by Dina Yehia SC
Children give evidence in a wide range of cases. However, a
significant proportion of the cases involving child witnesses are cases
involving allegations of sexual assault. While this paper will deal with
the legislative provisions relating to child witnesses in a general
sense, it will focus on evidence in sexual assault cases.
The paper covers four areas relevant to the topic of
cross-examination of child witnesses/complainants. It has therefore been
divided into four sections:
ii. A discussion of the balance between
protecting the right of an accused to a fair trial, on the one hand, and
minimising the negative experiences of child witnesses, on the other.
iii. An analysis of the legislative provisions dealing with child witnesses.
iv. Practical suggestions for cross-examining children.
(i) IDENTIFYING SOME OF THE ARGUMENTS FOR LEGISLATIVE CHANGE IN RECENT YEARS
There can be little doubt that giving evidence in a criminal
trial can be a stressful and difficult experience. This is so for Crown
witnesses, Defence witnesses and accused persons. That this is
particularly so for children is irrefutable. Many child witnesses give
evidence as complainants in sexual assault cases. Often their account is
the only evidence or the primary evidence against an accused. Their
evidence is therefore subject to challenge and testing by way of
It is a daunting task for a defence lawyer representing an
accused in such a criminal trial. Often the allegations are extremely
serious. Significant standard non-parole periods apply on conviction.
Your client is protesting innocence. You are tasked with testing the
child’s account, undermining the reliability and credibility of that
account and thereby the child. The only real armoury available is that
Over the years there has been much criticism of the failure of
the criminal justice system to deal fairly and sensitively with sexual
assault complainants, particularly child complainants. Delays in cases
proceeding; intimidating cross-examination; and a lack of awareness of
children’s cognitive, linguistic and emotional development, have been
cited as reasons for legislative change. “Therapeutic Jurisprudence,
child complainants and the concept of a fair trial”, M.S King (2008) 32
Crim LJ 303 at 305. Furthermore, there is some evidence that the court
process causes children to be anxious and fearful. “NSW Health Education
Against Violence, Nothing but the Truth: Court room Preparation for
Adult and Child Witnesses in Sexual Assault Proceedings” (The Education
Centre Against Violence, 2002)
The Child Sexual Assault Specialist Jurisdiction was established
on a trial basis on 24 March 2003 in Sydney West District Court
Registry. The establishment of the Specialist Jurisdiction was the
principal recommendation of the Report on Child Sexual Assault
Prosecutions (NSW) Legislative Council Standing Committee on Law and
The aim of the Specialist Jurisdiction was to reduce delays; to
increase the skills of the legal professionals involved in such cases;
and to improve the court environment to assist children. Some of the
The use of CCTV.
Education of the professionals involved, eg the use of judicial education packages.
Case management to avoid delays.
An evaluation of the Specialist Jurisdiction was conducted by
the Bureau of Crime Statistics and Research (BOCSAR) in 2005. The
findings can be summarised as follows: “An Evaluation of the NSW Child
Sexual Assault Specialist Jurisdiction Pilot” Judy Cashmore and Lily
Trimboli, NSW Bureau of Crime Statistics and Research, 2005
Delays continued to exist due to last minute editing of the tapes after legal argument.
The evaluation process did not produce any clear
findings as to the effect, if any, of the judicial education packages.
While there was introduction of case management
measures, overall this was limited. Amongst the difficulties identified
was the late appointments of Crown prosecutors to a case; problems with
technology; and the insistence of some judicial officers that child
complainants/witnesses be at court long before they were required to
Although the Pilot came to an end, a number of legislative
amendments have come into force over the last decade in response to the
concerns raised on behalf of sexual assault complainants including child
(ii) GETTING THE BALANCE RIGHT BETWEEN PROTECTING THE
RIGHT OF AN ACCUSED ON THE ONE HAND, AND MINIMISING NEGATIVE EXPERIENCES
OF CHILD WITNESSES ON THE OTHER
There is little doubt that some of the concerns raised in
relation to the negative experiences of sexual assault complainants are
valid. As one of my former colleagues once wrote:
However, it was also noted:
There is a concern that in some of the literature advocating
legislative change the presumption of innocence is afforded little
weight. This is particularly so when the argument is put forward that
legislative intervention is warranted as one of the ways to increase the
likelihood that “child abusers will be successfully prosecuted”.
