New Zealand Law Commission
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85 THIS CHAPTER DESCRIBES the statutory modifications which have been made in recent years to the general rules governing how witnesses may give evidence. It discusses the court’s inherent jurisdiction in this area and whether the changes have advanced the aims of the law of evidence.
86 The statutory modifications were introduced for several reasons, including the belief that:
87 In the main, the modifications were designed for child and mentally handicapped complainants in sexual cases which are heard by a jury. More limited protections are available for adult complainants in sexual cases; for example, they do not usually have to appear in person at preliminary hearings (when the decision is made about whether the case should proceed to trial) but may give written evidence.80
88 Child complainants and mentally handicapped complainants in sexual cases may give their evidence at preliminary hearings in the form of a videotape and hence need not appear in person nor give a written statement.81
89 Before any trial in cases of sexual offending, the prosecutor must, if the complainant is a child or mentally handicapped, seek a direction from the court on how the complainant’s evidence is to be given.82 The alternatives provided by statute include:
90 The judge hears the prosecutor’s application in chambers, not in open court, and must give each party an opportunity to be heard in respect of the application.83 The parties may call any relevant evidence; for example, from a police officer working on the local sexual abuse team.84
91 The judge may call for and receive reports from any people they consider qualified to discuss the effects on the complainant of giving evidence, either in the ordinary way or in any of the alternative ways available.85
92 When considering what directions to give concerning the way the complainant will give evidence at the trial, which includes both examination in chief and cross-examination, the judge is required to have regard to the need to minimise stress on the complainant while at the same time ensuring a fair trial for the defendant.86 On this point, the Court of Appeal stated in R v Lewis:87
The broad purpose is clearly to ensure that the old technicalities of evidence and traditional approaches to the giving of evidence, even the contents of evidence in matters such as hearsay, shall not necessarily prevail against the desirability of getting at the truth and doing so by an effective machinery which enables children to give evidence without undue stress, while at the same time preserving the accused’s rights to a fair trial.
93 Factors the court may take into account have included:88 the age of the complainant; their personality; the witness’s assessed ability to relate the evidence; the relationship between the complainant and the defendant; the nature of the charge; the importance of the evidence,89 and any other matters impacting on the witness when giving evidence and on the ability of the jury to assess the witness and their evidence.
94 If the prosecutor requests that a videotaped interview be used at trial, the videotape must comply with the Evidence (Videotaping of Child Complainants) Regulations 1990. The judge is in any case obliged to view videotapes before they are shown at trial and may excise portions of them.90 “Substantial but not slavish compliance with the regulations is required.”91 The witness must demonstrate on the videotapes an understanding of the obligation to tell the truth, and promise to do so.92 The court must be able to assess the sufficiency of compliance from the videotapes.93
95 The regulations do not govern who may question the complainant or the questioning techniques that may be used but administrative guidelines do exist which outline how interviews should be conducted and by whom.94 Most interviews are carried out by social workers and police officers who are specially trained.95
96 Defence counsel are entitled to cross-examine the interviewer about the manner in which the interview was conducted, including both the technical aspects and the effect which any particular questions or attitudes may have had on the complainant.
97 The courts appear to tolerate a certain degree of patient coaxing and even some leading questions in these videotaped interviews.96 However, the court may not permit the videotaped interview to be used if the leading questions are persistent. Children should also not be offered inducements for talking.97 Concerns may also be raised about allegedly contaminated interviews,98 repeated interviews,99 and the use of the same person to conduct interviews and therapy sessions with a child complainant.100
98 As well as these statutory modifications, the High Court has used its inherent jurisdiction to allow the witnesses who fall outside the statutory categories to give evidence in alternative ways.101 The inherent jurisdiction has been used, for example, to assist a complainant in a sexual case who was just over the age limit, as well as a 19-year-old complainant who was profoundly deaf and had associated social problems.102
99 Although screens have been permitted quite often under the court’s inherent jurisdiction, doubts had been expressed about the court’s power to order the use of closed-circuit television or videotaped evidence.103 However, the Court of Appeal has since made it clear that, at least in the case of child complainants alleging abuse, the court may allow videotaped evidence.104
100 Uncertainty remains concerning the categories of witnesses who may give evidence in alternative ways. There seems little difficulty for a person who falls just outside the age limit specified in the statutory provisions, but although the Court of Appeal approved the use of a screen in the case of a 30-year-old sexual abuse complainant, it held that this was an exceptional use of its power.105
101 Little research has been undertaken in New Zealand on the effects of the statutory modifications, although a small study was published as part of a pilot programme before the enactment of the recent reforms.106 A questionnaire sent out by the Department of Justice on behalf of a subcommittee of the Courts Consultative Committee provided some information on the use of alternative ways but the opinions expressed were relatively impressionistic and not representative. In particular, little information is available from defence counsel or judges.107 It seems clear, however, that significant use is now made of the provisions and that no major problems have arisen.
