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2A. Competence & Compellability--Theory

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Queensland University of Technology

Theory on Vulnerability of Certain Witnesses Nature of the vulnerability of Children  Children may be participants: o in criminal trial process either as a victim, an accused or a witness to an offence. o may be a witness in a civil trial such as a family law matter or a plaintiff  the formality of the court room and the processes o wigs, robes, Judge, barristers, procedures o Use of legal language: questions difficult for child to understand, framed in legal ways eg "I put it to you”  Assumptions that children are unreliable (this assumption is reflected in the rules of evidence that limited competence and required corroboration or judicial warnings), more likely to embellish stories.  Until recently very difficult for children to give unsworn evidence.  unwilling to tell the truth for fear of hurting family  Stress, trauma and intimidation association with— o Discussing sensitive issues: often a child has to talk about sexual matters, using language not used to, feel embarrassed talking about matters o Confronting the offender: that person might well be a close relative or family friend or mother’s boyfriend and cause disharmony in family. Possibility that these people might go to jail. Quite intimidating process for the child. o Aggressive questioning, repetitive, intimidating, confusing, misleading and inappropriate questioning. Eastman Report – impact of reforms  44% of children who had a court experience would report sexual abuse again (56% would not report abuse because of how the court treated them/how the trial went etc.)  Lengthy delays from reporting by the child and the actual trial (average was 18.2 months) – leads to further traumatisation  Attacking children in committal process – usually for the quite improper collateral purpose of trying to frighten the child so much that they do not want to give evidence in the superior court Indigenous people  Studies have indicated that the court room procedures and practices operate to the detriment of many indigenous people who may appear as either witnesses or defendants.  bi-culturally competent indigenous people might not confront the same difficulties. In Qld this issue was brought to a head by an incident in 1994 in the Pinkenba incident. Pinkenba Incident  6 police officers picked up 3 aboriginals boys b/w 13-15 and drove them from Brunswick Street to Pinkenba (14 km away) and left them there to find their own way home. They did not charge the boys nor did they question them in relation to any offence.  After complaints the CJC charged the officers with the unlawful deprivation of liberty but when went to committal the magistrate said there was not enough evidence to charge them and because the boys had been involved with the police before, they knew their rights when they got into the car and it was not unlawful deprivation of liberty.  This was appealed to the Supreme Court and it was held that there was not enough evidence. Highlighted defects in court processes Andrew Trotter LWB432 Evidence The CJC Report Language issues  Formalities are intimidating to indigenous witnesses.  Continued use of legalese by advocates – it might not be understood or confusing.  Language difficulties and break down of communications that occur – trace the history and say that a majority of Aboriginals speak Aboriginal English -prior to settlement aborigines spoke over 200 languages but in order to speak to Europeans they developed a pigeon English and the further development was a combination of English and aboriginal words and they call this aboriginal English - because of the similarities of aboriginal English and normal English they think they understand but in fact they don't. Aborigines also have words that we don't use. There is a list of words that don't appear in our standard English. o Special meanings or different meanings of words – words bear different meanings in aboriginal and standard English -ie in aboriginal English a cousin means all r
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