Children's competence to testify in Australian courts: Implementing the Royal Commission recommendation

Sonja P. Brubacher, Natalie Hodgson, Jane Goodman-Delahunty, Martine Powell, Nina Westera

Research output: Contribution to journalArticle

Abstract

In 2017, the Royal Commission into Institutional Responses to ChildSexual Abuse recommended reforms to the law of competence of childwitnesses. We examined Australian judges’ practices in assessingchildren’s competence to give sworn evidence. Trial transcripts from56 victims revealed that 64% were posed competence questions, withfewer to older children. The most frequent manner of posing suchquestions was to ask children to evaluate the morality of truths andlies. Most questions were yes/no format, and children nearly alwaysanswered these satisfactorily. When questions were ‘wh-’ format,children provided a satisfactory response only 51% of the time. Onlynine children testified unsworn, and they were asked more than twiceas many competence questions as sworn children. Competenceinquiries have been challenged for underestimating children’sabilities, and because responses to questions about truths and lies arenot predictive of behaviour. We discuss how reforms could beimplemented.
Original languageEnglish
Pages (from-to)1386-1410
Number of pages25
JournalUNSW Law Journal
Volume42
Issue number4
Publication statusPublished - Nov 2019

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