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Optican, Scott --- "Comment: Elisabeth McDonald and Yvette Tinsley, "Evidence Issues"" [2011] CanterLawRw 11; (2011) 17 Canterbury Law Review 160

Last Updated: 20 May 2013


Scott Optican*

I. Introduction

“Evidence Issues” — the paper by Elisabeth McDonald and Yvette Tinsley published in this volume — was given at a workshop on 18 & 19 April at the Faculty of Law, Victoria University of Wellington. That workshop, sponsored by the New Zealand Law Foundation, presented research done by the authors and Jeremy Finn on the broad topic of possible changes to the investigation, prosecution and trial of sexual offences.

I participated in the workshop and commented on a presentation by McDonald and Tinsley regarding evidence issues in sex offence prosecutions. That presentation is summed up in their paper, and my observations in response are set out in this short commentary. As I was requested to do by the authors, my intention is not to write a formal journal article with copious footnotes, but simply to set down some preliminary responses to selected issues traversed in their very good analysis.

I will therefore keep this discussion short and focus on matters in the McDonald and Tinsley paper about which I have something to say and that I believe are useful to comment upon. There is no particular order here, and my thoughts are presented to the reader impressionistically.

II. Gener al Comments

As a general matter, I think it is important to ask — whenever we seek to reform evidence and procedure rules in criminal trials — what our goals are and what problems we are actually addressing.

Are we trying to streamline the process for the sake of cost savings and efficiency? Are we trying to make things easier for victims? Are we trying to make it easier or harder to secure convictions? And what justifies individual rule changes only for certain kinds of criminal cases, such as sex offence trials?

Before we undertake any reform, I think it is important to define and be honest about our aims — and to make sure that we are addressing problems in the criminal justice system that can be readily identified and truly need remedying. I sometimes get concerned that proposed changes to evidence and procedure rules in criminal trials are ideological or agenda driven, and I am always a little suspicious about changing the rules for one particular kind of case. Indeed, sometimes what is perceived as a “problem” in the investigation and adjudication of criminal charges is simply a natural by- product of adversarial trial processes, or a necessary component of how crimes must be investigated in an effective yet fair and reasonable way.

* Associate Professor, Faculty of Law, University of Auckland.


Of course, I am not suggesting that any of those concerns are raised by the cogent suggestions for change presented in the sex offences workshop or in the McDonald and Tinsley paper. I simply note that it is important to bear such issues in mind, and to be honest about what are doing and why.

Above all, we need to remember that all rules of evidence and procedure in criminal trials are balancing acts between two competing poles: (a) the procedural fairness and due process required for the adjudication of criminal offences; and (b) the crime control interests of ensuring that the guilty are punished. Accordingly, we need to design rules that weigh those competing interests equitably — both within the individual rules themselves and throughout the criminal trial process as a whole. This holds for sex offence proceedings and for all other criminal cases as well. Indeed, it is a criminal justice system we are administering, and not a system that should be weighted in favour of either convictions or acquittals in any particular case.

With those general thoughts canvassed, let me now comment on some of the specific evidence law matters discussed in the McDonald and Tinsley paper.

III. Specific Evidence Law Matters

A. Alternative Ways of Giving Evidence & Cross-examination Issues

I support the use of alternative ways of giving evidence in sex offence cases, although, as McDonald and Tinsley suggest in their paper, I think it is crucial that the rules governing those alternative methods ensure a high quality evidential product — a goal that I believe is more important than simply reducing stresses on victims (although the two are not mutually exclusive and undoubtedly go hand in hand in most instances).

However, I am still not completely convinced that we should have presumptions in favour of non-standard modes of testimony for child or adult victims in sex offence cases — by pre-trial video or otherwise — since every case and every complainant is different. On the other hand, I can see the value of such presumptions for the sake of having clear rules, and would likely favour them if adopted as part of a “best practice” series of regulations governing video interviewing and admissibility matters in sex offence trials.

On that point, and as applied to video evidence recorded prior to trial, the key is to make sure that interviewers, police, prosecutors, defence lawyers and support persons are well trained in: (a) interviewing techniques appropriate for adult and child sex abuse complainants — and which achieve the best evidential results with the minimum stress on victims; and (b) rules of evidence and procedure applicable to those video interviews and their admissibility at trial (which themselves may need to be rethought as they pertain to evidence given by victims in sex offence prosecutions).

