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• Introduction
• Support Persons
• Intermediaries
• Personal Cross-Examination

6 Support for witnesses

INTRODUCTION

159 THIS CHAPTER EXAMINES several ways of assisting witnesses which may be used instead of, or in addition to, the alternative modes discussed in the previous chapters. These ways of assisting witnesses also promote the principles discussed in chapter 1. They may increase the amount and reliability of relevant evidence by reducing the witness’s distress. In some cases, they may result in evidence being heard which would not have been available without such assistance. The options canvassed in this chapter are:

• the use of support persons;
• the use of intermediaries; and
• a bar on personal cross-examination in some cases.

SUPPORT PERSONS

160 In New Zealand it seems to be general practice to allow children, and on occasion adult complainants of sexual offending, to have support persons with them when they give evidence in court, although there is no specific statutory authority for this.¹⁶⁵ A support person may be close to the witness while they are giving evidence in order to provide emotional support,¹⁶⁶ and it is this role that we envisage for support persons in our proposal rather than that of a “McKenzie friend”.¹⁶⁷ We believe that it is important for support persons to be seen by the witness they are supporting. In the case of child witnesses, physical contact may also be appropriate. Support persons would not normally speak to the witness while giving evidence, except perhaps to give encouragement. It is essential to acknowledge that support people may not coach a witness in the witness box, nor during any breaks in cross-examination. In any individual case the judge would be able to ensure procedural fairness by directing the support person on the nature of their role, and to remove any support person where appropriate.

161 Little research has been done on the effects on vulnerable witnesses of having support persons with them. It seems unlikely that the presence of support persons could either hinder the rational ascertainment of facts or detract from fairness to the defendant. It is argued that the fact-finding function of the trial is “measurably enhanced” by allowing a supportive adult to accompany a child witness giving evidence in the courtroom.¹⁶⁸ In a recent Australian study 93% of judges and magistrates were in favour of allowing a support person in court.¹⁶⁹ A support person could be particularly important for witnesses with disabilities or from a minority culture.

162 Some jurisdictions explicitly allow vulnerable witnesses to have support persons. For example, the legislation in Western Australia provides: “A child who is under the age of 16 years is entitled, while he or she is giving evidence in any proceeding in a Court, to have near to him or her a person who may provide the child with support”.¹⁷⁰ Persons who are declared “special witnesses” may also have support persons.¹⁷¹

163 We consider it useful to include a provision giving a presumptive entitlement to a support person for all complainants, subject to the court’s discretion to withdraw permission. This would further the aims of evidence law by assisting the witness’s confidence in giving relevant evidence, and does not appear to detract in general from procedural fairness, although a factor relevant to the exercise of the court’s discretion would be fairness concerns in a particular case. For example, a respected public figure acting as a support person may operate to bolster the credibility of the witness unfairly so that regard needs to be given to the genuineness of the request.¹⁷² We propose that any other witness, including a defendant in a criminal case who elects to give evidence, may ask the court’s permission to have a support person with them while they give evidence, even when giving evidence in an alternative way. Permission would be granted at the court’s discretion. We do not suggest codifying the relevant considerations, but it is envisaged that they would be similar to those taken into account in the decision on whether a witness may give evidence in an alternative way (section 9(1) and (2) of the draft code rules).

Who should be entitled to have a support person with them while giving evidence? Should a witness be entitled to a support person even when giving evidence in an alternative way?

164 It would be up to the judge in the individual case to decide on what role the support person could take in the particular circumstances, depending, for example, on the age of the witness, the nature of the proceedings or offence, and the relationship between the witness and the defendant in a criminal case. For example, it may be appropriate for a support person to have a young child who is a witness on their lap, whereas in other cases there would be much less physical contact. Sometimes a support person may encourage the witness to speak by talking to the witness, but this may not be appropriate in every situation (section 9(3) of the draft code rules).

165 In the Scottish study, the following recommendations about the use of support persons were made:¹⁷³

1 The identity of the support person for the child should be agreed between the parties and be known to the child before the trial.

