I have been asked to speak to you today on the following topics:
• The role of the Judge in criminal matters.
• The procedure for matters involving child witnesses.
• The judicial responsibility to ensure the court operates fairly and according to law.
• The importance of PACT volunteers to act impartially and the dangers of witness coaching.
The role of the Judge in criminal matters
• The usual criminal trial in Queensland is constituted by a judge, a jury of 12, the prosecution and defence.
• The criminal trial system in Queensland, and throughout Australia, is an adversarial one. This means that the prosecution presents its case against the defendant on behalf of the state. The judge has no involvement with the decision to prosecute offenders and is independent of both of the parties. • In a criminal trial, there are two separate decision makers. The jury, who
decide questions of fact, and the Judge, who decides questions of law.
• The role of the trial Judge during the trial is to ensure the trial is fair to both parties.
• In particular the trial Judge is to preside, to direct the trial procedure, to rule on any arguments as to the admissibility of evidence, to resolve any other legal issues that arise in the course of the trial, and to sum-up to the jury at the conclusion of the trial, giving them such instructions on the law as is necessary to enable them to deliver a verdict according to the applicable law.2 • The role of the jury is to listen to the evidence, to decide the issues of fact
relevant to the outcome and to deliver a verdict in accordance with their view
1 I acknowledge the assistance of my associate Mr Nathan Boyd in the preparation of this paper. 2 “The Role of a Judge in a criminal trial” M. Gleeson CJ, Law Asia Conference Hong Kong 6 June 2007
of the facts and in accordance with the directions they have received from the Judge.3
• Throughout a trial, issues concerning trial procedure or the admissibility of evidence will invariably arise. In such circumstances the trial judge is called upon to determine and apply the relevant law. This will occur during the trial and may or may not occur in front of the jury depending on the nature of the issue. Often the jury will be removed from the court room during these arguments so that they are not exposed to inadmissible evidence, as this may prejudice the fairness of the trial.
• At the end of the evidence and the parties’ addresses, the trial judge will sum up the trial. This involves summarising the evidence and the competing arguments of both counsel. In doing so, it is important that the trial judge remains impartial and does not express his or her own views of the case to the jury. Further, the trial judge will explain to the jury the law that applies to the current case. The trial judge shall provide the jury with instructions of the relevant law and how to correctly apply it to the facts that arise, so that they are able to arrive at a verdict that is correct at law. The directions that the Judge gives a jury about the law must be precise and accurate, as any error by the judge could lead to a successful appeal.
• Another aspect of the judicial function is to ensure the proper conduct of those persons in court; that is the counsel for the parties and the witnesses that are to give evidence. The Judge is charged with the responsibility of presiding, as such, they have the power to compel those appearing in court to behave in the proper fashion.
• While the jury is deliberating, they will often have questions regarding the law or certain parts of evidence. The Judge must deal with these questions as they arise and give further legal directions where required. These directions are often made after consultation with counsel to confirm that no prejudice will arise.
• It is essential that a trial is run according to law so that the parties (including the defendant) receive a fair trial, that a mistrial does not occur or that a decision is overturned on appeal.
Procedures for matters involving child witnesses.
• In Queensland, it is no longer the practice for children to give evidence in a trial setting.
• The court room and trial environment is, by its nature, adversarial and intimidating. Exposure to cross examination in such a large public forum can be a confronting and sometimes traumatic experience.
• In recognition of the inherent emotional fragility of children, the legislature implemented measures to help minimise some of the negative effects for children giving evidence in a criminal trial.
• There are 2 legislative sources relevant. Firstly s21A(1)(a) of the Evidence Act 1977 (Q) classifies a person under the age of 16 years as a special witness. This relates to any proceeding. Secondly division 4A of the Evidence Act 1977 Qld, sets out the rules and procedure governing the taking of an “affected child” witness’s evidence. An “affected child” is a child giving evidence in a matter involving an offence of a sexual nature or an offence of violence where there is a prescribed relationship between the defendant and the child4.
• With respect to affected children the legislation acknowledges that criminal proceedings can take some time and that those who were under 16 at the time of offending may be over that age at the time of trial. To combat this, the legislation provides that if a person is under 16 at the time either the defendant is arrested, a complaint is made under the Justices Act, or the defendant is served with a notice to appear, they will still be a ‘child’ for the purposes of the Evidence Act, provided they are under 185. The practical effect of this for PACT workers, is that there will be occasions where you will be working with people who are over the age of 16.