Accordingly, and as noted above, what we need at first instance is a comprehensive code of best practice for complainant video interviews in sex offence cases, along with evidence rules and procedures that every professional involved in the criminal justice system can, to the extent possible, agree upon. We then need to make sure that all of the investigative,

police and legal personnel who deal with the evidence of sex offence victims

— including lawyers and judges — are well versed in both those regulations and the consequences that flow when they are or are not followed.

The model would be a more extensive and tailored version of s 45 of the Evidence Act 2006, which deals with a code of best practice for eyewitness identification and the admissibility consequences that result from police compliance or non-compliance with those rules. The regulations would be an expanded, tailored and more considered version of the ones currently contained in Part 1 of the Evidence Regulations 2007 (“Video record evidence in criminal proceeding”).

Whenever we are dealing with alternative modes of giving evidence, we also obviously need to make sure that a defendant’s fair trial rights are observed. This makes me a little suspicious of the idea that both the examination in chief and cross-examination of victims should take place on videotape and prior to trial, with little or no opportunity for further defence cross-examination at the trial itself. I just do not see how we can limit cross- examination in this way given the exigencies likely to arise during an in- court hearing, and I am concerned that defence lawyers may not be ready or able to cross-examine complaints effectively at an early point in pre-trial proceedings.

Finally, and most fundamentally, I am not convinced that we should move to an inquisitorial system in sex offence proceedings that eliminates traditional cross-examination altogether — whether at trial or during the pre-trial video testimony of the complainant. That kind of radical reform strikes me as unjustified in general, and certainly as applied to only one class of criminal case in an otherwise adversarial trial system. However, I think that controls on cross examination such as those found in ss 44, 85 and 95 of the Evidence Act, and others that could be promulgated in the future, are well justified in the interests of protecting vulnerable sex abuse victims on the witness stand.

B. Sexual History Evidence

In general, I believe there should be a strong presumption of inadmissibility with respect to any sexual history evidence about a victim that either the Crown or defence may seek to offer in a sex offence prosecution. Most of that evidence is irrelevant and operates in an unfairly prejudicial manner with respect to rational fact finding in the proceeding itself (which would render such proof inadmissible under the prejudice/ probative calculus set out in s

8(1)(a) of the Evidence Act). Indeed, sexual history evidence is usually just a distraction, ‘smoke and mirrors’, or an attempt by the defence to damage the veracity of the complainant in a stereotyped and inappropriate fashion.

In my view, s 44 of the Evidence Act does not go far enough to stop this kind of evidence being admitted, principally because the section leaves too much wiggle room for judicial discretion that may or may not be exercised appropriately in any given case. Indeed, there is a distinct lack of guidance in s 44 for application of the s 44(1) “super-direct” relevance test.

As an alternative, I would, in the main, move to fixed pigeonholes of exclusion or inclusion for sexual history evidence in sex offence trials. I would also require lawyers to argue for the admissibility of such evidence based on those pigeonholes and during pre-trial hearings — where we should likewise have an appropriate standard of proof for any factual determinations required to admit or exclude such evidence in a criminal case. I simply do not like the idea of leaving the s 44 decision up to judges in individual proceedings based on application of a broad based rule, no matter how stringently written. Indeed, while there will always need to be some scope for the residual exercise of judicial discretion, s 44 simply does not have to be as open-ended as it currently stands. Nor is there any particularly good reason to exclude categorically from the ‘super-direct’ relevance test, as s 44(1) presently does, evidence of any past sexual history between the complainant and the accused.

Of course, getting the pigeonholes right will not be easy. However, I

believe it can be done, since we have a good deal of case law experience

— along with academic and legislative commentary — dealing with the different kinds of fact scenarios said to justify admission or exclusion of sexual history evidence in a sex offence trial.1 Accordingly, we should

be able to subject such scenarios to the kind of critical analysis that, as a

legislative and policy matter, could shape a new and more guided version of s 44. The models here would be ss 37 and 43 of the Evidence Act which, while not perfect, provide far more direction to judges for the admissibility or inadmissibility of, respectively, veracity and propensity evidence about a defendant in a criminal case.