“Particularisation of Child Abuse Offences: Common Problems With
Questioning Child Witnesses”, Martine Powell, Kim Roberts, Belinda
Guadagno Current Issues In Criminal Justice July 2006 Volume 19 No 1 p
64 at p 65
Advocates of legislative intervention cite the low rates of
conviction in sexual assault cases as reason for further “reform”. It is
argued that the conviction rate in sexual assault cases is lower in
Australia in comparison with other offences. “Child Complainants and the
Court Process in Australia”, Kelly Richards, Australian Institute of
Criminology, No 380 July 2009 citing a study by J Fitzgerald “The
Attrition of Sexual Assault Offences from the NSW Criminal Justice
System”, BOCSAR, No 92 January 2006
For example, in an article published by the Bureau of Crime Statistics and Research in 2006, the author wrote:
While this figure, at first blush, appears to indicate an
extremely low conviction rate in sexual assault cases, it is in fact a
figure based on the total of reported incidents. That is, all cases
reported to police. However, not all cases reported to the Police come
before the courts. Fifteen per cent of cases involving a child
complainant and nineteen per cent of cases involving an adult
complainant result in the initiation of criminal proceedings. Ibid
An analysis of conviction rates based on the percentage of all
reported sexual assault incidents, as opposed to all cases where
proceedings are instituted, is somewhat misleading in the context of an
argument that the court system is to blame.
While every effort must be made at the investigation stage by
the comprehensive gathering of evidence and support of complainants to
improve the response of investigate authorities to allegations of sexual
assault, we must be careful not to use language that assumes that just
because someone is charged, they are guilty. Furthermore, there must be
diligent regard for the right of a person, assumed innocent, to a fair
A number of changes to the law have taken place over the past
decade in response to the call for improving conditions for sexual
assault complainants in the criminal justice system and increasing the
likelihood of convictions. The following is not an exhaustive list:
The child witness can give further evidence in chief and be cross-examined by way of CCTV: s.306W CPA.
Very strict limitations on the defence having access to a
complainant’s counselling records which may reveal inconsistent
versions or a psychiatric disorder: s.298 CPA.
Very strict limitations on adducing evidence of prior sexual experience: s.293 CPA.
A re-trial can proceed by way of tender of the “original
evidence” given by the complainant at the first trial. A complainant is
not compellable to give further evidence: s.306B and s.306C CPA.
The Longman direction has been effectively denied an accused: s165B
The admission of tendency/coincidence evidence: ss 97 &98
Some or all of these changes may be warranted. Minds will differ
as to whether we have struck the right balance or whether we have gone
so far in one direction as to seriously undermine the right of an
accused to a fair trial. The point is that we must always be mindful
that in sexual assault cases, like any other case, an accused is
presumed innocent. Witnesses and complainants do lie on occasion.
Witnesses and complainants may not always be telling the whole truth.
For example, in R v GB (1998) 148 FLR 222, the
complainant, after the trial had concluded, wrote to the accused
admitting that the allegations had been untrue and apologising for the
harm that they caused. At the trial, it was contended that the
complainant had made false accusations due to resentment at the break
down of a relationship between his mother and the accused. His mother
had previously accused her own father of being a serial rapist but the
falsity of those allegations was conclusively established by DNA
In R v KW A NSW case where the complainant
was dealt with in the Children’s Court. The matter was raised in the NSW
Parliament, Parliamentary debates, Legislative Assembly, 16 November
1994, 5167 (Peter Anderson), a thirteen year old girl made allegations
against Mr W. He was charged. After a number of charges were dismissed at committal, she made further allegations. This time Mr W
had an alibi. He was not charged. Further allegations were made. He
again had an alibi. The girl was charged and convicted of public
In R v G (unreported) District Court of NSW, Judge Hosking April 28 2004, Ms G
was sentenced after pleading guilty to perjury. She had made what she
later admitted was a false complaint that the father of her child had
raped her. She gave that evidence at his trial. He was convicted and
sentenced to a term of imprisonment of eight years. He served one year
and 15 days of the sentence before she admitted that she had lied. She
(iii) ANALYSIS OF LEGISLATIVE PROVISIONS DEALING WITH CHILD WITNESSES
The provisions that deal with the giving of evidence in sexual
assault cases and those relating specifically to children can be found,
for the most part, in the Criminal Procedure Act 1986
(CPA). These provisions apply to proceedings held in the Local Court as
well as the higher courts. Annexure “A” to this paper contains a Table
setting out the “personal assault offences” under s.306M CPA and
identifies those offences that can be dealt with in the Local Court.
