Where cross-examination of a child witness is curtailed due to the child's distress or refusal to continue, the primary focus of the analysis of whether a miscarriage of justice has occurred is the impact of the limitation on the jury's ability to assess the evidence, assessed with flexibility and common sense appropriate to child evidence. The right to cross-examination is not absolute and may be limited without depriving an accused of a fair trial. Under s 106C of the Evidence Act 1906 (WA), the test for permitting a child under 12 to give unsworn evidence is intelligibility, not accuracy or reliability — incorrect answers to preliminary questions do not preclude a finding that the child can give an intelligible account.
The full text is available to signed-in members, including the 5 later cases that cite this judgment.
1 of the 5 citing cases carry a classified treatment. How each court treated it is available to signed-in members.