• The Evidence Act sets out the procedures the court implements when a child is to give evidence:
o The court is closed;
This means that all persons that are not essential to the running of the hearing are excluded from the court. Ordinarily only the
4 See section 21AC of the Evidence Act 5 See section 21AD of the Evidence Act
Judge, Associate, prosecution, defence counsel, the defendant, the bailiff and a court orderly will remain in the court room.
o That an approved person, e.g. a PACT volunteer, can be present to provide “emotional support” for the witness;
o The evidence is given remotely;
This involves the child being set up in a separate room either at the court house, or at another location, with a video link to the court room. The proceeding is then conducted by video link. o The evidence is pre-recorded then played at trial.
o The witness be allowed ample rest breaks.
• The result of these measures is that the child is giving evidence to a small group of essential people over a video link, with someone available to provide emotional support.
• The child gives evidence in a room and is only confronted with a screen in front of them and they have the support of someone beside them. This setting has been shown to be less intimidating and threatening than a court room environment. The positive effect of this is that it allows and encourages children to give more coherent and reliable evidence as many of the immediate pressures of the court are removed.
• This procedure also maintains the defendant’s right to have their counsel pursue their client’s interests through the cross examination of prosecution witnesses. However, counsel will and should adopt their questioning techniques to suit the age and maturity of the child. The presiding judge will be cognisant of this and will ordinarily prevent counsel from embarking on inappropriate questioning. “Fishing expeditions” are prohibited.6
• Due to the nature of the criminal conduct that children are often giving evidence in relation to, child witnesses will often become distressed and upset. The court will accommodate for this by allowing them to take breaks as required during the giving of their evidence. The role of the PACT worker is important during this time to provide emotional support, but not to discuss any matters related to the case.
• There are several benefits that arise from having the child witness’s evidence recorded prior to the trial
o The evidence can be taken once the indictment has been presented, rather than having to wait until the trial occurs. As a criminal trial can sometimes take years to get to court, having the evidence recorded prevents the child from have the prospect of giving potentially distressing evidence hanging over their heads for an extended period of time.
o As there is a shorter time between offending and the giving of evidence, information is not lost to people’s memory over time and should result in more reliable evidence.
o Once the evidence is recorded, it can be used as many times as necessary in the event of retrials. The child will not be required to give evidence again as would be the case with an adult witness.
Role of PACT worker and importance of remaining impartial and dangers of witness coaching.
• As the court sees it your role is to provide emotional support for the witness as well as familiarising them with the court and the evidence taking process. • The process will be foreign and probably distressing for many children who
come to give evidence at court. As a support person you are able to help ease these pressures, however, it is essential that this support never enters into the domain of the evidence that the child will be giving to the court.
• Situations will arise where witnesses may ask questions of you that relate directly to their evidence or the conduct of the proceeding. At no stage should a PACT volunteer discuss or provide any advice about a child’s evidence, as it could have highly prejudicial effects upon the proceedings. Children can be easily influenced, and even seemingly innocuous remarks said in an attempt to calm or placate a child could have unintended impacts on the evidence that they provide to the court. Such conduct may be seen as witness coaching. • Witness coaching, whether deliberate or accidental, is inherently unjust and
own honest account of the events in question. This requires that it be free of any outside influence or duress. Children may be particularly vulnerable to such influences.
• Tainted evidence can have many detrimental effects.
o Evidence that is not the true honest account from the witness will mislead the court which can lead to an unjust verdict, whether that is an innocent defendant being found guilty or a guilty defendant being acquitted.
o It can delay the trial process if this is later discovered and the evidence needs to be taken again. Depending at what point this occurs it could result in a mistrial or a retrial after an appeal. This is not fair on any of the parties involved as it delays justice and consumes a lot of resources.
• Bear in mind that if the child plays with anything on the desk this will be picked up by the court microphones and will interfere with hearing the evidence. You should explain this to the child before they give evidence.
• Also if there is a technical problem make sure you raise that with the judge. • Obviously if the child turns to you when they cannot understand something or
cannot answer a question it is not for you to advise them. The Judge would ask the child whether they want the question repeated or rephrased.
Conclusion
I thankyou for the opportunity of speaking to you today on the role of PACT workers as the court sees it. I consider the role of the PACT worker is a crucial one and indeed it would be very difficult for our system to work properly without PACT support.
I hope that you have gained a better understanding of the court’s processes particularly insofar as it relates to child witnesses.