2 Support persons should receive written guidance on their role with particular reference to the extent of permitted communication with the child, whether or not any comfort can be provided, whether they should interrupt the questioning in the event of an error by counsel.

3 The person accompanying the child should have the facility to alert the judge in the event of any problem arising for the child while giving evidence, technical or otherwise.

These recommendations seem appropriate within the New Zealand context.

What role should a support person take?

166 Although the physical layout of most courtrooms will mean that a witness will normally be able to have only one support person near them while giving evidence, the physical accommodation of more than one support person may be allowed if notice is provided. Other friends, family members or whänau, will usually be present only in the public gallery. One exception is the child witness who may want both parents near them, but a number of support persons around the witness may either be intimidating for other participants, or unfairly influence assessments of credibility.

When might it be appropriate to allow a witness to have with them more than one support person?

INTERMEDIARIES

167 Failures in communication can occur in the courtroom as a result of such factors as the youth of a witness, intellectual disability, cultural background, or physical disability. Difficulties for child witnesses are well documented.¹⁷⁴ We consider that in appropriate cases intermediaries could usefully assist communication between the witness and the court.

168 The definition of intermediaries varies according to the statutory function assigned to them. The Western Australia legislation which provides for the assistance of “communicators” states:

The function of a person appointed under this section is, if requested by the Judge, to communicate and explain –
(a) to the child, questions put to the child; and
(b) to the Court, the evidence given by the child.¹⁷⁵

169 By contrast, an equivalent Irish section provides that questions, but not responses, may be put through an intermediary.¹⁷⁶ The Criminal Evidence Act 1992 (Ireland) also provides that witnesses under the age of 17 or with a mental handicap may have intermediaries. The court may, on the application of the prosecution or the defence, if satisfied that justice requires it, direct that questions be put to the witness through an intermediary. The questions are put either in the words used by the questioner or so as to convey to the witness in a way appropriate to their age and mental condition the meaning of the questions being asked.

170 A provision for a limited kind of intermediary is already included in the current Evidence Act 1908, but this applies only to complainants in sexual cases who are children or mentally handicapped. Section 23E(4) provides that where a witness is to give evidence from out of court by closed-circuit television or from behind a partition by audio link, the judge may direct that questions be put to the witness through a person approved by the judge. This provision, however, does not allow the intermediary to rephrase the questions or to interpret the witness’s answer.¹⁷⁷

171 If the categories of witness who may give evidence in alternative ways are extended, as suggested in the previous chapter, the application of s 23E(4) to other people should be considered. Further, the need for intermediaries may not be confined to those situations where evidence is given in an alternative way.

172 The Commission believes that witnesses should be able to use intermediaries whenever their assistance is necessary to enable the witness to understand the questions put to them in court. We propose that in any case where the rational ascertainment of facts would be assisted by use of an intermediary, the judge should have a discretion to direct that one be provided. The judge should also have a discretion as to who may act as intermediary. In many cases communication difficulties can be best addressed by lawyers and judges being sensitive to the characteristics of particular witnesses, but in some cases the assistance of a specialist intermediary may be more effective (section 11 of the draft code rules).

Who should be entitled to have an intermediary? Who should act as an intermediary?

173 We further propose that an intermediary may rephrase questions to assist witness comprehension. Intermediaries will have special skills to enable them to communicate with those few witnesses who have real difficulties understanding questions put to them in court. In order for these witnesses to give reliable evidence it seems important that provision is made for the use of intermediaries rather than rely on counsel to ask questions in an appropriate manner. However, we do not suggest that intermediaries should interpret the witness’s response to the court. It is envisaged, however, that an intermediary will ask questions in order to elicit a clear and unambiguous response from the witness.

174 Although the current provision does not allow an intermediary to rephrase questions put to a witness, we believe that it is consistent with the principles of evidence law that an intermediary may do so.

