The West Australian Experience A Judicial Perspective

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1 Australian Institute of Judicial Administration Child Witnesses Best Practice for Courts Seminar 30 July 2004, Parramatta The West Australian Experience A Judicial Perspective Her Honour Judge Mary Ann Yeats District Court of Western Australia

2 Western Australia has led the way among Australian jurisdictions in reforming its laws and changing its procedures in an effort to ensure that the evidence of children is seen and heard in our courts without children being further damaged in the court process. The original research was done by Western Australia's Child Sexual Abuse Task Force that reported in The Law Reform Commission of Western Australia reported in 1991 in "Evidence of Children and Other Vulnerable Witnesses". Our laws were reformed in 1992 and in 1995, over 10 years ago. Most of the reforms have been grasped with enthusiasm and have become part of our legal culture in Western Australia. There was an initial reluctance and concern about the reforms in particular a concern by judges and counsel involved in trials to ensure that we were not in any way interfering with the proper balance in a criminal trial. Judges were particularly concerned that an accused's right to a fair trial according to law was not diminished by the reforms. What seems to have happened is that during the last 10 years of experience in Western Australia with the use of CCTV there has been a change of culture within the legal profession led initially by members of the judiciary and now encompassing all elements of the legal profession involved in the criminal trials. The benefits of the reforms for child witnesses in Western Australia, as documented in the Eastwood Patton report, have proved to be substantial. When the changes are analyzed from a judicial perspective there seems to be no diminishment of an accused right to a fair trial according to law. Judge H H Jackson of my court now chairs the Reference Group that continues to oversee the work of the CWS and to update guidelines from time to time relied upon by the judges. I share Judge Jackson's views about the changes and I believe that the majority (although not all) of the judges of my court share this view. The system which has developed has required legislative change, government funding and judicial and professional attention, but it has produced significant results as Eastwood and Patton's report confirmed. there is no basis for the suggestion that the legislative, administrative and judicial steps taken in Western Australia have impacted adversely on the 1.

3 rights of an accused to a fair trial. They have, however, reduced the unfairness to children and other vulnerable witnesses. The two are not in competition. 1 What surprises us from our experience in Western Australia is how little has been done elsewhere in Australia. Queensland very recently initiated its reforms, Victoria is still at the stage of considering Law Reform Commission recommendations on these matters while New South Wales is running a pilot program. We do not in any way wish to detract from these efforts but what, we wonder, is being piloted? What, we wonder, needs to be further proved? Does there remain any reasonable doubt that without reform the process of giving evidence in sex cases seriously damages child complainants? Does there remain any reasonable doubt that the reforms can eliminate the worst of that damage to children without compromising in any way the protections an accused person enjoys under our criminal justice systems? In Western Australia we see the reforms in use every day in our courts without any problems. We see children prepared to give their evidence and giving evidence by CCTV from remote rooms where they are protected and looked after and never run the risk of confrontation with the accused, his relatives or friends. We see excellent technology in use so that when we sit with juries we are able to see and hear the child's evidence much more clearly and vividly than ever before happened when children gave evidence in our courtrooms without any amplification of their voices. We see thorough, probing cross-examination by defence counsel using CCTV. Once counsel became familiar with the equipment it does not seem to cause problems for them. We are heartened to learn that our reforms have had some positive outcomes for children in Western Australia. Dr Christine Eastwood and Professor Wendy Patton in their 2002 study "The Experiences of Child Complainants of Sexual Abuse in the Criminal Justice System" documented the better experiences of children giving evidence in Western Australian courts. I do not think we have reached a stage where the giving of evidence by children does not cause any damage to the child. Reliving the experience of sexual abuse must inevitably lead to some further damage. But our reforms have 1 Jackson, Hal: "Child Witnesses in the Western Australian Criminal Courts" (2003) 27 Crim LJ 199 at

