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122 OPTIONS FOR EXTENDING the present provisions allowing alternative ways of giving evidence relate both to who may be eligible to give evidence in alternative ways and also what alternative ways ought to be available. This chapter discusses the following proposals for change:
123 Children and mentally handicapped witnesses can, under the current provisions, give evidence in alternative ways, but only if they are complainants in cases of sexual offending. We consider that many of the reasons for allowing children, or intellectually disabled adults, to give evidence in alternative ways apply irrespective of whether the witness is a complainant and whatever the nature of the crime alleged. These reasons include the possibility of memory deterioration, unfamiliarity with the courtroom environment, adverse reaction to stress and a lack of sophisticated communication skills.
124 Other people have very real disadvantages in carrying out many activities of daily living in relation to employment, education, transportation, communication and management of financial affairs. These disadvantages are likely to have implications for their ability to perform effectively as witnesses in the courtroom, although research specific to the legal context is limited. We consider that it is appropriate to allow more people to use the alternative procedures. There is widespread acceptance of the alternative ways of giving evidence, no major problems have arisen,134 the disadvantages are minimal, and the benefits for people to whom the provisions presently apply are clear.
125 Categories of witness who could be at least considered eligible for extension of the alternative modes of giving evidence include people with communication disabilities (for example, deafness), people from linguistic and cultural minorities, elderly people and victims of traumatic offences such as sexual offending and violence, whether in the civil (eg, family court hearings) or criminal context. Many Australian jurisdictions list these kinds of characteristics as factors which are relevant to the decision about eligibility to use alternative modes.135 However, there is no reason to think that most, or even many, members of one particular group are in fact vulnerable, or that any person should be regarded as vulnerable simply because they belong to a particular group.
126 The most important need of a witness who is hearing impaired or from a minority linguistic background is clearly communication assistance. Usually this involves the use of an interpreter.136 Rules on communication assistance are discussed in chapter 7. However, for both deaf people and people from minority linguistic backgrounds the entitlement to provision of an interpreter alone may not be sufficient or even appropriate to overcome communication difficulties. Provision of an interpreter may not counteract problems resulting from feelings of alienation or shame, which may be more likely in people from some cultural backgrounds,137 or the preconceptions and attitudes of other trial participants towards the witness.138 In some such cases these problems may be partly alleviated by allowing evidence to be given from outside the courtroom, without the pressure or distress that may be associated with being in the courtroom.
127 For some people who are hearing impaired but not completely deaf, or who have partial but not full competence in the court language, an interpreter may also not necessarily be the most or only appropriate means of remedying communication difficulties. The witness may be able to give their evidence most effectively if enabled to do so directly without an interpreter, or with the interpreter in a supporting role, as long as he or she can give evidence in a more relaxed and unpressured environment than the courtroom itself. A partially deaf person who usually communicates by speech-reading may wish to do so in giving evidence but find that many features of the courtroom make speech-reading more difficult. The courtroom setting and decorum eliminate many visual cues used by deaf people who speechread, and many words are unfamiliar.139 The effectiveness of hearing aids depends on such things as the acoustics of the particular room.
