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McDonald, Elisabeth; Tinsley, Yvette --- "Evidence Issues" [2011] CanterLawRw 10; (2011) 17 Canterbury Law Review 123

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Evidence Issues [2011] CanterLawRw 10 (1 January 2011); (2011) 17 Canterbury Law Review 123

Last Updated: 11 April 2013


Elisabeth McDonald and Yvette Tinsley*

I. Introduction

There are many evidential rules that apply both in cases of sexual offending as well as in a wide range of other criminal cases. This paper focuses on rules which are relevant only in “sexual cases” (adopting the definition from s 4 of the Evidence Act 2006) as well as some other rules of broader application that it is considered have a particular significance in the context of sexual cases, because of how they are applied, or because of how they could be applied.

The Evidence Act 2006 has introduced a number of changes of significance for complainants and witnesses. A number of the new provisions, their current application, and possible reform options will be discussed in this paper. As elsewhere in this collection, the primary focus is on the rules as they affect adult complainants in sexual cases, although it is acknowledged that child witnesses may well require additional and different support in order to ensure they can give their best evidence.1 In the words of Roberts and Zuckerman: “As with adult complainants of sexual assault...the issue should be conceived in terms of designing a principled trial process that succeeds in combining effective fact-finding with humane treatment of witnesses and fairness to the accused.”2 Section 6 of the Evidence Act 2006 also requires such a balancing act.

In this piece we focus primarily on the possible reform options with regard to evidence matters that were discussed during the April workshop session. These were: the use of alternative ways of giving evidence (in particular, pre- recording of cross-examination); the admissibility of sexual history evidence and evidence of “recent complaint”; and, rules relating to juror education, including expert evidence. This piece also raises a particular concern with regard to propensity evidence about defendants in cases of sexual offending. This issue was not discussed at the workshop, but this short overview allows readers to place in context the longer piece in this collection that focuses entirely on s 43 and its application in “acquaintance rape” cases.3 In relation to all reform options, we do not express a particular view - rather we set out some possibilities drawn from other jurisdictions.

* Elisabeth McDonald, Associate Professor of Law at Victoria University of Wellington.

Dr Yvette Tinsley, Reader in Law at Victoria University of Wellington.

1 By “best”, we mean all of the relevant and reliable information they can contribute.

  1. Paul Roberts and Adrian Zuckerman Criminal Evidence (2nd ed, Oxford University Press, Oxford, 2010) at 442.

3 Stephanie Bishop and Elisabeth McDonald “What’s in an Issue? The Admissibility of

Propensity Evidence in Acquaintance Rape Cases” published in this issue at 168.


II. Alternative Ways of Giving Evidence

Giving victims of crime the opportunity to tell their story in their own words in a secure and relaxed atmosphere is not only necessary to protect the interests of individual victims, but it also has the potential to act as an indispensible aid to truth-finding.4

The Evidence Act 2006 (ss 102- 106) expands the previous law on alternative ways of giving evidence, so that judges may now permit any witness in any proceeding to give evidence in chief and be cross-examined in an alternative way. Section 105 provides that these are where the witness gives evidence: while in the courtroom but unable to see the defendant or some other specified person (e.g. behind a screen); from an appropriate place outside the courtroom; or by a video record made before the hearing of the proceeding.5 What remains unclear is the extent to which judges are able to direct pre-trial cross-examination in an alternative way. As discussed below, this has implications for the greater use of video records for adult witnesses.

Section 103 provides that:

(1) In any proceeding, the Judge may, either on the application of a party or on the Judge’s own initiative, direct that a witness is to give evidence in chief and be cross-examined in the ordinary way or in an alternative way as provided in section 105.

(2) An application for directions under subsection (1) must be made to the Judge as early as practicable before the proceeding is to be heard, or at any later time permitted by the court.

(3) A direction under subsection (1) that a witness is to give evidence in an alternative way, may be made on the grounds of—

(a) the age or maturity of the witness:

(b) the physical, intellectual, psychological, or psychiatric impairment of the witness: (c) the trauma suffered by the witness:

(d) the witness’s fear of intimidation:

(e) the linguistic or cultural background or religious beliefs of the witness: (f ) the nature of the proceeding:

(g) the nature of the evidence that the witness is expected to give: (h) the relationship of the witness to any party to the proceeding: (i) the absence or likely absence of the witness from New Zealand: (j) any other ground likely to promote the purpose of the Act.

(4) In giving directions under subsection (1), the Judge must have regard to—

(a) the need to ensure—

(i) the fairness of the proceeding; and

(ii) in a criminal proceeding, that there is a fair trial; and

4 Jonathon Doak “Victims’ Rights in Criminal Trials: Prospects for Participation” (2005) 32

Journal of Law and Society 294 at 316.

5 This is a closed list, drafted to accommodate new technologies.

(b) the views of the witness and—

(i) the need to minimise the stress on the witness; and

(ii) in a criminal proceeding, the need to promote the recovery of a complainant from the alleged offence; and

(c) any other factor that is relevant to the just determination of the proceeding.

The grounds for directing that evidence should be given in an alternative way are set out in s 103(3). In considering these grounds, the judge must have regard to the matters in s 103(4). The most frequent arguments with regard to s 103(4) revolve around the impact of alternative ways of giving evidence on the perception of the accused by the jury, and the difficulty of assessing the demeanour of witnesses who given evidence via CCTV or on pre-recorded video tape. The courts have not generally accepted arguments that suggest that alternative ways preclude a fair trial,6 and the limited psychological evidence in relation to adults largely confirms this view.

Sections 103 and 104 only provide for evidence in chief and cross- examination in an alternative way.7 Despite this, courts have ordered that witnesses, including a complainant, may be re-examined by CCTV, video link, video record, or from behind a screen.8 This is possible through the s 11 exercise of inherent powers, although judges do not appear to have explicitly had recourse to their inherent powers in the cases where they have ordered re-examination in an alternative way. Although the courts have taken a practical approach to the issue, it may be preferable to amend the Act to explicitly allow for re-examination to take place in an alternative way.

In New Zealand, no specific standard of proof for the ordering of use of alternative ways is included in the Act. Despite the phraseology employed, there is also no explicit presumption in favour of the “ordinary way”. In R v Shone9 the Court of Appeal stated that the Act should not be read down by introducing “presumptive positions”, although several High Court judges have begun from a presumption in favour of the “ordinary way”.10

In relation to child complainants, the Court of Appeal has clearly set out that the “standard practice” should be for evidence to be given by video record.11 Recent work by Hanna and others recommended that there should

6 In R v Mussa [2010] NZCA 123 the Court of Appeal stated, at [48]: “We do not accept that allowing [an adult] complainant in a rape case to give evidence from behind a screen deprives the accused person of the right to a fair trial. The assertion that the jury would consider the complainant needed protection from the appellant assumes they ignored the Judge’s clear direction that they should not do so. There is nothing to indicate that that is what happened.”

7 Section 105(2) assumes that directions under s 103(1) can include the manner in which a witness is to be re-examined, but s 103(1) does not provide any reference to re-examination.

8 See, for example R v Williams HC Auckland CRI-2009-092-10225, 16 December 2009 at

[31]; R v H [2009] NZCA 313 at [11]; R v Simi [2008] NZCA 515; R v Kereopa [2008] DCR

29 (HC) at [11]; R v Shone [2008] NZCA 313.

9 R v Shone, above n 8, at [28]. This reflects the pre-Act view of the Court of Appeal in R v Raj

[2007] NZCA 10.

10 See R v Briggs HC Whangarei CRI-2008-027-660, 13 March 2009 at [12].

11 See, for example R v E [2007] NZCA 404, [2007] 3 NZLR 145; R v M [2009] NZCA 456.

be a presumption in favour of alternative ways for all child witnesses.12 This recommendation was highlighted by the Ministry of Justice in the recent Issues Paper.13 Although both papers focus in the main on child witnesses, the issues are also worthy of consideration for vulnerable adults.

The Ministry of Justice suggest that a move to a presumption that vulnerable witnesses give evidence in an alternative way would increase access to alternative ways of giving evidence, reduce defence objections, and send a positive message about alternative ways of giving evidence. It is further suggested in the Issues Paper that a presumption may reduce the risk that jurors draw an adverse inference against the defendant where a witness gives evidence in an alternative way. As discussed below, there is a lack of clear research conclusions regarding the reaction of a jury to the use of alternative ways, much less the effect on jury decision-making.

Disadvantages identified by the Ministry of Justice include the possible interference with a prosecutor’s discretion with regard to case management,14 and the risk that witnesses would expect to be able to give evidence in an alternative way. Presumptive special measures provision for some witnesses has proven unpopular with many prosecutors in England and Wales because of the sense that some witnesses do not want or need the protection.15 The Ministry of Justice also raised the possibility of making mode of evidence applications mandatory for all child witnesses. This could be extrapolated to all vulnerable witnesses regardless of age, but would potentially involve

some waste of court time – for example, where witnesses had no desire to give evidence in an alternative way. A third option identified was removal of the defendant from the courtroom where the witness wishes to give evidence in the ordinary way. This is possible in several jurisdictions (including Brazil), but it may be difficult to see any advantage over the current ability for a witness to give evidence in an alternative way.

The grounds in s 103(3) and the matters in s 103(4) are referred to in deciding whether to direct that evidence is given in an alternative way, but also to decide what form of alternative way is appropriate.

There is no prioritisation of the different ways in which evidence may be given (s 105), but similar to the advice in England and Wales, it has been suggested that in New Zealand “the focus will no doubt remain on what measure is most effective to ensure the witness gives the best evidence, which will enhance the ‘truth finding process’”.16

12 Kirsten Hanna and others Child Witnesses in the New Zealand Criminal Courts: A Review of

Practice and Implications for Policy (AUT, Auckland, 2010) at 116.

13 Ministry of Justice Alternative pre-trial and trial processes for child witnesses in New Zealand’s criminal justice system: Issues Paper (2011).

14 See also Debbie Cooper “Pigot Unfulfilled: Video-recorded Cross-examination under section 28 of the Youth Justice and Criminal Evidence Act 1999” [2005] Crim LR 456; Laura C H Hoyano “Variations on a Theme by Pigot: Special Measures Directions for Child Witnesses” [2000] Crim LR 250.

15 Laura C H Hoyano “Coroners and Justice Act 2009: (3) Special Measures Directions Take

Two: Entrenching Unequal Access to Justice?” [2010] Crim LR 345.

16 R Mahoney and others Evidence Act 2006: Act and Analysis (2nd ed, Brookers, Wellington,

2010) at 430.

A. Use of a “Video Record”

Giving evidence by way of video record has been explored in a number of jurisdictions, often (as in New Zealand) with an emphasis on children’s evidence. However, vulnerable adult witnesses may also benefit from the ability to record their evidence in advance of the trial, which will allow for capture of the evidence at an earlier stage, and will go some way to protecting complainants from secondary victimisation in the courtroom. The efficacy of video record evidence really depends on the method used and whether it is applied only to evidence in chief, or to all of the witness’s evidence.

The two main methods are:

• Pre-recording evidence at a special hearing (which more readily allows for pre-recording of cross-examination and re-examination, as well as evidence in chief, but cannot capitalise fully on getting evidence closer in time to the offence).

• Utilisation of investigative interviews as evidence in chief. Whilst this has been seen to be a valuable innovation for children, it is worthy of greater consideration with regard to adult witnesses, especially complainants, too. The benefits for protection of vulnerable witnesses are undermined by the need for live cross-examination and re- examination.

In addition:

• There is a possibility of combining the two approaches by allowing for the interview to be entered as evidence in chief at a special hearing where cross-examination and re-examination are conducted. This allows for supplementary questions for evidence in chief if necessary.17

The hearing could be video-recorded and played at trial. In such

instances, the cross-examination would need to take place early enough to capitalise on the benefits with regard to memory etc. in order to be efficacious. Significant delay between evidence in chief and cross-examination may result in greater inconsistencies and potential undermining of the credibility of the witness.18

The impetus behind greater consideration of interviews as evidence in chief lies in the potential to obtain evidence that offers improved outcomes in memory retrieval and therefore reliability of the evidence. Elements of the growing body of research in the area offer some useful aid in determining the appropriate way forward.

