Complaints of sexual interference from children, particularly young children, involve difficulties in investigation and prosecution. Children often have trouble explaining what has happened either because of their lack of understanding or simply because of limited vocabulary and may also have problems with the exact dates that acts occurred.
Evidence given to courts is divided into sworn evidence and unsworn evidence. Sworn evidence is given when someone takes an oath or makes an affirmation before giving evidence [s 4 Evidence Act 1929 (SA)]. Unsworn evidence is evidence that is given without the obligation of an oath first being taken or an affirmation being made.
Children are able to give sworn evidence to a court, if they have a sufficient understanding of the obligation to be truthful involved in giving such sworn evidence. Even if a child cannot give sworn evidence that child may be allowed to give unsworn evidence. To give unsworn evidence a person must have a proper understanding of the difference between the truth and a lie, understand the importance of telling the truth and say to the Court that they will tell the truth when they give their evidence.
To give sworn evidence the person must have the understanding needed to give unsworn evidence but in addition must understand that in giving sworn evidence they acknowledge and accept the solemnity of taking an oath/ making an affirmation and the moral and/or legal sanctions that would follow if they fail to comply with the promise to tell the truth [s 9(1) Evidence Act 1929 (SA)].
Where unsworn evidence is given the judge must tell the jury the reason why the evidence was unsworn as opposed to sworn evidence and would almost always be required to warn the jury that they need to be cautious in deciding whether to accept it [ s 9(4)Evidence Act 1929 (SA)].
Section 9 of the Act does not apply to a statement made outside of court admitted as evidence under an exception to the rule against hearsay at common law or under the Act.
While a child gives evidence in a child sexual abuse matter, all non-essential persons will be ordered to leave the court [s 69(1a) Evidence Act 1929 (SA)] and the child will be allowed to have support person in court with them [s 12 Evidence Act 1929 (SA)]. The evidence of a child who is 14 years old or younger, may also be heard at a pre-trial special hearing under the procedure outlined in s 12AB of the Evidence Act (SA) (see below). There are also additional protections that can be put in place to protect a child who is of or under 14 years old when giving evidence in criminal proceedings [see s 13A Evidence Act 1929 (SA)].
A pre-trial special hearing is, on application and under certain circumstances, available to a child of or under 14 years of age or a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions [s 12AB(14), s12AB(1)].
The hearing is also only available if the necessary facilities are readily available, it is practicable, and the arrangements can be made without prejudice to any party to the proceedings [s 12AB(1)(b)-(c)].
Once allowed this pre-trial special hearing enables the witness to give evidence before the trial with special provisions. This includes that the court must make the following provisions:
- That the Court can change the setting in as it sees fit, such as a more informal setting;
- If the witness has a physical disability or cognitive impairment that the evidence can be taken in a way that the Court thinks will minimise embarrassment or distress (including, if the witness has complex communication needs, communication assistance may be provided);
- That an audio visual record of the evidence be made;
- That the taking of evidence at the hearing be transmitted to the defendant by CCTV;
- If the defendant attends the hearing in person, that appropriate measures be taken to prevent the witness and the defendant from directly seeing or hearing each other before, during, or after the hearing. [s 12AB(2)(a)]
The court may also make the following provisions:
- That the witness can be accompanied at the hearing by a relative, friend or other person for the purpose of providing emotional support; and
- Specify that the hearing is convened for any (or all) of the following purposes: examination of the witness; cross-examination of the witness; re-examination of the witness; and
- Provide for any other matter that the court thinks fit.[s 12AB(b)]
There many more procedural laws around what can and can not be done at a pre-trial special hearing and legal advice should be sought.
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