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Draft Legislation and Commentary

PART 5 THE TRIAL PROCESS

1 Definitions In this Part child means a person under the age of 17 years; child complainant means a complainant who is a child when the proceeding commences; communication assistance includes oral interpretation or written translation of a language, written assistance, technological assistance, and any other assistance that enables or facilitates communication with a person who does not have sufficient understanding of the proceeding or has a communication disability; cross-examination means the questioning of a witness by a party other than the party who called the witness; evidence in chief means evidence given by a witness in the course of examination in chief; examination in chief means the questioning of a witness by the party who called the witness except where that questioning consists of re-examination after cross-examination; intermediary means a person appointed by a court under section 11 to explain to a witness questions put to the witness; interpreter includes a person who provides communication assistance to a defendant or a witness; proceeding means a proceeding conducted by a court or tribunal that has authority by law to hear, receive, and examine evidence in New Zealand, and, in the case of a criminal proceeding, a proceeding commences when a complaint is made, an information laid, or a defendant who has been arrested without warrant is first brought to court and a charge sheet filed, and in the case of a civil proceeding, a proceeding commences when the statement of claim is filed; re-examination means the questioning of a witness by the party who called the witness that is conducted after cross-examination, but does not include further examination in chief conducted with the leave of the court; sexual case means a criminal proceeding in which a person is charged with (a) an offence against any of the provisions of sections 128 to 142A of the Crimes Act 1961; or (b) any other offence against the person of a sexual nature; or (c) being a party to the commission of an offence referred to in paragraph (a) or (b); or (d) conspiring with any person to commit any such offence; videotape means a recording on any medium from which a moving image may be produced by any means, and includes an accompanying sound track; witness means a person who gives evidence in a proceeding.	Definitions C1 When the code is finalised these definitions are likely to be relocated to a general section containing all the definitions. C2 The definition of child is the same as in s 23C of the Evidence Act 1908. C3 The definition of child complainant also reflects existing statutory evidence law. A complainant must be under the age of 17 at the commencement of the proceeding rather than at the beginning of any trial. C4 The definition of communication assistance is new in New Zealand law. It is wider in meaning than the concept of interpretation or translation, and is sufficiently general to encompass current and future forms of assistance appropriate to all communication needs. C5 “Communication disability” is not defined in this paper, but its ordinary meaning is adequate to include all those who are hearing impaired, as well as those who can hear well but who have difficulty speaking. No specific reference is made to the Mäori language in this definition because the relevant code provisions are subject to the Mäori Language Act 1987. A person who wishes to speak Mäori in court is able to do so (and to receive assistance from an interpreter) without any reference to this code, given s 4 of the Mäori Language Act 1987 which states that any party or witness has a right to speak Mäori in legal proceedings whether or not they are able to understand or communicate in English. C6 The terms cross-examination, evidence in chief, examination in chief and re-examination are intended to codify what is currently meant by them. C7 The definition of intermediary extends s 23E(4) of the Evidence Act 1908 which allows the judge to direct that in some circumstances questions may be put to a complainant through an approved person, although the term “intermediary” is not used in that statutory provision. C8 The definition of interpreter has been included to clarify this role under the provisions of the code, which focus on the broader phrase “communication assistance”. C9 The definition of sexual case is that presently found in s 23C of the Evidence Act 1908, and will also appear in the draft rules in Evidence Law: Character and Credibility (forthcoming). C10 The definition of videotape is wide so as to include what is currently meant by videotapes and also any means of recording available in the future which preserves both visual and sound images. C11 The definition of witness is intended to cover any person who gives evidence, including parties in civil proceedings and defendants who elect to give evidence in criminal cases.