102 This impression is confirmed by a more recent and comprehensive study which found that the new provisions were frequently used and are now the norm rather than the exception.108 The provisions were generally perceived as satisfactory by most professional groups. There was also general consensus “that the new procedures significantly reduced the trauma of testifying for the child witness, and this effect was not judged by any group – except the defence lawyers – to be at the expense of the quality or truthfulness of the evidence given”.109
103 The Commission believes that the effects of giving evidence in an alternative way depend largely on how the evidence is given. For example, evidence may be more accurate if it is collected on videotape immediately following an alleged offence. Giving evidence from behind a screen at trial may reduce the witness’s trauma so that greater disclosure occurs.
104 Giving evidence in an alternative way can promote the rational ascertainment of facts by enhancing reliability and facilitating communication. For example, using videotaped evidence addresses some of the difficulties that young child witnesses may have in remembering detailed information after a long delay.
105 One of the principal advantages of giving evidence by videotaped interviews is that the evidence is recorded while the memory is still fresh, usually some months before the trial.110 Videotapes may also increase the reliability of evidence by reducing the number of interviews, thus lessening the impact of repeated questioning on the witness’s recall of events.
106 Young children, rather than adults, are more likely to find it difficult to communicate with the court. Children may respond better to questions when they are asked in a smaller, more intimate setting than a courtroom, which makes them feel more at ease. This usually occurs with videotaped evidence and closed-circuit television.111 In the case of a videotaped interview, the interviewer may be a specialist in communicating with children, which could also increase the quality and reliability of the child’s responses.112
107 In a recent evaluation of the use of videotaped evidence in the United Kingdom, court and child protection professionals (judges, barristers, police officers and social workers) responded to questionnaires sent out before and after the law come into effect.113 The initial survey found that all groups thought the main advantage of the new system would be the reduction of stress for the children involved. Barristers were most concerned that false allegations would be less detectable. After experience of the Act, “three quarters of the judges polled believed that it was working in favour of the interests of children. Both groups continued to see the reduction of stress as the main advantage.”114 In addition, the majority of each profession agreed that “evidence given in court had more impact [on the jury] than a videotaped account, although all of the judges surveyed stated that open court was more stressful for the child.”115
108 This survey did not evaluate the perceptions and experiences of either
the children or jurors involved. Other studies do establish, however, that “children generally recall past events most accurately when subject to the least stress.”116
109 In a recent Australian survey of judges and magistrates, it was found that 82.5% supported use of videotaped interviews.117
110 In the New Zealand study on the use of closed-circuit television, two witnesses out of the six studied were intellectually disabled. The study concluded that “[u]se of the equipment for intellectually handicapped persons was seen as appropriate, as it allowed concentration and focus that probably would not occur in the courtroom setting”.118 Professionals were positive about the use of closed-circuit television and felt the perceived advantages outweighed the perceived disadvantages. The study concluded that the use of closed-circuit television was fair to both the defence and prosecution, with children’s evidence being more comprehensive.119
111 Following the amendments to the Western Australian Evidence Act in 1992, which allowed children and other vulnerable witnesses to give evidence in alternative ways, the Western Australian Ministry of Justice surveyed jurors. The report, Jurors’ Responses to Children’s Evidence Given by Closed-Circuit Television or with the Aid of Removable Screens,120 reached the following conclusions:
The report also made recommendations about further steps which could be taken to improve the use of CCTV, as far as juries are concerned.122
112 The Australian Law Reform Commission’s report, The Use of Closed-Circuit Television for Child Witnesses in the ACT, published in 1992, concluded:123
When assessed in terms of the four aspects of its effect upon the participants who used it, the general response to closed-circuit television was favourable, and in some cases, very much so. First, it was seen as achieving both objectives – reducing the stress upon children as they testify, and increasing the likelihood that they would be forthcoming with their evidence. Second, in terms of the way the evidence via closed-circuit television is perceived, there was some concern about a change in impact but generally, closed-circuit television was reported, especially by magistrates, as providing a closer and clearer picture of the child. Third, closed-circuit television was generally seen as being fair. Most respondents denied that it infringed the rights of the accused to confront witnesses because the evidence was still able to be tested ... In addition, magistrates quite clearly said in a number of cases that they doubted they would have obtained any evidence at all from children without the use of closed-circuit television.124
Does receiving evidence in alternative ways assist or hinder the rational ascertainment of facts?
