title: Bringing Little Kiddies into Court: Child Witnesses in Australian Criminal Courts 1900-2000
Creators: name: Blewer, Robyn
Publisher: name: Griffith University
Year: 2017
Subjects: subject: Child witnesses
subject: Australian criminal courts

description: In 1982 Lindy Chamberlain was found guilty of murdering her nine-week-old daughter, Azaria. In pleading her innocence, Lindy claimed a dingo had taken the baby from the tent in which she and her family were camping, near Uluru in the Northern Territory. Shortly after the baby had disappeared Lindy’s seven-year-old son Aiden told a woman who was helping search for Azaria that ‘the dog had got his baby in its tummy.’ Later that night another woman asked him if a dingo had taken the baby. He said that it had. 1 Lindy spent four years in prison for a murder she did not commit. In 2012, thirty years after Azaria died, the fourth coronial inquest into the matter found that a dingo had killed the baby girl. Aiden was never called to give evidence at his mother’s trial. We will never know what the outcome might have been if he had. But over the course of the twentieth-century countless other children did give evidence in various criminal courts throughout Australia. This thesis draws on cases involving two hundred and fifty-one child witnesses to examine the laws, policies and procedures that applied to those children. Child witnesses have been subjects of continuing research and law reform since the turn of the twenty-first-century. Despite contemporary concerns about child witnesses, the historical antecedents to current law, policy and practice have not been the focus of detailed study. Drawing on multiple data from reported and unreported cases, newspaper reports, depositions and other archival material, psychological studies, legal treatises and texts, this thesis traces the journey child witnesses took through the criminal justice system. In the process it examines issues such as how a child’s capacity for truthfulness was assessed; what the procedure was when they appeared in court; how lawyers, barristers and defendants examined and cross-examined them; and how judges received the testimony of children and advised juries as to how such evidence should be assessed. Contemporary research confirms the experience of giving evidence in an adversarial trial can be difficult and may cause secondary trauma to potentially vulnerable children. Since the end of the twentieth-century a substantial portion of the law reforms introduced have been directed towards supporting child witnesses. There is a widespread assumption that historical legal processes did not support children in giving evidence. This thesis, however, finds strong evidence throughout the century of considerable concern and sympathy being shown towards child witnesses. Within their historical confines judges, lawyers and jurors often sought to improve the circumstances in which children appeared in court. Beyond demonstrations of support the research also finds that the legal principles and procedures relevant to receiving child witness testimony made it very difficult for them to be thought of as credible witnesses. For most of the twentieth-century the law viewed children as an inherently unreliable class of witness. As each chapter in this thesis demonstrates, however, from the start of the century there is evidence of opposition to the applicable legal principles and procedures that were prejudicial to child witnesses. Among the most vocal here were judges and notably, women’s groups like the Federation of Women Voters and the Country Women’s Association who, as early as the 1920s and 1930s were calling for reforms to existing practices. For most in the legal profession and outside it, ‘changes in law’ as Roscoe Pound had observed in 1910, ‘were full of danger.’ There was widespread agreement until the last quarter of the twentieth-century that the risks of reforming these procedures were too great. Starting in the 1970s attitudes towards law reform shifted and considerable reforms were implemented. The process of giving evidence at the start of the century was virtually unrecognisable to that at the end of it. This thesis finds that there were numerous factors driving these reforms including the second wave of feminism, technological changes, the victims’ rights movement, the changing political climate and an expanding body of psychological research. The caution the law displayed for the preceding seventy-five years, however, had a considerable impact on the well being of generations of child victims of crime and on the legitimacy of common law criminal justice systems.