C. Veracity and Propensity Evidence about the Complainant

I have no difficulty with allowing veracity evidence to be offered about a complainant in a sex offence trial, provided it meets the “substantially helpful” test of s 37(1) of the Evidence Act. Likewise, relevant propensity evidence about a victim should also be allowed under the terms of s 40(2). However, I would be against allowing such proof of veracity or propensity to take the form of general reputation evidence, which I believe is typically too vague to be relevant and/ or unlikely to be substantially helpful. In my view, something more than a statement of general reputation is required for veracity or propensity evidence about a complainant to be admissible, just as it would be for defendants in sex offence trials seeking to offer propensity evidence about themselves under s 41, or veracity evidence under s 38(1).2

  1. See, for example, Elisabeth McDonald “Her Sexuality as Indicative of His Innocence: The Operation of New Zealand’s ‘Rape Shield’ Provision” (1994) 18 Crim LJ 321; R Mahoney and others The Evidence Act 2006: Act and Analysis (2nd ed, Brookers Ltd, Wellington, 2010) at 214-220 (discussing and critiquing s 44 and associated case law).
  2. See also Evidence Act 2006, s 44(2), which sets out a general prohibition in sex offence trials against offering evidence related to “the reputation of the complainant in sexual matters”.

D. Propensity Evidence about the Defendant

Propensity evidence about criminal defendants seems to be a perennial issue for the New Zealand public, which appears always to want proof of a defendant’s past sex offending to be admissible against him or her in any new sex offence proceeding.3 However, I do not believe that we should let those views sway more considered opinion about when such past crimes evidence should be admissible under the propensity rules of the Evidence Act 2006. Indeed, the whole point of carefully admitting or excluding such convictions is because members of the public, sitting as jurors, are likely to give them too much weight in adjudicating the defendant’s guilt.

Since the “Devil’s Horns” effect is real when such convictions are put into evidence, they should be admitted carefully and not simply based on the presumptions that past crimes are always: (a) relevant; and (b) more probative than unfairly prejudicial in a sex offence proceeding.4

While not perfect, the discretionary, case-by-case approach of s 43 of the Evidence Act 2006 is a suitable judicial balancing mechanism for when a defendant’s past convictions should be received at trial. Automatic triggering mechanisms are not appropriate, nor should there be any presumption of admissibility for past convictions in sex offence cases or otherwise.

Finally, I would also not link the admissibility of a defendant’s past sex offence convictions to the fact that an accused has been granted leave to question a complainant about her own sexual history (which, as discussed above, should be extremely rare in any event). I just do not see the logic of the connection, and do not believe it is fair to prejudice a defendant simply because he is successful in making an application to cross-examine the complainant in that manner.

E. Recent Complaint

I think s 35 of the Evidence Act did a good job of getting rid of the unjustified ‘recent complaint’ rule in sex offence cases, while preserving some scope for the admissibility of prior consistent statements in any proceeding where circumstances make the relevance of such evidence clear and significant.5 Unfortunately — and for reasons that are not completely obvious to me — recent decisions from the Supreme Court have done their best to rewrite the rule in order to admit prior consistent statements and recent complaints in circumstances: (a) that do not meet the terms of s

35; and (b) where the relevance of those statements are questionable and admissibility may run afoul of s 8 of the Evidence Act.6

  1. See Claire Trevett “Calls for Govt Inquiry into ‘Brutalising’ Sex Trials” The New Zealand Herald (New Zealand, 12 June 2008); The Press “Call for Overhaul of Rape Trials” Stuff. (New Zealand, 12 June 2008).
  2. See the discussion in the Notes to r 413, United States Federal Rule of Evidence (as amended to December 1, 2010) 28 USC Appendix. See ACRule413.htm

5 See New Zealand Law Commission Evidence Volume 1: Reform of the Law (NZLC R55,

1999) at [136]-[144].

6 See Rongonui v R [2010] NZSC 91, [2011] 1 NZLR 23; Hart v R [2010] NZSC 91, [2011]

1 NZLR 1; R v B (SC88/10) [2010] NZSC 160, [2011] 2 NZLR 82; B (SC114/2010) v R

[2011] NZSC 64.

In my view, courts would do better simply to let s 35 operate the way it was written — as opposed to repealing s 35 and allowing ss 7 and 8 of the Evidence Act to do the work of determining when a witness’s prior consistent statements should be admitted in a sex offence trial (or any other proceeding for that matter).

Alternatively, we might wish to engage in a fresh and considered debate about categories or prior consistent statements that should or should not qualify for admission in sex offence prosecutions (and/ or across the board in civil and criminal cases). Such a discussion, if openly and honestly engaged in, would be preferable to the current judicial predilection for subverting the terms of s 35 and undoing Parliament’s intent in abolishing the recent complaint rule.

F. Corroboration

I am against any need to provide a corroboration warning in sex offence proceedings — or any other type of criminal trial for that matter — at the discretion of the judge or otherwise.7 Whether the jury gives weight to the testimony of any witness or item of evidence is up to them, as the judge should point out in his or her instructions, and there is no reason for a court to influence jury thinking further by pointing out that some piece of evidence is corroborated or not — or by warning the jury to that effect.