Part 5 Division 1 of the CPA deals with evidence in sexual assault proceedings:
PROVISIONS DEALING SPECIFICALLY WITH CHILD WITNESSES
Part 6, Division 1, deals with the giving of evidence by vulnerable persons:
Part 6 applies in relation to evidence given by a child
who is under the age of sixteen years at the time the evidence is given:
A child may give evidence-in-chief by way of the previous representation made in a recorded interview: s.306S.
Evidence in the form of a recording is not required to
be served on a party to any proceedings: s.306S(2). It should be noted
that s.185 of the CPA states that if the prosecutor intends to call a
child, the brief of evidence may include a transcript of the interview.
The prosecutor is not required to serve a copy of the actual recording:
In DPP v SW NSWSC, Adams J 1. June
2009 the magistrate had ordered the DPP to produce a copy of the tape to
the defence so they could check the translation. The decision was
appealed. Adams J ruled that s.185 did not prevent a court from making
such an order.
A child must not be present in court, or be visible or
audible to the court by way of CCTV while the court is viewing the
recording, unless the child otherwise chooses: s.306U(1).
The hearsay rule and the opinion rule do not prevent the
admission and use of the evidence by way of the pre recorded interview:
Whilst there is no requirement to serve a copy of the
tape on the defence, such evidence is not to be admitted unless it is
The changes to the way in which children’s evidence is received
is based on a number of policy considerations put forward by the ALRC:
ALRC Report No 84, p 332
Preliminary Practical Considerations For The Cross-Examiner:
Before you get to the point of cross-examination there are a number of important
(i) Objecting To The Interview On The Ground of Reliability:
The quality and reliability of the contents of a pre-recorded
interview with a child depends upon the skill of the interviewer.
Leading or unfair questions may elicit unreliable answers. When viewing a
pre-recorded interview consider whether the manner in which the
questions are put to the child unfairly impact upon the position of the
accused. The court does have the power to exclude the whole or any part
of the contents. The tapes can and often are edited accordingly.
(ii) Unfair Prejudice To The Accused:
Pre-recorded interviews are conducted when the complaint is made
to Police. Often, the child is not cross-examined at trial until
months, or even years later. Such delay may constitute a significant
unfairness to an accused. The jury will view a recording containing an
account given at a point of time proximate to the alleged offence. By
the time the trial takes place and the child is cross-examined the child
might have little or no recollection of the events in question. How
then can there be effective cross-examination?
(iii) Transcripts and Tapes Not Exhibits
Section 306Z allows for the provision to the jury of a
transcript of the pre-recorded interview. The New South Wales Supreme
Court had occasion to consider the status of the tapes and transcript of
the tapes in a trial. In Regina v NZ  NSWCCA the accused and co-accused, both juveniles, were charged with offences under s61J of the Crimes Act. The complainant was also a juvenile.
During the trial the evidence in chief of the complainant and
several other child witnesses was given substantially by way of
pre-recorded interviews. Transcripts of the interviews were given to the
jury and remained with them. Further evidence in chief and
cross-examination was conducted by way of CCTV.
The jury found the accused guilty of the s 61J count and the co-accused guilty of an alternative count under s 66C.
Two of the four grounds of appeal concerned the use of the video taped interviews:
There was no objection taken at the trial to the use of the procedure (then under the Evidence (Children) Act
1997). There was no objection to the tender of the videotapes as
exhibits. There was no objection to the provision of the transcripts to
the jury; and, no objection to the videotapes being available with the
rest of the exhibits in the jury room.
