets out requirements for children to maintain contact with their families. The aim is to ensure that, if possible and assessed as safe, these children and young people are placed within their biological family, extended family, local Aboriginal community or wider Aboriginal community and culture. The fundamental purpose of the ATSICPP is to enhance and preserve Aboriginal children’s sense of their Aboriginal identity and ensure an Aboriginal child’s right to be raised in their own culture. ATSICPP also recognises the importance and value of family, extended family, kinship networks, culture and community, in raising Aboriginal children and the role of Aboriginal decision-making.74
6.3.3.1 Ensuring compliance with the ATSICPP
The 2019 Family is Culture review report75 led to legislative amendments to the Children and Young Persons (Care and Protection) Act 1998 in November 2023 regarding DCJ’s compliance with the ATSICPP. See the Local Court Bench Book at [40-000]ff and Children’s Court of NSW Resource Handbook at [2-1025].
Further, the 2019 Family is Culture review report76 recognised the impact of intergenerational trauma in that it may manifest itself in behaviours that are regularly viewed as a reason to remove children, and not restore those children once they have been removed.77 Many Aboriginal parents who are in contact with the child protection system have had their parenting abilities adversely affected by intergenerational trauma and its compounding effects. For example, they may not have had safe and stable homes themselves because their parents may not have had safe and stable homes.78 The Family is Culture review report proposes that caseworkers must take intergenerational trauma into account, and understand that “neglect” is usually a form of intergenerational trauma which must be addressed first, rather than becoming a reason to remove a First Nations child into care, and that service delivery should take into account trauma-informed principles. See further the resources on JIRS for intergenerational trauma.
6.3.3.2 Principle of making “active efforts”
For commentary see the Local Court Bench Book at [40-000]ff and Children’s Court of NSW Resource Handbook at [2-1010]ff.
6.3.3.3 “Cross over kids”
The importance of ensuring that ATSICPP are adhered to is exemplified in the link between the over-incarceration of Aboriginal people and involvement with the out-of-home care system. The Family is Culture review report has found “these issues don’t operate in isolation either, they’re connected an intergenerational story of trauma with Aboriginal child removals and oppression [sic].”79 The increased likelihood of involvement in the criminal justice system is one of the broader harms of removal experienced by Aboriginal children in OOHC.
It is estimated that about 40% of children in residential OOHC do not attend school. “Education is the biggest protective factor against engagement in criminal behaviour”, and it is recommended that consideration be given to improving school attendance for children in OOHC. Further, connection to culture and community is another important protective factor that reduced the likelihood that Aboriginal children would engage in criminal behaviour.80
The Bail Act 2013 expressly requires the bail authority to have regard to any special vulnerability or needs the applicant has “because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment”: s 18(1)(k).81 Dr Kath McFarlane,82 submitted that the “care-criminalisation policy vacuum has serious implications for practice”. She also submitted that s 28 of the Bail Act, which permits a court to order bail on the condition that the child obtains suitable accommodation, means that a child “may be detained in circumstances where a homeless adult, charged with a like offence would not”.
The Family is Culture review report submits that there is a need to ensure judicial awareness of care criminalisation and of the matters that should be considered when sentencing or otherwise dealing with children in OOHC (see Recommendation 66).83 It is well recognised that juvenile detention is a “key driver of adult incarceration” for Aboriginal people84 and that many children are placed in OOHC due to parental incarceration. Further, having a criminal record increases the likelihood of poor socioeconomic outcomes, such as unemployment, substance abuse and poverty85 and poor socioeconomic status is also linked to child removals. The Report submits that it is imperative that the drift of children in OOHC to the criminal justice system is addressed as a matter of urgency to reduce the number of Aboriginal children in OOHC in the future.
6.3.3.4 Issues associated with the identification/de-identification of Aboriginal children
For the ATSICPP to be applied effectively, Aboriginal children in the child protection system need to have their cultural background identified promptly and accurately.86 It is not unusual for Aboriginal families to be reluctant to self-identify to statutory child protection systems, given justified mistrust of these systems and their treatment of Aboriginal peoples.87 As the Secretariat of National Aboriginal and Islander Child Care has noted, “without correct and early cultural identification, Aboriginal and Torres Strait Islander children at all levels of child protection involvement are at risk of being deprived of culturally safe support, case planning and placements.”88
The Family is Culture review report89 ventilated concerns about the late identification of Aboriginal children and the de-identification of children resulting in the ATSICPP not being applied to them. For example, failing to record a child’s Aboriginality will have a flow on effect in terms of cultural planning and casework for the child and will limit their connections to culture in OOHC.90 The report recommended (Recommendation 80) that judicial officers receive educational materials about the identification and de-identification of Aboriginal children.91
Section 5 of the Care Act defines an Aboriginal child or young person as “a child or young person descended from an Aboriginal”. An Aboriginal person is defined as having the same meaning as Aboriginal person has in s 4(1) of the Aboriginal Land Rights Act 1983 as follows:
- (a)
Is a member of the Aboriginal race of Australia, and
- (b)
Identifies as an Aboriginal person, and
- (c)
Is accepted by the Aboriginal community as an Aboriginal person.
The Children’s Court may determine that a child or young person is an Aboriginal for the purposes of the Care Act if the court is satisfied that the child or young person is of Aboriginal descent, notwithstanding the definition in the Land Rights Act: s 5(2) Care Act.
The Adoption Act 2000 similarly requires the Supreme Court to apply certain ATSICPP in making an adoption order if the child the subject of the order is an Aboriginal child (Ch 4, Pt 2, Div 2). In Fischer v Thompson (Anonymised),92 the court held that for a child to be an “Aboriginal child” for the purposes of the Adoption Act, it was necessary to identify an ancestor of the child who was “a member of the Aboriginal race of Australia, and identified as an Aboriginal person, and was accepted by the Aboriginal community as an Aboriginal person.” However in Hackett (a pseudonym) v Secretary, Department of Communities and Justice,93 this definition in Fisher was disapproved as being too narrow. The Court of Appeal held that a child is an Aboriginal child for the purposes of the Adoption Act in circumstances where evidence established that she or he was descended from the people who lived in Australia before British colonisation. Further, the court has a discretion under s 4(2) to determine that a child who qualifies as being of “of Aboriginal descent” is an “Aboriginal child” even if they or their forebear do not satisfy the three-limb definition in the Aboriginal Land Rights Act 1983.94
6.4 Practical considerations96
6.4.1 Minimise delays
It is important to try to keep any delays in cases involving a child or young person (as either a witness or alleged offender) to a minimum — so as to reduce the stress on the child or young person and enhance the chances of obtaining the best possible evidence.
In child protection proceedings, it is important to minimise unnecessary adjournments and delays to provide speedy resolution of a child’s status, as far as possible.
6.4.2 Oaths, affirmations and declarations
Children and young people who are competent to give evidence can be sworn in if they understand that in giving evidence they are under an obligation to tell the truth.98 Whether a child or young person takes an oath or an affirmation and the type of oath or affirmation they should take will largely depend on their religious affiliation or lack of religious affiliation — see 4.4.2.
Most children and young people will be able to give unsworn evidence if they do not give sworn evidence. Competence to give unsworn evidence is presumed unless proven to the contrary that the child or young person does not have the capacity to understand a question about a fact or to give an answer that can be understood to a question about a fact.99 A child or young person who is incapable of giving evidence in relation to one fact may nevertheless be competent to give evidence about other facts. The court must tell the child or young person giving unsworn evidence the specific matters listed in s 13(5) Evidence Act (see above at 6.2.1) including that is it important to tell the truth.
Research shows that in general:100
Children as young as 4 or 5 recognise deliberately false statements as lies.
Children up to the age of 11 or so tend to be more stringent than adults in their assessment of what constitutes a lie — for example, they may describe incorrect guesses and exaggerations as lies.
Children often expect to be found out if they lie and to be punished for doing so. They know that it is generally hard for them to look innocent when they are lying. (In fact, adults are better at telling whether a child is lying than at telling whether an adult is lying.) Young children may also have a greatly exaggerated view of what will happen to them if they lie in court, believing that they will go to gaol if they lie in court.
One of the main reasons why children and young people lie is to avoid trouble, rather than to create it — for example, they may have been pressured by the alleged offender to keep a secret, or they may want to protect someone they love or to avoid shame, embarrassment or guilt about, for example, something sexual.
It is hard for a child to explain the conceptual difference between the truth and a lie (in fact, it is hard for some adults to do this too) — so, asking them to do this will not generally help the court to be satisfied that they understand the difference.