Division 3 – Competency of witnesses 2 Who may give evidence Any person is eligible to give evidence. Division 4 – Oaths and Affirmations 3 Witnesses to give evidence on oath or affirmation (1) A witness in a proceeding must take an oath or make an affirmation before giving evidence. (2) A witness is to take an oath or make an affirmation in accordance with the appropriate form prescribed in the regulations or in a similar form. (3) A witness who is under the age of 12 years may give evidence without taking an oath or making an affirmation but must, before giving evidence, promise to tell the truth to the court and promise not to tell any lies. (4) An affirmation and a promise under this section have the same effect for all purposes as an oath. (5) Notwithstanding subsections (1) and (3), a witness may give evidence without taking an oath or making an affirmation or promising to tell the truth, with the leave of the court, and that evidence may be taken as if that evidence had been given on oath. (6) A person who is called only to produce a document or thing to a court need not take an oath or make an affirmation before doing so.	Section 2 C12 This section abolishes the common law rule that a person must be competent before he or she can be a witness and give evidence. The provision ensures that no person, whether on the grounds of their age, intellectual disability, or mental disorder, or on any other ground, may be disbarred from giving evidence on that ground alone. This section is also intended to abolish the duty to test the competence of children under 12, and any existing formulations of the competence test are no longer to be considered good law. In the case of witnesses whose testimony is unhelpful because of incoherence for example, the court may still exclude that evidence under the general exclusionary provisions in the code. A witness may give unsworn evidence, or without promising to tell the truth, and the evidence will still be admissible and have the same legal effect as sworn evidence. (See also section 3(5)). Oaths and Affirmations C13 This division reflects the current law, found in the common law and in the Oaths and Declarations Act 1957, with some minor changes as indicated. The inclusion of the rules in this form is largely for completeness. The Commission is still working on the content of these rules as part of its research into witness questioning rules. Section 3 C14 Section 13 of the Oaths and Declarations Act 1957 permits witnesses under the age of 12 to make a promise, or declaration to tell the truth, rather than swear an oath or make an affirmation. The significant change under this provision is that a witness may not be required to swear an oath, make an affirmation, or promise to tell the truth, but will still be able to give evidence. When a witness does not promise to tell the truth, for instance, and it may be apparent that they do not understand the nature of a promise, the judge should explain the significance of the occasion to the witness and may also advise the jury that the witness may still be telling the truth even if they have not promised to do so.
4 Intermediaries and interpreters to act on oath or affirmation (1) A person must either take an oath or make an affirmation before acting as an intermediary or an interpreter in a proceeding. (2) An intermediary and an interpreter must take the oath or make the affirmation in accordance with the form prescribed in the regulations or in a similar form. (3) An affirmation made under this section has the same effect for all purposes as an oath. 5 Choice of oath or affirmation (1) A person who is to be a witness or an interpreter or an intermediary in a proceeding may choose whether to take an oath or make an affirmation. (2) The court is to inform the person of this right to choose. (3) The court may direct a person to make an affirmation if (a) the person refuses to choose whether to take an oath or make an affirmation; or (b) it is not reasonably practicable for the person to take an appropriate oath. 6 Requirements for oaths (1) It is not necessary for a religious text to be used in taking an oath. (2) The fact that a person has no religious belief, or does not have a religious belief of a particular kind, at the time the person takes an oath does not affect the validity of the oath for any purpose.	Section 4 C15 Interpreters must currently give oaths or affirmations before fulfilling their function, although there is no present statutory provision to that effect. This provision therefore codifies that position, and extends it to the role of intermediary provided for in this code. It is envisaged that there will be different oaths relevant to each role. The oath for an intermediary, for example, would include a promise not to mislead the witness (see section 11(4)). Section 5 C16 Subsection 5(1) reflects s 4(1) of the Oaths and Declarations Act 1957 which provides an entitlement as of right to make an affirmation instead of an oath. Subsections (2) and (3) contain provisions similar to s 23(2) and (3) of the Evidence Act 1995 (Aust). Section 6 C17 Subsection (1) is taken from s 24(1) of the Evidence Act 1995 (Aust). Subsection (2) replaces s 5 of the Oaths and Declarations Act 1957.