The appeal was dismissed in proviso but general principles were established:
In the case of Gately (2007) 232 CLR 208 (an appeal from
Qld CA) per Hayne J (Gleeson CJ, Heydon and Crennan JJ agreeing), the
Court considered the question of whether a jury is entitled to
unsupervised access to the recording. The Court held that the recording
itself does not become evidence and should not therefore be tendered as
 Replaying the evidence given by one
witness, after all the evidence has been given, carries risks. First,
there is a risk inherent in the form in which it is presented. As was
said in Butera, there is the risk that undue
weight will be given to the evidence of which there is a verbatim
record when it must be compared with evidence that has been given
orally. Secondly, there is the risk that undue weight will be given to
evidence that has been repeated and repeated recently. Other risks may
arise from the circumstances of the particular trial.
 The purpose of reading or replaying for a
jury considering its verdict some part of the evidence that has been
given at the trial is only to remind the jury of what was said. The jury
is required to consider the whole of the evidence. Of course the jury
as a whole, or individual jurors, may attach determinative significance
to only some of the evidence that has been given. And if that is the
case, the jury, or those jurors, will focus upon that evidence in their
deliberations. While a jury’s request to be reminded of evidence that
has been given in the trial should very seldom be refused, the
overriding consideration is fairness of the trial. If a jury asks to be
reminded of the evidence of an affected child that was pre-recorded
under subdiv 3 of Div 4A of the Evidence Act and played to the jury as
the evidence of that child, the request should ordinarily be met by
replaying the evidence in court in the presence of the trial judge,
counsel, and the accused. Depending upon the particular circumstances of
the case, it may be necessary to warn the jury of the need to consider
the replayed evidence in the light of countervailing evidence or
considerations relied upon by the accused.
Seldom, if ever, will it be appropriate to allow the jury unsupervised access to the record of that evidence”.
(iv) PRACTICAL SUGGESTIONS FOR CROSS-EXAMINING CHILDREN
In these circumstances a cross-examiner must proceed
very carefully. An appropriate starting point is to be aware of the
provision in section 41 of the Evidence Act relating to improper questioning:
 Improper questions [Cth and NSW Acts only]
(1) The court must disallow a question put to a
witness in cross examination, or inform the witness that it need not be
answered, if the court is of the opinion that the question (referred to
as a disallowable question):
(ii) in a criminal proceeding - the nature of the offence to which the proceeding relates, and
(iii) the relationship (if any) between the witness and any other party to the proceeding.
In Libke v The Queen  HCA 30, Heydon J
discussed a number of common law rules relating to cross-examination:
See reference in Uniform Evidence Law, Stephen Odgers, Eighth edition,
Lawbook Company 2009 at p 135
The Institute of Judicial Administration has set out several
examples of language that should be avoided in questioning children:
Section 293 Criminal Procedure Act (formerly s 409B and s 105)
Section 293 CPA and its predecessors prevent cross-examination
of a complainant about sexual experience with some limited exceptions.
Cross-examination and evidence to show that the complainant was a
“fantasiser” in relation to sexual matters and had made false complaints
of sexual assault previously in order to indicate that her account was
unreliable, was held to infringe the section and was not permissible as
it did not come within any of the specified exemptions: M v R (1993) 67 A Crim R 549; R v Bernthaler NSWCCA unreported 17 December 1993.
[2-s 293] Admissibility of evidence relating to sexual experience
293 (1) This section applies to proceedings in respect of a
prescribed sexual offence. [subs (1) subst Act 25 of 205 s 3 and Sch 1,
opn 12 Aug 2005]
(2) Evidence relating to the sexual reputation of the complainant is inadmissible.
(3) Evidence that discloses or implies:
(b) has or may have taken part or not taken part in any sexual activity, is inadmissible.