See further 6.2, 6.4 and the Appendices below, provide practical strategies for judicial officers when children and young people appear in the court room as a party or witness to help ensure a just outcome is achieved.
6.4.3 Alternative ways to obtain a child or young person’s evidence
Ch 6, Pt 6 Criminal Procedure Act 1986, which applies to children and young people under 16 at the time the evidence is given, prescribes alternative ways to obtain a child’s or young person’s evidence. These provisions apply to “vulnerable persons” defined as “a child or cognitively impaired person”: ss 306M and 306P.101 These alternative arrangements are intended to make the process less stressful for child witnesses and to improve the quality of their evidence. Audio-taped or video-taped recordings of the investigative interviews preserve verbatim the child’s early report of events after disclosure and increase the accuracy and completeness of the child’s statement and the questions they were asked. They may help also to overcome some of the difficulties associated with the long delays between complaint and determination.
See further Criminal Trial Courts Bench Book at [1-360].
6.4.3.1 Video and/or sound recordings of previous representations 102
The use of video-technology allows a pre-recorded video-tape or audio-tape of the child’s or young person’s investigative interview to be presented as all or part of their evidence-in-chief.
This is allowed where the child or young person was under 16 at the time the recording was made. The recording may be admitted no matter what age the child or young person who made the recording is at the time of the hearing.103
The child or young person must not be present in, or be visible or audible to the court by closed-circuit television or by means of any similar technology, while the court is viewing or hearing the recording — unless they choose to be so.104 But if the child or young person is not the accused person, they must be available for cross-examination or re-examination.105
The accused party and their legal representative(s) must have been given prior opportunity to view/hear the recording, and, in criminal cases, must have been told of the prosecution’s intention to rely on it.106
Any such recording must not be used if the court orders that to use it would be contrary to the interests of justice.
6.4.3.2 Closed-circuit television (CCTV) or “live link”107
Closed-circuit television (CCTV) or “live link” allows children and young people to testify from a separate room or remote facility away from the courtroom.
A child or young person has a right to give evidence by CCTV in any proceedings related to victims’ compensation, apprehended violence orders, personal assault offences or child protection prohibition orders, where the child or young person was under 16 at the time of the incident(s) or when the charges were laid, although there are some restrictions for accused children in the Children’s Court.108
It is up to the child or young person to decide whether they want to give their evidence this way, or in some other way — unless the court orders that to give evidence by CCTV would be contrary to the interests of justice.109
The court can order that a court officer, interpreter and/or support person be present with the child or young person — that is, at the location of the CCTV (which may be outside the court building).
6.4.3.3 Child sexual assault matters
The Child Sexual Offence Evidence Program (CSOEP) operates at the NSW District Court, Downing Centre, Newcastle District Court, and has been expanded to other District Courts across the state. The CSOEP provides that the evidence (including evidence in cross-examination and re-examination) of a child under 16 who is a complainant in an indictable proceeding in relation to a prescribed sexual offence must be given at a pre-recorded hearing in the absence of the jury (if any) unless there is a contrary court order. Evidence may also be given with respect to a prescribed sexual offence in a pre-recorded evidence hearing by a child under 18. District Court Criminal Practice Note 11 specifies procedures to be followed at the Downing Centre District Court.110
The Criminal Procedure Amendment (Child Sexual Offence Evidence) Act 2023 amended the Criminal Procedure Act 1986 by inserting new Ch 5, Pt 5, Div 1A, extending the program, with some amendments, to all District Courts in NSW.111 Division 1A applies to proceedings:
- (a)
in relation to a prescribed sexual offence whenever committed, or
- (b)
if the proceedings relate to more than 1 offence — if at least 1 of the offences is a prescribed sexual offence whenever committed,
including an appeal or rehearing: s 294F.
These amendments apply to all proceedings commenced by a court attendance notice filed, or an indictment presented, in a prescribed or relevant place, on or after 29 January 2024: Sch 2, Pt 44, cll 121–122.
The original pilot in 2016 introduced the role of the witness intermediary. The witness intermediary is an accredited professional with specialist training who facilitates communication between the child and young person and the judge and lawyers. The witness intermediary is an officer of the court, thus impartial and independent in proceedings; they are not a support person for the child of young person. The intermediary role is described in further detail in 6.4.5 below. The Witness Intermediary Service (formerly known as Victims Services), within the Department of Communities and Justice, is responsible for the witness intermediary scheme.
6.4.3.4 Additional arrangements
-
In accordance with s 291 Criminal Procedure Act 1986 (NSW), the court should be closed while the complainant or sexual offence witness in proceedings for prescribed sexual offences matters is giving evidence, whether or not the child complainant or witness is present in the court room or giving evidence via CCTV.
-
If CCTV facilities are not available at the particular court, the court may adjourn the proceeding to a court that does have CCTV facilities.112 If a child or young person declines to give evidence by these means, the court must provide alternative arrangements to restrict the contact (including visual contact) between the child and any other people in the court — unless the child or young person chooses not to have any such arrangements made.113 Alternative arrangements could include using screens, and/or changing seating arrangements to restrict the line of vision between the child and others.
-
A child or young person is entitled to have a support person of their choice present while they give evidence — irrespective of whether they do or do not use CCTV.114 This is generally allowed in any criminal proceeding, and in any proceedings related to sexual offences, victims’ compensation, apprehended violence orders, personal assault or care and protection. The support person should be allowed to be near the child/young person and/or within their sight.
-
Note also that a court may make a direction, on its own motion or on the application of a party that called the witness, that the witness give evidence in narrative form — this may be the best approach for some child or young person witnesses.115
-
Witness intermediaries (also called children’s champions in the legislation) may be appointed to assist the parties and the court to communicate and explain questions and answers of child complainants in accordance with the Child Sexual Offence Evidence Scheme. Witness intermediaries are officers of the court. For more information, see Sexual Assault Trials Handbook at [7-060] and 6.4.3.3 above.
6.4.3.5 Managing the manner in which a child or young person gives evidence
6.4.4 Language and communication
Procedural fairness and the integrity of the court process demand that all witnesses understand what is going on, and the meaning of any questions they are asked. They also need to know that their evidence and responses to questions need to be understood by the court.
The level and style of language, any explanations about what is going on, and any cross-examination must be appropriate to the developmental age and understanding of the particular child or young person. It is easy for those who are familiar with the court and the language used there to underestimate how intimidating a court can be for those who are unfamiliar with its language and procedures. In addition, young people who appear to have good communication skills can be questioned as if they are adults. This can impede their understanding and may lead to unclear or inaccurate evidence. The Children’s Court of NSW has developed a quick reference guide to help court staff communicate with children in the criminal jurisdiction. The guide gives examples of alternate definitions/explanations which may be used when explaining complex legal terms to children.118
6.4.4.1 Explain court proceedings and processes adequately
Several pieces of legislation specifically require you to explain court proceedings and processes to ensure that the child understands the proceedings.119 It also makes sense to do so to ensure that the court can get the best possible evidence from the child or young person. These explanations should be provided in simple language without the use of legalese and complex vocabulary.
6.4.4.2 Level and style of language
6.4.5 .6.4.5 The witness/communication intermediary
6.4.5.1 Function
The witness intermediary scheme in NSW commenced in 2016 and is now the Child Sexual Offence Program (CSOEP). The Criminal Procedure Amendment (Child Sexual Offence Evidence) Act 2023 is the legislative framework for the scheme. The legislation provides intermediary assistance for children up to age of 16 years and 16 to 18 years if they have a communication or cognitive disability.121 The legislation is only for child sexual assault matters.
Witness intermediaries are impartial, neutral officers of the court. They provide advice to judicial officers and other legal professionals on how best to communicate with vulnerable people, to ensure the provision of complete, coherent and accurate evidence.122 Intermediaries are not witness supporters and do not act on behalf of the prosecution or defence. Their main aim is to ensure a vulnerable witness or defendant can give evidence and if a defendant can understand proceedings in a trial.
6.4.5.2 Role before the trial
Before the trial commences, intermediaries assess the child or young person’s communication skills. This assessment would entail how the person communicates, their understanding and use of language (receptive and expressive language), their emotional regulation, and if they require the use of communication aids. After the assessment, the intermediary provides a report to the court and parties, outlining the communication needs, and recommendations for questioning. In addition, the intermediary will recommend any communication/visual aids to be used and adjustments that may need to be made at the pre-recorded hearing, such as using a blank screen, adjusting a camera angle, etc.