4 substantially improved the position of child witnesses. We remain open to further developments. How did this happen? The Judicial role Judges sit in a unique constitutional position within the framework of government. 2 We are continually conscious of the need to rigorously uphold the tradition of judicial independence, the cornerstone of which is to guarantee our impartiality and fairness. We have each taken an oath or affirmation to "do right to all manner of people without fear or favour, affection or ill will." 3 When we sit with a jury in a criminal trial our overriding duty is to ensure that the accused person has a fair trial according to law. 4 That duty makes us hesitate to change long established traditions in our courts. The adversarial approach to justice followed in common law courts throughout the world has always required that an accuser should face the accused in open court and make the accusation on oath. And, that the accuser should be cross-examined. The research available to us now for some 20 years has shown that our rigorous adversarial procedure damages child complainants in sexual abuse cases. It also shows that young children are unable to withstand vigorous adult style cross-examination. Under such cross-examination children's evidence can become unreliable and the child can suffer further injury. The demonstrated damage suffered by children and the loss of reliable evidence from children has come to be seen as unfair. When these things occur it is difficult to be able to say that the trial itself has been a fair trial. On the contrary many, including judges, would say that such trials are 2 A recent collection of material on the topic of judicial independence was prepared by Julie Debeljak for the Judicial Conference of Australia meeting at Uluru in April Those materials are on the JCA website Another valuable collection of works on judicial independence was published by the Judicial Commission of New South Wales, Fragile Bastion: Judicial Independence in the 90's and Beyond, Editor Helen Cunningham (1997). 3 Section 11(2) The Schedule District Court Western Australia Act Wilde v R (1988) 164 CLR 365 at ; R v Glennon (1992) 173 CLR 592 at 623; Dietrich v R (1992) 177 CLR 292 at

5 unfair to the child complainant. The issue judges face is whether that unfairness to child witnesses can be tempered or avoided without unfairness to the accused person. What is the appropriate judicial response? In Western Australia more than 10 years ago our Parliament decided that changes were needed to avoid harming children who appear as complainants in cases of sexual abuse and to facilitate the taking of reliable evidence from such children. The judicial response, though varied, has been positive. Our judges have worked to change the legal culture in such cases in compliance with our new laws, but, always consistently with the judicial oath of office and with our overriding duty to ensure that accused persons have a fair trial according to law. The remainder of this paper is a discussion of aspects of the reforms, how they work in practice, and how they go some way to ensuring that the trial involving child complainants in sexual abuse cases is fair to all involved. The essentials of the reforms The essential reforms in Western Australia include: 1. Judicial leadership in developing appropriate protocols and guidelines for the taking of children's evidence. 2. The establishment of the Child Witness Service. 3. Appropriate and adequate facilities. 4. Legislative requirement that CCTV or screens be used to take children's evidence. 1. Judicial leadership From their inception the reforms have been overseen and supported by a Reference Group initially chaired by a Supreme Court judge but, now that the Supreme Court has divested itself of jurisdiction in child sex cases, chaired by 4.

6 his Honour Judge HH (Hal) Jackson of the District Court. The Reference Group included representation from police, the Department of Community Development, Family and Children's Services and the DPP. The Criminal Lawyers' Association is now represented. The Reference Group oversaw the establishment of the Child Witness Service (CWS) and developed protocols both for the CWS and for judges. Guidelines for judges have been prepared and published by the Reference Group. Seminars have been held from time to time to consider issues and educate judges about the new procedures. Judges' staff have been trained to operate CCTV and video recording equipment. From the commencement there was strong leadership in the Supreme Court and among the Supreme Court judges so that when the jurisdiction in child sex cases passed to the District Court in 1995 it was just a matter of bringing the District Court judges up to speed. Since that time the responsibility has shifted to the District Court and much of it falls on Judge H H Jackson and the Reference Group. In Western Australia we believe that it has been crucial for the success of the reforms that judges have remained in control overseeing policy and the development of new protocols and guidelines from time to time. This is not something that can simply be turned over to Court Services. It requires team work with overall control in the hands of judges. 2. The Child Witness Service The Child Witness Service of Western Australia (CWS) properly funded and with adequate facilities is the cornerstone of the West Australian reforms. We have been fortunate to have a highly professional CWS staffed by specially trained social workers who understand children and dealing with children. The CWS strictly avoids any coaching of a child so far as the child's evidence is concerned. Their policy is to avoid knowing the charges faced by the accused. The child's details of evidence and the charges are not discussed by the CWS. The role of the CWS is to prepare the child for the court experience. This involves information for the child and for his/her family about the court process 5.

