The Content of Competence Tests: Queensland Judicial Perspectives on Non-Accused Child Witnesses in Criminal Proceedings, Part 2

Abstract

What substantive criteria do Queensland judicial officers prefer for competence tests for non-accused child witnesses in criminal proceedings? Are competence tests for sworn and unsworn evidence distinguishable? This paper is the second reporting a suite of questions concerning competence, in a survey of Queensland judicial officers. This suite focussed on three general questions of interest: the referability of competence tests to the Queensland legislation; the substantive criteria of competence tests for sworn and unsworn evidence; and the formal framing of competence tests. Two question-types were included - judicial officers signalled, in closed-ended questions, the importance that listed criteria 'should' bear to competence tests, and, in open-ended questions, the questions they 'would' put in competence tests. Question-type seemingly affected some judicial responses. For sworn evidence, a child's understanding of an oath was assigned low importance in closed-ended questions (in two formulations), but high importance in open-ended questions. For unsworn evidence, a child's understanding of a promise was assigned extremely high importance in closed-ended questions (in two formulations), but low importance in open-ended questions. Consonant with law reform endeavours, both empirical and theoretical issues are traversed in this article.