6.4.5.3 Ground rules hearing
A ground rules hearing (GRH) is a meeting between the judge, parties and the intermediary. The intermediary is an officer of the court and must therefore not be affirmed or asked to take an oath. In this meeting, the judge directs the intermediary to discuss the contents of the intermediary report and recommendations for questioning. This is also an opportunity for the parties to seek clarification on how to ask Browne v Dunn propositions, the use of tag questions, or on any of the intermediary’s recommendations. The judge will make orders on how the witness is to be questioned and how the intermediary can intervene to alert the judge if the witness needs a break or a question has not adhered to the recommended questioning format and an alternative is required.
In CSOEP matters, the GRH usually takes place a week before the pre-recorded hearing. In matters involving children that are not within the legislation, it is recommended that GRHs occur so the parties are aware about the types of questions that they should be asking to ensure they are appropriate for the developmental needs of the child or young person.
Further information on ground rules hearings can be found on The Advocates Gateway, Toolkit 1 and 6.11 — Appendix C — Ground rules hearing checklist at the end of this section.
6.4.5.4 Intermediary role during the hearing
The intermediary will sit next to the child or young person in the CCTV/remote room. It is most important that the intermediary’s hand can be seen so the judge can note when the intermediary needs to intervene for questioning. The intermediary will also say, “Your Honour, that question is complex could it be rephrased?” or words to that effect depending on the problem with the questioning.
6.4.5.5 Accommodations and communication aids
Depending on the communication needs of the child or young person, the intermediary may recommend the following communication/visual aids:
- 1.
-
Coloured post-it notes — these are used to signpost topics for questioning so the child or young person does not get confused about what they are being questioned about.
- 2.
-
Timelines — to be used when a child or young person will be questioned about alleged incidents that occurred over a certain time period and the timing is in contention.
- 3.
-
Break card — the child or young person can point to or show the court this card when they need a break. When the child or young person points to the card the intermediary, if one is present, can alert the court that a break is required.
- 4.
-
Visual cards for the rules of communication — “I don’t know, I need time, I don’t understand” etc.
- 5.
-
Use of an augmentative or alternative communication device — eg a visual alphabet chart or visual picture board.
6.4.6 Cross-examination123
Cross-examination is generally seen by children and young people as the hardest part of the court process. It is often conducted using complex language and leading questions and in a style which is confronting and intimidating. Children and young people find it very distressing to have their motives misconstrued and to be accused of lying.
While it is important that a child’s or young person’s evidence is properly tested, it is also important that over-zealous cross-examination does not intimidate the witness “into silence, lead to contradictions in their responses and produce emotional disorganisation and distress”.124 Research has consistently shown that many of the strategies which lawyers use to cross-examine children are “stress-inducing, developmentally inappropriate, suggestive and evidentially unsafe.”125 One barrister, for example, described the cross-examination technique he uses with children to intimidate them:
You want them to sweat a bit … My technique is to … extend the time for cross-examination … you’re deliberately making it as long as possible … Tactically you want to put them under as much pressure as possible. I want them to crack.126
Research also shows that many children and young people feel that they were unable to get their evidence across in court because of the way they were questioned — because they were confused by the language and the framing of the questions, were cut off or interrupted, and told “just answer the question asked”. Restrictions on the admissibility of some evidence — where, for example, there are other defendants or complainants in separate but related trials — can also mean that children or young people can find it very difficult to answer questions out of their proper context.
Note that where the accused or defendant is not represented by an Australian legal practitioner in criminal proceeding in any court, or a civil proceeding arising from the commission of a personal assault offence, a child witness (other than the accused or the defendant) is to be examined in chief, cross-examined or re-examined by a person appointed by the court instead of by the accused or the defendant.127
6.4.6.1 Improper cross-examination128
Section 41 of the Evidence Act 1995 (NSW) provides for the statutory control of improper cross-examination in both civil and criminal proceedings. Section 41 imposes an obligation on the court to disallow a “disallowable question” and is expressed in terms of a statutory duty whether or not objection is taken to a particular question (s 41(5)). The section specifically refers to the need to take account of the witness’s age and level of maturity and understanding (s 41(2)(a)). Sections 26 and 29(1) of the Evidence Act 1995 also enable you to control the manner and form of questioning of witnesses, and s 135(b) of the Evidence Act 1995 allows you to exclude any evidence that might be misleading or confusing.
A line of cross-examination may be rejected by applying s 41: “Judges play an important role in protecting complainants from unnecessary, inappropriate and irrelevant questioning by or on behalf of an accused. That role is perfectly consistent with the requirements of a fair trial, which requirements do not involve treating the criminal justice system as if it were a forensic game in which every accused is entitled to some kind of sporting chance”.129
The careful exercise of s 41 and the proper control of the cross-examination of child witnesses is “a matter which requires careful consideration, and vigilance to intervene when questions are put that are age inappropriate, or overly complex (involving for example double negatives), or unduly offensive or aggressive”.130
6.4.7 Regular breaks
6.4.8 Jury directions and warnings — points to consider
Section 165A of the Evidence Act 1995 restricts the warning a judge can make to a jury about children’s evidence generally, and about a particular child’s or young person’s evidence. These provisions expressly prohibit a warning about unreliability “solely on account of the age of the child”:
165AWarnings in relation to children’s evidence
- (1)
A judge in any proceeding in which evidence is given by a child before a jury must not do any of the following:
- (a)
warn the jury, or suggest to the jury, that children as a class are unreliable witnesses,
- (b)
warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults,
- (c)
give a warning, or suggestion to the jury, about the unreliability of the particular child’s evidence solely on account of the age of the child,
- (d)
in the case of a criminal proceeding—give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child.
- (2)
Subsection (1) does not prevent the judge, at the request of a party, from:
- (a)
informing the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable, and
- (b)
warning or informing the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it.
If the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child’s evidence and that warrant the giving of a warning or the information.
- (3)
This section does not affect any other power of a judge to give a warning to, or to inform, the jury.
Section 165(6) provides that:
(6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child’s evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A(2) and (3).
- Note:
-
The Commonwealth Act does not include subsection (6).
The requirement to give the jury a warning where evidence is given via CCTV or other technology applies to complainants in prescribed sexual offence proceedings (s 294B(7)) and to vulnerable persons in personal assault offence proceedings: s 306ZI(1). In either case, the judge must:
- (a)
inform the jury that it is standard procedure for evidence in such cases to be given by those means or use of those arrangements, and
- (b)
warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because it is given by those means or by use of those arrangements.
A warning in similar terms is required where alternative arrangements (eg screens and seating) are employed: ss 294B(7), 306ZI(4). See further [1-364] Warning to jury regarding use of CCTV or alternative arrangements in Criminal Trial Courts Bench Book.
6.4.9 Sentencing, other decisions and judgment or decision writing — points to consider
6.5 Further information or help
The following agencies can provide further information about children and young people and the issues that may affect them when they are involved in legal proceedings:
| Advocate for Children and Young People Level 2, 407 Elizabeth Street Surry Hills NSW 2010 Ph: (02) 9286 7231 Email: acyp@acyp.nsw.gov.au |
The Advocate works to improve the safety, welfare and wellbeing of all children and young people in NSW. The role of the NSW Advocate for Children and Young People is to influence and initiate positive change. |
| Department of Communities and Justice (DCJ) Ph: 1800 000 164 |
Are committed to the safety and wellbeing of children and young people and protecting them from risk of harm, abuse and neglect. |
| Children’s Court Clinic 2 George Street (cnr O’Connell Street) Parramatta NSW 2124 Ph: (02) 8688 1530 Email: schn-childrenscourtclinic@health.nsw.gov.au |
The clinic assists the Children’s Court and higher courts in care and protection matters by providing independent expert clinical assessments of:
|
| Youth Justice NSW Department of Communities and Justice Locked Bag 5000, Parramatta NSW 2124 Ph: 02 8346 1333 |
Youth Justice NSW helps young people aged between 10 and 18 that have come into contact, or are at risk of coming into contact, with the criminal justice system. |
| Legal Aid NSW Youth hotline: 1800 101 810 |
Legal Aid provides legal services to disadvantaged people across NSW. They can provide legal assistance in most areas of criminal, family and civil law. |
| Youth Law Australia Ph: 1800 950 570 |
Youth Law Australia is a community legal service that is dedicated to helping children and young people in Australia and their supporters to find legal solutions to their problems |
| Victim’s Services NSW Department of Communities and Justice Locked Bag 5118 Parramatta 2124 Ph: 1800 633 063 Email: vs@dcj.nsw.gov.au |
Victims Services provides information, referrals and programs to victims of crime in NSW. |
| Youth on Track See Youth on Track locations | NSW Government Currently Youth on Track is only offered in seven areas in NSW |
Youth on Track is a program for people between 10 to 17 years, aiming to reduce the seriousness of offences in young people. The program focuses on intervening early and providing support to the young person and their family. |
6.6 Further reading
M Aldridge and J Luchjenbroers, “Linguistic manipulations in legal discourse: Framing questions and ‘smuggling’ information” (2007) 14 International Journal of Speech, Language and the Law 85~107.