In particular, does the use of closed-circuit television or videotaped evidence, which allows out-of-court testimony, operate as a barrier to the assessment of witness credibility?125
113 It should be possible to test credibility and reliability by way of cross-examination and ascertainment of demeanour even if evidence is given in an alternative way. The fact that the complainant may not be present in the same room as the defendant, or is behind a screen, does raise the concern that the lack of face-to-face confrontation may take away what some may view as an important deterrent to lying. There is, however, simply no empirical evidence that people are less likely to lie when faced with the person they are accusing and, from the point of view of promoting reliability, there is no basis to conclude that alternative ways of giving evidence detract from either the rational ascertainment of facts or procedural fairness. It might be considered that procedural fairness is affected if face to face confrontation is regarded as a right in itself, rather than a means of promoting reliability. This question is discussed more fully in chapter 8.
114 The Central Research Unit of the Scottish Office studied the use of closed-circuit television for child witnesses and sought the views of defendants in criminal cases.126 The study concluded:
None of the men believed that the use of the live television link had done anything to prejudice their case. Two prisoners who thought the whole process had been unfair said the injustice they felt had nothing to do with the provision. Indeed all of the men thought it was very appropriate that children should use the live television link since they believed it was harmful and frightening for children to appear in a large courtroom in front of a jury. All of the accused said the children would not have said what they did say if they had been facing them in open court.
115 It is commonly accepted that children are more likely than other witnesses to be traumatised by giving evidence in court. Amongst reasons given are: children have a poor understanding of the legal system; the language used may not be easily comprehensible; proceedings are long and involve repeated questioning; and the child will have to relive the incident at the trial, which may be distressing if the original event was traumatic. As well, face-to-face confrontation with the defendant is considered to be a significant cause of trauma for the child complainant. This common view is confirmed by respondents in the New Zealand survey cited earlier.127
116 Some studies support the view that testifying in court can be stressful for children, but also that it can be empowering for some.128 It was found that children’s observed emotional states were influenced more by whether they were able to use closed-circuit television when they wanted to than by whether they did in fact use it.129 In other words, their control over the experience may be more significant to their well-being than the experience itself. The 1995 Scottish study also found a significantly decreased level of distress for child witnesses in criminal cases when they testified using closed-circuit television. They were much more likely to report “no fear” than those children who had to give evidence in court.130
117 Although it is not certain therefore whether children, or people with intellectual disabilities, are more likely to be stressed than other witnesses, it does seem that if a child is stressed or traumatised this will adversely affect his or her ability to give relevant and reliable testimony. Children may be unwilling to testify at all in front of the defendant, or the stress of the situation may make the child anxious or confused.131 A child’s stress or trauma may also affect the ability of jurors to accurately assess credibility.
118 Some of the alternative ways of giving evidence may reduce trauma and at the same time increase reliability because they change the behaviour of participants other than the witness. The Australian Capital Territory study found that using closed-circuit television altered the behaviour of lawyers and judges, in particular their approach to the child witness.132 Lawyers were more supportive and magistrates intervened more often especially during cross-examination using closed-circuit television. It also slowed the process down and had the effect of reminding lawyers and judges that they were dealing with children.
119 While thorough research is lacking, it may be noted here that in the small New Zealand pilot study into the use of closed-circuit television the majority of people interviewed agreed that its use reduced the trauma the witness would have been likely to experience in court. It was also considered by some that its use allowed the prosecution to bring cases that would otherwise not have come to trial.133
120 Experience and research suggest that the benefits of using alternative ways of giving evidence outweigh the disadvantages. The New Zealand law changes appear to be useful reforms for those witnesses to whom they apply. For young children in particular they are well used. The changes promote the rational ascertainment of facts by, for example, allowing evidence to be recorded when it is freshest and hence most likely to be reliable and unaffected by subsequent events. The procedures allow relevant and useful evidence to be communicated effectively to the court where witnesses may otherwise be reluctant to be involved. For some witnesses the procedures also reduce distress or trauma at the time of trial, and may promote recovery, either by allowing the healing process to begin earlier or giving the witness some control.
121 The use of alternative ways of giving evidence does not erode the right to cross-examine but changes the way that cross-examination is conducted in some cases. Whether this impacts on procedural fairness for defendants
in criminal cases depends on whether there is a right to face-to-face confrontation in a courtroom. This issue is discussed more fully in chapter 8.
Are there any current difficulties with the use of alternative ways of giving evidence?