8 Fairness to the defendant in a criminal case

INTRODUCTION

190 A GUIDING PRINCIPLE behind the reform of evidence law is procedural fairness, particularly as it relates to the rights of a defendant in a criminal case. This chapter discusses the “right to confrontation” in a criminal case, as other procedural fairness issues have been dealt with in earlier chapters.¹⁹³

THE RIGHT TO CONFRONTATION

191 Allowing witnesses to give evidence from behind a screen, from out of court, or by videotaped evidence may be seen to be contrary to a defendant’s right to confront their accusers. A bar on personal cross-examination of a witness by an unrepresented defendant may also be seen to restrict this right. An understanding of the substance and limits of the right to confrontation under New Zealand law is essential for any discussion on whether this right is restricted by the proposals contained in this paper.

Substance of the right to confrontation

192 No New Zealand statute explicitly refers to “confrontation” in relation to the rights of a defendant. Section 376 of the Crimes Act 1961 provides only that a defendant has a right to be present at his or her trial.

193 The Court of Appeal in R v Accused¹⁹⁴ considered whether “confrontation” as found in common law or s 376 required a face-to-face meeting between the defendant and the complainant. This case, which predated both the 1989 amendments to the Evidence Act 1908 and the New Zealand Bill of Rights Act 1990, was concerned with the question whether the court could, in its inherent jurisdiction, permit the use of screens. The majority held:

Neither the Crimes Act nor any other statute prescribes how the Courtroom is to be arranged or furnished. The real question is whether by the common law or natural justice or fundamental concepts of adversarial criminal procedure – and those three possible sources of rights are not materially distinguishable for present purposes – the accused has a right that the witness testifying orally should be able to see the accused. Since a witness cannot be compelled to look at the accused, and may even be unable to do so if blind or of defective vision, the definition of such a right presents some difficulty. Counsel for the accused in this case did not, as we understood them, go quite to the length of contending that the defendant is entitled to an opportunity of influencing the testimony of a witness by gaze or demeanour.
It is human nature to be less likely to speak ill of a person to his or her face, though how far the perceived presence of the accused would go to restrain a witness who would otherwise be prepared to lie on oath in the witness box is more difficult to dogmatise about. Witnesses giving evidence against an accused need not and often do not look at him or her. The psychological implications are therefore not clear-cut, but the tradition of our legal system is that Judge, jury, witnesses and accused are all present in the sight of one another. As a general practice that is not in question, but there are a few classes of witnesses to whom special considerations apply. Child witnesses in sexual abuse cases are among these.

194 The Court of Appeal discussed the relevance of the United States “confrontation” cases which establish a limited right to face-to-face confrontation, based on the Sixth Amendment. In his judgment, McMullin J stated:¹⁹⁵

... unlike the Sixth Amendment, s 376 gives, as the common law before it gave, a defendant only a right to be present at his trial, which is not necessarily a right to confrontation. ... [C]onfrontation may be a part of presence but to the extent that it is not synonymous with presence it is not something which a defendant is entitled to as of right under s 376. None of the reported English cases mention confrontation nor is it given as the reason why a defendant is entitled to be present at his trial.

195 McMullin J went on to state a distinction that has been acknowledged in later case law, a distinction which the Commission believes is a useful one:¹⁹⁶

Confrontation in the sense of being in the presence of one’s accusers is one thing; but confrontation merely to afford the opportunity to glower at and thereby intimidate the witness is another.

196 It seems that prior to the New Zealand Bill of Rights Act 1990, no common law right to face-to-face confrontation existed in New Zealand.

197 Section 25 of the New Zealand Bill of Rights Act 1990 provides:

Minimum standards of criminal procedure –

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights: ...

(e) The right to be present at the trial and to present a defence:
(f) The right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution ...

198 There has been limited judicial comment on the scope of s 25(e) and (f). The leading case on s 25(f) is R v L,¹⁹⁷ in which the Court of Appeal ruled admissible at trial a sworn statement by a rape complainant who had committed suicide between the preliminary hearing and the trial. The Court of Appeal, while noting that “a defendant has a fundamental right to have the evidence against him given in Court and there to be subject to cross-examination,”¹⁹⁸ went on to hold:

[N]either the specific legislation nor the Bill of Rights guarantee elevates the opportunity to cross-examine into an absolute right to confront and question the witness at the trial itself. On the contrary both s 184 [of the Summary Proceedings Act 1957] and s 3 [of the Evidence Amendment Act (No 2) 1980] proceed on the premise that testimony may be admitted at the trial even though the witness is not available for cross-examination. And in terms of s 25 of the Bill of Rights the right to examine the witnesses for the prosecution applies “in relation to the determination of the charge”. It is directed to the overall process and is not tied to the actual trial itself. It is of some significance in this regard that the right of a defendant under the Sixth Amendment to the American Constitution “to be confronted with the witnesses against him” is satisfied by the opportunity of cross-examination at the time the previous evidence was given (State of Ohio v Roberts 448 US 56 65 L Ed 2d 597 (1908)).

199 This case confirms the position prior to the New Zealand Bill of Rights Act 1990, that there is no right to face-to-face confrontation, nor even an absolute right to question the witness at the trial itself.

200 We conclude that there is no right to face-to-face confrontation. The proposals in this paper therefore do not diminish the defendant’s right to confront their accusers in the sense of being present at trial and cross-examining those testifying for the prosecution. We believe that the procedural safeguards provided by the right to confrontation (testing the witness’s evidence) can still be achieved without the defendant and witness being present in the same room.

Do any of the proposals in this paper impact unfairly on the rights of a defendant in a criminal case?

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