DIVISION OF EVIDENCE ACT
Published on 27.08.2015 by Peter Russo
Russo Lawyers has recently researched sections of the Evidence Act relating to child witnesses and provides the following interpretation.
In 2004 the Queensland Parliament introduced legislation regarding the giving of evidence by children in our Courts.
The legislation refers to child witnesses as affected children. Under the legislation a child is deemed to be a person who is under 16. Section 21A(1) of the Queensland Evidence Act 1977 sets out circumstances where a person would not be required to give evidence or be cross-examined in court proceedings.
Ordinary witnesses can be cross examined by an accused’s lawyer, but this legislation has effectively taken away this fundamental right from the accused when dealing with affected witnesses.
Although there are provisions for an application to be made to the court for a child witness to be cross-examined, historically very few of these applications before the Magistrates Court have proven to be successful. This effectively places severe restrictions upon the defence to be able to cross-examine witnesses at committal hearings in Queensland, putting an accused person at a significant disadvantage in the criminal justice system.
A summary of how our firm has interpreted the legislation is contained herein:
Division for Evidence Act 1977 (QLD) – Evidence of Special Witnesses
Section 21A(b) provides that for a committal proceeding, the child’s evidence in chief is given only as a statement and ordinarily the child is not to be called as a witness for cross-examination.
This applies to an affected child giving evidence for a relevant proceeding.
And affected child is a child who is a witness in a relevant proceeding and who is not the defendant in the proceeding.
A relevant proceeding is a criminal proceeding for a relevant offence whether or not the proceeding also relates to other offences.
A relevant offence includes the following:
- An offence of a sexual nature;
- An offence involving violence if there is a prescribed relationship between a child who is a witness in a proceeding and a defendant in a proceeding.
An offence involving violence means any offence against the following provisions of the Criminal Code:
- A provision of Chapter 28, being an offence relating to homicide, suicide, and concealment of birth.
- A provision of Chapter 19, being offences endangering life or health, except the following sections:
- 317A carrying or sending dangerous goods in a vehicle;
- 318 obstructing rescue or escape from unsafe premises;
- 319 intentionally endangering safety of persons travelling by railway;
- 319A endangering safety of persons travelling by aircraft;
- 321 attempting to injure by explosive or noxious substances;
- 321A bomb hoaxes;
- 327 setting man traps;
- 329 endangering safety of persons travelling by railway;
- 330 sending or taking unseaworthy ships to sea;
- 331 endangering steam ships by tampering with machinery;
- 332 the like by engineers;
- 333 evading laws as to equipment of ships and shipping dangerous goods;
- 334 landing explosives;
- Section 335 common assault.
- Section 339 assault occasioning bodily harm.
- Section 340 serious assaults
- Section 354 kidnapping
- Section 354A kidnapping for ransom
- Section 355 deprivation of liberty
- A provision of Chapter 33A, being unlawful stalking
- Section 363 child stealing
- Section 363A abduction of child under 16
- Section 364 Cruelty of children under 16.
An offence of a sexual nature means an offence against the following provisions of the Criminal Code:
- Provision of Chapter 22 offences against morality, except the following:
- 224 attempts to procure abortion
- 225 the like by women with child
- 226 supplying drugs or instruments to procure abortion
- Provision of Chapter 32 rape and sexual assault
This information is very general, and should not be relied on for any individual mater. Further advice should be sought. Contact can be made with our firm for more detailed advice. Click here to contact Russo Lawyers