Division 5 – General rules for giving evidence 7 Court may control questioning of witnesses A court may give directions about (a) the way in which a witness is to be questioned; and (b) the production and use of documents and other things in connection with the questioning of a witness; and (c) the order in which parties may question a witness; and (d) the presence and conduct of any person in connection with the questioning of a witness. 8 Ordinary way of giving evidence (1) The ordinary way for a witness to give evidence is (a) orally in English except where communication assistance is provided; and (b) in a courtroom in the presence of (i) the judge, or in a jury trial the judge and jury; and (ii) any parties to the proceedings and their counsel; and (iii) in a criminal proceeding, the defendant; and (iv) any members of the public who may wish to be present. (2) This section applies except where this Code or any other law provides for or enables evidence to be given in written form or otherwise contrary to subsection (1).	General rules for giving evidence Section 7 C18 A draft rule concerning the court’s control of witness questioning is included here as it is an appropriate place within the code provisions. The content of this rule may be revised following further work by the Commission on witness questioning rules. Section 8 C19 The rules on the “ordinary way of giving evidence” contrast with those set out in Division 6 on alternative ways of giving evidence. In providing that a witness gives evidence “orally”, it is recognised that in many circumstances, particularly in civil proceedings, the offering of evidence in written form is common and its use may increase. In keeping with current practice, this section anticipates the introduction of evidence in written form, but does not codify a right to introduce evidence in this way. Evidence given “orally” does, however, include that given by a witness who reads a prepared brief, or who has it read to him, or where the evidence is “taken as read”.
9 Support persons (1) A complainant is entitled, while giving evidence, to have a person or persons near him or her to give emotional support, but the court may, in the interests of justice, direct that emotional support may not be provided to a witness by any person or by a particular person. (2) Any other witness may apply to the court to have a person near him or her to give emotional support while giving evidence. (3) The court may give directions regulating the conduct of a person providing support to a witness. 10 Examination of witnesses Unless the court directs otherwise, (a) a witness first gives evidence in chief; and (b) after giving evidence in chief, the witness may be cross-examined by all other parties who wish to do so; and (c) after all parties who wish to do so have cross-examined the witness, the witness may be re-examined.	Section 9 C20 Section 9 provides a statutory entitlement for complainants to have a support person, or persons, near them while giving evidence, whether or not they are giving evidence in the ordinary way. Subsection (1) makes clear that the entitlement to a support person is not absolute, however, and may be withdrawn at the court’s discretion. The court may rule that a witness may not have a particular support person, or any support person. Although the provision permits a complainant to have more than one support person, it is envisaged that this will only happen in exceptional cases – for example, a child complainant who would like both parents to be near. C21 Subsection (2) provides that other witnesses may apply to have a support person with them while giving evidence, which would include a defendant in a criminal case who elected to give evidence. It is envisaged that the court would consider the same kinds of factors relevant to the use of alternative ways of giving evidence when making a decision whether to allow support persons for witnesses other than complainants. A support person cannot take the role of a McKenzie friend – that is, provide assistance in court to an unrepresented litigant. C22 Subsection (3) is intended to allow the judge to give directions on such matters as the extent of physical contact between witness and support person. It may, for example, be appropriate for a young child to sit on the lap of the support person, but for other witnesses it may not be appropriate for there to be such close contact. With very young witnesses the court may also allow the support person to encourage the witness to speak. Section 10 C23 These general rules on witness examination may be revised following additional research into witness questioning rules.
11 Intermediaries (1) The court may appoint a person as an intermediary to explain to a witness questions put to the witness if the court considers that such an appointment will help the witness understand the questions put to him or her. (2) An intermediary must be a person who, because of training, knowledge, experience, or relationship with the witness, has skills that facilitate the witness’s understanding of questions put to him or her. (3) The court may appoint an intermediary on the application of the witness, a party to the proceeding, or on its own initiative. (4) A person appointed under this section as an intermediary who, while performing or purporting to perform the functions of an intermediary, wilfully makes any false or misleading statement to the witness commits an offence and is liable to (penalty to be inserted).	Section 11 C24 This section expands the current provision in s 23E(4) of the Evidence Act 1908 and applies to all witnesses, not just those who are child complainants in sexual cases. It applies whether or not the witness is giving evidence in an alternative way. This section also provides that a suitably qualified intermediary may explain questions that have been put to the witness by counsel or the court. The court retains a discretion as to who should act as an intermediary – for example, it may be inappropriate in some cases to appoint another witness as an intermediary. C25 Examples of where an intermediary may be useful: an intermediary may be aware that a child is unlikely to have understood a long sentence containing embedded grammatical structures and several negatives; an intermediary would realise that an intellectually disabled person may be likely to respond affirmatively to a leading question (in cross-examination), regardless of what the person actually thought, and would rephrase the question appropriately. C26 The intermediary will not be able to rephrase the witness’s response for the court, as is allowed by equivalent provisions in other jurisdictions. If the court cannot understand the response of a witness, the witness will be asked by the court to respond again in an attempt to clarify the meaning. C27 The main difference between the role of an intermediary and that of an interpreter is that an intermediary assists if there are communication difficulties even when the witness speaks the official court language (English), while an interpreter will assist communication if difficulties arise because the witness does not understand or cannot communicate in the same language as the court (for example, the Deaf). Communication assistance for some witnesses may also be provided by an expert, who would advise counsel and the court on how to question the witness effectively. C28 “Wilfully” in subsection (4) means intentionally and with knowledge.