The New Zealand Police are in favour of using investigative interviews as evidence in chief. England and Wales serves as a useful case study of the potential benefits (and challenges) of doing so. Video-recorded evidence in England and Wales was introduced as part of the Government’s drive for “achieving best evidence”. The desire of introducing video-record evidence

17 This was essentially the recommendation of the Pigot Report in England and Wales: See Judge Thomas Pigot QC The report of the advisory group on video evidence (Home Office, London, 1989); Cooper, above n 14.

18 Mandy Burton, Roger Evans and Andrew Sanders “Vulnerable and intimidated witnesses and the adversarial process in England and Wales” (2007) 11 Int’l J Evidence and Proof 1.

was twofold: to increase the number of victims and witnesses who were prepared to give evidence by making the process of recording the evidence less formal; and to try to reduce the stress of giving evidence to help vulnerable and intimidated witnesses to give the best evidence they can. Both of these goals could be achieved to some degree whichever video record method is used. However, as in New Zealand, the use of an enhanced cognitive interview technique by police offered a route to specialist interviewers and a reduction in the number of occasions the witness is asked to give evidence.

There are certainly many potential benefits in utilising a video record as evidence in chief. For example, if appropriate interviewing methods are used, then the reliability (accuracy) of the evidence is likely to be enhanced, particularly as in many cases the interview will have been conducted close to the time of the offending, before the memory of the witness fades.19

The Stern Review reported in March 2010 and reflected some of the

concern in the English legal profession about the increasing use of video- recorded interviews being used as evidence in chief. The review reported that there was anecdotal evidence of disquiet at the volume of video-recorded evidence, the length of the evidence and a feeling that “juries prefer theatre to film”.20

It is worth reproducing an excerpt from Baroness Stern’s conclusions here:21

One person we spoke to told us, “The ABE [Achieving Best Evidence] interview introduced structure to interviews, but it has become so rigid it is almost counter- productive”. ...

These video-recorded interviews can be interminably long because investigating police officers have, it is said, been advised to let victims say as much as possible at their own pace. We heard from a judge that in one particular case, “the ABE interview DVD was 5 hours and 38 minutes long. This is an affront to the notion of best evidence. The police must respect the best interests of the complainant by keeping the statement/DVD of evidence as short as necessarily practicable.”

Another judge told us ‘the interviewing technique was so poor that all it achieved was to emphasise discrepancies in the witnesses’ accounts, giving defence counsel a field day. We were also told, “In the case of adult witnesses, it is surely essential for a written statement to be made based upon the relevant issues dealt with in the video interview.”

We heard of one area where there is a local rule that all video interviews are to be edited down to no more than 45 minutes unless there are good reasons for a longer interview.

The concerns in England and Wales therefore fall into two basic camps: that there is overuse of video-recorded interviews as evidence in chief; and that once in use there are issues which may impact on the ability of the jury to properly assess the evidence. The Association of Chief Police Officers (ACPO)

19 A video record may also assist in early decision-making by counsel, which may become particularly relevant should defence identification of issues become compulsory.

20 Baroness Vivian Stern The Stern Review: Independent Review Into How Rape Complaints Are Handled by Public Authorities in England and Wales (Government Equalities Office and Home Office, 2010), at 16.

21 Ibid, at 68-69. The comments regarding quality of filming and interviewing are likely to be less of a concern in New Zealand: the operation of a National Police Force, as opposed to the constabulary system, allows for greater uniformity in interview standards and quality standards for filming.

has responded to the concerns expressed in the Stern Review by reviewing the guidelines for police, particularly around planning and preparation.22

The revised guidelines, which were issued in August 2010, acknowledge the difference between the investigative needs of an interview (rapport building, exploratory questioning etc), and the needs of the courts in the presentation of evidence (which requires evidence that is easily followed and placed into the “frame” of other evidence, without being too lengthy).

In relation to the concern that there is overuse of video recorded interviews as evidence in chief, the new ACPO guidelines state that the “use of video recorded interviews at evidence in chief should be viewed as an exception to the rule in which evidence is given live in court”. Where a witness is eligible for special measures (because they are vulnerable or intimidated) then there should be a careful consideration of how to achieve their best evidence: this may be by playing a video-recorded interview as evidence in chief, or it may be by using a screen, CCTV and so on. The concerns in the Stern Review were anecdotal, and do not reflect a Home Office review of special measures three years earlier, which found that “achieving best evidence” interviews were conducted in only a minority of cases (33% of adult vulnerable and intimidated witnesses and 25% of child cases despite a presumption for such interviews for children).23

The key starting point in the ACPO guidance is that the video-recorded

interview should recorded with a view to its use as evidence in chief only where it is the method of giving evidence that is most likely to “maximise the quality” of the evidence. It could be argued that this suggests a move towards preference of other alternative ways unless there is a clear advantage to a video recorded forensic interview as evidence in chief, but alternatively it could simply be a reminder to consider all the options and weigh which is the most appropriate. Any move towards fewer video recorded interviews would appear to be contrary to the amendment in 2009 (not yet in force) that provided for a presumption in favour of video interviews as evidence in chief for adult complainants in sexual cases.24 These contradictory positions arise because the police are gatekeepers of whether a video recorded interview is made, whereas the courts rule on admissibility of any available video. The law in this area in England and Wales illustrates the dangers of piecemeal reform which then hits significant practical problems and is insufficiently piloted.

Although s 105 Evidence Act 2006 invites a focus on determining which alternative way will allow the witness to give his or her “best evidence” (and therefore does not prioritise the ways in which evidence may be given), the Law Commission recognised that early recording of relevant evidence enhances

22 National Investigative Interviewing Strategic Steering Group “Advice on the structure of visually recorded witness interviews” (Association of Chief Police Officers, 2010).

23 Burton, Evans and Sanders, above n 18. This was despite 75% of police in the research survey rating video evidence as the most effective special measure of all. See also Mandy Burton, Roger Evans and Andrew Sanders Are special measures for vulnerable and intimidated witnesses working? Evidence from the criminal justice agencies (Home Office Online Report

10/06, 2006).

24 Youth Justice and Criminal Evidence Act 1999 (E&W), s 22A, as amended by the Coroners and Justice Act 2009 (E&W).

its reliability, regardless of the age of the witness or the circumstances of the case.25 Video recorded interviews clearly offer advantages in early recording of evidence over other alternative ways of giving evidence, but as discussed below, there are practical challenges in their use as evidence in chief. These need to be realistically canvassed even where the advantages are so clear.

The second concern in England and Wales - about quality of the interview and ensuring that it is a good evidential product - has also been responded to by ACPO. The new guidance suggests that any rapport building should not form part of the video-recorded interview itself (as is the case in New Zealand); and that there should be an effort made to keep the interview as concise as possible. The latter may be difficult with a cognitive interview approach, which reflects the tension between a good investigative versus a good evidential product. In addition to keeping a record of the visual interview (ROVI) for use as a guide to the interview, the ACPO guidance suggests that in complex cases an accurate chronological summary of the witness’s account is prepared to assist the investigation, reviewing lawyers and the courts. There is also reference to editing of the video recorded interview, but little other information on guidance as to how this should be done.

1. Investigative needs vs. evidential product

In order for video recorded investigative interviews to be appropriately utilised as evidence in chief, it is therefore necessary to assess whether the investigative needs of the interview can be achieved whilst also fulfilling the requirements of a sound evidential product. The police interview is – and has to be – focused on investigative needs. The task is to gauge whether the same interview can adequately fulfil the evidential needs of the courts. If this can be achieved, the potential for video recorded interviews as evidence in chief is great. In the area of sexual violence, for example, victims would not have to relive the offence in the retelling so often; evidence could be collected close in time to the offending (in acute presentations to police) and victims would be able to say what happened in a free narrative form.

However, the application of various rules of evidence present challenges in utilising pre-recorded interviews as evidence in chief - from ensuring that the evidence is relevant to abiding by the previous consistent statements rule. The use of a chronological summary may assist with appropriate editing to ensure compliance with the rules of evidence whilst ensuring that an accurate representation of the witness’s evidence is not lost.

The difficulty of the editing task should not be underestimated. Given that little is known about juror reaction to different interviewing formats, there is a danger that editing would undercut some of the positive aspects of the cognitive interview technique. Although New Zealand has experience in editing children’s video interview evidence, children tend to give shorter

25 New Zealand Law Commission The Evidence of Children and Other Vulnerable Witnesses: A Discussion Paper (NZLC PP26, 1996) at [A1], [A12]. There is some disquiet about the use of early interview material as evidence in chief for those victims who are unable to recall details in a coherent way due to the trauma of the event in the immediate days and weeks following. This is an issue often raised when examining the symptoms of “rape trauma syndrome”: see Louise Ellison “Promoting Effective Case-Building in Rape Cases: A Comparative Perspective” [2007] Crim LR 691.

interviews and the task is not as complex as it would be for most adults. That said, until more is known, the undoubted benefits in recall (and therefore reliability) need to be weighed against the difficulties in each individual case of presenting relevant evidence in a digestible format for the jury.26

If new evidence arises then witnesses may still have to give some evidence as “supplementary evidence” (although this could be by a different alternative way). The ability of counsel to emphasise particular parts of the witness’s evidence in order to present it more persuasively is also obviously reduced when using a pre-recorded interview as evidence in chief. Prosecuting counsel is not able to structure the narrative of the witness’s evidence, because the themes and content of the witness’s “story” is already in the video interview. This returns the focus to whether, given the circumstances of the witness and the considerations in s 103(3) and (4), the use of a pre-recorded interview as evidence in chief is the best way of “maximising the quality” of the evidence.

B. Cross-examination Issues

Research has consistently shown that cross-examination techniques can mislead and confuse witnesses, which in turn impacts on the accuracy of the evidence they give.27 A recent study replicated the finding that the use of complex vocabulary and syntax during cross-examination was associated with reduced witness accuracy, but also concluded that prepared witnesses were more likely to seek clarification and give accurate responses.28 The method of preparation - a leaflet outlining the purpose of cross-examination, general advice (such as “listen carefully to the question”) and examples of leading, multipart and double negative questions – was relatively simple.

In the context of the general findings on the impact of cross-examination on witness accuracy, concerns have been raised that the use of video-recorded interviews as evidence in chief may be detrimental to witnesses in some instances. If the video will be followed by cross-examination that is not pre- recorded, then many of the more difficult issues for vulnerable witnesses remain. Indeed, the issues may be heightened because the witness will not have had prosecution counsel lead them through the questions in evidence in chief, and their first real exposure to the lawyers in the case will be during

26 A popular conception of how juries form a view of the case is the “story model”, which suggests that jurors do not simply record and store the evidence for later use as they receive it. Instead, they organise the evidence to construct a story, which can then be used to fill in gaps in the evidence by drawing inferences. There is little research on how pre-recorded video interviews used as evidence in chief might fit in with this type of process. For an early description of the story model, see N Pennington and R Hastie “Evidence evaluation in complex decision making” (1986) 51 Journal of Personality and Social Psychology 252.

27 See J Wheatcroft and G Wagstaff “Cross-examination: The Interface Between Psychology and the Courtroom” (2003) 75 Forensic Update 8; M Kebbell and S Johnson “Lawyers’ Questioning: The Effect of Confusing Questions on Witness Confidence and Accuracy” (2000) 24 Law & Hum Behav 629. Although much of the work in this area concentrates on the evidence of children, the accuracy and completeness of evidence given by adult witnesses is also affected by cross-examination techniques such as complex questions, leading questions, double negatives and legal terminology.

28 Louise Ellison and Jacqueline Wheatcroft Exploring the Influence of Courtroom Questioning and Pre-Trial Preparation on Adult Witness Accuracy (Arts & Humanities Research Council,


cross-examination.29 It is for this reason that the British Office for Criminal Justice Reform suggested that where a video recorded interview is used as evidence in chief, the prosecutor should ask the witness a few short questions before cross-examination begins (e.g. “do you need a break?” or “can you see everyone clearly”).30

In New Zealand, the Law Commission initially proposed that pre-trial cross-examination and re-examination should form part of the draft Evidence Code,31 but did not recommend its use in its final report. The “alternative ways” in which a witness may give evidence are set out in s 105 Evidence Act

2006. However, the position is unclear with regard to directions as to the way cross-examination and re-examination should proceed.