128 Similarly, it may be preferable in some circumstances for a person from a minority language who speaks some English, even though not fully competently, to give evidence without an interpreter or with an interpreter in a supportive rather than principal role. For example, it may be difficult to find a professional interpreter in the relevant language or dialect,140 or, given the inevitable complexities in translation, direct communication in English may be more effective. For this to be successful, however, the witness may need to be given every opportunity to be relatively unpressured, and this may be best achieved out of the courtroom environment, or even by means of a videotaped interview.141
129 Witnesses in cases involving sexual and violent offending, especially complainants, may experience distress in giving evidence in the courtroom in front of the defendant. This may involve actual psychological or emotional harm, and may mean that their ability to communicate their evidence is impaired. Justice Thomas has suggested that alternative modes of giving evidence, such as closed-circuit television, should also be available to adult victims of sexual offences:
It is not suggested that a screen or television equipment should be used in every case of rape where an adult victim gives evidence. Rather, the use of these aids could be ordered by the Judge in his or her discretion where it is established that the victim’s psychological and emotional condition could be further harmed by giving evidence in the presence of the accused or in the courtroom. The use of closed-circuit television, in particular, would permit the victim to give her evidence without undergoing this ordeal or depriving the jury of the opportunity to assess her evidence.142
130 Our proposals would enable adult witnesses who satisfy need-based criteria to give evidence in alternative ways. Counsel would be able to seek directions from the court on whether and how ordinary procedures could be modified (section 18 of the draft code rules). The witness could also request this. Decisions would be made on the basis of the needs of the witness, rather than membership of any specific category such as intellectual disability, being Deaf,143 or having a hearing impairment. The test would refer to the purpose of rational ascertainment of facts (that is, the promotion of reliable evidence and effective communication) as well as the desirability of minimising unnecessary distress. These goals would be balanced against the need to ensure the fairness of the proceeding, and, in particular, that a defendant in a criminal case has a fair trial.
131 It may not be appropriate to limit the availability of alternative ways just to witnesses who are “vulnerable” in the ways already discussed. Some witnesses, for example those who are at risk of retaliation for testifying, should also be able to give evidence anonymously or in a safe environment.144
132 A statutory test to establish individual need should therefore refer to these factors:
133 When considering whether need is demonstrated and whether the witness may give evidence in an alternative way, the court should give regard to procedural fairness, reduction of stress on the witness, the preference of the witness, and any factor relevant to the rational ascertainment of facts.
134 So far as children are concerned, taking their preference into account is in keeping with New Zealand’s obligations under the UN Convention on the Rights of the Child, and is supported by research which demonstrates the significance of a child having some control over process.145 The Commission also believes that the preference of any witness is a relevant consideration in the exercise of the court’s discretion. The witness’s preference would, of course, be only one factor to be considered, and may be outweighed by other factors.
135 The considerations the court must have regard to in making a decision on whether a particular witness may give evidence in an alternative way will also provide the court with guidance as to which alternative way should be used. For example, a child complainant in a sexual case may most appropriately give evidence on videotape prior to the trial. By contrast, an adult complainant, who is primarily concerned about seeing the defendant, may be helped by the use of a one-way screen.
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Are there any other factors relevant to establishing need?
Are those listed appropriate?
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136 We propose:
137 On the face of it, this reduces the protection for intellectually disabled complainants because an application on their behalf in sexual cases will no longer be mandatory. The Commission believes that this approach is sustainable because:
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Should a mandatory application be made for intellectually disabled
witnesses?
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138 We recognise that extending the availability of videotaped evidence to a greater number of witnesses will have some resource implications, at least in the short term. We consider, however, that the effects of the proposal are likely to be gradual, and that decisions on applications in the initial stages need to take into account the availability of equipment. We consider that in the long run efficiency gains may be made from using videotapes more frequently as a means of recording and presenting evidence.
139 The proposal that all witnesses may apply to give evidence in alternative ways, highlights the need to clarify an issue which has already surfaced in cases involving videotaped evidence. To what extent should counsel be obliged to inform the opposing party that a videotape has been made but is not intended to be used in evidence? Should opposing counsel be able to produce those videotapes for their own evidential purposes – even if not made in conformity with regulations?147 We propose that either regulations or general rules of disclosure should make explicit the obligation of the prosecution in criminal cases to advise the defence of any videotapes made but not intended to be produced as evidence,148 as is now required for videotapes which are intended as evidence.149 The judge should have the discretion, in the interests of justice, to allow videotapes to be offered in evidence even if not in conformity with regulatory or other requirements. This should also enable opposing counsel to apply for any videotapes to be admitted for their own purposes. We envisage that videotapes made by a defendant in a criminal trial, or in civil matters, but not relied on in evidence, would be subject to normal rules relating to privilege150 and criminal discovery (section 19 of the draft code rules).
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Are the proposed disclosure requirements of pre-trial videotapes
appropriate in all contexts?