12 Communication assistance (1) A defendant in a criminal proceeding is entitled to communication assistance in accordance with this section and the regulations to enable that defendant to understand the proceeding and to give evidence if the defendant elects to do so. (2) Communication assistance may be provided to a defendant in a criminal proceeding on the application of the defendant or on the initiative of the court. (3) A witness in a civil or criminal proceeding is entitled to communication assistance in accordance with this section and the regulations to enable that witness to give evidence. (4) Communication assistance may be provided to a witness on the application of the witness or any party to the proceeding or on the initiative of the court. (5) Communication assistance need not be provided to a defendant in a criminal proceeding if the court considers that the defendant can sufficiently understand the proceeding and, if the defendant elects to give evidence, can sufficiently understand questions put to them and can adequately respond. (6) Communication assistance need not be provided to a witness in a civil or a criminal proceeding if the court considers that the witness can sufficiently understand questions put to them and can adequately respond. (7) The court may direct what kind of communication assistance is to be provided to a defendant or a witness. (8) Subsections (5), (6) and (7) are subject to section 4 of the Mäori Language Act 1987. (9) A person who, while providing communication assistance to a witness, wilfully makes any false or misleading statements to the witness or to the court, commits an offence and is liable to (penalty to be inserted).	Section 12 C29 This section codifies and extends the common law. Unlike all other rules in this part, it applies to defendants in criminal cases who do not give evidence as well as to those who do. Under common law and s 24 (g) of the New Zealand Bill of Rights Act 1990, a defendant has an absolute right to assistance in having their evidence communicated to the court and also to understand court proceedings. Witnesses who are not defendants, however, may too have communication assistance only at the discretion of the court, although this is usually given. The costs of interpretation and translation of court proceedings for a defendant in a criminal case will be borne by the Crown. In all other cases, the cost will usually be borne by the party calling the witness. C30 Subsection (3) anticipates that regulations will be required to give full effect to this section. Regulations may be helpful on such matters as: what communication assistance may be funded by the State and to what level; what qualifications for those giving communication assistance, such as interpreting services, would be desirable or essential; ethics; and forms of communication assistance; that is, acceptable technological equipment for interpretation/translation as these become available. C31 Subsections (5) and (6) make it clear that the entitlement to communication assistance is not an absolute one. This is essential given that it could be argued that a particular witness understands English sufficiently to make obtaining an interpreter of a relatively obscure language unnecessarily costly. This qualification does not apply if the Mäori Language Act 1987 is the relevant statute. Subsection (8) therefore makes clear that the whole section is to be read subject to that Act. However, the Mäori Language Act 1987 does not give a specific entitlement to defendants to understand proceedings, so in this respect section 12 is wider. A Mäori defendant who does not understand English will be entitled to communication assistance under the provisions of section 12, and where the Mäori Language Act 1987 gives a Mäori speaker an unqualified right to speak Mäori, subsection (8) makes clear that s 4 of the Mäori Language Act 1987 takes precedence. C32 Subsection (7) anticipates that different witnesses will require different forms of communication assistance. In some instances, for instance, a witness whose second language is English and whose oral skills are not fully developed, may prefer to give their evidence in English (rather than have an interpreter) but in a written form. The court may agree that this is likely to result in more accurate evidence. C33 “Wilfully” in subsection (9) means intentionally and with knowledge.
