Page 1121 - Week 04 - Thursday, 21 April 1994
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The commission made a number of recommendations for amendments to the legislation. Those recommendations were tested in wide-ranging consultations with organisations and individuals with an interest in children's evidence, both in the ACT and elsewhere. The main change proposed was that the present presumption about use of closed-circuit TV should be reversed. At present the Act presumes that children will give evidence in the courtroom in the usual way unless the court is satisfied that grounds exist to make an order for the use of closed-circuit TV. The commission recommended that the presumption should be that children will give evidence by closed-circuit TV unless they do not wish to or if there is a convincing reason why they should not.
The reason for that recommendation was to avoid problems in the present procedure where, before a court can order that a child gives evidence by closed-circuit TV, it must be satisfied either that it is likely that the child will suffer mental or emotional harm if required to give evidence in open court or that the facts will be better ascertained if the evidence is given by closed-circuit TV. The commission said that some of the potential benefits to children of using closed-circuit TV are lost because of the uncertainty and complexity of those procedures. It said that a procedure which gives rise to protracted legal argument, delay and the exposure of children to additional assessment defeats the purpose of making it easier for children to give evidence. This Bill implements that recommendation.
With some exceptions, which I will discuss shortly, the Bill makes it a general rule that a child gives evidence by closed-circuit TV. I realise that some lawyers have some reservations about this, particularly since the general rule will be the same for the Supreme Court as for the Magistrates Court. Some lawyers believe that it is less necessary for children to use closed-circuit TV in the Supreme Court than in the Magistrates Court. I do not accept that. I note that the Law Reform Commission's study found that, amongst lawyers who had been involved in cases where children gave evidence by closed-circuit TV in the Magistrates Court, there was considerable support for using closed-circuit TV in the Supreme Court.
The Bill provides for several exceptions to the general rule. Firstly, child defendants are excluded from giving evidence by closed-circuit TV. Although the Law Reform Commission recommended that all children who give evidence should be able to use closed-circuit TV if they wished, the need for child defendants to do so was not convincing. We may, of course, be referring to a 17-year-old accused of fairly serious violent crimes. The underlying aim of the closed-circuit TV project when it was begun in the Magistrates Court was to protect child victims in physical and sexual assault cases from having to directly confront in open court the person accused of the crime. The aim is to save the child from the mental and emotional trauma of having to tell their story in the presence of that person. Extending the entitlement to use closed-circuit TV to child defendants would go beyond that aim, and the need for doing so has not been demonstrated. It must be kept in mind that child defendants are almost invariably dealt with in the Children's Court and that procedures in that court are designed to minimise any emotional harm to the child.
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