Section 103(1) refers to cross-examination of a witness in an alternative way. However, it is arguable that the Act does not provide for pre-trial cross-examination. Section 105(1)(a)(iii) appears to recognise pre-trial cross- examination as part of the alternative way of giving evidence known as a “video record” which is made before the hearing of the proceeding. Section

106, which deals specifically with video record evidence, does not state explicitly that it is solely a means of offering a witness’s examination in chief, but s 105(2) seems to assume that in every case in which video record evidence is used, further directions will be needed under s 103 as to the manner in which cross-examination and re-examination are to be conducted. Cross-examination could occur in either of the ways set forth in s 105(1)(a) (i) or (ii), but both of these alternative ways of giving evidence involve the witness testifying at the hearing itself. On the basis of the wording of these provisions, it is therefore arguable that pre-trial cross-examination is not provided for in the Act.32

There have been a small number of cases where it has nonetheless been

directed that cross-examination of adult witnesses be pre-recorded. These are cases with exceptional circumstances. In R v Kereopa,33 Heath J directed that a prosecution witness’s evidence (including cross-examination) be taken by video record. The witness was terminally ill and unlikely to be alive at

29 Louise Ellison The Adversarial Process and the Vulnerable Witness (Oxford University Press, Oxford 2001) [“The Adversarial Process and the Vulnerable Witness” ]; R Flin and others “Child witnesses in Scottish Criminal Trials” (1993) 2 International Review of Victimology 325.

30 Office for Criminal Justice Reform Convicting Rapists and Protecting Victims - Justice for

Victims of Rape: A Consultation Paper (2006) at 33.

31 For children and elderly witnesses: New Zealand Law Commission, above n 25, at [144]- [155].

32 No explicit provision is made for re-examination of the witness in the same or any other alternative way. Mahoney and others, above n 16, state at 422 that “This appears to be due to a legislative oversight. Section 105(2) assumes that directions under s 103(1) can include the manner in which a witness is to be re-examined, but s 103(1) makes no mention of re- examination. It may be that s 105(2) will be relied upon as providing sufficient authority to give directions for re-examination to be conducted in an alternative way. However, that solution would only apply when the witness’s evidence in chief has been given by a video record, as opposed to some other alternative way of giving evidence not mentioned in s

105(2)... To avoid this oversight, a judge may rely on his or her inherent powers (s 11) and direct that a witness be re-examined in the same alternative way in which he or she gave evidence in chief or was cross-examined.”

33 R v Kereopa, above n 8.

the time of trial. In R v Willeman34 Cooper J directed that the evidence in chief and cross-examination of a tetraplegic complainant who needed communication assistance should be conducted at his home before the trial. In relation to child witnesses, the Crown prosecutor in Auckland has begun making mode of evidence applications to allow for the pre-recording of all of a child complainant’s evidence.

There are several jurisdictions in which all evidence may be pre-recorded (evidence in chief, cross-examination and re-examination) for some witnesses. In the main these are civil law systems such as Austria. Western Australia offers an example of an adversarial jurisdiction that has adopted the approach (for child witnesses). It should be noted that the provision in Western Australia relates to video record at a special hearing, as opposed to the investigative interview being recorded and used as evidence in chief.35 There

have been some objections to pre-recording including cross-examination

because it forces the defence to disclose particulars of their case before trial.36

How pertinent an objection this would be in the New Zealand context may depend on the form that defence identification of issues ultimately takes.37

1. Western Australia

Following recommendations from the Child Sexual Abuse Taskforce Report in 1987 and a report of the Law Reform Commission of Western Australia in 1991 (“Evidence of Children and other Vulnerable Witnesses”) legislative changes were made in Western Australia to the way that children give evidence in sexual assault cases. The 1992 legislative changes not only reformed the evidential process for child witnesses, but also made changes to the substantive criminal law and procedure more generally.

A number of the 1992 reforms were aimed at removing the physical and emotional barriers children face when giving evidence. These are inherent in the nature of the adversarial process and the physical court. The essence of the reforms was to allow children’s evidence to be recorded in full (including cross-examination and re-examination) at a special pre-recording hearing so that they would not have to appear at the trial proper.38

34 R v Willeman (Tetraplegic: Interpreter) [2008] NZAR 644 (HC) at [5] and [48].

35 The Northern Territory of Australia has provision for the use of the pre-recorded interview to be used as evidence in chief, but not for the whole of the witness’ evidence to be pre-recorded when using the interview as evidence in chief: Evidence Act (NT) s 21A(1).

36 Laura C H Hoyano and C Keenan Child abuse: Law and Policy across Boundaries (Oxford

University Press, Oxford, 2007) 642.

37 The Criminal Procedure (Reform and Modernisation) Bill 2010 (WA) clause 64 provides that:

(1) The defendant must, before the trial,—

(a) give notice of any particular elements of the offence that the defendant contends cannot be proved; and

(b) give notice of any particular defence, justification, exception, exemption, proviso, or excuse on which the defendant intends to rely.”

38 Pre-recording of a child’s evidence is governed by sections 106I to 106MB of the Evidence

Act 1906 (WA):

106I. visual recording of child’s evidence, application for directions

(1) Where a Schedule 7 proceeding has been commenced in a court, the prosecutor may apply to a judge of that court for an order directing —

[(a) deleted]

In a pre-recording hearing, the Judge and counsel wear their usual robes. The child will have been prepared for the hearing by the specialised Child Witness Service and will be filmed entering the room so that the jury have an opportunity to see their size and demeanour.39

Editing of the tape is governed by s 106M of the Evidence Act 1906 (WA), which states that alterations may not occur without the approval of the judge. However, in practice, editing is undertaken by the prosecution with defence consultation.40 The tape is stored by the court for use at the trial and, rather than being tendered as an exhibit, is treated as oral evidence.41 When the tape is shown to the jury in the trial, s 106P of that Act directs the judge to warn the jury that pre-recording is a routine practice of the court and that no adverse influence should be drawn from the use of the procedure.

Western Australia has been lauded as a great example of protection of vulnerable witnesses. However, there has been some recent disquiet around the level of expertise of interviewers. This pertained particularly to interviews of suspects, but also exposed issues in the planning around investigations. In addition, as the pre-recording often takes place close to the time of the trial, some of its benefits (for example avoiding forgetting by recording the interview close to the time of the offence) are lost.

The Scottish process for taking the evidence of child witnesses “on commission” in s 271I Criminal Procedure (Scotland) Act 1995 has similarities with the Western Australian approach. Under the Scottish legislation, a High Court judge or sheriff is appointed as Commissioner to take the child’s evidence. There is also provision for the child’s statement (including police interviews) to constitute evidence in chief (s 271M). In England and Wales, s 28 Youth Justice and Criminal Evidence Act 1999 provides for cross- examination and re-examination to be pre-recorded. However, the section has proven to be controversial, has not yet been adequately piloted and at one stage looked to be headed for repeal before it came into force.42 The British

government have not repealed the section in the new legislation, but it has

still not been implemented (it is “partially” in force).

Some other jurisdictions (e.g. South Australia) allow for use of recorded evidence in chief and cross-examination in any re-trial in sexual offence cases, meaning that the witness may not have to give evidence in person at the re-trial. This raises issues similar to those arising in cases where the

(b) that the whole of the affected child’s evidence (including cross- examination and re-examination) be —

(i) taken at a special hearing and recorded on a visual recording; and

(ii) presented to the court in the form of that visual recording, and that the affected child not be present at the proceeding.

39 Hal Jackson “Child Witnesses in the Western Australia Criminal Courts” (2003) 27 Crim

LJ 199, 206. For an explanation of the process, see Hanna and others, above n 12, at 147-

151; Office of the Director of Public Prosecutions (ACT) and Australian Federal Police

Responding to Sexual Assault (2005) at 143-145.

40 Hanna and others, above n 12.

41 Jackson, above n 39, at 206.

42 Diane Birch and Rhonda Powell Meeting the challenges of Pigot: Pre-trial cross-examination under s 28 of the Youth Justice and Criminal Evidence Act 1999 (unpublished 2004) cited in Office for Criminal Justice Reform Improving the Criminal Trial Process for Young Witnesses (2007) at 12.

evidence is pre-recorded at a first trial, in that new issues may be introduced and the witness may thereby feel obliged to give evidence some other way after all. This can also be an issue in civil law jurisdictions, with witnesses facing the choice of sticking to the pre-recorded evidence and not having their response to the new evidence heard; or having to give evidence that is not pre-recorded.

2. Civil law jurisdictions: Austria as an example

The issue of pre-recorded interviews as evidence in civil law jurisdictions poses some of the same issues that are faced in a common law system - for example, what happens where new evidence is uncovered post recording. However, in many ways the issue is less complex: there is little formal distinction between evidence in chief and cross-examination, given that in most civil law jurisdictions the judge will lead the questioning and in any event will control the questioning closely.43

In Austria, there is a particular protection provided for complainants that is translated as the “contradictory interrogation” procedure. It is used primarily in sexual offence cases. Under this procedure the evidence of the witness is received and videotaped in advance of the trial and may then be used at the trial in lieu of oral evidence. While the evidence is being taken, the witness and the judge are in one room and other participants are in a second room that is joined by audiovisual link. The victim provides his or her evidence as a narrative, followed by questions from the judge. The judge then goes to the other room and collects questions from the other parties to put to the witness. There is no ability of the parties to put questions directly. In sexual offence cases, the use of the procedure is obligatory if the witness is under 14, but otherwise the victim has a right to the procedure or the prosecutor can decide that it is appropriate. Where the witness is instead called at the trial itself, the same procedure for taking the evidence is used with the judge and the witness in one room and the remaining participants in another.

C. Psychological Research Regarding the Impact of Alternative Ways on

Juror Decision-making

The ability to adequately assess credibility of witnesses who give evidence in an alternative way has occasionally been questioned since the 2006 Act was introduced. Arguments that evidence given by CCTV or pre-recorded videotape affects the jury’s ability to assess demeanour and veracity have not generally been accepted.44 The Court of Appeal has agreed with Crown

43 In the Netherlands, rape complainants can usually give evidence at a pre-trial hearing held before an examining magistrate. The examining magistrate controls the questioning, although the defendant’s lawyer is able to ask questions. This does not necessarily protect the complainant from secondary victimisation. As Ellison reports, defence lawyers may still utilise stereotypes of appropriate behaviour and victim blaming; and irrelevant and offensive questions may still occur: Louise Ellison “The protection of vulnerable witnesses in court: An Anglo-Dutch comparison” (1999) 3 Int’l J Evidence and Proof 29.

44 See Deutsche Finance New Zealand Limited v Commissioner of Inland Revenue (2007) 18

PRNZ 710 (HC) at [14] ff; Omni Marketing Group, Asia Pte Limited v Transactor Technologies

Limited HC Auckland CIV-2007-404-430, 29 May 2008 at [15]; Yang v Chen HC Auckland

counsel’s observation (with regard to a complainant giving her evidence from Germany) that “evidence by video link has not previously been seen as adversely affecting an ability to assess credibility.”45

In terms of the psychological research in this area,46 claims have been made that video technology will increase the likelihood of conviction because jurors will perceive the testimony as in some sense ‘special’ and that will lead them to pay undue attention to it.47 Conversely, others have asserted that video will serve to distance the witness from the jury and cause the witness’s evidence to have less emotional impact on the jury compared to live testimony.48 Despite these assertions, there is relatively little psychological research on juror perceptions of videotaped evidence–in-chief of adult witnesses. One recent example is a report by Taylor and Joudo,49 which found that where jurors were surveyed immediately following the trial but before jury deliberation, the mode of presentation of a complainant’s testimony (face-to-face, CCTV or pre-recorded videotape) had made little difference to juror perceptions of the complainant, the accused, or the guilt of the accused. There was a diverse spread of juror views regarding credibility, empathy and guilt in all conditions.