M Allerton, “Young people in NSW juvenile justice custody” (2004) 16(7) JOB 49.
Australasian Institute of Judicial Administration Inc, Bench book for children giving evidence in Australian courts, 2nd edn, 2015.
Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and heard: priority for children in the legal process, ALRC Report No 84, Australian Government Publishing Service, 1997, accessed 26/3/2025.
CA Carter, BL Bottoms and M Levine, “Linguistic, social and emotional influences on the accuracy of children’s reports” (1996) 20 Law and Human Behaviour 335–358.
J Cashmore, “Child witnesses” in L Young, MA Kenny, G Monahan (eds) Children and the law in Australia, LexisNexis Butterworths, 2nd edn, Sydney, 2017, pp 563–586 and the articles cited therein.
J Cashmore, “Child witnesses: the judicial role” (2007) 8(2) TJR 281 and other articles in the Judicial Commission of NSW, Sexual Assault Trials Handbook, 2007–.
J Cashmore and P Parkinson, “Judicial conversations with children in parenting disputes: the views of Australian judges” (2007) 21 International Journal of Law, Policy and the Family 160.
J Cashmore and P Parkinson, “The competency of children to give evidence” (1991) 3(1) JOB 1.
J Cashmore and L Trimboli, An evaluation of the NSW Youth Justice Conferencing Scheme, New South Wales Bureau of Crime Statistics and Research, Attorney General’s Department of NSW, 2000, accessed 26/3/2025.
R Ellis, “Judicial activism in child sexual assault cases”, Judicial Commission of NSW, Sexual Assault Trials Handbook, 2007–, Sydney.
GS Goodman et al, “Testifying in criminal court: emotional effects on child sexual assault victims” (1992) 57(5) Monographs of the Society for Research in Child Development 1.
J Goodman-Delahunty, MA Nolan and EL van Gijn-Grosvenor, Empirical guidance on the effects of child sexual abuse on memory and complainants’ evidence, Royal Commission into Institutional Responses to Child Sexual Abuse, 2017, Sydney, Commonwealth of Australia.
E Henderson, “Persuading and controlling: the theory of cross-examination in relation to children” in H Westcott, G Davies and R Bull (eds), Children’s testimony: a handbook of psychological research and forensic practice, John Wiley & Sons, 2002, pp 279–293.
P Johnson, “Controlling unreasonable cross-examination” (2009) 21(4) JOB 29.
Judicial Commission of NSW, Criminal Trial Courts Bench Book, 2002–, Sydney, under “Child witness/accused”, at [1-100]ff and “Evidence given by alternative means” at [1-360]ff.
Judicial Commission of NSW, Children’s Court of NSW Resource Handbook, 2nd edn, 2023–.
ME Lamb et al (eds), Children’s testimony: a handbook of psychological research and forensic practice, 2nd edn, Wiley-Blackwell, 2011.
Law Society of NSW, Representation principles for children’s lawyers, 4th edn, 2014, Sydney.
TD Lyon and AD Evans, “Young children’s understanding that promising guarantees performance: The effects of age and maltreatment” (2014) 38 Law and Human Behavior 162.
Judicial Commission of NSW, Sentencing Bench Book, 2006–, Sydney.
Judicial Commission of NSW, Sexual Assault Trials Handbook, 2007—, Sydney.
A Pichler, J Goodman-Delahunty, S Sharman and N Westera, “A review of the use of special measures for complainants’ evidence at trial” in I Bryce and W Petherick (eds), Child sexual abuse: forensic issues in evidence, impact, and management, Elsevier Academic Press, 2020, pp 467–518 (Ch 23).
M Powell and B Earhart, “Principles to enhance communication with child witnesses” (2018) 30(9) JOB 85.
M Powell, M Garry and N Brewer, “Eyewitness testimony” in I Freckleton (ed) Expert evidence, Thomson Reuters, 2013.
M Powell, N Westera, J Goodman-Delahunty and AS Pichler, An evaluation of how evidence is elicited from complainants of child sexual abuse, Royal Commission into Institutional Responses to Child Sexual Abuse, 2016, Sydney, Commonwealth of Australia.
JA Quas et al, “Childhood sexual assault victims: long-term outcomes after testifying in criminal court” (2005) 70(2) Monographs of the Society for Research in Child Development 1.
L Sas, “The interaction between children’s developmental capabilities and the courtroom environment: the impact on testimonial competency”, paper presented at the Canadian Judicial Council Seminar, November 2002, accessed 26/3/2025.
R Shackel, “Overcoming misconceptions in the courtroom on how children disclose sexual abuse” (2011) 23(4) JOB 29.
R Shackel, “How child victims respond to perpetrators of sexual abuse” (2009) 16 (supplement) Psychiatry, Psychology and Law, S55–S63.
R Stein, “Vulnerability and the right to effective participation in the criminal justice process: the role of the witness intermediary” (2024) 36(9) JOB 91.
R Stein and J Goodman-Delahunty, “Bridging the justice gap: Inequity in provision of intermediary assistance for adults with disabilities” (2024) 50(1) Alternative Law Journal.
R Stein, J Goodman-Delahunty and T Sourdin, “A communication intermediary, an autistic defendant and cross-examination: a novel Australian case” (2025) Psychiatry, Psychology and Law, 1.
Supreme Court of Queensland, Equal Treatment Benchbook, 2nd end, 2016, Ch 13, accessed 26/3/2025.
H Westcott, G Davies and RHC Bull (eds), Children’s testimony: a handbook of psychological research and forensic practice, John Wiley & Sons, 2002.
HL Westcott and M Page, “Cross-examination, sexual abuse and child witness identity” (2002) 11(3) Child Abuse Review 133.
R Zajac, S O’Neill, H Hayne, “Disorder in the courtroom? Child witnesses under cross-examination” (2012) 32 Developmental Review 181.
6.7 Your comments
The Judicial Commission of NSW welcomes your feedback on how we could improve the Equality before the Law Bench Book.
We would be particularly interested in receiving relevant practice examples (including any relevant model directions) that you would like to share with other judicial officers.
In addition, you may discover errors, or wish to add further references to legislation, case law, specific Sections of other Bench Books, discussion or research material.
Section 15 contains information about how to send us your feedback.
6.8 Appendix A — Recommended script for use in hearings with children or cognitively impaired witnesses or defendants144
Judge: Hello (name of witness), can you hear me?
Can you see me?
My name is Judge ……… and I am in charge here today. You can call me Judge if you want to say something to me.
Are you comfortable on that seat?
In the room with you is Mr/Ms ………… (tipstaff/associate) or (first name). His/her job is to help me at your end because you are in a different room to me.
Also in the room with you is ………… (support person) who will be with you while you answer questions.
In the court room with me are some other people even though you might not be able to see them. You have probably met one of them before — the prosecutor, Mr/Ms …………
I will ask the prosecutor to stand in front of the camera. Can you see him/her now? He/she will ask you questions soon.
There is another lawyer who will ask you questions later, Mr/Ms ……………
I will ask him/her to stand. Can you see him/her now?
(To child) …….…., you have come to court today to:
-
(if complainant) talk about what happened to you
-
(if witness) tell the court what you know about …
Before we start, there are some rules about how things happen in court.
Does your teacher have rules in your classroom?*
OR Do you play any sport? Tell me about that.
What are some of the rules in that sport?*
- Note:
-
*Very young children and children with expressive language difficulties may have difficulty describing or explaining the rules. It may be best to provide examples.
Do you have a rule at school or pre-school or child care, for example: no running in the hallway? OR eg “no play outside without a hat in summer?”
Now I want to talk to you about being in court.
Well, in court there are some rules as well.
A very important rule at court is that you tell the truth when you answer questions.
Do you promise to tell the truth, and no lies, in court today?
Now I want to talk to you about some other rules in court.
I will try to make sure the questions the lawyers ask you are not too hard.