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140 Finally, we wish to emphasise that our proposal that all witnesses may apply to give evidence in alternative ways includes defendants in criminal cases who elect to give evidence. While envisaging that it would be unusual for a defendant to testify out of court,151 we do not see any difficulty with allowing an application on the same need-based criteria as would apply to other witnesses.
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Should a defendant in a criminal case be eligible to give evidence in an
alternative way?
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141 Currently, child complainants and mentally handicapped complainants in sexual cases may give their evidence at preliminary hearings on videotape.152 For reasons discussed in paras 101–102 and 123–131, we believe that any witnesses who demonstrate relevant need should be able to give evidence in one or more of the alternative ways, even at a preliminary hearing. For practical purposes, however,153 an application to give evidence in an alternative way will not normally be necessary before a preliminary hearing. If the Commission’s proposals in Criminal Procedure: Part One Disclosure and Committal154 are implemented, prosecution evidence would usually be given in the form of a written statement, and personal attendance of a witness for cross-examination would only take place if leave is given by the court on particular grounds. It is envisaged that the court would consider an application to give evidence in an alternative way at the same time as an application to cross-examine a witness at the preliminary hearing. An application will also be required if the rules on cross-examination of witnesses at the preliminary hearing remain unchanged.
142 We propose that s 185CA of the Summary Proceedings Act 1957 be amended so that videotaped evidence of any witness may be admitted at the preliminary hearing, as long as the videotape has been made in the prescribed manner and form. This will not mean that the videotape is automatically admitted at a later jury trial – an application will still need to be made.
143 The Commission believes that this approach is sustainable because of its consistency with the policy of the code and with the Commission’s work in the criminal procedure area. Most witnesses will not give evidence at a preliminary hearing on videotape, but where a videotape has been made it seems desirable to use it, in preference to a written statement.
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Should all prosecution witnesses be entitled to give evidence on videotape
at a preliminary hearing?
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144 There are difficulties with the cross-examination at trial of a child whose evidence in chief is presented in the form of videotaped interview. The trial may occur some considerable time after the interview was recorded. Such delay can affect a child witness in several ways and may reduce the reliability or amount of evidence the child is able to give at the trial.155 These difficulties may be reduced if cross-examination could take place before trial in a relatively unpressured environment. The Report of the Advisory Group on Video Evidence in the United Kingdom in 1987 recommended that cross-examination may be videotaped before trial.156 These recommendations were not adopted in the United Kingdom but appear to have been implemented in Scotland.157 Pre-trial cross-examination is also possible in Western Australia.158
145 The Commission believes that the availability of pre-trial cross-examination on videotape in a limited range of cases is consistent with the purposes of the evidence code. Pre-trial cross-examination will decrease trauma and stress for most child witnesses. It allows a child’s participation in the proceedings to end at an earlier stage so that counselling and support can focus on recovery, rather than trial preparation. Pre-trial cross-examination means that evidence will be fresher and therefore likely to be more accurate and reliable. This is of particular importance in the case of children or witnesses who are subject to a greater degree of memory loss than the average person. All these points indicate an increased likelihood that fuller and more accurate evidence will be available to the court. It may be that the quality of evidence generally would be improved if all witnesses’ evidence were recorded on videotape close to the time of the incident. However, at the present time, procedural and resource issues would probably preclude such a broad application of this proposal.
146 We propose that pre-trial videotaped cross-examination may be undertaken for two groups of witnesses:
147 We propose that the application for pre-trial cross-examination be made at the same time as the application for using alternative ways to give evidence in chief (sections 15 and 16 of the draft code rules). The considerations would be the same, but with a preliminary enquiry into likely memory loss in the case of witnesses other than child complainants (section 20(2)(b) of the draft code rules). In the course of hearing an application for pre-trial cross-examination, the court must give each party an opportunity to be heard and may call for and receive a report from any person to advise on the effect on the witness of being cross-examined in any particular way. As with the application to give evidence in chief in an alternative way, the court must ensure the fairness of the proceeding and, in particular, ensure that a defendant in a criminal case has a fair trial.
