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Child Witnesses in Twentieth Century Australian Courtrooms (Palgrave Histories of Policing, Punishment and Justice) 1st ed. 2021 Edition Blewer full chapter instant download
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PALGRAVE HISTORIES OF
POLICING, PUNISHMENT AND JUSTICE
Child Witnesses in
Twentieth Century
Australian
Courtrooms
Robyn Blewer
Palgrave Histories of Policing,
Punishment and Justice
Series Editor
David G. Barrie, University of Western Australia, Crawley,
Australia
Since the 1960s, studies of police, punishment and the courts have been
an integral and popular part of historical scholarship, and have followed
in the historical trajectory of a more expansive criminal justice apparatus
around the world. This international book series aims to examine and
debate some of the most pressing issues and problems in the field, and to
stimulate new directions in research. It will showcase the work of both
emerging and leading scholars of the social, cultural and institutional
histories of police, punishment and the judicial sphere, and welcomes
work grounded in various disciplines including criminology, sociology,
history, law, legal history and political science.
Child Witnesses
in Twentieth Century
Australian
Courtrooms
Robyn Blewer
Griffith University
Brisbane, QLD, Australia
© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature
Switzerland AG 2021
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Preface
I believed her. She was only about eight years old, but I thought she was
more impressive than many of the adult witnesses I’d observed in court.
By then, I’d watched many children give evidence. I’d watched them cry,
some silently, some with great anguish that could be felt through the
CCTV screen they appeared on. I watched them re-live their trauma and
be traumatised anew as they were accused of lying or imagining things or
simply forgetting what had really happened. I thought about how brave
this girl was to have endured the abuse, then walked past the room where
the offender was sleeping to tell her parents what had happened, to have
dealt with the various interviews with police and health professionals,
and the pre-recording of her evidence where she appeared composed and
truthful even in the face of a difficult cross-examination. It was part of
my job as a Judge’s Associate to take the jury’s verdict at the end of the
trial. “How do you find the accused? Guilty, or not guilty?” “Not guilty.”
Not guilty. I was stunned. I’d sat through the same trial they had. This
was not the outcome I expected. Judging by his reaction, I don’t think
it was the outcome the accused expected either. After completing the
remaining formalities, I sat back down. I thought again about that little
v
vi Preface
girl. Someone would now have to tell her the jury didn’t believe her. Did
they fall back on old misconceptions? Children lie. Children fantasise.
Or maybe they did believe her, but they gave him the benefit of their
doubt. Everyone had played their part properly and done their job as
required, including the jury. Justice was served. I just wasn’t sure I agreed
with that idea of justice.
I couldn’t help but think, was this the best our criminal justice system
could do for these children? How had we gotten to this point, in the early
twentieth century? If this was the best, then how awful must the process
of giving evidence been for children in the past? What had changed?
Who’d fought for these children in the past? How had they managed to
change things?
I’d spent the previous twelve months as an Associate to a patient,
knowledgeable, experienced and very well-respected judge. “You won’t
change things as a lawyer, a barrister or even a judge,” he said. He wasn’t
saying members of our profession don’t contribute to improving the trial
process. They do every day. There wouldn’t be any justice without them.
By and large, though, they play in the system. They don’t change it. The
judge told me if I wanted to change things, I had to go back to university.
I had to do research, get my research published and change things that
way.
Eight years later, the opportunity to do that research arose. As part of
my role with the Australian Research Council Laureate Project, The Pros-
ecution Project, I contributed to the work of digitising Australian crim-
inal court records from the early nineteenth century onwards and set
about trying to answer some of the questions I’d had about what the past
was like for child witnesses. I want to acknowledge my colleagues in this
project: Professor Mark Finnane, Dr. Yorick Smaal, Dr. Andy Kaladelfos,
Dr. Alana Piper, Dr. Lisa Durnian and Mel Davies. I could not have
asked for a better team to work with. In particular, I thank Professor
Finnane for taking a chance on a commercial litigation lawyer with a
Master of Criminology who had no experience researching history but
told him she “really liked history.”