If you do not know the answer, that is fine/ok/all right.
Just say “I don’t know”.
If you do not understand the question/if you do not know what the question means, that is fine/ok/all right.
Just say “I don’t understand/I don’t know what that means.”
The lawyers might say something and ask you if it is true or not true (or for older children — if you agree or disagree).
-
If you think something is true, say “It is true” (or “I agree”).
-
If you think something is not true, say “It is not true” (or “I disagree”).
There is a need to exercise some caution about using examples with questions which require the child to tell the judge that the judge is telling a lie.
Better to say “if someone said … would” rather than “If I said …” if using an example (ie it is better not to use “If I say your shirt is red, do you agree or disagree?”.
Children 4–11 years
-
I want to talk to you about truth and lies.
-
When we tell the truth, we talk about things that REALLY happened (REAL things).
-
We tell a story that we know is true
-
Things we have seen with our own eyes
-
Things we have heard with our own ears
-
Things we have felt on our own bodies
-
-
A lie is when something did not REALLY happen (things that are not REAL).
-
We tell a story that is DIFFERENT than what REALLY happened
-
Things that are made up/make believe/imaginary
-
-
What can happen to someone who tells a lie or says something that is not true?
-
You MUST PROMISE to tell us what REALLY happened.
-
You cannot make up things.
-
OBLIGATION — You MUST/HAVE TO tell us the truth. Do you understand why you MUST/HAVE TO tell us the truth?
(According to research145 children could identify a statement as the “truth” or a “lie” before they could define or explain the difference between the two concepts. Defining “truth” and “lies” is an abstract concept. Ideally, children should be provided an example and asked to indicate if a person told the truth or a lie).
Use the story board attached below to show the child a scenario and then ask: “Did the girl tell the truth or a lie about taking the train?”
These are other examples that can also be used once the story board has been shown:
“I will tell you something and you tell me if it is true or a lie.”
It would be useful with really young kids that they have a visual with the two options in front of them.
Examples of questions to ask:
-
There is an elephant in the room with you. Is that true or a lie?
-
You are a girl/boy
Storyboard for children aged 4–11.
Adapted and created by Rukiya Stein
Accredited Witness Intermediary
Independent Communication Intermediary
October 2023
Children 12–16 years
-
I want to talk to you about truth and lies.
-
When we tell the truth, we talk about things that REALLY happened.
-
We tell a story that we know is true and real
-
-
A lie is when something did not REALLY happen (things that are not REAL).
-
Something that is made up
-
-
What can happen to someone who tells a lie or says something that is not true?
-
OBLIGATION — It is very important to tell us the truth.
-
Do you understand you MUST tell us the truth?
(According to research146 children could identify a statement as the “truth” or a “lie” before they could define or explain the difference between the two concepts. Defining “truth” and “lies” is an abstract concept. Ideally, children should be provided an example and asked to indicate if a person told the truth or a lie).
Use the story board attached below to show the child a scenario and then ask:
“Did the boy tell the truth or a lie about eating the chips?”
For the younger cohort (12–13 years), you can say:
-
“I say something, tell me if it is true or a lie:”
-
“You are wearing a __________ (colour) shirt.”
“The wall in the room is red (true or lie)”
Storyboard for children aged 12–16.
Adapted and created by Rukiya Stein
Accredited Witness Intermediary
Independent Communication Intermediary
October 2023
A Ground Rules Hearing (GRH) between the intermediary, lawyers and judge is designed for discussion about the intermediary assessment report and recommendations for questioning.
Any decisions made at a GRH are informed directly by the witness intermediary assessment report.
In NSW, there is no legislative provision for GRHs to occur. Intermediary practice at a GRH and what occurs, is set out in the NSW witness intermediary handbook.
In NSW, GRHs usually occur a week in advance of the Pre-Recorded Hearing.
In a trial, the GRH can occur on the morning the witness or defendant is to give evidence, once a jury has been empanelled.
The intermediary does NOT have to take an oath or affirmation during the GRH.
The following occur at a GRH:
-
The intermediary is asked to discuss the communication report and the recommendations for questioning with the judge and advocates.
-
Both defence counsel and Crown prosecutor are invited to ask the intermediary any questions, seek clarification, or raise any objections in regards to the recommendations.
-
Putting the case/Browne v Dunn — at the GRH, it is agreed upon as to which format is best suited to the vulnerable person’s communication ability. For example, suggestive statement with “agree/disagree”, “true/not true”, “did” question, etc. This is guided by the intermediary’s assessment of these propositions.
-
The use of visual aids (Post-it notes, timelines, body charts, communication cards) and other communication tools are discussed.
-
Any objections or clarifications are settled at the GRH and specific recommendations for questioning are agreed upon.
-
The judge will decide how the intermediary should intervene (eg, hand up, saying “Your Honour”, etc).
-
The judge encourages the parties to have a confidential discussion with the intermediary regarding the form and structure of their questions to avoid interventions. The intermediary is impartial and an officer of the court, therefore any questions that are shared are done so in strict confidence.
-
The judge makes the final orders as to how questioning should occur.
Ground rules hearing checklist
- ❏
-
Have all parties received and read the intermediary’s report?
- ❏
-
Intermediary discusses main recommendations for questioning.
- ❏
-
Any visual aids (eg, Post-it notes, timelines, pictures, maps, etc)/fidget toys or other special measures that need to be used and how they will be used.
- ❏
-
How will the intermediary intervene/get the judge’s attention if there is a communication issue or the child/young person needs a break, eg, “your Honour” or raise a hand.
- ❏
-
Have topics for questioning been agreed and will they be provided in advance to the intermediary or introduced on the day? Use of post-it notes.
- ❏
-
Recommendation for the parties to seek the assistance of the intermediary for their questions before the PRH/trial begins.
- ❏
-
Will wigs be worn?
- ❏
-
How the accused will be referred to (not all children/young people will know the word “accused”).
- ❏
-
If the child has their own terminology for intimate body parts, consideration needs to be made to use those words.
- ❏
-
Discussion and order made for the structure of Browne v Dunn propositions.
- ❏
-
Any considerations for the best time of day to begin/end questioning; if medications are taken.
- ❏
-
Final orders on how the parties will question the child/young person and limitations placed on the types of questions asked, such as tag questions.
- ❏
-
Whether the child will take an oath or affirmation.
- ❏
-
If there will be a support person and/or an interpreter present and where they all sit in the remote room, with the intermediary present.
- ❏
-
Any envelopes that will need to be taken to the remote room.
Adapted and created by Rukiya Stein
Accredited Witness Intermediary
Independent Communication Intermediary
October 2023
6.11 Appendix D — Interviewing principles to guide communication with vulnerable witnesses and defendants, including children and young people147
Use short sentences. If questions are too long, the interviewee might lose interest or find the questions hard to follow, especially if attention span is a concern. Questions with multiple parts (eg, those that ask interviewees to think about multiple subjects in rapid succession) increase the opportunity for confusion and error. As a general rule, all questions should be short, direct and convey only one idea at a time.
Avoid the use of jargon. Although jargon can help people communicate within peer groups who share a profession or activity, it can be confusing to anyone outside the group. Child interviewees are often asked questions that include complex legal terms (legalese). The cognitive and language skills required to process and memorise jargon are advanced. Short, everyday words are more appropriate choices for vulnerable witnesses.
Use active tense. In passive tense, the “doer” of the action is placed after the action itself (eg, “Were you questioned by the police earlier today?”). This is a complicated phrasing that may be difficult for vulnerable interviewees to understand. It is better to place the doer of the action first, ahead of the action (eg, “Did the police question you earlier today?”).
Avoid non-literal language. Figurative and abstract language increases the chances of misunderstandings, as do the use of words that deviate from their original or conventional meaning. For example, questions like “Did your dad pass away?” or “Did he simmer down after that?” may not be well understood.
1This is in line with the definition of a child as a person under the age of 18 in the United Nations Convention on the Rights of the Child, which Australia ratified in 1990 — unless national laws recognise the age of majority earlier, accessed 10/3/2025.
2Which defines “child” as “a person who is of or over the age of 10 years [age of criminal responsibility] and under the age of 18 years”.
3Under the uniform evidence legislation, “child” is defined as “a child of any age”. For example, the Evidence Act 1995 (NSW), s 3, Dictionary, Pt 1.
4Under Children (Detention Centres) Act 1987, s 9A(2), persons 18 years or older but under 21 are not to be detained in a detention centre in specified circumstances.
