All tangled up in court
More protection should be given to children caught in court cases, be they victims or witnesses of a crime.
THE courtroom can seem like a scary place to a child.
Even more so if the child is a victim or witness to a crime committed by their own parents, guardian or family member.
It can be difficult and traumatising if they have to be in the same room as their perpetrator.
However, there have been instances where the children are not separated from the accused, who may be their main source of support like their parents.
As some remain in the accused’s custody, they are subjected to further abuse, pressure or threats so that they will testify in favour of the accused.
It gets murky because there are no clear policies that state a child witness or victim must be separated from the alleged perpetrator during the course of the trial, points out lawyer Christina Teng.
She stresses that the law has to be clear that a child witness or victim should never be in custody, care and control of the abuser or the abuser’s family at all times.
“This is to protect the child and prevent witness tampering. This is most relevant in murder, abuse or assault cases, especially when statements are to be collected.
“Such a loophole has allowed the child to be controlled by the abuser, preventing them from talking,” she says.
This situation could influence or cause duress to the children.
“We appeal for relevant laws including the Child Act and Witness Protection Act to be reviewed and amended for better protection of the children,” she urges.
Teng adds that the child should first be considered to be taken care of by someone fit and proper within the victim’s family, instead of being sent to a welfare centre which may feel foreign to the child.
“Methods of collecting child witness statements should be improved, such as in a suitable and friendly environment.
“Standards of welfare centres should also be improved as a safe haven for the kids,” she adds.
Suriana Welfare Society Malaysia executive director Scott Wong says the need for stronger child witness protection is a long-standing issue.
Although child witnesses are protected in Malaysia, “it’s not enough”, he says.
“The underlying main point is to look into the best interest of the child. Malaysia has signed the United Nations Convention on the Rights of the Child years ago.
“With that in mind, child victims or witnesses should not be put under the custody of the accused as it will subject the child to potential abuse and affect their capability to testify,” he says.
Wong says the child could easily be subject to duress, emotional abuse or ransom so that they testify in favour of the accused. (see Experts: Separate children from the accused on next page)
“Parents could threaten the kid, that if the child says something bad about them in court, the police will take them away and the child will be left alone.
“In that situation, of course the child will be fearful and willing to forgo anything including sexual abuse,” he illustrates.
While it isn’t the best solution, Wong says the child could be put under the protection of the Social Welfare Department (JKM).
“It’s the so-called lesser of two evils. You have to take into account the situation,” he says.
In order for the children to testify in a neutral and comfortable way, Wong says the court should have the foresight to look into the situation as to avoid putting them under pressure.
“For example, if the parent is incapable of taking care of the child because he or she is a drug addict, then the court should not grant them custody,” he adds.
While some law provisions do protect child witnesses and victims in court, including allowing them to testify through video links, many courtrooms are still lacking such amenities.
Bar Council child rights committee co-chairman Ajeet Kaur says all courts should be equipped with the necessary facilities and trained personnel to handle child witnesses and victims.
“But many courtrooms are still not equipped with the video link facility.
“In many instances, when the video link facility is not available, the child sits in the same courtroom as the accused.
“A whiteboard is used to block the child from seeing the accused. But this falls short of minimising the trauma to the child,” she explains.
It’s the duty of the deputy public prosecutor (DPP) to ensure that the court facilities are working prior to the child witness’ appearance in court.
“If there is no live link video facility the DPP has to ensure that a screen is available,” Ajeet adds.
She highlights that the court has an important part to play when bail is granted to the accused.
“Conditions can be imposed on the accused to ensure that the accused does not have any form of contact with the child and the child’s family,” she suggests.
Instead of removing the children from a safe and familiar environment during the course of the trial, Ajeet feels that it is the accused who should be barred from interacting with the kid.
“Thus, the conditions imposed when bail is granted is important.
“By removing a child from the family home, the child will feel that the child has done something wrong and is being punished for it.
“Having said that, there may be situations where the family home may not be conducive for the child to stay pending the outcome of the trial.
“The only available alternative is to have the JKM take the child into custody, with the child’s schooling needs being looked into,” she says.
Ajeet says one way of minimising the trauma on the child is to record the evidence soon after a police report is lodged.
“In reality, police investigations take time to complete depending on the complexity of the case.
“Young children have short memory spans and may forget the details of what transpired.
“By video recording the evidence of the child, the evidence is kept intact,” she says.
Another party that should play a part in securing evidence of a child witness are doctors.
“SCAN (Suspected Child Abuse and Neglect) teams or OSCC (One Stop Crisis Centres) have been set up at government hospitals to ensure that there is minimum trauma on the child while being examined by the doctors.
“The medical history of the child is to be taken once only to minimise the trauma in the child.
“However there have been times when the staff have not been sensitised and ask the same questions repeatedly.
“Judges should monitor the trial process by ensuring that ageappropriate questions are asked by defence counsels,” Ajeet points out.
Meanwhile, the Women, Family and Community Development Ministry assures that the JKM will step in to rescue and protect children in need of care, especially victims of abuse and neglect, irrespective of the stage of judiciary proceedings.
“The protection will be given according to the Child Act. The children can be placed in familybased care, either by keeping them with their parents, guardian, a fit and proper person, foster parents or in a centre for a specified period.
“There is no ‘one size fits all’ when it comes to who is the best to take custody of the child as every case is unique.
“Nonetheless, the best interest of the child will be the guiding rule in determining the solution,” it says in a statement.
The ministry will also boost capacity building and the skills of court officers in handling cases involving child victims and witnesses.
“There are training courses provided for courts, DPPs and JKM officers in extracting evidence from children.
“More courses are conducted by the Judicial and Legal Training Institute,” the ministry says.
The Chief Registrar of the Court has previously formulated a guideline in handling sexual offences against children in line with the Sexual Offences Against Children Act 2017.
The guideline among others highlights the roles of the police, DPP, Legal Aid bureau, courts and JKM in protecting child witnesses or victims in sexual crimes.
“The guideline also speeds up case management of sexual offences against children,” the ministry says.
In line with the Act, the Special Court for Sexual Crimes Against Children in Putrajaya was equipped with the Court Recording Transcription, audio-visual system, child witness room and