More research has been conducted on children’s evidence: this generally indicates that children who give out-of-court evidence are perceived in more negative terms than children who give in-court evidence, with those giving evidence out of court being perceived as less believable and accurate.50 This conclusion accords with the anecdotal evidence described in the Stern Review, with live testimony having a greater emotional impact, and perceived as more credible than CCTV and video evidence in chief. Landstrom recently replicated this basic conclusion in a number of studies for her doctoral thesis, finding that for both adults and children, live testimony was viewed more favourably than either CCTV or pre-recorded testimony, but that the ability

CIV-2007-404-1751, 13 May 2010 at [52]; R v Ming HC Auckland CRI-2009-092-10550,

26 August 2010 at [36].

45 R v Simi, above n 8, at [27]. See also R v Check [2009] NZCA 548 at [78].

46 The mechanics of video-recording evidence have been the subject of a number of studies, which find that the camera angle, focus (long or close shot) and so on may affect juror perception of the witness (e.g. the camera should be focussed at a 90 degree angle to the vertical plane). See, for example H Kepplinger “ The impact of presentation techniques: Theoretical aspects and empirical findings” in F Biocca (Ed.). Television and political advertising. Vol. 1 Psychological Processes ( New Jersey, Lawrence Erlbaum 1991), 173-194.

47 For a discussion of these claims, see JC Wilson and GM Davies “An Evaluation of the Use of Videotaped Evidence for Juvenile Witnesses in Criminal Courts in England and Wales” (1999) 7 European Journal on Criminal Policy and Research 81.

48 K McFarlane “Diagnositic evaluations and the use of videotapes in child sexual abuse cases” (1985) 40 U Miami L Rev 135.

49 Natalie Taylor and Jacqueline Joudo The impact of pre-recorded video and closed circuit television testimony by adult sexual assault complainants on jury decision-making: an experimental study (Research and Public Policy Series No. 68, Australian Institute of Criminology, 2005). The authors themselves concede at 68that the use of a 42-inch plasma screen and good recording conditions may have affected these results.

50 Gail S Goodman and others “Face-to-Face Confrontation: Effects of Closed-Circuit Technology on Children’s Eyewitness Testimony and Jurors’ Decisions” (1998) 22 Law & Hum Behav 165; H K Orcutt and others “Detecting deception in children’s testimony: factfinders’ abilities to reach the truth in open court and closed-circuit trials” (2001) 25 Law

& Hum Behav 339.

to differentiate between true and false statements were poor whatever the presentation mode.51 Despite jurors having a preference for live evidence, studies seem to show that they do not appear to allow it to influence their decision-making, with mode of presentation having little impact on the overall proportion of guilty verdicts.52

It should be stressed that extrapolation to real life from the psychological research is not easy, and the evidence in this area is relatively sparse. Until more is known about the general effect on juries of alternative ways of giving evidence, close consideration of the individual circumstances of the case (utilising s 103) offers the best approach in assessing the needs of a vulnerable witness and the most appropriate method of maximising the quality of the evidence.

D. Alternative Ways of Gathering Evidence: Allowing the use of Narrative Evidence

Concern expressed by complainants that they can only respond to questions when giving evidence, rather than being allowed to use their own words, is not limited to sexual cases or even to complainants. The feeling of not being in control of what they want to say may be exacerbated in sexual cases by limited contact with the prosecution and by the nature and content of complainants’ evidence. “Very few women understand the trial process in any depth, and find the process – especially the fact that they never get to

‘their story’ – confusing and alienating.”53

The authors of the New South Wales study, Heroines of Fortitude: the Experience of Women in Court as Victims of Sexual Assault,54 recommended use of section 29(2) of the Evidence Act 1995 (NSW) by complainants in sexual cases. This provision allows for the giving of evidence in narrative form; no similar provision is included in the Evidence Act, which does draw on the Australian legislation in other contexts.55 Nicola Lacey has similarly called for changes to “allow victims more fully to express their own narrative in the court room setting”.56

The term “narrative form” is used “in contradistinction to the familiar process by which a witness giving oral evidence is asked questions and the witness’s evidence takes the form of the answers given to those questions.

‘Narrative form’ refers to the situation where a witness stands in the witness box and speaks without being questioned.”57

51 Sara Landstrom “CCTV, Live and Videotapes: How Presentation Mode Affects the

Evaluation of Witnesses” (PhD, University of Gothenburg, 2008).

52 Graham Davies “The Impact of Television on the Presentation and Reception of Children’s

Testimony” (1999) 22 Int’l J L & Psychiatry 241.

53 Fawcett Society Commission on Women in the Criminal Justice System (2004) at 29.

54 Gender Bias and the Law Project Heroines of Fortitude: The experiences of women in court as victims of sexual assault (NSW Department for Women, 1996) at 5.

55 For example, Evidence Act 2006 s 62; see New Zealand Law Commission The Privilege Against Self Incrimination: A Discussion Paper (NZLC PP25, 1996) at [413] ff. See also Evidence Act 2006 s 73(4); New Zealand Law Commission Evidence Volume 1: Reform of the Law (NZLC R55, 1999) at [340].

56 Nicola Lacey “Unspeakable Subjects, Impossible Rights: Sexuality, Integrity and Criminal

Law” (1998) 11 CJLJ 47 at 47– 68.

57 Stephen Odgers Uniform Evidence Law (9th ed ed, Thomson Reuters, Rozelle, 2010) 105.

Section 29(2) has recently been amended following the Australian Law Reform Commission’s review of the federal legislation (which has also been enacted in Victoria). It now provides that the court may, either as a result of the party’s application or on its own motion may “direct that the witness give evidence wholly or partly in narrative form.” The Commission stated that they remain “of the view that narrative evidence is an important tool in ensuring that the best evidence is before the court.”58 The Commission identified four particular categories of witness for whom s 29(2) would have particular application: experts, Aboriginal and Torres Straight Islanders, children and persons with an intellectual disability. However the section is not stated to be limited in this way and could equally be used for complainants in sexual cases, regardless of age.

Another benefit of allowing evidence to be given in a narrative form is that it will allow witnesses to tell “their story” in a form accessible to the fact-finder. Story-telling has been shown to assist juror comprehension.59

Allowing a person to arrange their story, or say what happened, in the order which makes most sense to them is more likely to be “listener-friendly”.60

The main concern with in-court use of this form of giving evidence is that the narrative might breach admissibility rules.61 This will arguably not be at issue with regard to expert witnesses who will usually know what is permissible. However it may well be problematic, especially in a jury trial unless a witness is prepared (but not coached) beforehand to stay within the rules. The best option would therefore be that the witness’s evidence in chief is pre-recorded, even close in time to reporting. Provision could be made for the presentation of the complainant’s evidence to be primarily in narrative form, with any appropriate editing if required.62

Provision for offering narrative evidence in writing “in the form of a prior statement” is possible in Scotland pursuant to s 271M of the Criminal Procedure (Scotland) Act 1995, as amended in 2004. Such a statement is admissible as the (vulnerable) witness’s evidence in chief “without the witness being required to adopt or otherwise speak to the statement in giving evidence in court” (s 271M(2)). A “vulnerable witness” is defined in terms of the likelihood of the witness becoming distressed, the nature of the proceedings and the type of evidence the witness will give – a definition that is sufficiently wide to cover complainants in sexual cases.

58 Australian Law Reform Commission Uniform Evidence Law (ALRC Report 102, 2006) at


59 Nancy Pennington and Reid Hastie “A cognitive theory of juror decision making: The Story

Model” (1991) 13 Cardozo L Rev 519.

60 Jill Hunter “Battling a Good Story: Cross-examining the Failure of the Law of Evidence” in Paul Roberts and Mike Redmayne (eds) Innovations in Evidence and Proof: Integrating Theory, Research and Teaching (Hart Publishing, Oxford, 2009) at 272.

61 See Elisabeth McDonald “Sexual Violence on Trial: Assisting Women Complainants” (2005) 19 Women’s Studies Journal 107, 121.

62 The use of narrative evidence by children was considered to be “highly desirable” by the NZLS in the Society’s response to Ministry of Justice Alternative pre-trial and trial processes for child witnesses in New Zealand’s criminal justice system: Issues Paper (2011) at [131] ff.

III. Sexual History Evidence (s 44)

A. Background

Section 44 of the Evidence Act 2006, which is aimed at limiting the admission of evidence of the complainant’s sexual history with any person other than the defendant, is the New Zealand equivalent of what is referred to in some other jurisdictions as a “rape shield” provision. Along with the other evidential rules, which apply specifically to sexual cases, rape shield provisions have attracted much academic analysis.63 Complainants have also been asked to report the extent to which they have been questioned about their sexual history at trial.64

A number of replicated findings and commonly held perspectives may be distilled from the significant literature on this topic:

(a) Complainants consider it distressing, irrelevant, embarrassing, unfair and distracting to be asked about their previous sexual experience. Complainant distress impacts on the quality of evidence they are able to give. The fact that victims of sexual offences know they may well be asked about their sexual experience may well be a factor in low reporting rates.65

(b) Admission of evidence concerning a complainant’s sexual history makes it more likely the fact-finder will attribute blame to the complainant and less likely they will consider the accused’s conduct criminal. (This is more likely to occur when the evidence concerns the complainant’s sexual history with the defendant - evidence not currently subject to s 44.) The prejudice arising from such evidence cannot be meaningfully countered by a direction from the judge, nor does it appear that “limited use” directions are an effective way of ensuring that the evidence is used by the jury only for specific purposes (for example, to assist the decision about belief in consent and not for the impermissible purpose of informing jury opinion about the credibility of the complainant).

(c) The admission of sexual history evidence has traditionally not been appropriately controlled in the absence of a specific rule. That is, subjecting the evidence to a relevance requirement, has not been sufficient to prevent the admission of irrelevant and highly prejudicial sexual history evidence.

63 Jennifer Temkin “Sexual History Evidence - the Ravishment of Section 2” [1993] Crim L Rev 3; Aileen McGolgan “Common Law and the Relevance of Sexual History Evidence” (1996) 16 Oxford Journal of Legal Studies 275; Elisabeth McDonald “Syllogistic Reasoning and Rape Law” (1994) 10 Women’s Studies Journal 41; Sue Lees Carnal Knowledge (Women’s Press Ltd, London, 2002); Regina A Schuller and Marc A Klippenstine “The Impact of Complainant Sexual History Evidence on Juror’s Decisions: Considerations From a Psychological Perspective” (2004) 10 Psychology, Public Policy and Law 321; Jennifer Temkin “Sexual History Evidence - Beware the Backlash” [2003] Crim L Rev 217 [“Beware the Backlash”].

64 Gender Bias and the Law Project, above n 54; Ivana Bacik, Catherine Maunsell and Susan

Gogan The Legal Process and Victims of Rape (Dublin Rape Crisis Centre, Dublin, 1998).

65 See Liz Kelly, Jennifer Temkin and Sue Griffiths Section 41: An Evaluation of New Legislation Limiting Sexual History as Evidence in Rape Trials (Home Office Online Report 20/06, 2006) at 70.

(d) Rape shield provisions that allow for the exercise of judicial discretion (as in New Zealand) may be a less effective way of preventing the introduction of irrelevant and prejudicial sexual history evidence. Category-based exclusion provisions are arguably more effective yet are more open to challenge on the basis of potential or actual unfairness to an accused.66

A critique of the historical approach to questioning complainants about their sexual past has been succinctly stated by Roberts and Zuckerman:67

Over the years some strange notions of relevance became embedded in the common law. For example, it was assumed that evidence of prostitution diminishes the credibility of a rape complainant and increases the probability that the intercourse was consensual, when, on a dispassionate appraisal, one might expect prostitutes to be the last people to make false allegations of rape, since sending customers to gaol can hardly be good for business. Equally, a promiscuous person is not the most likely to concoct a false allegation in order to protect her reputation, nor would one particularly expect a sexually experienced person (as opposed to a shrinking violet with no previous sexual history to exploit) to be overcome by shame or remorse into falsely accusing her partners of rape. All-too-frequently, it would appear, the real purpose of such cross-examination was to suggest that the complainant was herself too morally flawed to deserve the court’s sympathy or to justify punishing the accused.

However, there are still concerns about the amount of evidence relating to a complainant’s sexual experience that is admitted at trial, regardless of the type of provision in force.68 Most jurisdictions severely limit evidence of sexual experience with a person other than the defendant, if only offered to prove that the complainant consented, or that the defendant believed that she was consenting. It is difficult to see how evidence of the complainant’s reputation in sexual matters provides, of itself, grounds for the defendant believing she consented to sexual relations. Consent is, after all, given to a person, not a set of circumstances.69 Section 44(2) has introduced a bar on

66 There is debate on this issue. See Carol Withey “Female Rape An Ongoing Concern: Strategies for improving reporting and conviction levels” (2007) 71 JCL 54 at 82; Jennifer Temkin Rape and the Legal Process (2ed, Oxford University Press, Oxford, 2002) at 224; Neil Kibble “Judicial Discretion and the Admissibility of Prior Sexual History Evidence under Section 41 of the Youth Justice and Criminal Evidence Act 1999: Sometimes Sticking to your Guns Means Shooting Yourself in the Foot” [2005] Crim L Rev 263 at 267, 273.