13 Restrictions on cross-examination by unrepresented party (1) Notwithstanding section 354 of the Crimes Act 1961, a defendant in a sexual case is not entitled to personally cross-examine a child complainant. (2) A witness in a civil or criminal proceeding may apply to the court for an order directing that a party to the proceeding who is not represented by counsel must not personally cross-examine the witness. (3) An application may be made on one or more of the following grounds: (a) the age of the witness; (b) the physical, intellectual, or psychiatric disability of the witness; (c) the linguistic or cultural background of the witness; (d) the nature of the proceeding; (e) the relationship of the witness to the unrepresented party; (f) any other ground likely to promote any of the purposes of the Code. (4) When considering an application, the court must (a) ensure the fairness of the proceeding and, in a criminal proceeding, that the defendant has a fair trial; and (b) have regard to (i) the need to minimise the stress of the complainant or witness; and (ii) the need to, in the case of a child complainant, promote the recovery of the complainant from the alleged offence; and (iii) any other factor that is relevant to the just determination of the proceedings. (5) This section does not affect the right of the court to question a witness or of counsel representing a defendant or other party in a proceeding to cross-examine a witness. (6) If the court makes an order under this section, the unrepresented defendant or party may cross-examine the witness by having his or her questions put to the witness by the judge or a person appointed by the court for the purpose. 14 Disallowance of intimidating cross-examination [Section 23F(5) of the Evidence Act 1908, which disallows intimidating cross-examination in certain sexual cases, is to be subsumed in a general section of the Code that makes broader provision for disallowing intimidating cross-examination.]	Section 13 C34 This section is a much broader version of the present provision in s 23F of the Evidence Act 1908, which applies only to child complainants and mentally handicapped complainants in sexual cases. This section provides for an absolute bar on cross-examination of all child complainants by unrepresented defendants in criminal cases. C35 In addition, the court has discretion to disallow personal cross-examination in all other cases. This requires the witness to make an application on grounds set out in subsection (3). The grounds are the same as those relevant to applications for alternative ways of giving evidence (see section 16). It is envisaged that as a matter of practice, counsel will inform any witness that the other party or the defendant is unrepresented, but there will be no notice requirement. C36 “Age of the witness” is intended to include those who are elderly as well as young people. “Intellectual disability” is equivalent to the term used in the Evidence Act 1908 – “mentally handicapped” – and is used because that appears to be the term most generally used in New Zealand at the moment. “Psychiatric disability” is intended to cover not only those people suffering from long-term effects of mental illness, but also those in the acute phase of any illness. “Linguistic background” means anyone who speaks any language other than English – the language of the court system. The phrase “cultural background” is less capable of precise definition, but is intended to capture those witnesses who because of their cultural background may, for instance, be particularly ill-equipped to face the defendant and give their evidence. C37 Paragraph (3)(d) refers to “the nature of the proceeding”. This factor could affect the court’s decision on any application in several ways. For example, a criminal case involving an alleged sexual or violent offence may be one where an application may be more likely to be granted. Paragraph (3)(e) – “the relationship of the witness to the unrepresented party” – is intended to capture those situations where a prior relationship of some kind, especially one involving unequal power, existed between the witness and the unrepresented party (which would include the defendant in a criminal trial). For example, if a woman is required to give evidence against her partner in a sexual case, or in family proceedings, she may be unable to do so at all if personally confronted by someone who had subjected her to physical and emotional abuse. C38 Paragraph (3)(f) allows the judge to base a decision on an application on grounds not precisely anticipated by the code provisions, but justified by the purposes of the code. C39 Subsection (4) identifies those factors which the court must consider in deciding on an application. Particular emphasis is given to ensuring fairness of the proceeding and, in a criminal proceeding, that the defendant has a fair trial. C40 The need to promote the recovery of the child complainant will be relevant only in criminal trials. This factor does not suggest that the court itself has the role of promoting recovery of complainants from alleged offences: that would obviously be unrealistic, and the court’s direct function in this regard is best seen as confined to not hindering the complainant’s recovery. The words “promote the recovery” are appropriate here however, given they imply that the court must have regard to the need to achieve this goal, although it is not itself expected to achieve it. C41 Subsection (5) carries forward the provisions contained in s 23F(2) and (4) of the Evidence Act 1908, but is drafted to include application to civil proceedings. C42 Subsection (6) allows for the questions of an unrepresented party to be put to the witness by the judge or any other person appointed by the court. In considering whom to appoint, the judge should have regard to the factors in subsections (3) and (4). It may not be appropriate, given the particular case, for a friend or relative of the unrepresented party to ask the questions. If the judge asks the questions of the witness, consideration will need to be given to the control that the unrepresented party has over the process, and how the questions are to be communicated to the judge. Section 14 C43 There will be a general provision dealing with misleading or intimidating questions which will replace s 23F(5) of the Evidence Act 1908. This provision is being considered in the context of the general rules on witness questioning.