Thanks to my family and friends who have also supported me through
this process, especially Paul, Eleanor, India and Lucas.
Preface vii
For the children in this book, and those giving evidence in court
around Australia every day, you are heard.
1 Introduction 1
2 Child Witnesses and the Common Law 13
3 “Those Troublesome Men in Blue”: Police 33
4 “If the Law Doesn’t Get You, the Lord Will ”:
Competency and Capacity 63
5 “And the Kiddie Was at Home”: The Courtroom
Environment 107
6 “What the Nipper Said Was True” : Examination 139
7 “Trying to Bend the Law to Fit” : Corroboration 171
8 “The Law Which Professed to Protect … Served
to Crush”: Indigenous Child Witnesses 209
9 “Changes in Law Were Full of Danger” : Conclusion 241
Index 253
ix
Abbreviations
xi
List of Tables
xiii
1
Introduction
2012, 11). The case, including Lindy’s exoneration in 1988, has become
the stuff of legal history legend in Australia, and, following Meryl Streep’s
portrayal of Chamberlain in the film Evil Angels (1988), is well known
around the globe. It is impossible to say for sure, but had the law been
more open to listening to young Aidan, this miscarriage of justice may
never have occurred.
Over half a century before Aidan witnessed the dingo take his sister
from the tent, nine-year-old Alice was running through the streets of
inner-city Melbourne, crying hysterically. It was 2 am on Sunday 2
December 1923. Her feet were bare. She was dressed only in her night-
gown. Bursting through the doors of the Carlton Police Station, she told
the officer on duty that a man was “cutting her mother’s neck with a
knife” (Weekly Times 1923, 11). Within hours, the man, her mother’s
boyfriend Charles Johnson, was charged with murder. Just eight weeks
later, Alice appeared as the chief prosecution witness at Johnson’s trial.
Stepping into the witness box in Melbourne’s Supreme Court, she burst
into tears (The Argus 1924, 31). Alice nevertheless managed to recount
the events of the night she had witnessed her mother’s horrific murder.
The defendant tried to cut her mother’s throat but found the knife too
blunt. He had then picked up a sharper knife and kept cutting. Alice’s
testimony and additional medical evidence proved the defendant had
done more than just cut her mother’s throat. In front of the nine-year-
old child, Johnson had virtually severed the woman’s head from her body.
Johnson couldn’t remember committing the offence as he had been high
on cocaine at the time. He was found guilty and sentenced to death (The
Argus 1924, 31).
It has been assumed that prior to the late twentieth century, children
rarely appeared in common law courts because of the legal and proce-
dural barriers that prevented them from giving evidence (R v Brasier
(1779) 168 E.R 202; Goodman 1982, 9; McGough 1994, 1–2). This
is not the case, though. For many crimes to be prosecuted, the crim-
inal justice system needed the evidence of children. The unfortunate
reality is that children always have been—and continue to be—called
upon to participate in this most adult, combative, adversarial process.
This book draws on cases involving more than 250 children who gave
evidence in criminal courts in Australia during the twentieth century. It
1 Introduction 3
considers the impact that the law—and law reforms—had on cases like
Lindy Chamberlain’s, or on children just like Alice.
Until recently, it was largely assumed the law and society generally
were either indifferent towards children and child victims of crime,
or simply did not trust them to be truthful (Australian Law Reform
Commission and Australian Human Rights and Equal Opportunity
Commission 1997; McGough 1994, 1–3). The testimony of witnesses
at the Royal Commission into Institutional Responses to Child Sexual
Abuse brought the issue of believing children’s reports of abuse into
the public spotlight (Royal Commission into Institutional Responses to
Child Sexual Abuse 2017). The cases in this book demonstrate that,
while child witnesses were a challenge for the criminal justice system
throughout the twentieth century, those involved in the process were
not necessarily indifferent towards them. The development of evidence
law towards the end of the nineteenth and throughout the twen-
tieth centuries, though, resulted in the construction of impossibly high
barriers for children giving evidence in court. While many of these
reforms drew on assumptions about children and childhood, the struc-
tural framework of rules of evidence also played a significant part in the
difficulties courts have had in receiving the testimony of child witnesses.