67 Roberts and Zuckerman, above n 2, at 443. See also T Brettel Dawson “Sexual Assault Law and Past Sexual Conduct of the Primary Witness: The Construction of Relevance” (1987)

2 Canadian Journal of Women and the Law 313 at 328: “Information made available to a jury concerning the primary witness’s past sexual activity or non-conformity to a sex-role increases the responsibility for the assault that is attributed to her at the same time that it decreases perceptions of the accused’s guilt.”

68 See Mary Heath “The law and sexual offences against adults in Australia” (2005)(4) ACSSA

1 at 10 ff; Victorian Law Reform Commission Sexual Offences Law and Procedure: Final Report (2004) at 201; Roberts and Zuckerman, above n 2, at 450: “this is a timely reminder that the attitudes and behaviour of the legal professionals who apply the rules are often as important in practice as the content of the rules themselves. Such attitudes and behaviour might be a more promising target for reformers keen to improve the lot of sexual assault complainants, rather than tinkering with technical evidentiary rules of admissibility which often appear unresponsive to reformer’s best endeavours.”

69 However this argument is not always reflected in decisions about the admissibility of sexual history evidence, see for example R v Bourke CA207/06, 15 August 2006; commentary on the case in Elisabeth McDonald “Complainant’s Reputation in Sexual Matters” [2007] NZLJ 251; and the later Court of Appeal case: R v Keegan [2007] NZCA 247 at [63].

reputation evidence (“in sexual matters”) which is consistent with overseas jurisdictions,70 but the wording is unclear with regard to evidence of false complainants. This issue is discussed further below. There may be a case for changing the wording of s 44 so that the test reflects the more used balancing test of probative value and prejudicial effect – while giving guidance as to the prejudicial effect at issue with regard to a complainant. In November

2010 the Australian Law Commission proposed that all Federal and State legislation should be amended to include a provision to reflect the following policy position:71

Complainants of sexual assault must not be cross-examined in relation to, and the court must not admit any evidence of, the sexual reputation of the complainant.

The complainant must not be cross-examined, and the court must not admit any evidence, as to the sexual activities—whether consensual or non-consensual—of the complainant, other than those to which the charge relates, without the leave of the judge.

The judge must not grant leave unless the judge is satisfied that the evidence has significant probative value and that it is in the interests of justice to allow the cross- examination or to admit the evidence, after taking into account:

(a) the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions that the complainant is likely to be asked;

(b) the risk that the evidence may arouse discriminatory belief or bias, prejudice, sympathy or hostility;

(c) the need to respect the complainant’s personal privacy;

(d) the right of the defendant to fully answer and defend the charge; and

(e) any other relevant matter.

Rather than referring to the interests of justice, the provision could refer to the prejudicial effect of the evidence on the proceedings, which is consistent with s 8 of the Evidence Act 2006.

This proposal does extend to covering evidence of the sexual activities of the complainant with the defendant – an extension that has been contentious in England, for example.72 This issue is discussed in more detail below. The proposal does not, however, specifically refer to evidence that is relevant to credibility (although it would be captured by the emphasis on probative value). This issue, and its current treatment under the Evidence Act 2006, is considered next.

70 See Australian Law Reform Commission and New South Wales Law Reform Commission Family Violence - A National Legal Response (ALRC Report 114, 2010) at 1242 [Family Violence]; Kelly, Temkin and Griffiths, above n 65, at 13.

71 Australian Law Reform Commission Family Violence, above n 70, 1253. See also Criminal

Procedure Act 2009 (Vic), s 349, which the recommendation draws on.

72 See R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45; Temkin “Beware the Backlash”, above n 63; Di Birch

“Rethinking Sexual History Evidence: Proposals for Fairer Trials” [2002] Crim LR 531.

B. Evidence Relevant to Credibility

With regard to evidence of previous sexual experience as being relevant to credibility (veracity) Roberts and Zuckerman argue that such evidence simply lacks sufficient probative value, “given that such evidence is likely to be distressing for complainants and may invite moral prejudice from the fact- finder.”73 Although any relevant link between prior sexual experience and credibility per se seems to be no longer accepted on the whole, sexual history evidence that is thought to be relevant to a lack of credibility is evidence of previous false complaints of sexual abuse.

Under s 23A of the Evidence Act 1908 evidence of false complaints was viewed as being sufficiently relevant to credit to meet the admissibility test

– although the falsity was not always established. Under s 40(4) of the the Evidence Act 2006 the admission of evidence of false complaints should be dealt with under s 37, not s 4474 – however appellate case law indicates that only when there is “clear” evidence of false complaints should the evidence be subject to s 37.75 It is appropriate that inquiries are made into the falsity or otherwise of previous complaints,76 but in the absence of “clear” evidence of falsity the evidence of previous complaints should not be admitted as being relevant to veracity under s 44 (contra the decision in Morrice77), nor should the evidence be treated as meeting the s 37 “substantial helpfulness” test. Further, if there is evidence of false (or previous) complaints admitted under s 37 after application by the defence, this may allowthe prosecution to offer evidence as to the defendant’s veracity pursuant to s 38.

Two other issues remain. First, what if the evidence sought to be offered is evidence of the complainant’s reputation to be untruthful about sexual matters? Evidence as to the “reputation of the complainant in sexual matters” is barred under s 44(2). Evidence as to the complainant’s reputation as to veracity may not meet the test in s 37 either, but it is not barred. Presumably s 44(2) was not aimed at this type of reputation evidence, but it strengthens the case for clarifying the interplay between ss 37 and 44.

Second, what of evidence of previous complaints (about a person other than the defendant) that are actually found to be true? The rationale for admitting evidence of previous complaints under s 44 is that they either explain the complainant’s knowledge of sexual matters (which primarily relates to cases involving child complainants) or raise the issue of “transference” (which is viewed as not an issue of veracity but one of accuracy or reliability). Both should be subject to the heightened relevance test that should be harder to meet in the second example, a topic discussed next.

73 Roberts and Zuckerman, above n 2, at 448.

74 See R Mahoney and others, above n 16, at EV40.05(3).

75 R v C [2007] NZCA 439 (CA).

76 Myrna S Raeder “Litigating Sex Crimes in the United States: Has the Last Decade Made Any Difference” (2009) 6 International Commentary on Evidence Article 6 at 21 suggests a clear and convincing standard of proof should attach to claims of false complaints. See also Philip NS Rumney “False Allegations of Rape” (2006) 65 Camb LJ 128.

77 R v Morrice [2008] NZCA 261.

C. Evidence Relevant to Accuracy

One relatively often used basis for ensuring admissibility of previous sexual experience is by suggesting that the incident at issue is, or could be, the result of unconscious transference (or attribution) by the complainant. In other words, not through malice or mendacity, the complainant has confused the sexual assault allegedly committed by the complainant with a sexual assault committed at another time but in similar circumstances by another person. This argument has been successfully used under the Evidence Act

2006, for young children primarily,78 but also for teenagers.79 Such evidence, it is argued, falls outside s 37 as it is not evidence about the complainant’s veracity.

However, in other jurisdictions the transference theory is not well supported, except in quite narrow circumstances. Indeed the kind of transference argued in such cases (that is, in the context of the admissibility of sexual history evidence) is not the same as accepted in the psychological literature:80

The defence argues that while the victim’s memory of an encounter with the accused at a particular time and place is accurate, the victim has mistakenly incorporated into that memory as recollection of the nature of the sexual contacts with the third party...[O]n these facts it would be more appropriate to refer to a “source monitoring error”. In this fact pattern, to lay the foundation for the expert testimony about a source monitoring error, the defence might attempt to introduce evidence of the complainant’s sexual encounters with third parties.

In such a situation, however, it is not clear that such evidence would meet either admissibility standard – the first being s 44, especially when it is not likely that either transference or a source monitoring error has occurred:81

[O]ne of the conditions for transference proper is the witness’s weak memory of a detail of the event he or she is now attempting to recall. The same condition is relevant in assessing the probability that a source monitoring error has occurred. Absent special facts, there is no reason to believe that the complainant’s memory of the nature of his or her contact with the accused is likely to be weak. It is true that witnesses often experience difficulty remembering the details of traumatic events. However, in this situation, the defence theory is that the accused’s encounter with the complainant was innocent and licit. There is nothing about that type of encounter which would make it especially hard for the complainant to remember the character of the encounter. According to the defence’s theory, the encounter with the accused should not have been “mentally shocking” ... [unlike] being raped or assaulted by a third party ...When the two events in memory are dissimilar, the conditions are less than ideal for a monitoring error.

Therefore, it is argued that the transference theory should not be grounds for admitting evidence of a complainant’s sexual experience with another person, in the absence of expert evidence that there is a high likelihood

78 Ibid.

79 TPN v R [2010] NZCA 291.

80 Francis A Gilligan, Edward Imwinkelried and Elizabeth F Loftus “The Theory of “Unconscious Transference”: The Latest Threat to the Shield Laws Protecting the Privacy of Victims of Sex Offences” (1996) 38 BCL Rev 107 at 128 (references omitted).

81 Ibid, at 139 (references omitted).

that such transference or source monitoring error actually occurred. The admissibility of such expert evidence, as is discussed in Part VI below, should be considered pre-trial.

D. Evidence of Sexual Experience with the Defendant

One current challenge is subjecting evidence of the sexual experience of the complainant with the particular defendant to appropriate scrutiny – in a way that reduces the prejudice to the complainant but does not prevent fairness to an accused. The Australian Law Commission proposal makes no distinction between the defendant and other persons, and this possible extension was also included as a proposal in the Ministry of Justice’s discussion document in August 2008.82

The Law Commission’s draft Code extended the “heightened relevance” test to evidence concerning the sexual experience of the complainant with the particular defendant, but the evidence was not to be subject to a leave requirement and its effectiveness would depend on defence counsel considering the evidence in light of the rule and the willingness of the prosecution to object.

The argument that the leave requirement should be extended to cover evidence of the complainant’s sexual experience with the particular defendant draws on empirical research into the connection drawn between an existing sexual relationship and the attribution of responsibility. The research indicates the significance of limiting evidence of the sexual history of the complainant and the defendant:83

It was apparent from the vignettes that the degree of responsibility attributed to the male decreased with the change in the sexual history of the relationship and in the implied consent of the female, whereas the amount of responsibility attributed to the female increased ... In fact, many males believe that the longer the partners are together and the more formal their commitment to each other, the greater the right to sexual access of their partners and the greater the likelihood that females will feel obligated to accommodate their partner’s sexual demands.

Drawing on research on this point, Hart Schwartz argues that, although it appears that the courts have “finally rejected the myth that some women are ‘the type’ who ‘always say yes’”, current legal changes suggest a belief “that a woman who has engaged in consensual sexual intercourse with a particular man is more likely to do so at another time with that same man.”84

82 Ministry of Justice Improvements to Sexual Violence Legislation in New Zealand: Public

Discussion Document (2008) at 25.

83 Sophia Xenos and David Smith “Perceptions of Rape and Sexual Assault Among Australian Adolescents and Young Adults” (2001) 16 Journal of Interpersonal Violence 1103; see also Regina A Schuller and Patricia A Hastings “Complainant Sexual History Evidence: Its Impact on Mock Jurors’ Decisions” (2002) 26 Psychology of Women Quarterly 232 at 259.

84 Hart Schwartz “Sex with the Accused on Other Occasions: The Evisceration of Rape Shield

Protection” (1994) 31 CR (4th) 232 at 233.

For example, in R v A,85 where the defendant challenged the scope of s 41 of the Youth Justice and Criminal Evidence Act 1999, the rape shield provision in England and Wales, the appeal judges had:86

no difficulty accepting that the previous sexual activity of the complainant had no relevance to credit and that sexual activity with persons other than the defendant generally had no relevance as to whether the complainant consented to sexual intercourse. However, they rejected the Crown’s argument that recent sexual activity between the complainant and the defendant was irrelevant to consent. It was, the appeal judges opined, common sense that a person, whether male or female, who had previously had sexual intercourse with the defendant, particularly in recent weeks or months, might on the occasion in dispute have been more likely to consent to sexual intercourse with the defendant than with a stranger or someone with whom no sexual familiarity had occurred.

