Page 58 - Week 01 - Tuesday, 16 February 1993
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MR HUMPHRIES: It does not work a lot of times; that is quite true. Indeed it does not, but I suspect that, if our courts looked more like somebody's living room and judges, magistrates and counsel looked like people who had just wandered in off the street or like your Uncle Ben, you probably would not get the same kind of results either.
I want to make it very clear that I am not against the use of closed-circuit television in criminal cases involving children. I supported that amendment when it was brought up last December and I stand by that. But we must recognise that there are pitfalls and that it does present some difficulties. If the Government had discussed some of these proposals with members of the legal profession in the ACT who deal with them on a day-to-day basis, not just as defence counsel but also as practitioners involved in prosecutions, they would see the dangers that are shown up by these changes. (Extension of time granted)
The problem gets worse the younger a child is. I think it is fair to say that, the younger a child is, the more the risk that the child will believe what it is saying, even if it is not true, because it has been involved in the emotional feelings of, say, a mother who has been anxious for that child to be involved in a particular way in that proceeding. It is also hard to cross-examine that child, and it is easier for a jury to empathise with that child and forgive inconsistencies in that child's evidence.
To answer Mr Lamont's question, we are not opposed to the principle put forward in this Bill. We recognise that, as a legislature, we must make a stronger effort to encourage complainants to believe that the system will deliver them justice and to have faith in the system. I have to say that there is not a lot of faith in the system presently, in some quarters at least. I believe that it would be appropriate to consider an amendment to the proposal to relax the rule about the uncorroborated unsworn evidence of a child in court as it relates to children between the ages of seven and 13 but to retain the rule as it relates to children under the age of seven. I give notice at the detail stage that I will be moving an amendment to the Bill that will do just that.
It is a matter that I believe we need to monitor. It is a matter that needs to be kept under very close scrutiny. The reason the age of seven has been chosen is more an historical one. I do not pretend that there is any empirically sound reason why it should be seven, except that, historically, the law has drawn a line at the age of seven. Between the ages of seven and 14, approximately, there has been a rebuttable assumption that a child cannot commit an offence, and it has been up to the prosecution, where they proceed against a child in that age group, to show the court that the child did have the understanding of what it was doing to constitute mens rea - to constitute the necessary mental capacity to commit the crime.
Below the age of seven, the law says, even today, that a child cannot commit a criminal offence. It does not have the mental capacity to understand what it is doing in committing an offence. I understand that the law in the ACT was amended by the Children's Services Act a few years ago to raise that age to eight, so that any child of seven or below is assumed by the law not to have the mental capacity to commit an offence. I think it is reasonable to ask the question:
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