Would they be a credible witness? (Ceci and Bruck 1993, 403) Was their
evidence corroborated? (Lyon and LaMagna 2007, 1029, 1031; Back-
house 2001, 297, 310–311) How would they cope in the courtroom
environment, and with cross-examination? What about the long-term
psychological effects giving evidence in court might have on the child?
(Goodman 1984, 5; Cashmore and Horsky 1987, 66; McGough 1994,
3; Zajac et al. 2012, 181, 182; Saywitz and Nathanson 1993, 613, 614).
Child witnesses presented a challenge for the legal system in various
forms. The cases in this book reveal a process that was aware of these
challenges and often prepared to respond to them, where possible,
by modifying ordinary courtroom practices. There were three ways in
which such adaptations were executed. First, court processes were more
pragmatic and flexible than they are today. This allowed for informal
modifications, for example, to courtroom procedures to help children
who appeared upset (The Advertiser 1923, 12; The Argus 1932, 1).
Second, changes to the law were implemented through the incremental
4 R. Blewer
Part One—Introduction
was very little legal academic writing on the topic. This changed in the
mid-1960s, when researchers and the medical and legal professions began
to take a greater interest in the abuse of children.
The second part of the book begins the process of tracing the child
witness’s journey through the criminal justice system. It examines the
hurdles children had to overcome before their evidence could be received
in court. Chapter 3 explores the role of police in detecting, investi-
gating and preparing cases involving child witnesses. Police are often
described as the gatekeepers of the criminal justice process (Jordan
2015, 84, 96; New Zealand Law Commission 2015, 135; Victorian Law
Reform Commission 2004, 103; Cooper 2005, 456, 461). They are the
first contact a child has with the criminal justice system and they play
a crucial role in gathering evidence from child witnesses. From their
initial investigations through to determining whether charges should be
laid and often attending court themselves, police have always played a
substantial role in getting a child witness into court.
The decision to charge a suspect and proceed with a prosecution did
not necessarily mean a child would be heard in court. They still had
to prove themselves capable of giving evidence—in particular, capable
of swearing an oath, or in some instances, “sufficiently intelligent” (to
use the legal terminology of the time) to understand the need to tell
the truth in court. Chapter 4 thus explores how a child’s competency
and capacity to give evidence were assessed. While children today are
generally, though not always, presumed to be competent witnesses unless
proven otherwise, in the past the law presumed they were incompetent.
Legislative reforms in the 1980s and 1990s removed this presumption in
most states, thus removing a significant barrier to child witnesses being
able to give evidence.
Chapter 5 considers the nature of the courtroom environment. The
experience of being in such a place, with the austere architecture—rows
of chairs, elevated benches and the like—may well be intimidating for
even trained professionals. And yet, for most of the twentieth century,
1 Introduction 7
to have their evidence heard, child witnesses had to be able to give their
testimony in crowded courtrooms, in full view of the court and in close
proximity to the defendant. Contrary to contemporary assumptions,
however, there was a significant degree of support shown to children
throughout the twentieth century. The focus of this chapter is the
implementation of various supportive measures to help child witnesses.
Distressed or quietly spoken children might be seated next to the judge—
in one instance, even on his knee. Some children held toys. Some sat
with support people and the public was often excluded from the room
while a child was giving evidence. Efforts at supporting children could
attract controversy if this meant possibly compromising common law
principles like open justice or the fairness of the trial. In those circum-
stances, principle took precedence over the interests of the children. This
chapter demonstrates the extent to which children giving evidence in
the first three-quarters of the twentieth century had more agency and
power in the courtroom than they do now, notwithstanding modern
advancements in technology and procedural reforms.
