Page 56 - Week 01 - Tuesday, 16 February 1993
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That rule was so inflexible and so strong a part of the English common law that, in fact, at one time it was impossible for a defendant to give evidence in his own proceedings where a criminal charge was brought against him, because it was assumed by the law that that person would be inclined to tell lies because of the position they were in and thereby condemn their mortal soul to damnation; and that, rather than the defendant doing that, it would be better for the person to be convicted of the offence and spend some time in gaol or maybe go to the gallows, in which case they would go to heaven because they had not perjured themselves.
Madam Speaker, this is the very great weight which we have attached to this question of perjury and of giving evidence on oath. Of course, we now provide the opportunity of making an affirmation so that a person who does not necessarily believe in eternal damnation can still have his or her evidence received in court. There are other protections. Of course, witnesses can be cross-examined in all proceedings. Their evidence will be put in the court, and then the person acting for a defendant will cross-examine that person and will attempt to discredit that person if that person's evidence works against the interests of counsel's client.
We need to ask ourselves whether those protections carry over to a situation where children are giving evidence. Madam Speaker, I do not have any children - - -
Mr De Domenico: Not yet.
MR HUMPHRIES: Not yet. But I have taken the opportunity over the last two months of talking to many people in the community who do have children or who deal with children in crisis either before they come to court or in court. Having heard those people, Madam Speaker, I am convinced that it is possible for young people, for children, to lie in a court and to do so for a range of reasons.
I suspect that particularly younger children do not often lie for the vindictive or self-serving reasons why adults will lie in court but do so because they are genuinely mistaken, because they have been primed perhaps by an emotionally involved parent to present a certain version of events or because they want to please a parent by supporting a particular version of events. One only has to talk to a number of people involved in these sorts of proceedings in courts to realise that these things do happen. They do occur. It is a sad reflection but they do.
Children can be led into asserting lies as truth. Moreover, they can actually come to the stage of believing that what they present is the truth, even if it is not. Dr John Masters, a New South Wales psychologist or medical practitioner, has argued that children below a certain age can be made to believe that anything that a parent, a teacher or an adult they trust tells them is the truth. Perhaps those in this chamber who have been parents can consider that proposition. If I told my five-year-old child that tomorrow was Sunday when tomorrow was in fact only Wednesday, would he believe it?
Madam Speaker, a number of safeguards exist. A child who appears in a court in proceedings against an alleged sexual offender has to persuade an officer in the Australian Federal Police sexual assault unit that he or she is telling the truth, persuade a person in the child risk assessment unit that he or she is telling the truth and persuade an officer in the office of the Director of Public Prosecutions
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