There is no particular reason, however, not to subject the evidence to the same heightened relevance test that operates in the case of evidence of sexual experience that relates to another person. Sometimes such evidence will be admissible, other times it will not. The reason the Law Commission gave for not subjecting evidence concerning a prior sexual relationship with the particular defendant to a leave requirement was the view that this would be time consuming as such evidence would usually be relevant.87 However, in our view, it will not always be sufficiently relevant. The Australian Law Commission proposal has something to recommend it as it balances the various interests that need to be taken into consideration when determining admissibility, whether or not the evidence relates to the particular defendant.

IV. Recent Complaint Evidence (s 35 of the Evidence Act

2006: evidence of previous consistent statements)

The traditional rationale for the admission of recent complaint evidence arises from the historical expectation that a victim of sexual abuse would immediately raise a “hue and cry”. In the absence of such a response, it was presumed a later, delayed allegation was unlikely to be true and more likely to have been motivated by malice, blackmail or simply a change of heart. Given the significance placed on the existence of a “recent complaint” in the context of a sexual case, it was seen as just that such a complaint should be offered as evidence of consistency (and therefore credibility) of the complainant as an exception to the rule against narrative.

Despite receiving much attention from critics, who favour a range of alternatives, including abolition, liberalisation, and extension (to other offences), this common law rule of admission changed very little over time. The main requirement for admission was that the complaint must be made at “the first reasonable opportunity” to a person the victim would be expected to complain to. More latitude was given (especially in the case of complaints by children) with regard to “evolving” or “incremental” complaints, so that

85 R v A (2) above n 72.

86 Ellison The Adversarial Process and the Vulnerable Witness, above n 29, at 119-120; Roberts and Zuckerman, above n 2, at 447 citing Lord Steyn in R v A (No. 2), above n 72.

87 New Zealand Law Commission, R 55, (no. 2) above n 55, at [178].

complaints to more than one person may be admitted if forming part of the same disclosure, linked by some degree of timeliness and similarity of content.88

Although the recent complaint exception is a common law rather than statutory rule, part of the 1986 reform package resulted in the enactment of section 23AC of the Evidence Act 1908.89 The section was an important addition to the operation of the rule and was consistent with its rationale, in the sense that it allows a (judicial) response when there is a delay in reporting. If the defence suggested that the lack of recent complaint indicates lack of veracity (that is, lack of recent complainant “diminishes the credibility of the complainant”),90 the judge could direct the jury that there may be “good reason” for the delay.

Section 35 of the Evidence Act 2006 replaced the common law rule concerning recent complaint evidence with a general provision applicable in all cases, while s 127 re-enacted s 23AC.

The reform measure has addressed the concerns that the recent complaint exception was discriminatory. This argument is made from two different positions: feminists argue that the exception operates to perpetuate the belief that complainants in sexual cases, usually women, cannot be believed on their evidence alone; others argue that it is an example of inappropriate paternalism which benefits women and prejudices the defendant, who is usually male.

The enactment of s 35 has not, however, limited the amount of case law concerning the admission of what is now evidence of previous consistent statements: the cases have just been centred on different issues. Rather than the evidence being scrutinised as to timeliness, for example, appeals concerning the admissibility of complaint evidence have been based on whether there has been a appropriate challenge to the complainant’s veracity or accuracy (based on a previous inconsistent statement or a claim of recent invention); whether the content of the previous complaint was sufficiently consistent with the complainant’s evidence; and whether the complaint was responsive to the challenge. These inquiries are of course, not limited to sexual cases, but that may arguably be the only advantage to the abandonment of the common law recent complaint exception. It is certainly argument about admissibility of “recent complaint evidence” (as it was previously known) that has given rise to the number of appellate cases – including a number to the Supreme Court.

Rather than set out again the legislative history of the current provision, it is timely to ask, in this context, whether the reform has lead to appropriate admissibility of complaint evidence. Not long after the Act came into force concern was expressed that s 35, as enacted, was preventing the admission of

88 J Bruce Robertosn (ed) Adams on Criminal Law (Looseleaf, Brookers, Wellington) at


89 W Young Rape Study Volume 1: A Discussion of Law and Practice (Department of Justice, Wellington, 1983) at 145.

90 Gerald Orchard “Sexual Violation: The Rape Law Reform Legislation” (1986) 12 NZULR

97 at 110.

relevant evidence, especially in sexual cases.91 In particular, in a climate where juries still want to know when and if a complaint was made, as presumably having relevance to the assessment of other evidence - and ultimately guilt, is s 35 operating in a just way?

Since the Supreme Court decisions in Rongonui,92 Hart93 and most recently, R v B,94 academics have been of the view that s 35 now places very few limits on the admissibility of “complaint evidence”, as compared to the common law rule:

• The complaint need not be recent; it just needs to be responsive to the challenge made);

• The complaint need not be offered in evidence by a person other than the complainant;

• The triggers in s 35(2) which initially appeared to make the section significantly stricter than at common law can seemingly be meet relatively easily, and may even be met before trial, so that the complaint may be introduced as part of the complainant’s evidence in chief; and

• The complaint can be used to prove the truth of its contents, not just bolster the complainant’s credibility.

This result may be seen as positive with regard to the views expressed by complainants and their supporters – in that more complaint evidence is admissible. There is still some debate as to whether complaints about sexual offending should be singled out for separate treatment, but recent law reform in comparable jurisdictions does not differentiate and in our view there remains no good reason to have a different rule for the admission of previous consistent statements.

It may be that there is a case to be made for drafting a provision that reflects the recent judicial application of s 35 – or even that s 35 be repealed and its place taken by the dual operation of ss 7 and 8. A matter that may be worth consideration in this context is what falls outside the rule in s 35(1). Whether a complaint is part of the events in issue or it is not a “statement” is an issue that seems to be causing some, perhaps unnecessary, conflict of opinion.95 In the absence of a specific inadmissibility rule (s 35(1)) the matter

would be resolved by reference to ss 7 and 8 (relevance and probative value).

One argument in favour of repealing s 35 is that unnecessary arguments about how to classify the evidence could be avoided and the focus could be rightly dealt with as a matter of sufficient relevance. Arguably the joint inquiries in ss 7 and 8 should result in the outcomes already effected by the appellate decisions concerning s 35. It is also worth remembering that the Law Commission was originally content with such an approach.96

91 See R v Barlien [2008] NZCA 180; [2009] 1 NZLR 170 (CA).

92 [2010] NZSC 92; [2011] 1 NZLR 23 (SC).

93 [2011] 1 NZLR 1 (SC).

94 [2010] NZSC 160; [2011] 2 NZLR 82 (SC).

95 Rongonui v R [2010] 1 NZLR 23 (SC); Hitchinson v R [2010] NZCA 388; O’Donnell v R

[2010] NZCA 352.

96 New Zealand Law Commission, R 55, above n 55, at [144].

V. Propensity (bad char acter) Evidence about the

Defendant: s 43 of the Evidence Act 2006

The inadmissibility of the defendants’ previous convictions in a high profile rape case – and significant public disquiet at that inadmissibility - was one of the catalysts for further research into the current operation of the criminal justice process, including the rules of evidence, in sexual cases.97

One of the pieces of work undertaken as result of governmental response was the Law Commission’s report Disclosure to Court of Defendants’ Previous Convictions, Similar Offending and Bad Character.98 The Law Commission, after reviewing the comparable legislation in other jurisdictions, did not recommend any changes to the rules governing veracity or propensity evidence in the Evidence Act 2006 and concluded that more time was needed to see how s 43 (which governs the ability of the prosecution to offer propensity evidence about a defendant) would operate in practice.

In April 2010 the Law Commission followed up their May 2008 Report with a letter from the then President, Sir Geoffrey Palmer, to the Minister of Justice, Simon Power which included the following statement:99

As with veracity, we have reviewed all the cases we were able to obtain in which the propensity provisions have been applied. The approach the courts are taking to section

43 is very much a case by case fact-specific balancing exercise. That is the approach the Act requires and, in our judgement, as with veracity, the right evidence is being admitted or excluded, as the case may be. This indicates to us, that, when applied, the provisions are working.

The Minister agreed, on 22 April 2010, with the Commission’s recommendation that no urgent legislative amendments were required and that any further work would be deferred until 2012 when the Commission will report on the operation of the Act pursuant to s 202 of the Evidence Act


The issue of non-disclosure which caused concern to members of the public occurred in the context of a trial that did not involve what is sometimes referred to as “real rape”. In other words, it was not a case where the sexual assault was committed by a stranger where the issues usually revolve around identification. In such cases, if the defendant has prior convictions for similar offending and denies responsibility, it is highly likely that evidence of the previous convictions will be admitted. In “acquaintance rape” cases which, as is argued elsewhere,100 are the type with a much higher rate of attrition

and therefore of most concern to victims and their advocates, the issues at

trial usually involve consent and belief in consent. In such cases, not only is it much more likely the defendant will have no prior convictions, it is also

97 “Police sex trial: What the jury never knew” The New Zealand Herald (Auckland, 1 March

2007); “Protestors vent fury over police trial” (2007) TVNZ <>.

98 New Zealand Law Commission Disclosure to Court of Defendants’ Previous Convictions, Similar Offending and Bad Character (NZLC R103, 2008).

99 Letter from Sir Geoffrey Palmer to Hon Simon Power “Regarding the Evidence Act Review: Operation of the Veracity and Propensity Provisions” (1 April 2010) at [83].

100 See for example Elisabeth McDonald “ ‘Real Rape’ in New Zealand; Women Complainants’ Experience of the Court Process” (1997) 1 Yearbook of New Zealand Jurisprudence 59.

unlikely that any prior convictions will meet the test for admission under s

43. This is especially so if the defendant does not testify and merely puts the prosecution to the proof.

This is significant because of the operation of s 43(2) which requires identification of “the nature of the issue in dispute” in order for the judge to assess the probative value of the propensity evidence. If the issue is about whether or not the complainant consented to the sexual encounter, it is hard to make the case for admitting evidence of the defendant’s conviction for the sexual violation of another woman. How is her lack of consent probative to the issue of whether another woman consented to have sex with the defendant at a different time? If the issue is about whether the defendant believed on reasonable grounds that the complainant was consenting, the same issue of sufficient probative value arises unless the defendant claims he would never act in the absence of reasonable belief.

Propensity evidence is being admitted in “acquaintance rape” cases, although only very rarely.101 In the absence of a denial that anything occurred or that the defendant is not the kind of person that would commit rape,102 it is hard to mount an effective argument that previous convictions

have sufficient relevance to the charge under consideration. For example, as stated in Vuletich,103 where the issue is reasonable belief in consent then the evidence in order to be relevant to that issue must demonstrate a propensity to disregard or be indifferent as to whether there was consent, presumably in similar circumstances. The test was not met in Vuletich or M v R,104 but was in Freeman.105

If s 43 is therefore, as we argue, not responsive to the kind of case that first caught the public’s attention, is there a case for reform?

Section 43 is not out of step with other common law jurisdictions. The most contentious of these provisions (s 413 of the US Federal Rules of Evidence),106 provides that:

In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

Although the section appears broad in scope, it is limited by not only the reference to relevance but also by the general provision in the Federal Rules of Evidence (r 403) requiring that the probative value of the evidence outweighs its prejudicial effect.107 Arguably even were such a rule to be enacted in New Zealand, little difference would be apparent, except to the extent discussed

101 One example is R v Franklin HC Christchurch, CRI 2009 061 537, 30 October 2009, at [26], when the issue was defined as “whether or not the accused raped the complainant” in a situation where the accused made no statement to the police and did not give evidence at trial.

102 See R v Sharma [2010] NZCA 23.

103 Vuletich v R [2010] NZCA 102 at [36].

104 M v R [2010] NZCA 219.

105 Freeman v R [2010] NZCA 230.

106 See Richard Klein “An Analysis of Thirty-Five Years of Rape Reform: A Frustrating Search for Fundamental Fairness” (2008) 41 Akron L Rev 981 at 1022; New Zealand Law Commission Evidence Law Character and Credibility: A Discussion Paper (NZLC PP27, 1997) at [241].