The third part of this book considers elements of trial procedure that
impacted specifically on the testimony of children. Chapter 6 considers
the primacy of oral testimony in the adversarial trial. For the better part
of the twentieth century, the only way children could give their evidence
was by standing in the courtroom and answering questions from the
prosecutor and defence counsel—and, if necessary, from defendants
directly. The reforms of the late twentieth century led to substantial
changes to the examination of children. A child’s evidence-in-chief, for
example, could be received in the form of their video-recorded police
interview. Defendants were precluded from cross-examining children
themselves. This chapter suggests this is a case of the more things change,
the more they stay the same. By the end of the twentieth century, a signif-
icant body of research demonstrated cross-examination, in particular,
could be harmful to children. Nevertheless, the legal system remained
8 R. Blewer
The purpose of collecting the cases for this book was primarily to find
examples of the application of relevant legal principles and processes,
like competency tests, examination and cross-examination of children,
and the impact of corroboration rules. Other than being a child under
eighteen years of age, particular types of witnesses were not sought out.
Similarly, the choice was made not to select or exclude cases on the basis
of offence type, gender, age group and the like. But during the course
of conducting this research, only one of the 250 children in the original
sample was Indigenous. This was interesting, yet not surprising, knowing
what we know today of the continued mistreatment of Indigenous chil-
dren in Australian criminal justice systems. To a large extent, it seems
that offences where Indigenous children were witnesses or victims were
not prosecuted. By digging much deeper, a small sample of cases was
collected where First Nations children gave evidence in court. While
it is impossible to conclude that these cases are representative of what
occurred in courts during the twentieth century, the examination of these
cases in Chapter 8 contributes to understanding if, and how, Indigenous
children participated in the criminal justice process as witnesses. These
child witnesses participated in the same process and were largely treated
1 Introduction 9
IT was nearly half-past seven when the slow morning train drew up
at the Peak’s Point Station and four solemn, rather frightened little
passengers stepped out upon the platform. They were almost the
only passengers, and as they passed out of the car, both conductor
and brakeman looked after them curiously.
“Now I wonder where them young ones can be off to at this time of
the morning,” the brakeman remarked. “They look as if they were
goin’ somewhere to stay, judgin’ by the parcels they’ve got.”
“They paid their fares all right,” the conductor answered, “and the
biggest one looked pretty well able to take care of herself. She
handed me a five-dollar bill, and to see her countin’ the change,
you’d think she’d been used to it all her life. Bright as a button she is,
and no mistake.” And then the train moved on again, and the two
men soon forgot the episode.
In the meantime the four little Winslows had left the station behind,
and were walking up the village street, in quest of a bakery, for by
this time they were all decidedly hungry. Dulcie was the only one of
them who had ever been to Peak’s Point before, but she assured the
others that she remembered the place very well, and knew just
where the stores were.
“We went to a drug-store,” she said, “and Papa and I had soda-
water. It was very good.”
“I hope we can get something besides soda-water now,” said Molly.
“It’s very nice when you’re hot and thirsty, but I don’t think it would be
at all the thing for breakfast.”
“There’s a baker on the other side of the street,” cried Maud, joyfully.
“There’s some lovely cake in the window. I’m going to have some.”
“Oh, Maudie, not cake for breakfast,” remonstrated Daisy. “I never
heard of such a thing.”
But Maud was firm.
“I always thought I should like cake for breakfast,” she maintained. “It
would be so different, you know.”
Daisy looked grave, but Molly was rather inclined to agree with her
younger sister.
“People do have queer things for breakfast sometimes,” she
reminded them. “Don’t you remember Papa told us about that place
in Maine where he went fishing, and how they gave him pie and
doughnuts every morning at seven o’clock? He said they were rather
good when you were hungry.”
So Daisy’s scruples were silenced, and Dulcie volunteered to make
the necessary purchases.
“I don’t believe we’d better all go,” she advised. “People stare so,
and I suppose we do look a little queer, with all our parcels. I’ll leave
the bag here on the sidewalk, and you can watch it till I come back.”
Nobody had any objections to offer, so Dulcie departed on her
errand, returning in the course of a few minutes with two well-laden
paper bags.
“I bought some rolls,” she announced; “they’re right out of the oven,
the woman said, and I’ve got some nice fruit cake for Maud. I’m sorry
I couldn’t get any butter, but the rolls are so fresh, I don’t believe
we’ll mind eating them dry.”
