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COURTS, CHILD WITNESSES
The Hon. IAN GILFILLAN: I seek leave to make a brief explanation before asking the Attorney-General a question about child witnesses in court.
Leave granted.
The Hon. IAN GILFILLAN: In December 1998, the Australian Institute of Criminology released a study entitled `Child Sexual Abuse in the Criminal Justice System'. The report focuses on the experiences of 12 girls who reported child abuse to police. It suggests that the discomfort, the uncertainty, the delays, the false hopes and fears combined to produce serious effects on their emotional, social and cognitive development over the pre-trial period, which averaged 12 months. However, the greatest devastation, as reported by these participants, occurred during cross-examination in court. The report describes from the victims' perspective typical defence counsel tactics. The defence lawyer would start sweetly and smiling and then, having won the girl's trust, would turn nasty, repeat questions many times to confuse the child, accuse her of lying, ask about her sexual history and even imply or openly suggest that she `wanted it' despite the fact that in child sex abuse consent is irrelevant. There are many quotes in this article about how the victims felt about all this, but the most revealing quotes come from three unidentified defence lawyers who stated the following: 1. Because the child has the same IQ as an adult, they can largely be treated as an adult. 2. It would be considered cowardly not to go for the jugular when cross-examining a child. 3. If in the process of destroying the evidence it is necessary to destroy the child, then so be it. The report concludes: . . . based on this study it can be strongly argued that all too often this trial centrepiece—the cross-examination—is in itself child abuse. These sorts of conclusions are not unique to the Australian Institute of Criminology. In 1997, the Australian Law Reform Commission published a document headed Seen and Heard: Priority for Children in the Legal Process, and in chapter 14 entitled `Children's Evidence' it states: The legal system has traditionally given little support and preparation to child witnesses. Within the courtroom, children are often subject to harassing, intimidating, confusing and misleading questioning. . . A significant amount of evidence was presented to the inquiry that children are frequently traumatised by their court appearance due to these factors. With this in mind, I refer the Attorney-General to the booklet which he launched on 20 April this year entitled An Important Job: Going to Court. The booklet contains cartoons and a simplified account of what it is like to go to court as a child witness. In his foreword to the booklet, the Attorney-General acknowledges that being a child witness can be `a trauma' and the DPP in a separate comment states: The criminal justice system often appears insensitive or unresponsive to children's needs. But, in the body of the booklet this part of the truth seems to have been carefully screened from children, although it does hint at some discomfort. For instance, page 16 states: You may feel embarrassed about saying some things in court. Page 17 states: It is a hard job being a witness, you may feel upset, tired or confused. However, it does not suggest that one of the aims of the lawyers will be to try to make you feel upset, tired or confused—or something worse. The possibility of using a screen or closed circuit TV is discussed on pages 19 and 20 but only because `the judge will decide' if they are to be used. On page 17 we learn that you can ask the judge for a rest, a drink or to go to the toilet, but it is not suggested anywhere that you should or could ask the judge to shield you from the accused. My questions to the Attorney are:1. In relation to the booklet, does he believe that it is appropriate to dilute some of the real impact that could be part of the experience of giving evidence in court?
2. Does the Attorney think that being given a chance to read this booklet will end the devastation reported by both the Australian Institute of Criminology and the Australian Law Reform Commission?3. How does he believe child witnesses can and should be protected in court?
4. In the light of this position, would he reconsider the priority of the availability for closed-circuit television that it be taken as the norm, that is, the expected protection for the child, unless the child indicates that he or she does not want it?
The Hon. K.T. GRIFFIN: Let me deal with the booklet first. The booklet makes it clear that it is to be used by parents, guardians or a support person in conjunction with the child; that it is unwise for the child to be left to read it on his or her own self; and that it is part of a package of assistance to child witnesses in the criminal justice system. It is an aid. It is not the answer, it is an aid. The whole object of it is to give those who support children in the criminal justice process something they can work through with the child. It is important to recognise that it is only one of a number of things which are being done to try to assist children as witnesses in the criminal justice system.
The Director of Public Prosecutions has only relatively recently appointed a child witness assistance officer to complement the work of the witness assistance officer. My understanding is that between the two of them they support something like 500 witnesses in the criminal justice system, mostly those who are prosecution witnesses who are victims, and that that is an important aid to children, particularly as they go into the court process. The witness assistance officer generally takes a child through the court to familiarise the child with the courtroom—the layout and where everyone will sit—all of which is designed to give greater significance to the illustrations as well as the written word in the support booklet.
Then, during the course of any trial, there will be support, either from a support person with whom the child is familiar or the DPP witness assistance officer, all designed to make it as less traumatic as possible for a child to give evidence in a criminal prosecution. There are also the provisions in relation to vulnerable witnesses, of whom children form a part, and the provision for either one-way screens or closed-circuit television.
I am still of the view that, in relation to the use of screens or closed-circuit television, it is important that there be a discretion in the court as there is a discretion in the DPP, but the DPP, as far as I am aware, whenever a request has been made by a child for a screen or closed-circuit television, has always made the application. In many instances (I think it must be about 38 per cent), the applications have subsequently been withdrawn. They would only be withdrawn after consultation with the child and particularly the parent, guardian or support person. So, there is nothing which persuades me that my previous position in relation to closed-circuit television and one-way screens should be changed.
510 The Hon. Mr Gilfillan says that the booklet actually dilutes the prospect of trauma being experienced in the process of giving evidence. I do not agree with that if you look at the way in which the booklet is proposed to be used. It is important to recognise also that in South Australia I have not had one complaint from anybody about the sort of attitude reflected in the quotation given by the honourable member. It is not, so far as I am aware, the way in which lawyers operate in South Australia, that is, they do not operate on the basis that, if they have to destroy the child to destroy the evidence, they will destroy the child. To me, that is unacceptable. If you talk to judges, magistrates and defence counsel, you see that they will recognise and say quite positively that that is not the way they operate in this State. They do not operate in that way, because in a jury trial if you are pulling the child down you are more likely to create sympathy for the child than you are for the accused person.
The Hon. Ian Gilfillan: That's not what the President of the Law Society says. The Hon. K.T. GRIFFIN: I do not know what is the view of the President of the Law Society, but I can tell you that I have not had any complaints about the way in which defence counsel deal with children in the criminal justice system as witnesses and victims. In relation to the second question, `Will the reading of the booklet end the devastation?', as I have said, it is not the aim of the booklet to provide all the answers: it is an aid, and I think a very valuable aid when used by the witness assistance officer and by a parent, guardian or support person in conjunction with the child. I am not making any magical claims for the book. It is there; it will stand or fall on its merits, and I believe it will stand on its merits and not fall, because it is a valuable aid. Already from all those who work in this field there has been praise for the witness assistance officers for having prepared this booklet to make it available to children in the criminal justice system. I think that answers all the questions raised by the honourable member. All that I can do is suggest to him that merely relying on what might be a report that occurred about practice interstate is not sufficient when looking at the way in which the system operates in South Australia. I saw the article at the time and made some public comments about it. I do not believe that the observations in that article are in fact an accurate representation of what occurs in this State. However, putting that to one side I do not accept that that is an appropriate way to deal with child witnesses.