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• Purposes Of Evidence Law Relevant To The Evidence Of Children And Vulnerable Witnesses
• The Rational Ascertainment Of Facts
• Procedural Fairness
• Fairness To The Defendant
• Fairness To Witnesses

1 Introduction

1 MANY PEOPLE find giving evidence in court a difficult or even harrowing experience. The unfamiliar surroundings, the formality of the process and the combative nature of the adversarial trial may all contribute to a witness’s feeling of unease. For some people, including very young children, people with disabilities, those from minority linguistic or cultural backgrounds, and complainants in sexual cases, giving evidence in court may be not only difficult, but virtually impossible. Such people are all “vulnerable” witnesses in the sense that, without special assistance, their evidence may never be satisfactorily heard. This paper discusses options to address the particular needs of witnesses (including defendants) which arise in the context of their involvement in legal proceedings and impact on their ability to give reliable (complete and accurate) evidence.

2 The evidence of people who are ruled incompetent because, for example, they cannot describe the difference between a truth and a lie, is also not heard. Evidence that is inadmissible on this basis is usually that of children or other vulnerable witnesses.

3 The aim of this paper is to consider reforming the rules of evidence which govern who may give evidence (the competence requirement) and how witnesses may be assisted to give evidence. The how inquiry concerns the kind of assistance that may be provided for children and vulnerable witnesses to enable their evidence to be heard; for example, videotaped evidence, or the presence of a support person. We also discuss the use of interpreters for those who need help to communicate effectively. The rationale for examining reform options in this area is the concern that the current competence test and the usual ways of giving evidence operate to reduce the amount of relevant and reliable evidence available to the finders of fact.

4 The Commission’s review of the law of evidence in this area does not question the context in which the law operates – that is, the adversarial trial. It may well be that if another model of dispute resolution were used, participation would be less arduous, but this topic is beyond the scope of the reference.

5 This paper does not review all issues concerning children and vulnerable witnesses. Clearly, these witnesses may also be assisted by practices and procedures which do not require legislative authority: for example, more emphasis on preparation for trials; education of lawyers and judges concerning the needs of these witnesses, in particular, on how to question them; and, reduction of delays.¹

PURPOSES OF EVIDENCE LAW RELEVANT TO THE EVIDENCE OF CHILDREN AND VULNERABLE WITNESSES

6 The Law Commission has identified several general purposes underlying the law of evidence² which should govern any proposals for law reform. These purposes include promoting the rational ascertainment of facts and procedural fairness.

The rational ascertainment of facts

7 In Preliminary Paper No 13, Evidence Law: Principles for Reform, the Law Commission concluded that a principal purpose of the trial is the rational ascertainment of facts.³ Although it is not possible to control the accuracy of all the evidence presented in court, the law of evidence can “enhance rationality in the process of fact-finding at trial” by, for example, ensuring that relevant material can be brought before the court, filtering out irrelevant material, avoiding obvious prejudices and questioning unsafe assumptions.

8 The goal of promoting the rational ascertainment of facts has obvious implications for the rules and procedures which govern who gives evidence and how that evidence is given. Since excluding relevant evidence runs counter to this goal, the rationale behind any exclusionary rule must be closely scrutinised. For example, an intellectually disabled person may not be able to fulfil the present competence requirements because they cannot demonstrate an understanding of the concept of a promise. That person may nevertheless be capable of giving reliable evidence. The normal process of giving evidence (orally in open court) may effectively reduce the amount of relevant material available to the fact-finder, by discouraging some individuals from participating, or it may compromise the reliability of that material.

Procedural fairness

Fairness to the defendant

9 Fair procedures in criminal cases are necessary in order to achieve just results. The public interest in not convicting the innocent is reflected in certain fundamental rights, recognised in international law and affirmed in the New Zealand Bill of Rights Act 1990. These include the right of silence, the privilege against self-incrimination, the presumption of innocence and the right to be present at the trial and to examine witnesses. Reform of the rules of evidence must take into account these rights and interests, even though they may need to be balanced at various points against the rights and interests of complainants and other witnesses.

Fairness to witnesses

10 In the context of procedural fairness for witnesses, two considerations are relevant: the reduction of the trauma associated with giving evidence and, for complainants, the promotion of recovery from the harm allegedly caused by the defendant.

11 Minimising stress on the complainant is currently recognised as a valid concern. It is specified as one of the factors the judge must consider when deciding how a child or mentally handicapped complainant in a sexual case may give evidence.⁴ Trauma may be reduced by giving evidence behind a screen so that a witness cannot see the defendant, or on videotape, which may alleviate anxiety caused by waiting to be called to give evidence and having to give evidence in chief in court. Reducing stress or trauma is important in itself but it may well result in more reliable evidence being given. Sometimes it may make available vital evidence, without which the case could not proceed.

12 The promotion of recovery is recognised as important in the case of abused children. The United Nations Convention on the Rights of the Child, ratified by New Zealand in 1993, requires party states to “respect and ensure” the rights of each child within its jurisdiction, and in particular it requires the party states to “promote physical and psychological recovery and social reintegration of a child victim”. While participation in the trial process may not positively aid recovery, the Commission believes that the rules should as far as possible not hinder the recovery process.

13 Although the case for the reforms proposed in this paper is most compelling in criminal trials, where the impact of testifying may be considerable, the provisions may also apply in civil cases, and to all witnesses, including defendants, who demonstrate the need for special treatment.