Division 6 – Alternative ways of giving evidence 15 Directions about way child complainant is to give evidence (1) In a case in which there is a child complainant, the prosecutor must apply as early as practicable to the court to which the defendant has been committed for trial, or in a summary case to the court which is to try the case, for directions about the way in which the complainant is to give evidence at the trial. (2) When considering an application under this section, the court must (a) ensure the fairness of the proceeding and that the defendant has a fair trial; and (b) have regard to the wishes of the complainant and to (i) the need to minimise the stress of the complainant; and (ii) the need to promote the recovery of the complainant from the alleged offence; and (iii) take into account any other factor that is relevant to the just determination of the proceeding.	Division 6 – Alternative ways of giving evidence Section 15 C44 This provision carries forward in an extended form s 23D of the Evidence Act 1908 which provides that a prosecutor must apply for directions as to how the evidence of a child complainant or a mentally handicapped complainant in a sexual case is to be given. This provision alters the current law in several ways: applications will not be mandatory with regard to “mentally handicapped” witnesses; applications will be mandatory for all child complainants, not only those where a sexual case is involved; the provision explicitly applies to summary as well as indictable proceedings. C45 The phrase “as early as practicable” is intended to ensure that the question of how the witness is to give evidence is dealt with as soon as possible. Timeliness is particularly important in the case of applications to offer videotaped evidence, where one of the purposes is to obtain fresh evidence from witnesses who may be more susceptible to memory loss. Applications for pre-trial cross-examination, under section 20, should generally be made at the same time. Applications may be made prior to a preliminary hearing in indictable proceedings where the witness has been required to testify in person. C46 Subsection (2) sets out the factors to which the court must have regard in making its decision. These are the same as those in section 13 for applications to disallow direct cross-examination by an unrepresented party or defendant, with the addition that the court must have regard to the wishes of the child complainant. This is in keeping with New Zealand’s obligations under the United Nations Convention on the Rights of the Child, and is supported by research that suggests it is better for a child to feel they have some control over the process.
16 Other applications for directions about alternative ways of giving evidence (1) An application for directions about the way in which a witness is to give evidence in a civil or criminal proceeding may be made by the witness or by any party to the proceeding. (2) An application for directions must be made to the court that is to hear the proceeding as early as practicable before the proceeding is to be heard; but the court may accept and deal with an application for directions at some later time. (3) An application may be made on the grounds of (a) the age of the witness; (b) the physical, intellectual, or psychiatric disability of the witness; (c) the linguistic or cultural background of the witness; (d) the nature of the proceeding; (e) the relationship of the witness to any party to the proceeding; (f) any other ground likely to promote any of the purposes of the Code. (4) When considering an application under this section, the court must (a) ensure the fairness of the proceeding and, in particular in a criminal proceeding, that the defendant has a fair trial; and (b) have regard to the wishes of the witness and (i) the need to minimise the stress of the witness; and (ii) the need to promote the recovery of the complainant from the alleged offence; and (iii) take into account any other factor that is relevant to the just determination of the proceeding. 17 Procedure for applications for directions about alternative ways of giving evidence (1) The court must hear in chambers every application for directions about the way in which a witness is to give evidence and must give each party an opportunity to be heard concerning the application. (2) The court may call for and receive a report from any person considered by the court to be qualified to advise on the effect on the witness of giving evidence in the ordinary way or any alternative way.	Section 16 C47 This section allows any witness, including a defendant in a criminal case, to apply to the court for a direction that they may give evidence by one of the alternative ways (set out in section 18). It applies to civil and criminal proceedings. There is no obligation or duty on the part of counsel to apply for such a direction on the behalf of any witness. The considerations are the same as for section 13, with the addition of having regard to the preference of the witness. It is envisaged that an application may also be made on the basis that a witness needs protection; for example, an anonymous informer may need to give evidence out of court. Normally an application will not be made before a preliminary hearing unless the witness is required to give evidence in person. An application may then be made to give evidence in an alternative way, including an application for cross-examination to be held prior to the preliminary hearing. Section 17 C48 The procedure contained in this section for applications for directions on how witnesses may give evidence reflects the present law.
