By Vanessa Chan
The Pilot is a scheme designed to reduce the stress and duration of court proceedings for vulnerable child witnesses in child sexual assault cases.
In summary, the Pilot consists of:
- specialist judges in the District Court to deal with matters of child sexual assault;
- pre-recording the entirety of children’s evidence in child sexual assault matters, including evidence in chief, cross examination and re-examination; and
- using qualified witness intermediaries to assist and support vulnerable witnesses to give their evidence.
The pilot is currently operating in Sydney and Newcastle. It commenced in March 2016 at Sydney and in July 2016 at Newcastle. It is scheduled to run for 3 years.
What do I need to know?
The relevant provisions are found in Part 29 of Schedule 2 of the Criminal Procedure Act 1986 (NSW).
The relevant District Court practice note is here.
The Pilot applies to proceedings commenced before the Court sitting at a prescribed place (Newcastle or the Downing Centre, Sydney) in relation to a prescribed sexual offence (Schedule 2, clause 83).
The role of a witness intermediary (also called a ‘children’s champion’ in the Schedule) is to impartially facilitate the evidence of the child witness. They are an officer of the Court (Schedule 2, clause 88). The witness intermediary will meet with and assess the child witness and then prepare a report for the Court indicating any communication needs of the witness and will make recommendations on how communication can be facilitated. For example, they may recommend that a young child not be asked questions which include double negatives, or they may recommend that certain body parts be referred to by a name familiar to the child e.g. ‘tummy’ instead of ‘stomach.’
The witness intermediary will be present with the child witness when they give evidence to facilitate questioning.
A witness intermediary is ordinarily mandatory for child witnesses under the age of 16 (certain exceptions are set out at Schedule 2, subclause 89(4)). For child witnesses who are over 16 but under 18 an order for a witness intermediary can be made where the witness has difficulty communicating. (Schedule 2, clause 89(3)).
Pre-recorded evidence hearings are automatic for child witnesses under the age of 16 and on application or the Court’s motion for child witnesses who are over 16 but under 18 when the order is made (Schedule 2, clause 84). They must be held as soon as practicable after the first appearance in Court but not before the Prosecution’s pre-trial disclosure (Schedule 2, clause 85(1)).
At a pre-recorded evidence hearing the child witness gives their full evidence (evidence in chief, cross examination and re-examination) which is recorded. This recording is then played later at the trial (Schedule 2, clause 85). Other provisions relevant to a child witness giving evidence continue to apply, such as giving evidence remotely by CCTV.
The accused person is entitled to view, but not retain a copy of, the recorded evidence. (Schedule 2, clause 86). The child cannot be required to give any further evidence without leave of the Court (clause 87).
What is the process?
1. A prescribed offence is committed for trial from the Local Court. On committal, the case is adjourned for call over in the Child Sexual Assault Pilot List.
2. At the call over (or subsequent call overs) the Judge will:
- set a timetable for pre-trial disclosure;
- set a pre-recorded evidence hearing;
- will appoint a witness intermediary where appropriate; and
- make any other necessary orders e.g. set down a date for legal argument.
There is an expectation that counsel for both the Crown and Defence who will be appearing at the trial will also appear at the call over.
3. The witness intermediary report is provided to the Court and is disseminated to the parties.
4. The pre-recorded evidence hearing is held.
5. Often a pre-trial mention is held (usually in the weeks preceding the trial).
6. The trial is held.
The amending legislation: Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015 and further amended by: Justice Portfolio Legislation (Miscellaneous Amendments) Bill 2016