But though her voice was cheerful, Dulcie’s face was grave and
troubled, and when they had found a seat on the steps of a church,
and the two younger children had begun on their impromptu
breakfast, she drew Daisy aside to whisper anxiously:
“Things do cost a great deal more than I supposed they did. We
shan’t be able to live long on that five dollars of Uncle Stephen’s.”
“How long do you suppose it will take us to find a situation?” inquired
Daisy, with an anxious glance at her two little sisters.
“Oh, not very long, I don’t believe. Of course, we must find
something before to-night. But I’ve been thinking that perhaps it
would be better not to eat all these rolls right away. We might get
hungry again by and by, you know, and it isn’t certain that we shall
find a situation before lunch time.”
Daisy—most unselfish of sisters—agreed, although it cost her
something of an effort to put her second roll back into the paper bag,
for, after all, dry bread is not a very substantial breakfast. Somehow,
nobody felt very well satisfied, and even Maud admitted that cake
really did taste rather queer so early in the morning, and she would
like a glass of milk.
“I thought I hated milk when Grandma made me drink it,” she
admitted, “but things taste so funny when you have to eat them dry.
Let’s buy some milk, Dulcie?”
But Dulcie, mindful of the state of their finances, shook her head.
“Perhaps somebody will give us a drink of water,” she said, “but I
don’t think we’d better buy anything more now. Wouldn’t you like to
live on a farm, Maud? You might learn to milk the cows yourself.”
But this suggestion was not at all to Maud’s taste. “I don’t like cows,”
she protested, indignantly; “I’m afraid of them. Lizzie said a cow
chased her once, when she was a little girl, because she had on a
red dress. She always told us not to go near them. Oh, I don’t want
to go to a place where there are cows.”
Maud—who was beginning to feel both tired and cross—suddenly
burst into tears.
“Oh, Maudie, don’t be silly,” remonstrated Dulcie. “Maybe we won’t
go to a farm at all. I only thought perhaps farmers might be more
likely to take little girls to work for them than rich people would. You
see, rich people generally have other servants, and——”
“But I don’t want to be a servant,” wailed Maud. “Servants have to
eat in the kitchen, and sometimes they don’t have any dessert. I
want to go home, even if we are going to have a stepmother. I don’t
believe stepmothers are as bad as having to be servants, and eat in
the kitchen.”
“Stepmothers are horrid,” declared Molly, with conviction. “Besides,
we don’t want to be burdens any longer. Do stop crying, Maud, and
let’s begin to look for a situation. I think it’s going to be rather good
fun.”
Thus urged, Maud—who was really a cheerful little soul—choked
back a rising sob and dried her eyes. Just then the church clock,
over their heads, boomed forth eight strokes, and Dulcie rose.
“Come along,” she said. “I don’t think we’ll stop at any of these
houses. It will be nicer out in the country.”
The others sighed wearily, but made no objections. It was the
beginning of a very hot day, and already the sun felt uncomfortably
warm.
“If we can’t get any milk, I don’t think soda-water would be so bad,
after all,” remarked Molly, suddenly. “Let’s go back to that drug-
store.” But Daisy—who had decided ideas as to the fitness of things
—would not listen to this suggestion. Cake for breakfast was bad
enough, but soda-water at eight o’clock in the morning—the thing
was unheard of.
“It would make us all sick,” she assured them, “and then what could
we do? Nobody would take sick people to work for them.”
That argument proved unanswerable, and Molly and Maud were
forced to submit to remaining thirsty for the present. A few minutes’
walk brought them to the end of the village street, and they turned
into a shady, grass-grown road, which was much pleasanter.
Instinctively the children’s spirits began to rise.
“There’s a lovely house,” exclaimed Molly, coming to a sudden
standstill beside some iron gates. “Couldn’t we ask there?”
Dulcie hesitated. Truth to tell, now that the moment had arrived for
putting her wonderful scheme into operation, she was beginning to
feel decidedly nervous and uncomfortable.
“I think we’d better go a little farther,” she said. “It’s pretty early to
disturb people; they might not like it.”