175 The use of intermediaries must be subject to procedural fairness. It would be a part of the judge’s role to give guidance to the intermediary on how they are to perform their function in a particular case and to oversee the fairness and accuracy of rephrased questions. It is envisaged that an intermediary will take an oath. An intermediary who makes a wilfully misleading or false statement will be subject to a criminal sanction (section 11(4) of the draft code rules).

What role should an intermediary take? Should an intermediary be allowed to rephrase questions?

176 An alternative mechanism for assisting witnesses with communication difficulties in this sense would be the appointment of an expert witness to advise the court and counsel on the most appropriate way to question such witnesses. This may address concerns under the previous proposal, such as lack of party control over the interpretation of the questions which are put to the witness by an intermediary. If a witness has communication difficulties, as well as comprehension difficulties, then an interpreter should be provided (see chapter 7). An intermediary would not explain the witness’s response – for example, that a witness because of cultural differences or intellectual disability may say “yes” when they really mean “no”. This kind of explanation would be provided, if at all, by an expert witness. The Commission seeks views on the best way to address the needs of these witnesses, so that the most reliable evidence may be presented in court.

PERSONAL CROSS-EXAMINATION

177 Section 23F of the Evidence Act 1908 provides that a defendant in a sexual case is not entitled to personally cross-examine child or mentally handicapped complainants. This issue does not often arise, as people charged with sexual offences are usually represented by a lawyer. If a defendant is unrepresented, however, their questions must be stated to a person approved by the judge, who then repeats them to the complainant. The rationale for this provision is that a child complainant in a sexual case may become very distressed if questioned by the defendant, because the defendant may be related to the child,¹⁷⁸ and because of the intimate nature of what must be disclosed.

178 These factors may, however, be relevant in other situations. For example, in most cases where a child is a witness, or for women complainants in sexual cases, the defendant will be known to the witness or in a position of authority over the witness.¹⁷⁹ It will be distressing for a witness to be cross-examined personally by an unrepresented party whenever there has been an intimate relationship between them; for example, in custody cases, domestic protection cases, or any family proceedings where there has been sexual, physical or emotional abuse.

179 In the United Kingdom, the Pigot Report recommended:¹⁸⁰

[D]efendants who are charged with sexual or violent offences and offences of cruelty and neglect should be prohibited by statute from carrying out in person the cross-examination of witnesses who are under the age of 14 or, in the case of sexual offences, under 17, whether at a preliminary hearing or at a trial on indictment in open court.

180 The Commission believes that there are good reasons for offering protection from personal cross-examination by an unrepresented party in these situations. However, a complete bar on personal cross-examination can be expensive and provides inadequate protection. Although current law provides for another person to cross-examine the complainant, it is unclear who pays for this assistance. It is also questionable what protection the bar offers if the defendant, or party, must still be in court to state the questions, and if the appointed person is their friend. For these reasons the Commission feels that the use of an alternative way of giving evidence, such as closed-circuit television, may be more valuable in the case of cross-examination by unrepresented parties. Although use of such alternatives as closed-circuit television would mean the defendant was personally asking questions of the witness, there would be a greater sense of physical separation and therefore more security and comfort for the witness.

181 We propose to continue the absolute bar on personal cross-examination by defendants of child complainants in sexual cases but that bar will not be extended to adults. All other witnesses, including the intellectually disabled, may apply to the court to declare an unrepresented party ineligible to personally cross-examine them. The relevant criteria for this decision will be those used for a decision about alternative ways of giving evidence, and will include considerations of procedural fairness and efficiency, in particular fairness to the defendant in criminal proceedings (section 13 of the draft code rules).

182 It is envisaged that the factors considered relevant when making a decision that there should be no personal cross-examination, will also be taken into account by the judge when deciding who should be appointed to ask the questions of the witness. Although the judge may ask the questions, this could prove difficult in terms of the physical layout of the court, and the kind of control the defendant or party may wish to retain over the phrasing of the questions. The Commission welcomes views on this point.

When should there be a bar on personal cross-examination by an unrepresented party?