G. Expert Evidence

I am in favour of the expanded use of expert evidence in sex offences cases to allow juries to hear expert opinion regarding various medical, psychological and socio-cultural matters that bear upon the particular facts of a proceeding. This could include expert testimony related to rape trauma syndrome, post-traumatic stress disorder, delayed complaining, and other kinds of ‘social framework analysis’ that may assist juries in ferreting out their preconceptions about sex offences and the assessment of evidence in sex offence trials.

Of course, such evidence would have to satisfy the “substantial helpfulness” rule of s 25(1) of the Evidence Act. However, I believe there are expanded categories of expert opinion evidence in sex offence prosecutions — such as those outlined above — that would clearly satisfy this test.8

H. Judicial Instructions

In general, I would be against the use of an expanded set of judicial instructions to deal with some of the myths and stereotypes ostensibly present in jurors’ thinking about evidence in sex offence trials. I believe such instructions run the risk of the judge becoming a witness in the case and/ or

  1. See the discussion of ss 121, 122 and 125 Evidence Act 2006 in Mahoney and others, above n 2, at 449-456 and 458-460.
  2. The Court of Appeal has recently accepted this point with respect to the admissibility of expert opinion evidence concerning the ‘counter-intuitive’ behavior by children who allege that they have been sexually abused. See M v R [2011] NZCA 191.

an advocate for one side or the other in the proceeding. It also risks creating issues on appeal that could result in the reversal of a conviction for an unfair or biased summing up.

As just discussed, I believe that it would better to deal with such matters through the expanded use of expert opinion testimony presented at sex offence trials within the confines of s 25 of the Evidence Act and adversarial process.

I. Juror Education

As with my opinion regarding judicial instructions, I would also be against citizen education in sex offence trials in the form of “myth-busting” packs given by courts to prospective jurors and dealing with the experience and reaction of sex abuse victims. While well intentioned, such practice risks creating another “witness” in the trial outside the context of normal adversarial proceedings. The same is true of proposals for the expanded use of judicial instructions to deal with sex offence myths and stereotypes. It also raises potential concerns about the accuracy, fairness and impact of such packs with respect to the trial process itself — both in general and as regards the facts and circumstances of a particular proceeding.

Again, and as noted above, I believe that it is better to manage issues like this on the basis of expanded categories of expert testimony presented at trial and admissible under s 25 of the Evidence Act 2006.

However, another alternative would be the use of an American-style voir dire process — driven by counsel and/ or the presiding judge — to vet jurors regarding views incompatible with rational decision making in sex offence proceedings. While rare, such procedure is available under current case law and would be supported by s 25 of the Juries Act 1981 (“challenges for cause”).9

Finally, if the New Zealand government was really serious about dealing

with some of the stereotyped thinking and myths attending the investigation, prosecution and trial of sex offences, it could always start a highly publicised, well-considered and well-funded media campaign dealing with the reality of: (a) sex offending and its victims; (b) the reporting of sex offences; and (c) the prosecution of sex offence charges.

IV. Conclusion

Having participated in the sex offences workshop at the Faculty of Law, Victoria University of Wellington — and having heard the views of many different actors in the criminal justice system — I remain convinced that there is no objectively right scheme of evidence or procedure for the investigation and prosecution of either sex offence allegations or other types of criminal charges. In the end — and within the confines of the due process/ crime control continuum discussed at the outset of this comment

— lawyers, judges, and policymakers simply must “pay their money and take their choice”.

  1. See R v Sanders [1995] 3 NZLR 545 (CA). See also Gordon-Smith v R [2009] NZSC 20, [2009] 2 NZLR 725.

The important thing to realise, however, is that changes to investigative, evidential and criminal trial practices always run the risk of both subversion and unintended consequences. It is therefore crucial to debate such adjustments rationally and honestly, realising, as previously mentioned, that any system of criminal investigation, prosecution and trial for sex offences has to balance the interests of defendants, victims, witnesses and the public alike. Above all, our evidence and procedural rules in sex offence proceedings must be committed to the fair and just adjudication of criminal charges, together with the equitable treatment of victims, defendants and others involved (or caught up) in criminal justice processes at large.

The research presented at the sex offences workshop, including the very good paper on evidence issues given by McDonald and Tinsley and published in this journal, is a clear step towards a rational and considered debate on how we can “do better” in sex offence trials.

I commend my colleagues for their efforts and insights, and hope that my observations in this comment will contribute to an ongoing discussion over reforming this vital, complex and sensitive area of New Zealand law.

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