5Young Offenders Act 1997, s 7A.
6D Kenny, “The adolescent brain: implications for understanding young offenders” (2016) 28(3) JOB 23; P Johnstone, “Criminal matters — the grey matter between right and wrong: neurobiology and young offending” paper presented at Children’s Legal Service Conference, 11 October 2014, Sydney, published in Judicial Commission of NSW, Children’s Court of NSW Resource Handbook at [19-2000]; see also “Piaget’s stages of cognitive development” at [18-6000] and M Allerton, “Apart from shortness, telephobia and addiction to technology, how are children different?” at [18-2000].
7ALRC, Seen and heard: priority for children in the legal process, Report 84, 2010, [4.10], accessed 10/3/2025.
8K McWilliams et al, “Children as witnesses” in Melton et al (eds), The Sage handbook of child research, Sage Publishing, 2014, p 285.
9Australian Human Rights Commission website, accessed 18/3/2025.
10K Richards, “What makes juvenile offenders different from adult offenders”, Trends & Issues in crime and criminal justice, No 409, Australian Institute of Criminology (AIC), February 2011; Judicial Commission of NSW, Children’s Court of NSW Handbook, 2013–.
11DJ Miller et al, “Prolonged myelination in human neocortical evolution” (2012) 109(41) Proceedings of the National Academy of Science USA 16480, accessed 10/3/2025; BC Partridge, “The mature minor: some critical psychological reflections on the empirical bases” (2013) 38(3) Journal of Medicine and Philosophy 283.
12For a useful discussion about children’s memory, see DJ La Rooy, LC Malloy and ME Lamb, “The development of memory in childhood” in ME Lamb et al (eds), Children’s testimony: a handbook of psychological research and forensic practice, 2nd edn, Wiley-Blackwell, 2011; P Bauer and R Fivush, The Wiley handbook on the development of children’s memory, Wiley, 2013, Vol 2; G Monahan and L Young (eds), Children and the law in Australia, LexisNexis, 2008; ME Pipe et al, “Recent research on children’s testimony about experiences and witnessed events” (2004) 24 Developmental Review 440, accessed 10/3/2025. See also Law Society of NSW, Representation principles for children's lawyers, 4th edn, 2014, accessed 10/3/2025.
13Department of Justice WA, Equal Justice Bench Book, “Children and young people” at [5.2.2], accessed 10/3/2025.
14JA Quas et al, “Childhood sexual assault victims: long-term outcomes after testifying in criminal court” (2005) 70(2) Monographs of the Society for Research in Child Development 1.
15AIHW, Australia’s children, Canberra, 2020, p 338, accessed 10/3/2025. See also Bugmy Bar Book, “Childhood exposure to domestic & family violence”, accessed 10/3/2025.
16See, for example, M Marien, “Cross-over kids — childhood and adolescent abuse and neglect and juvenile offending” (2012) 11(1) TJR 97; K Richards, “Children’s exposure to domestic violence in Australia”, Trends and Issues in crime and criminal justice, No 409, AIC, June 2011, accessed 10/3/2025; P Murphy et al, A strategic review of the NSW juvenile justice system, Report for the Minister for Juvenile Justice, Noetic Solutions Pty Ltd, Manuka, 2010, accessed 10/3/2025; J Cashmore, “The link between child maltreatment and adolescent offending: systems neglect of adolescents” (2011) 89 Family Matters 31, accessed 10/3/2025; K McFarlane, “From care to custody: young women in out-of-home care in the criminal justice system” (2010) 22(2) CICJ 345, accessed 10/3/2025; J Delima and G Vimpani, “The neurobiological effects of childhood maltreatment: an often overlooked narrative related to the long-term effects of early childhood trauma?” (2011) 89 Family Matters 42, accessed 10/3/2025; Center on the Developing Child, “The science of neglect, InBrief, 2013, accessed 10/3/2025; M Allerton, “Young people in NSW juvenile justice custody” (2004) 16(7) JOB 49; A Stewart, S Dennison and E Waterson, “Pathways from child maltreatment to juvenile offending, Trends & issues in crime and criminal justice, No 241, AIC, 2002, accessed 10/3/2025; Youth Justice NSW, “2015 NSW young people in custody health survey: full report”, Justice Health and Juvenile Justice, Sydney, 2017, accessed 10/3/2025.
17The information in this Section is drawn from the following main sources — J Cashmore, “Child sexual assault in court”, presentation to the Local Courts Conference, September 2005, Sydney; J Cashmore and L Trimboli, An evaluation of the NSW Child Sexual Assault Specialist Jurisdiction Pilot, NSW Bureau of Crime Statistics and Research (BOCSAR), 2005, accessed 10/3/2025; HL Westcott and M Page, “Cross-examination, sexual abuse and child witness identity” (2002) 11(3) Child Abuse Review 133 at 137–152; Supreme Court of Queensland, Equal Treatment Benchbook, 2005, Ch 13, accessed 10/3/2025; Australian Law Reform Commission (ALRC) and Human Rights and Equal Opportunity Commission, Seen and heard: priority for children in the legal process, (ALRC) Report No 84, 1997, accessed 10/3/2025; Quas et al, above n 14; and GS Goodman et al, “Testifying in criminal court: emotional effects on child sexual assault victims” (1992) 57(5) Monographs of the Society for Research in Child Development 1. See also Permanent Judicial Commission on Justice for Children, New York State, Tools for engaging children in their court proceedings: a guide for judges, advocates and child welfare professionals, 2008, accessed 10/3/2025.
18See M Powell and B Earhart, “Principles to enhance communication with child witnesses” (2018) 30(9) JOB 85; ALRC, Seen and heard: priority for children in the legal process, ibid; Lamb et al, above n 12; and Quas et al, above n 14, J Cashmore “Child witnesses: the judicial role” (2007) 8(2) TJR 281.
19J Goodman-Delahunty, M Nolan, E Gijn-Grosvenor, Empirical guidance on the effects of child sexual abuse on memory and complainants’ evidence, Royal Commission into Institutional Responses to Child Abuse, Research Report, July 2017, accessed 10/3/2025.
20ibid p 22.
21ibid p 23.
22R Zajac, S O’Neill, H Hayne, “Disorder in the courtroom? Child witnesses under cross-examination” (2012) 32 Developmental Review 181, accessed 10/3/2025.
23TD Lyon, “Assessing the competency of child witnesses: best practice informed by psychology and law” in ME Lamb et al (eds), above, n 12, accessed 10/3/2025; R Marchant, “How young is too young? The evidence of children under five in the criminal justice system” (2013) 22(6) Child Abuse Review 432, accessed 10/3/2025.
24The Queen v GW (2016) 258 CLR 108 at [14].
25The Queen v GW (2016) 258 CLR 108 at [46]. See also Pease v R [2009] NSWCCA 136 at [11] and R v Suarwata [2008] ACTSC 140 which deal with the need for the court to satisfy itself as to a person’s understanding of the nature of the obligation to tell the truth.
26Evidence Act 1995, s 13(1).
27Evidence Act 1995, s 13(5); RJ v R [2010] NSWCCA 263 at [18].
28ALRC, Uniform evidence law, ALRC Report 102, 2005 at [4.73], accessed 10/3/2025.
29MK v R [2014] NSWCCA 274 at [69].
30R v RAG [2006] NSWCCA 343 at [26]. See also the questions and answers put by the Crown to the child witness at [22].
31The Queen v GW (2016) 258 CLR 108 at [28].
32Evidence Act 1995, s 13(5).
33Based on J Cashmore, Judicial Commission of NSW, “Managing child witnesses”, Local Court of NSW Magistrates’ Orientation Program, June 2009, Sydney, accessed 10/3/2025.
34SH v R (2012) 83 NSWLR 258 at [22].
35The Queen v GW (2016) 258 CLR 108 at [56].
37Gray v R [2020] NSWCCA 240 at [88]–[91].
38Judicial Commission of NSW, Criminal Trial Courts Bench Book, 2002–, Sydney, under “Trial Procedure — Child witness/accused” at [1-100]ff.
39Children (Criminal Proceedings) Act 1987, s 5; Crimes Act 1914 (Cth), s 4M; Criminal Code (Cth), s 7.1; RP v The Queen (2016) 259 CLR 641 at [9].
40RP v The Queen (2016) 259 CLR 641 at [9]. For proceedings involving Commonwealth offences by children this presumption is codified. See Crimes Act 1914 (Cth), s 4N; Criminal Code (Cth), s 7.2.