7 and involves keeping the family up-to-date with court developments. The CWS ensures that the child is familiarised with the personnel involved in the trial (the Judge is the one with the red sash) and with the place where evidence is to be given. The CWS keeps the child's family well informed of the progress of the case. In a paper presented in Ms Shannon Bellett, who started the CWS, discussed the role of the service. A primary objective of the service is to reduce trauma experienced by a child witness as a result of involvement in the social/legal process Appropriate and adequate facilities In Western Australia children normally give their evidence by CCTV from a remote room. 7 Those facilities in courthouses adjoin CWS premises so that children come to a child-welcoming environment with soft toys and colourful décor. They are never left to wander or wait in the courthouse where they might encounter the accused or his/her supporters. The children are kept quite separate and protected. Eastwood and Patton commented on this in their 2002 Report. 8 The wait for children in Western Australia was a much more pleasant experience. Children were protected in the secure environment of the Child Witness Service (CWS) within the court building complete with support personnel, activities, videos and games to occupy the waiting time. Except for one child who had to wait a day due to the previous case being over time, children in Western Australia reported only brief waits (one or two hours) before being called to give evidence in the CCTV rooms within the CWS facility. 5 Bellett, Shannon "Preparation of the Child Witness", a paper presented at a seminar of the Law Society of Western Australia on 31 October 2001 "Out of the Mouths of Babes". 6 Ibid at p7. 7 The use of screens is no longer needed in Western Australia because remote rooms have been built in most of our courthouses. Children can travel to major centres to pre-record their evidence. Facilities for playing videos to the jury are available in all our courtrooms. 8 Eastwood, Dr Christine and Patton, Professor Wendy: "The Experiences of Child Complainants of Sexual Abuse in the Criminal Justice System" (2002) Queensland University of Technology, p53. 6.

8 In summary, there was an overwhelming difference in the way in which children in Western Australia experience the wait to give evidence compared to those in the eastern jurisdictions. Clearly the lack of child-friendly facilities in the eastern jurisdictions added further to the stress of the whole proceedings. Funding has been available in Western Australia to enable CWS facilities and remote rooms to be part of most of our courthouses. That did not happen overnight. Over the past 10 years there has been a steady commitment by government to fund and ensure that these facilities are built. I cannot stress too strongly that our highly professional CWS and our physical facilities are the cornerstone of the Western Australian reforms. Remote rooms, CCTV and child-friendly facilities have been included in courthouses in more remote parts of the State. On 31 July 2003 Magistrate Sue Gordon reported on the "Inquiry into Response by Government Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities" in a lengthy report titled "Putting the Picture Together". The report highlights the response of agencies such as the Child Witness Service and the courts to the problem of child sex abuse among Aboriginal communities. If the justice system is to respond to this problem our State will need appropriate facilities for the giving or pre-recording of the evidence of Aboriginal children in locations where the child can be supported by family and community members. Before that can happen a great deal of community education needs to be undertaken about the Child Witness Service and what is available to victims of child sex abuse. 4. The requirement that CCTV or screens be used to take children's evidence The effect of section 106N of the Evidence Act is to make the use of CCTV mandatory in every Schedule 7 proceeding where those facilities and 9 Section 106N (2)(a) Evidence Act (1906) WA provides: where the necessary facilities and equipment are available one of the following arrangements is to be made by the judge for the giving of evidence by the affected child (a) he or she is to give evidence outside the courtroom but within the court precincts, and the evidence is to be transmitted to the courtroom by means of video-link as defined in section 120. The alternative arrangement where the defendant is outside the court but the child is in the court has never been used in Western Australia. 7.

