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.

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, developed 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. See further at the Australian Human Rights Commission website.

The main points to note about the capacity of children and young people in relation to court appearances are that:

There is a considerable body of research both in Australia and overseas demonstrating the difficulties faced by children and young people in giving evidence.¹⁷

The main difficulties which can jeopardise the reliability and comprehensiveness of their evidence include:

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, 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.

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.²³ 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.²⁴

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 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.²⁶

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.²⁷

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 R²⁸ 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.²⁹ 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.³⁰

Unsworn evidence

A child is presumed competent to give unsworn evidence about a fact if the court has told the child:

The above may be too difficult for a child if it is merely paraphrased, and could be simply rephrased as follows:

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).³³ 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.³⁴ It is up to the court to determine the weight to be given to unsworn evidence.³⁵

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.³⁶

For more on this, see the Criminal Trial Courts Bench Book³⁷ and 6.4.2 — Oaths, affirmations and declarations, below.

The law conclusively presumes that a child under 10 years cannot be guilty of an offence.³⁸ 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.³⁹

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”.⁴⁰

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 at [8]–[9];⁴¹BC v R⁴² at [43]–[45], [53]. See also BDO v The Queen [2023] HCA 16, 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 at [22]. What was said in RP v The Queen 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: at [23], [25].

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.⁴³

Under the Children and Young Persons (Care and Protection) Act 1998 s 96(3), a child or young person is not required to give evidence in the Children’s Court.⁴⁴

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).⁴⁵ 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.⁴⁶ 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 of the Crimes (Sentencing Procedure) Act 1999.⁴⁷

In criminal matters, where a child or young person is the defendant, s 6(a) of the Children (Criminal Proceedings) Act 1987 (NSW) 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) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) reflects this principle even more cogently:

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.⁶⁰ 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.⁶¹

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.⁶²

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. ⁶³

Aboriginal and Torres Strait Islander children are over-represented in out-of-home care (OOHC) in NSW, representing over 41.4% of children entering care as at 30 June 2020, 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 2015-16 in NSW.⁶⁴Aboriginal children living in remote and very remote areas were 11 times as likely as non-Aboriginal children to be in OOHC.⁶⁵

The Aboriginal Case Management Policy (ACMP)⁶⁶ 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.⁶⁷

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”),⁶⁸ 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.⁶⁹ 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.⁷⁰

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.

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.⁹⁶ 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.⁹⁷ 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: ⁹⁸

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 section 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.

The Criminal Procedure Act 1986, Ch 6, Pt 6, 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.⁹⁹ 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].

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. 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.¹¹⁵

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”.¹¹⁹ 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.”¹²⁰ One barrister, for example, described the cross-examination technique he uses with children to intimidate them:

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.¹²²

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”:

Section 165(6) provides that:

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 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.