41Children (Criminal Proceedings) Act 1987, s 6(b).
42RP v The Queen (2016) 259 CLR 641 at [8]–[9].
43BC v R [2019] NSWCCA 111 at [43]–[45], [53].
44BDO v The Queen (2023) 277 CLR 518.
45BDO v The Queen (2023) 277 CLR 518 at [22].
46RP v The Queen (2016) 259 CLR 641 at [23], [25].
47Evidence Act 1995 (NSW), s 18. See also s 19 for circumstances where s 18 does not apply, in particular for an offence against or referred to in certain provisions of the Children and Young Persons (Care and Protection) Act 1988.
48Although Children and Young Persons (Care and Protection) Act 1998, s 96(4) provides that the Children’s Court may require a parent of the child or young person who is the subject of the proceedings who is himself or herself a child or young person to give evidence in the Children’s Court. See also Children’s Court Rule 2000, r 26.
49Crimes (Sentencing Procedure) Act 1999, Div 2, Pt 3 and Children (Criminal Proceedings) Act 1987, s 33C(2) provide for victim impact statements in criminal proceedings.
50Porter v R [2008] NSWCCA 145 at [54]; Siganto v The Queen (1998) 194 CLR 656 at [29]; Crimes Sentencing Procedure Act 1999, s 3A(g) and Pt 3, Div 2 (victim impact statements).
51For example in AC v R [2016] NSWCCA 107, the court was entitled to discount a letter, purporting to be a VIS, where the under age victim asked for her return to an abusive relationship and sexual offending. This could not sensibly be understood as evidencing either maturity, forgiveness, or a conclusion that the injury, emotional harm, loss or damage caused by the applicant’s offence was not substantial: at [56].
52AIHW, Data-tables, Child-protection, Australia, 2019–20, Table 2.2; Table S2.1, accessed 10/3/2025.
53ibid, Table 2.2 and Table S4.9.
54ibid, Table S4.5.
55AIHW, “Child protection Australia 2019-2020”, Child Welfare Series No 74, May 2021, p 49, accessed 10/3/2025.
57ibid, Table S2.1.
58ibid, Table S5.10.
59ibid, Table S5.12.
60ibid, Table 4.2.
61ibid, Table S5.14.
62AIHW, “Child protection Australia 2019-20”, Child Welfare Series No 74, May 2021, pp 47–48, accessed 10/3/2025.
63AIHW, Data-tables, Child-protection, Australia, 2019-2020, Table S5.8, accessed 10/3/2025.
64AIHW, “Child protection Australia 2019-20”, above n 62, p 5.
65ibid p 47.
66ibid p 48.
67ibid.
68AIHW, Data-tables, Child-protection, above n 63. See also M Davis, Independent Review of Aboriginal Children in OOHC, “Family is culture”, Review Report, 2019, p 42, accessed 10/3/2025.
69ibid.
70The Department of Communities and Justice (DCJ) commissioned ABSec to develop the ACPM as government policy in 2018, accessed 10/3/2025.
71ibid p 3.
72Originally enacted in 1987 as Children (Care and Protection) Act 1987, s 87.
74ibid, p xiv.
77ibid at p 21.
78ibid.
79M Davis, “‘Aboriginal children deserve better’: Chair of a damning review calls for urgent action,” UNSW News Room, 27 June 2020, accessed 10/3/2025.
80Judge Peter Johnstone, Children’s Court of NSW, Submission No 18 to “Family is Culture: independent review of Aboriginal children and young people in OOHC in NSW”, November 2017.
81See L McCallum and E Timmins, “Black letter law” (2021) 33(4) JOB 37 at 40 for an analysis of this provision.
82Scholar at Charles Sturt University, in a submission to the Family is Culture review report, addressed the issue of the interaction between the OOHC system and the criminal justice system in detail. See also L McCallum and E Timmins, above n 81, for further observations on the Bail Act 2013 and the ongoing impact of bail decisions on disproportionate incarceration of Aboriginal people.
84Australian Law Reform Commission, Pathways to justice — an inquiry into the incarceration rate of Aboriginal and Torres Strait Islander peoples, Final Report, December 2017, at 15.6, accessed 10/3/2025.
85ibid.
86See DCJ, Rules and Practice Guidance, for details about Aboriginal case management, legal matters, roles and responsibilities, accessed 10/3/2025.
87DCJ, “Aboriginal case management policy rules and practice guidance”, March 2023, p 4, accessed 10/3/2025.
89ibid at 259–263.
90ibid at 261.
91ibid at 264.
92Fischer v Thompson (Anonymised) [2019] NSWSC 773.
93Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83.
94Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 at [57], [60], [82], [86].
95Judicial Commission of NSW, Local Courts Bench Book, 1988–, under “Children’s Court — care and protection jurisdiction” at [40–000]ff; Judicial Commission of NSW, Children’s Court of NSW Resource Handbook, 2nd edn, 2023–, under “Care and protection matters”, at [2–1000]ff.
96See also Department of Justice (WA), Equal Justice Bench Book, 2017, accessed 10/3/2025; Judicial College (UK), Equal Treatment Bench Book, 2021, Ch 2, accessed 10/3/2025, “Children, young people and vulnerable adults”; Judicial College (England and Wales), Bench Checklist: Young Witness Cases, 2012.
97Note that Civil Procedure Act 2005, s 56 requires that the court manage proceedings in conformity with the overriding purpose set out in that section and in accordance with the objects set out in s 57. In deciding whether to make an order or direction for the management of proceedings, the court must seek to act in accordance with the dictates of justice: s 58. For further information about effective case management practices in relation to children and young persons, see R Ellis, “Judicial activism in child sexual assault cases”, Sexual Assault Trials Handbook, Judicial Commission of NSW, 2007–, at [7-160].
98Evidence Act, s 13(3). Note, for proceedings commenced prior to 1 January 2009, the former version of s 13 applies to child witnesses. Note, a child may not understand the meaning of the word “obligation” but understands what it means in effect. Some further testing of the child witness' understanding of the obligation to give truthful evidence may need to be conducted by the use of simple and concrete terminology: MK v R [2014] NSWCCA 274 at [69], applying R v RAG [2006] NSWCCA 343 at [25]–[27], [43]–[45].
99Evidence Act 1995, s 13(1).
100See J Cashmore, “Child witnesses” in G Monahan and L Young, Children and the law in Australia, LexisNexis, Sydney, 2008, and the articles cited therein. See also J Cashmore, “Child witnesses: the judicial role” (2007) 8(2) TJR 281 and other articles in the Judicial Commission of NSW, Sexual Assault Trials Handbook, 2007—; and J Cashmore and P Parkinson, “The competency of children to give evidence” (1991) 3(1) JOB 1. See also the Australasian Institute of Judicial Administration Inc (AIJA), Bench Book for Children Giving Evidence in Australian Courts, 2009, (updated March 2020), at [2.10.1]–[2.10.8] and [5.8]–[5.9], accessed 27/3/2025.
101See also Criminal Procedure Act 1986, s 294D in sexual assault proceedings. In Commonwealth proceedings under the Crimes Act 1914 (Cth) in relation to proceedings listed in s 15Y(1) (specifically a child proceeding), Pt IAD, Div 4 applies to children.
102Criminal Procedure Act 1986, ss 306R–306Z; and see also Criminal Trial Courts Bench Book, above n 38, under “1.Trial Procedure — Child Witness/Accused” commencing at [1-100] and [1-362]. For guidelines as to the appropriate procedure where a complainant gives evidence by way of the playing of a pre-recorded interview, see R v NZ (2005) 63 NSWLR 628.
103Criminal Procedure Act 1986, s 306U(2).
104Criminal Procedure Act 1986, s 306U(1).
105Criminal Procedure Act 1986, s 306U(3).
106Criminal Procedure Act 1986, s 306V(2); Criminal Procedure Regulation 2017, r 20.
107Criminal Procedure Act 1986, ss 306ZA–306ZI; and see also Criminal Trial Courts Bench Book, above n 38, [1-362]ff.
108Criminal Procedure Act 1986, ss 306ZA, 306ZC; and Criminal Trial Courts Bench Book, at [1-362]. Under ss 306ZB(2), the provisions apply to a child who is 16 or more but less than 18 years of age at the time evidence is given provided the child was under 16 years of age when charged for the personal assault offence. The Crimes Act 1914 (Cth), Pt IAD, Div 4 (ss 15YI–15YL) apply to children under 18 where the proceedings are for a Commonwealth sexual offence.