9 equipment are available. Where such facilities and equipment are not available, the legislation requires that a screen or one-way glass or other device be so placed that the affected child cannot see the accused but the judge, jury, the accused and defence counsel can see the child. The prosecutor can apply to the judge that section 106N not apply; 10 the judge may grant such an application if it is shown to the judge's satisfaction that the affected child is able and wishes to give evidence in the presence of the accused in the courtroom. Section 106N goes much further than reforms in other States. Probably it is the legislative mandate in section 106N that courts must use either CCTV or screens - which has driven the Department of Justice to establish the necessary facilities as a matter of course. We have found the use of screens to be less than satisfactory. Their use required the installation of a camera in the courtroom recording the child's image. In the dock a monitor displayed the child's image so that the accused could see the child. The problem was to avoid the child seeing the accused when the child came to the witness box or left the court. On occasion this required the accused to leave the dock or stand down while the child entered and exited. The use of a screen did nothing to prevent the child being overwhelmed by the courtroom setting in the presence of strangers. It did not protect the child from contact with the accused's supporters. Most importantly, it did nothing to ensure that the child's evidence could be properly heard. One feature of our CCTV is the excellent technology employed. Over the years the visual image of the child has improved considerably. The image of the child on the courtroom monitor is large and clear. The child's voice is easily heard. The jury has the benefit of an enlarged close-up of the child's face during examination-in-chief and cross-examination so that the child's reactions to questions are readily apparent. The jury can hear and see more with CCTV than 10 Section 106M Evidence Act (1906) WA. 8.

10 they ever could see or hear with the child in the witness box in the courtroom. But, of course, it is a televised image and not the live child seen by the jury. The remoteness of the child on the screen gave rise to one of the early objections of prosecutors to the use of CCTV that it lessened the impact of the child on the jury and made the child's evidence seem quite unreal or remote. I understand that in some States where CCTV has been available prosecutors have declined to apply to the court to use it for fear the child's impact would be lessened. That of course cannot happen in Western Australia where use of CCTV is mandatory. When we commenced the use of CCTV some 10 years ago the quality of the TV image was such that prosecutorial concerns about the impact of the child on the jury may have been justified. But all of that improved. By 1996 when the Department of Justice commissioned "An Evaluation of the Use of CCTV and Removable Screens in WA", 11 the researcher Celia O'Grady was allowed to conduct an exit survey of jurors in 13 trials where CCTV was used. There had been six not guilty verdicts and seven guilty verdicts in those trials. The 1996 survey included the reaction of Western Australian judges who had used the new procedures and equipment: Judges who were interviewed or gave written comments for the evaluation supported the core provisions of the legislation and procedures. They agreed with the provision of special arrangements for children and special witnesses to give evidence, and with the legislative intent that the procedures be routine, rather than optional. Some differences of opinion were expressed about the usefulness of pre-trial video-taping of evidence. This may reflect lack of familiarity with the procedure. Although a few judges had used the method and could see its advantages, others were concerned about its potential to interfere with established court procedure, with little gain overtaking evidence by a live CCTV link. Judges who had used both CCTV and removable screens preferred CCTV. Their reasons for this view were that, compared with CCTV, removable screens did not remove as many sources of stress for the witness, and that 11 O'Grady, Celia: "Child Witnesses & Jury Trials: An Evaluation of the Use of Closed Circuit Television and Removable Screens in Western Australia" Ministry of Justice of Western Australia: January

11 screens were more likely to be interpreted as being prejudicial to the accused. All judges had compassion for child witnesses and wanted to make the experience less traumatic, but they varied in what they considered were acceptable ways of doing this. For each judge, there were some practices which risked compromising the fairness of the trial, or which they felt undermined their authority in the courtroom. Commenting on the variations in views, one judge said: "Judges are very idiosyncratic people. Each gets their own view on how a trial should be conducted." 12 Overall the 1996 survey found that there was no reduction in the rate of convictions when CCTV was used. In Western Australia the use of CCTV is now the norm and so commonplace that both prosecution and defence lawyers accept and use it without difficulty. Some defence counsel welcome the remoteness of the child and see some benefit to the accused from keeping the child out of the courtroom. But the statistics on conviction rates do not support any bias in favour of the defence. Conclusion There has only been time in this presentation to touch on the essentials of the Western Australian reforms. We wish every other jurisdiction well in its endeavours to take positive steps to protect children from further damage when giving evidence of alleged sexual abuse. We urge you to get on with it. We believe the research has been done and the reforms have been in use for so long in Western Australia that it makes it difficult for us to understand what the problem is in the other Australian States. Surely you care about the long term best interests of children as much as we do. 12 Ibid pp