148 If the application is successful, the pre-trial hearing would be held as soon as possible, taking into account the need for adequate preparation time for the defence or opposing party. The hearing may be held in chambers, but could be held at any appropriate private venue,160 and the only persons present would be the judge, the parties, lawyers, the witness and any support persons. In the case of child complainants, the defendant would not physically be in the same room as the complainant, but would observe proceedings by a one-way mirror and audio link, or closed-circuit television. Other witnesses may apply to be cross-examined without any particular party being physically present. The witness would give evidence in chief, either in response to the prosecutor or by presentation of a pre-recorded videotape (section 21(1) – (4) of the draft code rules).
149 The opposing party’s lawyer would then cross-examine the witness who could also be re-examined. The entire proceedings would be recorded on videotape for playing at the trial. As provided in Western Australia, the opposing party would have the right to conduct further cross-examination at trial; for example, if new evidence required this. This would be a decision made by the judge, in the interests of justice. This could be carried out at a further hearing or at the trial itself as appropriate (section 21(5)–(7) of the draft code rules).
150 There have been recent assessments of the operation of the Western Australian provisions, including s 106I (1)(b) which provides that the whole of the child’s evidence (examination in chief and cross-examination) may be taken at a videotaped pre-trial hearing. An article outlining the use of this process, published in December 1995,161 stated that at that time there had been seven cases in which pre-trial cross-examination had been conducted.162 The advantages of this method of presenting a child’s evidence have been listed as:
151 The Commission invites comment on the merits of this process for use in New Zealand.
152 The Commission believes that a scheme involving pre-trial cross-examination may be implemented without significant impact on the rights of defendants to a fair trial but, as with any new procedure, the implications need to be closely monitored.
153 Pre-trial cross-examination will not erode the right to cross-examine, it merely means the cross-examination will be done at an earlier time. Any fairness issues therefore relate to what the implications of timing are for both parties. Fair and effective pre-trial cross-examination requires full disclosure of the prosecution case at an early stage. If full and early criminal disclosure occurs, and the court retains a discretion to order further cross-examination at trial in the interests of justice, then the timing of the cross-examination should not impact unfairly on a criminal defendant.
154 Pre-trial cross-examination may also mean earlier disclosure of some elements of the defence case.164 In line with the proposals contained in our report on Criminal Procedure: Part One Disclosure and Committal, the Commission believes this should be acceptable in the context of increased pre-trial disclosure.
155 In the case of child complainants, the defendant will not be physically present, and other witnesses may apply for the defendant to be absent. This again raises the right to face-to-face confrontation, dealt with in chapter 8. In brief, the Commission believes that its proposal is consistent with the current formulation of this right.
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Should pre-trial cross-examination be available in some
circumstances?
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156 Section 23E(1)(a) of the Evidence Act 1908 allows videotaped evidence to be admitted at trial only if it has been shown at the preliminary hearing. The section precludes the use of videotaped evidence in chief where the need for it arises or becomes apparent after the preliminary hearing. Other jurisdictions do not limit the use of videotaped interviews at trial to videotapes made before and shown at the preliminary hearing, and the Commission sees no advantage in retaining this requirement.
157 Our proposal is that the availability of alternative ways of giving evidence should be extended to other witnesses regardless of the nature or subject matter of the proceeding. We believe this will promote the rational ascertainment of facts, without detracting from the right of parties to test the reliability of the evidence.
158 We consider the proposal that pre-trial cross-examination be available in some instances is a sensible advance on current practice, and is consistent with the purposes of the evidence code. The practical implications of this proposal need further consideration, and the Commission particularly welcomes comments on them. We are aware that attempts are being made to address concerns about trial delays through case management. However, it may be unrealistic to expect that a fast-track procedure will be available in all cases that need it, or that a fast-track procedure will prevent all delays that occur in getting the case to trial.
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What are the implications of allowing all witnesses to give evidence in
alternative ways?
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