109Criminal Procedure Act 1986, s 306ZB(5).
110Criminal Procedure Act 1986, Sch 2, Pt 29, cll 81–94 provides for the initial pilot scheme. See also Judicial Commission, Sexual Assault Trials Handbook, above n 97 at [10-260] and [10-270].
111Criminal Procedure Amendment (Child Sexual Offence Evidence) Act, Sch 2, Pt 44, cl 119, definition of “Court”
112Criminal Procedure Act 1986, s 306ZF; and see also Criminal Trial Courts Bench Book, above, n 38 at [1-362].
113Criminal Procedure Act 1986, s 306ZH.
114Criminal Procedure Act 1986, ss 294C(1), 306ZK(2); Children and Young Persons (Care and Protection) Act 1998, s 102; and see also Criminal Trial Courts Bench Book, above, n 38 at [1-368].
115Evidence Act 1995 (NSW), s 29(2).
116See Judicial Commission, Local Court Bench Book, under “Remote witness video facilities” commencing at [12-000].
118NSW Courts and Tribunal Services, “Explaining legal terms to children: quick reference guide”, accessed 10/3/2025.
119See for example, Children (Criminal Proceedings) Act 1987 (NSW), s 12; Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 10, 95; see also Criminal Trial Courts Bench Book, above n 38 at [1-180].
120See AG Walker et al, Handbook on questioning children: a linguistic perspective, 3rd edn, American Bar Association, 2014. See also M Powell and B Earhart, above n 18.
121R Stein, “Vulnerability and the right to effective participation in the criminal justice process: the role of the witness intermediary” (2024) 36 JOB 91; R Stein and J Goodman-Delahunty, “Bridging the justice gap: inequity in provision of intermediary assistance for adults with disabilities” (2024) 50(1) Alternative Law Journal 61.
122B O’Mahony, R Marchant and L Fadden, “Vulnerable individuals, intermediaries and justice” in G Oxburgh et al (eds), Communication in investigative and legal contexts: integrated approaches from forensic psychology, linguistics and law enforcement, John Wiley and Sons, 2015; ibid.
123P Bowden, T Henning and D Plater, “Balancing fairness to victims, society and defendants in the cross-examination of vulnerable witnesses: an impossible triangulation” (2014) 37(3) MULR 539, accessed 10/3/2025; A Cossins, “Cross-examining the child complainant: rights, innovations and unfounded fears in the Australian context” in JR Spencer and ME Lamb (eds), Children and cross-examination: time to change the rules?, Hart Publishing, 2012; A Cossins, “Cross-examination in child sexual assault trials: evidentiary safeguard or opportunity to confuse?” (2009) 33(1) MULR 68, accessed 10/3/2025; R Zajac and P Cannan, “Cross-examination of sexual assault complainants: a developmental comparison” (2009) 16 (Supplement 1) Psychiatry, Psychology and Law S36.
124CA Carter, BL Bottoms and M Levine, “Linguistic, social and emotional influences on the accuracy of children’s reports” (1996) 20 Law and Human Behaviour 335; L Sas, The interaction between children’s developmental capabilities and the courtroom environment: the impact on testimonial competency, Research Report (RR02-6e), November 2002, Department of Justice, Canada, accessed 10/3/2025. See also S Andrews, M Lamb and T Lyon, “Question types, responsiveness and self-contradictions when prosecutors and defense attorneys question alleged victims of child sexual abuse” (2015) 25 Applied Cognitive Psychology, 253, accessed 10/3/2025; R Zajac, S O’Neill, H Hayne, “Disorder in the courtroom? Child witnesses under cross-examination” (2012) 32 Developmental Review 181.
125E Henderson, “Persuading and controlling: the theory of cross-examination in relation to children” in H Westcott, G Davies and R Bull (eds), Children’s testimony: a handbook of psychological research and forensic practice, John Wiley & Sons, 2002, p 279.
126ibid.
127Criminal Procedure Act 1986, s 306ZL.
129R v TA (2003) 57 NSWLR 444 per Spigelman CJ at [8].
130Wood CJ at CL, Child witnesses — best practice for courts, Australasian Institute of Judicial Training, 30 July 2004, District Court of NSW. See also D Yehia, “Cross-examination of children”, The Public Defenders, (iv) Practical suggestions for cross-examining children, accessed 10/3/2025.
131See P Johnson, “Controlling unreasonable cross-examination” (2009) 21(4) JOB 29; Criminal Trial Courts Bench Book, above n 38, at [1-340]ff; L Babb, “What does s 41 of the Evidence Act mean to you as a judicial officer”, Sexual Assault Trials Handbook, at [7-200]. For proceedings in the Children’s Court, see s 107(2) (offensive and scandalous questions) and (3) (oppressive or repetitive cross-examination) of the Children and Young Persons (Care and Protection) Act 1998. Also under s 107(1), a Children’s Magistrate may examine and cross-examine a witness in any proceedings to such extent as the Children’s Magistrate thinks proper for the purpose of eliciting information relevant to the exercise of the Children’s Court’s powers.
132I Hepner, MN Woodward and J Stewart, “Giving the vulnerable a voice in the criminal justice system: the use of intermediaries with individuals with intellectual disability” (2014) 22(3) Psychiatry, Psychology and Law 453 at 454, accessed 10/3/2025.
134See also Judicial Commission of NSW, Sentencing Bench Book, 2006–, at [2-200] and R v Henry (1999) 46 NSWLR 346 at [9]–[10].
135See CO v DPP [2020] NSWSC 1123 at [28]–[29].
136See Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 2, ss 30A–30G; Crimes (Sentencing Procedure) Regulation 2017 (NSW), cl 11; Victims Rights and Support Act 2013 (NSW), s 6; and the “Charter of rights of victims of crime” (which allows the victim access to information and assistance for the preparation of any such statement). Note that any such statement should be made available for the offender to read, but the offender must not be allowed to retain it. A victim is entitled to read out their VIS via closed-circuit television if he or she was entitled to give evidence that way during the trial: s 30A(3), (4). See Sentencing Bench Book, above n 134, at [12-790]ff. See also s 27(4A) Crimes Sentencing Procedure Act 1999 for limitations in relation to VIS for an offence that is being dealt with by the Children’s Court.
137Children’s Court of NSW Resource Handbook, 2nd edn, 2023– at [8-1000]ff; MS King, “Therapeutic jurisprudence, child complainants and the concept of a fair trial” (2008) 32 CLJ 303.
138Young Offenders Act 1997 (NSW), Pt 5, and Young Offenders Regulation 2016. Youth Justice Conferencing, for those who have admitted guilt and agree to it, is proving an effective means of reducing recidivism — see, for example, N Smith and D Weatherburn, “Youth Justice Conferences versus Children’s Court: A comparison of re-offending”, Crime and Justice Bulletin, No 160, BOCSAR, February 2012, accessed 10/3/2025.
Note also that in Youth Conferencing the members of the group follow the same guiding principles about the range of available sentences as any other court.
139See “Youth Koori Court fact sheet”, accessed 10/3/2025; S Duncombe, “NSW Youth Koori Court Pilot Program commences” (2015) 27(2) JOB 11; S Duncombe, “Expansion of the NSW Youth Koori Court program” (2018) 30(5) JOB 48.
140E Ooi and S Rahman, “The impact of the NSW Youth Koori Court on sentencing and re-offending outcomes”, Crime and Justice Bulletin No CJB248, BOCSAR, April 2022, accessed 10/3/2025.
141Children (Community Services Orders) Act 1987 (NSW), s 5.
142See Children (Criminal Proceedings) Act 1987 (NSW), s 14(1)(a) which provides that a court “shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years”. See also Young Offenders Act 1997, ss 17 and 33.
143See Children (Criminal Proceedings) Act 1987, ss 24 and 33(1AA).
144Originally adapted with permission from Australasian Institute of Judicial Administration, Bench Book for children giving evidence in Australian courts, 2015; revised in 2018 by Professor J Cashmore drawing on experience of the pilot witness intermediary program which commenced at the District Court in March 2016.
145TD Lyon and A Evans, “Assessing children’s competency to take the oath in court: the influence of question type on children’s accuracy” (2012) 36(3) Law and Human Behavior 196. See also N Bala et al, “A legal and psychological critique of the present approach to the assessment of the competence of child witnesses” (2001) 38 Osgoode Hall Law Journal 409 at 411.
146ibid.
147Adapted from M Powell and B Earhart, “Principles to enhance communication with child witnesses” (2018) 30(9) JOB 85 at 86–87.