THE PRE-RECORD

In Queensland, if your case involves a child under 16 years of age, and you go to trial, your case will most likely be listed for a “pre-record”, also known as a 21AK hearing. It is known as a s21AK hearing because it refers to the section of the Evidence Act 1977 (Qld). A witness in a criminal proceeding may be deemed an “affected child” witness. How an affected child gives evidence in a criminal proceeding is different from how other witnesses give evidence. The affected child witness gives evidence in court by a pre-record. A pre-record is considered Day 1 of the trial and can be the most important evidence in a criminal trial. It is the first opportunity the defence has to cross-examine the child witness.

Who Is An Affected Child Witness?

A witness is an affected child if:

  1. They are under 16 years of age when:
    • the defendant is arrested; or
    • a criminal complaint in relation to the defendant is made under the Justices Act 1886; or
    • a notice-to-appear is served on the defendant.

OR

  1. They are 16 or 17 years of age when any of the above at 1 (a) to (c) happen and they are also a “special witness”; and
  1. The defendant is charged with an offence of a sexual nature; or
  1. The defendant is charged with an offence involving violence and there is a prescribed relationship between the witness and the defendant.

A prescribed relationship is a relationship, regardless of whether it is a half, adoptive, step, parentage order, or cultural recognition order relationship, where:

(a) the defendant is the parent, grandparent, brother, sister, uncle, aunt, nephew, niece or cousin of the child;

(b) the defendant lived in the same household as the child;

(c) the defendant had the care of, or exercised authority over, the child in a household on a regular basis.

 

What Is A Pre-record?

A pre-record is a court hearing when an “affected child” witness gives evidence in Court. The child’s evidence is pre-recorded (video recorded). The video recording of the child’s evidence is played in Court to the jury and is admissible as if they were giving evidence in court in person.

What Happens At A Pre-Record?

Public members are excluded from the courtroom while the affected child witness has their evidence pre-recorded.

At the start of the pre-record, the defendant sits in the dock at the back of the courtroom. The defendant’s barrister and lawyer will sit to the far left of the bar table, and the Crown Prosecutor will sit to the right of the bar table. The affected child does not sit in the courtroom; they sit in another room. It is common practice for an affected child witness to have a support person present with them while they give evidence. The support person cannot be a witness in the case; they are generally volunteers. The child will appear in the courtroom on the screen by way of closed-circuit television. The child can see whoever speaks to them, but they will not see the defendant.

Before the child’s evidence is recorded, the Judge will speak to the affected child witness by video link. When the Judge speaks to the affected child witness, they will:

  1. Introduce the persons involved in the hearing.
  2. Tell the witness the courtroom is closed.
  3. Tell the witness the persons present in the courtroom (excluding the accused).
  4. Tell the witness if they need a break; they should say so.
  5. If they do not understand a question asked, they should say so.
  6. Canvass any issues to determine the witness’ ability to give testimony.
  7.  To raise any issues they notice with the recording equipment.

Once the Judge has got the preliminary matters out of the way, the recording will start. The recording will start with the witness being sworn in or taking an affirmation to tell the truth. The Judge will then tell the witness the prosecutor’s name and will first ask them questions followed by questions by the name of the defence barrister.

The Crown Prosecutor will first ask the witness some preliminary questions. The prosecutor may ask the witness their name and for them to confirm what they told police in their Section 93A statement was the truth. The prosecutor may ask some other questions if they want to. However, they rarely ask many questions. The questions asked by the prosecutor cannot be leading questions. A leading question is a question suggesting the answer to the question. They can only ask open-ended questions. For example, they could not tell the child, “The defendant drove a red coloured car, didn’t he?”. The prosecutor cannot ask this question because it suggests the car was red to the child. The prosecutor must ask, “What colour car did the defendant drive?”.

When the Crown Prosecutor has finished asking the child questions, the defence can ask them questions. This is cross-examination of the witness. During cross-examination the defence can ask the child leading questions. However, the defence cannot ask the child anything they want. The questions must be relevant to the issues to be determined at the trial (they must be relevant to the trial).

When the defence has finished asking the child questions, the prosecution can ask them questions. This is called re-examination of the witness. You will hear the Judge ask the prosecution if they have any questions for re-examination.

Once the child has given their evidence, they are free to go.

Before the child’s evidence is recorded, the Judge will speak to the affected child witness by video-link. When the Judge speaks to the affected child witness, they will:

  1. Introduce the persons involved in the hearing.
  2. Tell the witness the courtroom is closed.
  3. Tell the witness the persons present in the courtroom (excluding the accused).
  4. Tell the witness if they need a break, they should say so.
  5. If they do not understand a question asked, they should say so.
  6. Canvass any issues to determine the witness’ ability to give testimony.
  7.  To raise any issues they notice with the recording equipment.

Once the Judge has got the preliminary matters out of the way, the recording will start. The recording will start with the witness being sworn in or taking an affirmation to tell the truth. The Judge will then tell the witness the name of the prosecutor will first ask them questions followed by questions by the name of the defence barrister.

The Crown Prosecutor will first ask the witness some preliminary questions. The prosecutor may ask the witness their name and for them to confirm what they told police in their Section 93A statement was the truth. The prosecutor may ask some other questions if they want to, however they rarely ask many questions. The questions asked by the prosecutor cannot be leading questions. A leading question is a question suggesting the answer to the question. They can only ask open-ended questions. For example, they could not say to the child “the defendant drove a red coloured car, didn’t he?”. The prosecutor cannot ask this question, because it suggests to the child the car was red in colour. The prosecutor would have to ask a question like “what colour car did the defendant drive?”.

When the Crown Prosecutor has finished asking the child questions, the defence can ask them questions. This is cross-examination of the witness. During cross-examination the defence can ask the child leading questions. However, the defence cannot ask the child anything they want. The questions must be relevant to the issues to be determined at the trial (they must have some relevance to the trial).

When the defence has finished asking the child questions, the prosecution can ask them questions. This is called re-examination of the witness. You will hear the Judge ask the prosecution if they have any questions for re-examination.

Once the child has given their evidence, the child is free to go.

What Happens After The Pre-Record?

After the pre-record, the Court makes a copy of the child’s evidence available for the defence and prosecution. The case is adjourned for a mention so the defence and prosecution can tell the Court if any edits need to be made to the recording. If there is anything inadmissible in the recording or of a nature the jury should not hear, then this will be edited from the recording. The jury will watch the edited version of the pre-record.

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