107 Federal Rules of Evidence Pub L No 93-595 § 403 88 Stat (1975).

elsewhere that exists between the wording of the admissibility rule in s 43(1) and s 8(1)(a) – that is, the focus is on prejudice to the proceedings (including the prosecution) as opposed to the risk of prejudice to the defendant – arguably a higher standard which is required for admissibility under s 43(1).

One other option for reform, not considered by the Law Commission, could include the presumptive disclosure of previous sexual offence convictions when the defendant has been granted leave to question the complainant about her sexual history. This is provided for in s 275A of the Criminal Procedure (Scotland) Act 1995 (as amended by the Sexual Offences (Criminal Procedure) Scotland Act 2002). The operation of this legislation was assessed in 2007, in which the authors concluded:108

In order to assess the extent to which previous convictions of the accused were disclosed, and the impact that this has on proceedings, all rape cases (n = 162) over the 12 month period studies were examined for the presence of previous convictions. In 20 cases (12%), the accused had an analogous previous conviction. In 7 of these, a s 274 [the sexual history provision] application to introduce prohibited evidence was made by the Defence, 3 of which were successful. There was no evidence to demonstrate that relevant previous convictions of the accused had been placed before the court as the legislation intended... [As a result] the potential disclosure of previous convictions appears to have had little impact upon case proceedings. (Emphasis added)

This research confirms that in most cases of rape a defendant will not have relevant previous convictions. Further, it demonstrates again that legislative reform of itself will not necessarily change trial practice. Despite this, the potential flow-on and educative effect of this type of reform, “as a practical deterrent against gratuitous attacks on a complainer’s character”,109 makes it worth consideration.

VI. Expert Evidence

Section 23 Evidence Act 2006 provides a general rule of inadmissibility of opinion evidence. A witness in a case is called to give evidence of what he or she has experienced, and the testimony must comprise direct evidence of his or her own perceptions of the facts. The general premise is that a witness’s opinions, beliefs or inferences are not their perceptions but are conclusions drawn from those perceptions. The rationale of the rule is to prevent the admission of evidence that is superfluous, misleading or unreliable.

An exception to the general rule is provided for expert opinion evidence by virtue of s 25. The evidence must be from an expert (someone who has specialised knowledge or skill in the area), and is admissible if “the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding”. This means that “it is necessary to identify the issue to which the disputed evidence relates”.110

An expert opinion will not be inadmissible simply because it offends the

common law rules regarding common knowledge and ultimate issue.

108 Michele Burman and others Impact of Aspects of the Law of Evidence in Sexual Offence Trials: An Evaluation Study (Scottish Government Social Research, 2007) at [6.38] and [6.40].

109 “Editorial: Sexual History Evidence” [2002] Crim L R 529 at 530.

110 R v Gwaze [2009] NZCA 430 [2010] 1 NZLR 646 at [165] per Baragwanath J.

A. Expert Medical Evidence

The general evidential rules in the 2006 Act are generally straightforward in application for expert opinions as to the forensic medical examination. The evidence is often of a technical nature and is not in an area that the jury could decide for itself, and so “the jury cannot be accused of abdicating its role of fact-finder, because its role as fact-finder is simply to decide whether or not to trust the expert”.111 There is of course still room for a divergence of opinions, for example as to whether injuries could have occurred through consensual sexual intercourse.

B. Expert Psychological Evidence

Expert evidence about the findings of a forensic medical examination offers a clearer path than psychological evidence directed at stereotypes and misconceptions about the way sexual assault victims might behave. Such evidence is particularly prone to deference by the jury, putting aside their “common sense” inferences in favour of the expert’s opinion. It has been said that:112

The purpose of adducing such evidence is to level the playing field, so that a tribunal is able to evaluate properly the evidence presented – including an assessment as to the factual credibility of the account given by the victim – without making erroneous assumptions or working from a fundamentally flawed basis.

There has long been caution employed with regard to expert evidence that concerns the credibility of a witness, as demonstrated by any bolstering of a witness’s credibility being traditionally termed “oath-helping”.113 The danger that a witness offering opinion evidence will “usurp” the function of the tribunal of fact, whose job it is to draw the necessary inferences from the facts presented in evidence, has been a traditional concern. There may also be the sense that in some cases the evidence would confuse the jury and prolong proceedings, and in the case of an expert witness may result in unquestioning acceptance of the opinion because of impressive qualifications and confident manner.114 These concerns remain when assessing the

111 Tony Ward “Usurping the role of the jury? Expert evidence and witness credibility in English criminal trials” (2009) 13 Int’l J Evidence and Proof 83.

112 Michelle M Dempsey The Use of Expert Witness Testimony in the Prosecution of Domestic

Violence (Crown Prosecution Service, 2004) at 1.

113 Ward, above n 111, posits that this is in part because such evidence raises complexity that other kinds of expert evidence does not, in that the fact-finder must assess the credibility of the expert, and of the original witness as well. In such cases, Ward suggests, the expert evidence will only be helpful where it goes beyond what the jury would ordinarily surmise/ address counter-intuitive issues etc. Furthermore, Ward asserts that “the consequent danger of unjustified deference appears especially acute in relation to credibility evidence because it is not mitigated by the structure of legal rules or by the division of functions between judge and jury”.

114 It has been found that where expert evidence is complex, mock jurors are likely to rely on peripheral clues (such as whether the expert is partisan or court appointed) rather than on the content of the evidence itself. See J Cooper and I.M. Neuhaus “The ‘hired gun’ effect: Assessing the effect of pay, frequency of testifying , and credentials on the perceptions of expert testimony” (2000) 24 Law & Hum Behav 149.

“substantial helpfulness” of an expert opinion, notwithstanding the fact that the common knowledge and ultimate issue rules are not determinative of admissibility under the 2006 Act.115

An expert will not be able to assist in every case. Where they may do so the concern as to usurpation of the jury’s role might be viewed in light of psychological research, which outlines just how poor the average person is at assessing truthfulness. For example, a meta-analysis of 206 studies concluded that “the average person discriminates lies from truths at a level slightly better than he or she could achieve by flipping a coin”.116

It has often been argued that it is the jury’s duty to judge the credibility of each witness and that if jurors defer that responsibility to another then it is a failure of duty. The alternative view is propounded by Ward: “But the jury may also fail in its duty if it does not consider expert evidence bearing on credibility. A jury that disbelieves or doubts a witness on the basis of some unwarranted stereotype does her a serious injustice”.117

In some US states, expert evidence has been used to show that the behaviour of a complainant is consistent with the posited symptoms of Rape Trauma Syndrome (RTS). This has been criticised for the associated risk of usurpation: the jury may think that the complainant is telling the truth because she fits the syndrome. The symptoms are not offence specific, but could be seen to be a type of post traumatic shock disorder – and so in fact could do no more than tend to show that the complainant may have suffered a traumatic event, not what the event was.118 Just as worryingly, jurors may think that a complainant is not telling the truth if her behaviour does not fit the profile of RTS, yet it is clear that not all victims will exhibit the behaviour associated with RTS. Furthermore, whilst RTS attempts to undercut “rape myths”, it has been criticised as a tool for medicalising victims. As Raitt and Zeedyk state, “it is individuals who are diagnosed with RTS... it negates the societal context within which rape occurs”.119

One approach to avoid these problems has been to distinguish between “general” expert evidence (or “social framework evidence”, for example about the response of victims of sexual violence in order to counteract “rape myths”) and evidence about the credibility of a specific witness. There is

115 In R v McWhannell HC Palmerston North CRI-2009-054-1094, 14 June 2010, the defendant sought to introduce expert evidence showing that his failure to pull a rope to the correct length when operating a rope swing was a failure of prospective memory and did not necessarily reflect carelessness. Ronald Young J held at [17] that “It will be for the jury to assess, knowing all of the facts and circumstances relevant to Mr McWhanell’s actions, whether whatever the accused’s failures were, they were negligent failures. The evidence from [the expert] will add nothing to this consideration. Because the evidence comes from an ‘expert’ it may simply confuse the jury by inviting the expert to ‘decide’ the very issue for the jury”.

116 Charles F Bond and Bella M DePaulo “Accuracy of Deception Judgments” (2006) 10(3) Personality and Social Psychology Review 214 at 230.

117 Ward, above n 111.

118 Ian Freckelton “Child Sexual Abuse Accommodation Evidence: The Travails of Counterintuitive Evidence in Australia and New Zealand” (1997) 15 Behavioural Sciences and the Law 247.

119 Fiona E Raitt and M Suzanne Zeedyk “Rape Trauma Syndrome: Its Corroborative and

Educational Roles” (1997) 24 Journal of Law and Society 552.

some international push for more general expert evidence to be admitted. However, it is submitted that the distinction between general and specific expert evidence could be misleading in some cases. Some general evidence may still offer little by way of substantial helpfulness,120 and may ultimately lead to a thinly disguised credibility assessment of a specific witness.

There is some authority that evidence may be led to inform a jury about counter-intuitive background that will be substantially helpful to its assessment of credibility in relation to a live issue,121 whilst steering clear of evidence about the credibility of a particular witness. At times, this will be a fine line for an expert witness to tread. In dismissing an appeal against conviction in R A v R, one ground of which was based on the admissibility of expert opinion evidence, Baragwanath J stated that:122

This appeal concerns two basic principles which must be reconciled. One is that a factfinder must receive sufficient education to be able properly to perform its task. The other is that assessment of credibility is the task of the jury. The education process must therefore respect jury autonomy.

The Court expressed a preference for statements from each expert witness that: clearly set out the parameters of the opinion without resort to implication (in R A the expert opinion was based on research in cases where there had been sexual abuse); set out the purpose of the evidence; and indicated that the expert opinion evidence would only provide background information from other cases in order to clear away misconceptions, and no indication as to whether a particular complainant is telling the truth.123 It went on to suggest that124

to strengthen the protection against jury misapprehension that the expert evidence could support a witness’s credibility, there could in some cases be advantage in counsel agreeing upon the formula to be employed in educating the jury and having it admitted by consent under s 9 as a joint statement which might be read by the judge and distributed to the jury as part of the basic information.

Expert evidence on the reasons for delay in complaining has also been allowed in the New Zealand courts. In R v Thompson (No 2),125 Stevens J stated that the availability of a judicial warning under s 127 did not preclude expert opinion evidence from being substantially helpful, because at the stage

120 In the High Court decision in R v S (HC Palmerston North CRI-2007-054-5404, 17 March

2009, Clifford J), although the Crown contended that the evidence would give scientific context to an explanation of the complainants’ counter-intuitive behaviour, the evidence was not judged to be substantially helpful because the complainants themselves would offer an explanation as to why they behaved in the way that they did, including why they delayed complaining.(This point was referred to as an issue that could negate the helpfulness of general expert opinion evidence in S v R [2009] NZCA 622). The Court of Appeal focussed on the fact that “although [the expert] refers to the material relating to this case that she has read, the brief does not make clear what narrative she has assumed to be true for the purposes of her evidence. That impacts on the helpfulness of this evidence.” (R v S [2009] NZCA 195 at [14]).

121 R A v R [2010] NZCA 57, (2010) 25 CRNZ 138 at [42].

122 Ibid, at [1]. See also R v Evans [2010] NZCA 340.

123 R A v R, above n 121, at [31]. This approach was followed in R v Alden HC Palmerston North

CRI-2010-054-1873, 1 October 2010 at [69].

124 Ibid at [32]

125 R v Thompson (No 2) HC Auckland CRI-2007-090-5246, 30 May 2008.

of the trial when a ruling is required on the admissibility of expert opinion evidence the Judge is unlikely to know whether a discretionary direction under s 127(2) of the Act will be required. In R A v R126 it was further held that expert witnesses could testify as to general reasons for delay where it would be substantially helpful to the jury. The ability to cross-examine expert witnesses was seen to offer possible assistance to the jury in its assessment of the reasons for delay.