(4) Subsection (3) does not apply:
(ii) is of events that are alleged to form
part of a connected set of circumstances in which the alleged prescribed
sexual offence was committed,
(ii) the evidence is relevant to whether the
presence of semen, pregnancy, disease or injury is attributable to the
sexual intercourse alleged to have been had by the accused person,
(ii) whether at any relevant time there was
absent in the complainant a disease that, at the time of the commission
of the alleged prescribed sexual offence, was present in the accused
(f) if the evidence has been given by the complainant
in cross-examination by or on behalf of the accused person, being
evidence given in answer to a question that may, pursuant to subsection
(6), be asked, and if the probative value of the evidence outweighs any
distress, humiliation or embarrassment that the complainant might suffer
as a result of its admission.
(5) A witness must not be asked:
(b) by or on behalf of the accused person, to give
evidence that is or may be admissible under subsection (4) unless the
court has previously decided that the evidence would, if given, be
(6) If the court is satisfied:
(ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and
(7) On the trial of a person, any question as to the
admissibility of evidence under subsection (2) or (3) or the right to
cross-examine under subsection (6) is to be decided by the court in the
absence of the jury.
(8) If the court decides that evidence is admissible under
subsection (4), the court must, before the evidence is given, record or
cause to be recorded in writing the nature and scope of the evidence
that is so admissible and the reasons for that decision.
Clark (2008) 185 A Crim R 1 at  ff
Appellant was convicted of sexual offences against a youth -
defence was that the complainant engaged in homosexual activity with a
second youth at the appellant’s house then made allegations against the
accused to cover the activity - application to ask questions under
s.293(4)(a) refused - not temporal enough - activity involved different
person - not allowed to question complainant further once activity
Rolfe (2007) 173 A Crim R 168 at  ff’
Appellant convicted of sexual offences against step-daughter -
complainant made comment to brother that “daddy will rape you” -
referred to biological father as “daddy” and appellant as “Mark” -
subsequent questioning by mother led to complaint - although initial
comment probably not caught under s.293 no error in defence counsel
deciding evidence inadmissible and deciding not to seek admission - any
suggestion that complainant fantasising about sexual assault by father
or appellant inadmissible under s.293.
Mosegaard  NSW CCA 361 at  ff
Appellant charged with sexual offences against female
acquaintance - sought to lead evidence of complainant’s experience as an
exotic dancer and consensual sexual intercourse with boyfriend several
hours prior to alleged offences - sought to explain injuries to
complainant and reason for unusual (rough) nature of sexual activity.
Rahme  NSW CCA 233
Charged with sexual offences against 15y girl - sought to have
evidence admitted under s.293(6) - sought to lead evidence that
complainant involved in prostitution prior to and at time of offences.
Lengthy consideration of the section with different judgments.
Villar, Zugecic NSW CCA 3302
Appellant’s sought to lead evidence the complainant had worked
as a prostitute and had asked if she was to be paid for the intercourse -
appellants argued matter went to question of belief in consent not
“...the argument was...the complainant had
been prepared to consent to intercourse with twenty men...led him to
believe that she was consenting to intercourse with him...”
 Consensual intercourse with twenty men and prostitution convey comparable matters of repute. Hunt J went on to observe:
“That, however, is the very sort of evidence
that s.409B was designed to exclude...the evidence...would appear to
have been inadmissible on an issue of belief in consent even prior to
the introduction of s.409B...Gregory 1983 151 CLR 566”.
 Any former admissibility on the issue of credit is plainly the subject now of statutory bar.
 The first proposition argued on behalf
of Zugecic is that the remark “Am I going to get paid for this?” is not
evidence of sexual reputation but evidence upon the issue of whether RB
did in fact consent to the sexual acts which took place.
 The remark, if made, suggests that RB
was a person who would provide sexual services for payment. Such a
person is a reputed prostitute. The remark relates to sexual reputation
and is therefore inadmissible.
Munn, Miller  NSW CCA 61
Appellant’s charged with sexual assault on 7y neighbour - sought
to lead evidence of prior sexual experience on basis that jury would
consider complainant’s evidence outside normal experience of 7y child -
questioning of complainant’s prior sexual experience restricted - Crown
unfairly referred to complainant’s account as being outside experience
of 7y child - unfair to defence - appeal allowed.
Dina Yehia SC
Carl Shannon Chambers
22 February 2010