New Zealand Law Commission
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76 THE COMPETENCY REQUIREMENT concerns who may give evidence in court. In the next chapters we discuss how evidence is given in court. The ordinary rules governing how evidence is given are outlined in this chapter, followed by a discussion of the rationales of the ordinary rules and their implications for vulnerable witnesses. Chapter 4 sets out the statutory modifications which have been made to those rules, and options for change are proposed in chapter 5.
77 In general, people who give evidence do so orally, in English, in the courtroom with all participants present and in sight of one another. This applies to preliminary hearings as well as criminal and civil trials. In criminal and civil trials, proceedings are normally open to the public.70
78 Parties in civil cases and the defendant in criminal cases are usually represented by a lawyer. Each party has the right to decide how to present their case, including which witnesses to call to give evidence. However, the complainant in a criminal case is not a party and is not represented by counsel. Complainants are witnesses for the Crown and are called by the prosecutor who appears on behalf of the Crown or the police.
79 If summoned by a party to proceedings to give evidence, a witness must normally do so. The witness goes into the witness box unaccompanied, swears or affirms that they will tell the truth, and usually gives evidence by responding to questions.71 The witness first answers the questions put by the party in whose interests they were called – this is called “evidence in chief”. The opposing party (or parties, if there is more than one) then has the right to cross-examine the witness. After cross-examination, the witness may be re-examined by the party who called them. A party to the proceedings, including the defendant in a criminal case, who is not represented by a lawyer, may examine, cross-examine and re-examine witnesses in person.72 A judge may also ask questions of any witness.
80 The current rules of evidence reflect features of our trial process, in particular the adversary system and the use of juries.73 The law of evidence is considered to serve the purpose of the trial process, including the pursuit of truth, party freedom and procedural fairness. The trial process is considered to assist truth-finding by allowing assessment of witness credibility in the court and under oath. The immediacy of oral presentation and confrontation is sometimes thought to be the best way of arriving at the truth.74 In this context, the fact-finder (judge or jury) is arguably better able to make judgements about veracity by observing witness demeanour and consistency, especially under cross-examination and in the presence of the opposing party, in front of whom a witness, particularly a complainant, is supposedly less likely to lie.
81 Some of the historical reasons for giving evidence orally in person and in public no longer exist due to technological advancements; for example, it is no longer necessary for every participant to be in the same room in order to be seen and heard. The protections of the adversarial process, particularly for defendants in criminal cases, are, however, still considered important. Section 25 of the New Zealand Bill of Rights Act 1990 protects those features of the trial process which are aimed at promoting procedural fairness and truth-finding – for example, the right of a defendant to be present at the trial and to examine witnesses. We are not aware of any research which indicates whether or not these safeguards enable fact-finders to draw accurate conclusions about witness credibility and the reliability of evidence. To the contrary, allowing witnesses to give evidence only in the ordinary way may actually reduce the amount of reliable evidence and consequently hinder the truth-finding process.75 The tension between the rights of a defendant in criminal cases and the rules about giving evidence will be discussed in more detail in chapter 8.
82 The rules governing how witnesses give evidence are intended to promote the rational ascertainment of facts. However, it is apparent that in the case of vulnerable witnesses these rules may actually hinder that process. Vulnerability in this sense may occur due to the characteristics of a witness, the relationship between the parties or the nature of the offence in a criminal case. As discussed earlier, it is the difficulty these witnesses may have in giving evidence in the ordinary way which may limit the amount of reliable evidence they can offer the court. For example:
83 The ordinary rules for giving evidence evolved in a cultural and technological context very different from that existing currently in New Zealand. This suggests a need to assess their current validity. For example, although the original purposes for requiring the witness’s presence in the courtroom may still be regarded as important (for example, audibility and assessment of demeanour) the same purposes may now be satisfied by other means.
84 The difficulties posed by many of the traditional features of the trial process have been recognised in recent years by New Zealand law in relation to some groups of witnesses, such as complainants in sexual cases, particularly children. The resulting changes in the law are described in the next chapter.