18 Alternative ways of giving evidence (1) After considering an application for directions about the way in which a witness is to give evidence, the court may direct that the evidence of the witness is to be given either in the ordinary way or in an alternative way so that (a) the witness gives evidence (i) while in the courtroom but unable to see the defendant or specified party or witness; or (ii) from an appropriate place outside the courtroom; or (iii) by a videotape made before the hearing of the proceeding, and (b) any appropriate practical and technical means enable the judge, the jury (if any), and counsel to see and hear the witness giving evidence as provided in the regulations; and (c) in a criminal proceeding, the defendant is able to see and hear the witness, except when the court directs otherwise. (2) In the case of a direction that evidence in chief is to be given by a videotape, the court may direct that any cross-examination or re-examination is to be conducted in a pre-trial hearing in accordance with section 20. (3) The court may admit evidence that is given substantially in accordance with the terms of a direction under this section despite a failure to observe strictly all of those terms.	Section 18 C49 This section provides that the court must give directions, after an application, on how a witness may give evidence in examination in chief, cross-examination and re-examination. A court may also order that a witness give evidence in the ordinary way, but there is no presumption to that effect. C50 Paragraphs (1)(a)–(c) recognise that ways of giving evidence which are not in the ordinary way achieve their purpose by allowing either spatial or temporal separation. It allows for the use of new technology. Note the wide definition of “videotape” for this purpose. For the foreseeable future, any alternative ways of giving evidence allowed by the court under this code will be those presently in use. Regulations may specify them in more detail. C51 In criminal cases, the defendant will usually be entitled to see any prosecution witness except, for example, when the court has allowed a witness to give evidence anonymously (paragraph (1)(c)). C52 Subsection (3) provides that although counsel and other trial participants have the duty to produce evidence such as videotapes in conformity with the court’s directions, the court will have a discretion to admit evidence which does not strictly conform to its directions. This is discussed in more detail in relation to section 19(5).
19 Videotaped evidence (1) In a criminal proceeding tried on indictment, the videotaped evidence of a witness that is to be offered in evidence at the trial may be the same videotape that was offered in evidence at the preliminary hearing. (2) A videotape offered as evidence must be recorded in compliance with the regulations. (3) A videotape that is to be offered in evidence in a proceeding must be viewed in chambers by the court and by all parties to the proceeding before it is offered in evidence unless the court directs otherwise; and all parties must be given the opportunity to make submissions with regard to the admissibility of all or any part of the videotape. (4) The court may order to be excised from a videotape offered as evidence any material that, if the evidence were given in the ordinary way, would or could be excluded in accordance with this Code. (5) The court may admit a videotape that is recorded and offered as evidence substantially in accordance with the terms of a direction under this Division and the terms of regulations referred to in this section despite a failure to observe strictly all of those terms.	Section 19 C53 Subsection (1) incorporates a change to the present law. A videotape used in evidence in chief may be the same one as presented at the preliminary hearing, or it may have been made afterwards. This may be helpful where it is initially thought that a witness will be able to give evidence in the ordinary way but the witness’s ability to do so is later put in question. C54 Subsection (5) contains a provision similar to subsection 18(4). Current case law requires “substantial but not slavish” compliance with the regulations. One substantial breach recognised by the courts is the failure to test the witness’s competence – that is, to ensure that she understands the nature of a promise and makes a promise to tell the truth. Given that the code abolishes the competence requirement, there is no longer any need to make this inquiry, so a failure to test competence will no longer be treated as a substantial breach. Breaches of witness questioning rules, for example inappropriate leading questions, should be viewed as substantial. Breaches that have been viewed as not substantial, so that the tape was still admitted, include: the interviewer failing to identify herself; not making clear the reasons for the breaks in recording; and not specifying all the required details in the accompanying certificate. C55 In applying this section the court should also be satisfied that admitting the evidence in breach of any direction or regulation is in keeping with the purposes of the code.
