Page 57 - Week 01 - Tuesday, 16 February 1993
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that he or she is telling the truth. I think that there are people of perspicacity in those places who are trained and likely in many situations to pick up the likelihood of a child telling lies or giving a version of events which is untrue. Of course, at the end of the day, the child must appear in court and persuade the court.
Madam Speaker, nobody involved in any of those stages has been able to say to me, "We are sure that the process of investigation and interrogation that we go through results in our being able to say with complete certainty that a child is telling the truth or a child is lying".
Mr Connolly: But you cannot say that about any witness.
MR HUMPHRIES: Indeed you cannot. Given the question of doubt which hangs over each stage in this process - it might accumulate to very little, but given the question of doubt in these human and fallible processes - I ask whether we should be abandoning a rule of law which, with the other protections we have in place, has protected individuals. In a court, for example, a child's evidence is tested by defence counsel cross-examining that child as to the veracity of that child's evidence, but there are problems even in a court. In this Territory sexual assault cases are generally heard before juries. Juries consist of people who, like all of us, have their own prejudices and emotional starting points. If I were a juror sitting in a jury box and I saw a child in the witness box crying, sobbing and clearly emotionally distressed about what he or she was talking about, I would find it very hard to disbelieve him or her. That would be a fairly natural reaction. One tends to make assumptions about the way these things work.
What is also very difficult is for counsel representing a defendant or accused in a case of this kind to vigorously cross-examine that child, because that child has the sympathy of the jury, if not of the judge and other members of the court. That child has the sympathy of the jury, and I think it can be reasonably asked just how far a defence counsel can go in vigorously cross-examining that child in the same way as he would an adult in proceedings against another person. The rules of play are very different. I think, too, that the empathy a jury might feel for a sobbing child or a frightened child might override the doubts they may have about the inconsistencies in a child's story. One would tend to forgive a child for not giving a clear, accurate and sharp picture of what might have occurred. One would forgive that because it was a child.
There is the added dimension of videotaping of evidence and closed-circuit television evidence in use in courts in criminal proceedings involving children. Videotaping or closed-circuit television puts the child at some distance from the court. That child is giving evidence from another place and it is being relayed to the courtroom. It is in those situations harder, arguably, for a defendant to place pressure on a child to expose an inconsistent or concocted story than it might be if the child were actually sitting there in the court. It also removes the child from a setting in which he or she might be encouraged, by a fear of the consequences more than anything else, to tell the truth. There is no doubt about that. When you sit in a courtroom, even as an adult, surrounded by men in wigs, with a large crest hanging over you and panelling all around you, it is an imposing setting. You do feel compelled to be cautious, not to tell lies. That is part of the aura, part of the reason the courts have looked like that for hundreds of years.
Mr Berry: It has not worked a lot of times.
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