Ward suggests that for expert evidence “the prejudicial effects to be guarded against are not only the attribution of undue weight to the expert’s opinion, but the exclusion from consideration of other evidence that competes with it. Such judgments are necessarily case-specific”.127 He offers a very useful example of this in action:128

A clinician might, for example, testify that the complainant’s initial failure to mention certain details of the alleged rape is not unusual and is consistent with her suffering PTSD. Such evidence combines an unexceptionable background generalisation with at least a strong implication of a diagnosis that assumes the truth of the allegation. In such a case, it should be enough for the expert to say that people who have been through traumatic experiences, including rape, often forget details of the incident. It is questionable whether much is added to the probative value of empirical findings about rape victims by embellishing them with a theory that pathologises the complainant. Most of the supposedly counter-intuitive behaviours likely to be ascribed to a rape complainant can be explained without reference to PTSD. Not only may a PTSD diagnosis be unfairly prejudicial to the defence, but it also tends to exclude explanations that would help the jury to understand behaviour such as delayed reporting and inconsistent stories as rational responses to such pressures as the fear of reprisal and the fear of being disbelieved. What is needed in order to avoid “epistemic injustice” to victims is “social framework evidence” from “empathic experts” who can help them arrive at their own understanding of the complainant’s own narrative.

Expert opinion evidence may not be the only method of utilising the skill and knowledge of experts in assisting in the assessment of reliability and veracity. For example, there is an important role in educating legal professionals about research issues relevant to sexual violence.

Should expert opinion evidence become more commonplace, there are also issues to consider in relation to the “battle of the experts”. One view is that jurors are less likely to blindly accept the view of an expert where they are confronted with more than one opinion. However, some studies have shown that the presence of an opposing expert does not sensitise jurors to flaws in expert evidence, but rather makes them sceptical about all expert evidence.129 This suggests that agreement between the parties on the scope of expert evidence (where possible) may be a better approach to imparting specialist information to juries than opposing experts for prosecution and

126 R A v R, above n 121.

127 Ward, above n 111, at 97.

128 Ibid, at 98.

129 See Lora M Levett and Margaret Bull Kovera “The Effectiveness of Opposing Expert Witnesses for Educating Jurors about Unreliable Expert Evidence ” (2008) 32 Law & Hum Behav 363.

defence. Expert impartiality was one of the principles espoused in R v Carter,130 which offers a useful brief outline of the benchmark requirements for the conduct of expert witnesses in criminal proceedings:

(a) an expert must state his or her qualifications when giving evidence;

(b) the facts, matters and assumptions on which opinions are expressed must be stated explicitly;

(c) the reasons for opinions given must be stated explicitly;

(d) any literature or other material used or relied upon to support opinions must be referred to by the expert;

(e) the expert must not give opinion evidence outside his or her area of expertise;

(f ) if an expert witness believes that his or her evidence might be incomplete or inaccurate without some qualification, that qualification must be stated;

(g) an expert has an overriding duty to assist the Court impartially on relevant matters within the expert’s area of expertise; and

(h) an expert is not an advocate for any party.

Those propositions reflect the truism that expert evidence must be based on reason as opposed to conclusions incapable of being tested in any meaningful manner. It is for that reason that underlying assumptions and reasons for opinions reached must be stated explicitly.

A further possibility is the use of court appointed experts in cases where the evidence is fairly uncontroversial and/ or well established on the basis of research findings. Very few studies have examined differences in juror response to partisan, joint and court appointed experts. However, it has been found that jurors were reluctant to rely on the testimony of a partisan “hired gun”.131

VII. Corrobor ation, Warnings and Directions

(Jury Education)

A. Corroboration

For the majority of offences, evidence does not need to be corroborated. Section 121(2) Evidence Act 2006 provides that there is no requirement for either a general warning to the jury about the dangers of relying on uncorroborated evidence, or a direction relating to the absence of corroboration. This does not amount to a prohibition of such a warning.

Section 121(2) is subject to s 122, which allows the judge to warn the jury about unreliable evidence. If the judge is of the opinion that uncorroborated evidence may be unreliable, he or she may warn the jury of the need for caution, notwithstanding the general provision in s 121(2). In the context of an Irish provision allowing for a corroboration warning at the discretion of the judge, it has been said that “the very existence of a corroboration

130 R v Carter [2005] NZCA 422; (2005) 22 CRNZ 476 at [47]. The suggestions in Carter were approved in the postscript in R v Hutton [2008] NZCA 126.

131 Cooper and Neuhaus, above n 114.

warning is rooted in the historical suspicion of women from a patriarchal point of view”.132 This gets to the nub of the debate – whether the ability of the judge to warn the jury should be preserved, or whether there should be a prohibition on corroboration warnings in sexual cases (the s 125 prohibition in relation to children’s evidence provides that a warning should not be given if it would not have been given had the complainant been an adult).

B. Judicial Instructions: Possible Effect on Credibility Assessments by the Jury

An alternative or additional method of informing the jury and undermining inaccurate stereotypes is the provision of a direction to the jury. If judicial instructions to the jury are to be effective, then they should be tailored to the individual case. The use of standard directions has been observed to result in a tendency to pull away from such tailoring, even where judges are advised not to use the directions mechanistically:133

In swimming there is a form of racing known as “freestyle”. “Freestyle”, one rapidly discovers, is a misnomer. Any swimmer with ambitions to keep up with the competition will adopt the crawl. The crawl is not obligatory. There is simply no realistic alternative... For judges, too, “freestyle” may be something of an illusion.

A salient question is whether judicial instructions make a difference to assessment of a witness’s reliability and credibility. Studies in the context of eyewitness testimony have shown that the perceived credibility of victims and witnesses are affected by a number of factors relating to appearance and behaviour.134 A further example can be found in a series of psychological experiments which concluded that the perceived credibility of a female rape complainant is influenced by the emotions she displays when giving evidence. In these experiments, an emotive and visibly upset complainant was perceived to be more credible than complainants who appeared calm or relaxed.135 This keys into societal expectations (and “rape myths”), so that witnesses who do not show the emotional behaviour expected of them in a given situation may be assessed as lacking credibility.136

Given these findings, there has been some experimentation regarding the usefulness of judicial instructions in cutting through stereotypical and biased expectations of witness behaviour. As might be anticipated, any effect is dependent upon instructions that do not reveal biases or stereotypes, either

132 S Power “Critical Legal Studies and the potential for the reform of Irish rape law” (2007) 3

Galway Student Law Review 77, at 84, discussing the Criminal Law (Rape) (Amendment) Act 1990 (Ireland).

133 Roderick Munday “Judicial Studies Board Specimen Directions and the Enforcement of

Orthodoxy: A Modest Case Study” (2002) 66 JCL 158.

134 Recent examples include M G Frank and P Ekman “Appearing truthful generalizes across different deception situations” (2004) 86 Journal of Personality and Social Psychology 486 and M.R. Rose, J Nadler and J Clark “Appropriately upset? Emotion norms and perception of crime victims” (2006) 30 Law & Hum Behav 203.

135 Guri C Bollingmo and others “Credibility of the emotional witness: A study of ratings by police investigators” (2008) 14 Psychology, Crime & Law 29; E M Wessel and others “Credibility of the emotional witness: A study by court judges” (2006) 30 Law & Hum Behav 221.

136 Rose, Nadler and Clark, above n 134.

verbally or non-verbally. Unsurprisingly, the common conclusion from the research is that stereotype-consistent information leads to the persistence of the stereotypical beliefs held by the jury.137 However, there is little evidence that the converse is true: non-biased instructions may not serve to undermine stereotypical beliefs.138 There is some evidence to suggest that directions given early during a court case are more effective in preventing preconceptions,139 whereas directions given later (when jurors may have already made up their minds) have little or no effect on the verdicts.140

However, one recent study did find that clear instructions to the jury had an effect on credibility assessments. Bollingmo141 conducted an experiment into the effect of judicial instructions on credibility assessments. Participants were either warned that the emotional behaviour of the witness was not a good basis for judging credibility (non-biased instruction) or were directed to the type of emotional behaviour displayed by the witness as an important sign of credibility (biased instruction). The results suggested that stereotype correcting information may make a difference to credibility assessments. It is not clear what the pre-experiment views of the participants were in this experiment, and it uses a fairly obvious example. In those respects, the real- life value of the results should be viewed with caution.

There is some limited research to suggest that expert evidence is slightly more effective in challenging commonly held misconceptions than judicial instructions at the end of the trial. (Instructions earlier in the trial have been found to have similar levels of effectiveness to expert evidence.) A later study by the same authors found that both expert evidence and judicial instructions were equally effective at influencing perceptions of complainant credibility.142

C. Other Methods of Juror Education/ Modification of Stereotypical Beliefs

One method proposed in Britain has been to supply the jury with “myth busting packs” containing information about the experiences and reactions of sexual offence victims. The premise behind these, and other forms of juror education packages, is to try to offer a more objective approach. Concern was expressed in the media that such information could be designed to make jurors more willing to convict. There were also concerns about fairness to the defence given that there would have been no opportunity to challenge the content of the packs. These concerns could be lessened by ensuring that

137 N A Wyer “Not all stereotypic biases are created equal: Evidence for a stereotype disconfirming bias” (2007) 706 Personality and Social Psychology Bulletin 720.

138 A C Smith and E Green “Conduct and its consequences: Attempts at debiasing jury judgments” (2005) 29 Law & Hum Behav 505.

139 N Brekke and E Brogida “Expert psychological testimony in rape trials: A social cognitive analysis” (1988) 55 Journal of Personality and Social Psychology 372.

140 J D Lieberman and J Arndt “Understanding the limits of limiting instruction: Social psychological explanations for the failure of instructions to disregard, pretrial publicity and other inadmissible evidence” (2000) 6 Psychology, Public Policy and Law 677.

141 Bollingmo and others, above n 135.

142 Anne Cossins, Jane Goodman-Delahunty and Kate O’Brien “Enhancing the Credibility of Complainants in Child Sexual Assault Trials: The Effect of Expert Evidence and Judicial Directions” (2010) 28 Behavioural Sciences and the Law 769.

content has the broad consensus of the legal profession, or agreement of the parties prior to trial. However, both of these routes have the potential to undermine the thrust of the information packs themselves.

Some limited psychological research has been conducted on juror information packs. In one study, a five page information booklet on issues relating to child witnesses was given to the study participants. Those who received the information were more likely to correctly rate a witness’s accuracy, honesty, reliability and credibility; and were more likely to reach the correct verdict.143

Edwards and MacLeod suggest a modification of the “myth busting pack”, by way of “training” judges and juries prior to hearing sexual offending cases. They suggest screening of jurors about their beliefs prior to trial. Jurors who are found to hold rape myths would be required to attend training prior to participating in a trial, so as to ensure that court time isn’t taken up and allowing for checks of the training’s effectiveness.144 This of course does not account for random selection of jurors, and such a method is likely to be beset by the same concerns as the “myth busting packs” discussed above.

It could be that the deliberation process of the jury actually undermines the use of misconceptions in decision-making. This is an important issue in deciding who the fact-finder should be. Bollingmo suggested that stereotype- correcting information may come from judges, other legal actors (including experts), or the information may feature in jury deliberations.145 Dahl also found that group decision-making modified the views of individuals.146

This finding accords with New Zealand jury research, which found that the process of group deliberations could modify extreme or stereotypical views, or the use of information about previous convictions.147

143 Crissa Sumner-Armstrong and Peter A Newcombe “The Education of Jury Members: Influences on the Determinations of Child Witnesses” (2007) 13 Psychology, Crime and Law 229.

144 Katherine E Edward and Malcolm D MacLeod “The Reality and Myth of Rape: Implications for the Criminal Justice System” (1999) 7 Expert Evidence 37.

145 Bollingmo and others, above n 135.

146 J Dahl and others “Displayed emotions and witness credibility: a comparison of judgements by individuals and mock juries” (2007) 21 Applied Cognitive Psychology 1145.

147 Warren Young, Neil Cameron and Yvette Tinsley Juries in Criminal Trials Part two: A Summary of the Research Findings (NZLC PP37, 1999), at [6.14].

VIII. Conclusion

This piece has considered some reform options regarding a selection of evidence issues – those discussed at the April workshop as well as the application of s 43 (propensity evidence), which is considered in greater detail elsewhere in this collection.

We have not attempted, in this context, to reach any conclusions. The purpose of this discussion was to raise options for consultation with the workshop participants. In the next phase of the research project,148 we consider further evidence issues (such as cross-examination, the use of intermediaries and the admissibility of veracity evidence about complainants) and make recommendations for reform, based on our consultation and peer-review process.

148 Forthcoming 2011 (Victoria University Press).

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