20 Pre-trial cross-examination and re-examination (1) If a court has directed that the evidence in chief of a witness is to be given by means of a videotape, the court may, on the application of any party to the proceeding or of the witness, direct that any cross-examination or re-examination of the witness is also to be recorded on videotape before the proceeding and given in evidence. (2) The court may give a direction under this section in respect of (a) a witness who is a child complainant; and (b) any other witness, if the court considers that the age of the witness or the intellectual or psychiatric disability of the witness is likely to result in a greater possibility of the memory of the witness fading before the trial than would ordinarily be the case. (3) An application under this section must be made to the court that is to hear the proceeding at the same time as the application for directions about the way in which the evidence of the witness is to be given, but if the court considers that the interests of justice require it, the court may accept and deal with an application at a later time. (4) The court must hear every application in chambers and must give each party an opportunity to be heard concerning the application. (5) The court may call for and receive a report from any person considered by the court to be qualified to advise on the effect on the witness of being cross-examined or re-examined in the ordinary way or by videotape or in some other way described in section 18. (6) When considering an application under this section, the court must (a) ensure the fairness of the proceeding and, in particular, in a criminal proceeding, ensure that the defendant has a fair trial; and (b) have regard to the wishes of the witness and (i) the need to minimise the stress of the witness; and (ii) the need to promote the recovery of a child complainant from the alleged offence; and (iii) take into account any other factor that is relevant to the just determination of the proceeding.	Section 20 C56 Explicit provision for pre-trial cross-examination is new in New Zealand law, and for this reason the provisions are relatively detailed. It is expected that they will be used relatively infrequently, at least as experience in their use develops. Allowing child complainants to be cross-examined before the trial will serve a wider range of purposes than those which relate to adults. The only policy purpose to be achieved by allowing pre-trial cross-examination is determining whether the reliability of the witness’s evidence is likely to be improved: hence specific reference to the issue of memory fade. In other respects the criteria and procedures are similar to those set out for applications for directions on ways of giving evidence.
21 Procedure for pre-trial cross-examination and re-examination (1) If the court directs that the cross-examination and re-examination of a witness are to be conducted at a pre-trial hearing of the proceeding, the hearing is to be conducted in the presence only of the judge, any counsel, the defendant or other parties (subject to subsections (2) and (3)), and such other persons as the judge permits. (2) In the case of a criminal proceeding, the defendant must not be present when a witness who is a child complainant is cross-examined or re-examined but must, from within the courtroom or elsewhere, be able to see and hear the witness by any appropriate means and be able to communicate with his or her counsel. (3) In any proceeding other than one referred to in subsection (2), the court may direct that the witness should be separated from other parties but in such a way that other parties should be able to see and hear the witness and communicate with counsel. (4) Pre-trial cross-examination and re-examination are to follow evidence in chief of the witness, given either orally or by showing a videotape of evidence in chief, and the cross-examination and re-examination are to be recorded on videotape and may be offered as evidence at the hearing of the proceeding. (5) A witness who has been cross-examined in a pre-trial cross-examination is not to be subject to further cross-examination unless the court so orders on the application of a party to the proceeding on the grounds that further cross-examination is desirable in the interests of justice. (6) If the court orders that a witness may be further cross-examined, the court must direct whether the cross-examination and any re-examination is to take place during the proceeding, in which case the court is to direct the way in which the examination is to take place, or at a further pre-trial hearing under and subject to the requirements of this section. (7) Where the court so directs, more than one hearing may be held under this section for the purposes of any further cross-examination or re-examination under this section.	Section 21 C57 This section sets out the detail on how pre-trial cross-examination is to be carried out. These provisions may be better placed in regulations, although this section does contain some important substantive law matters. C58 At the pre-trial hearing, the witness may either give evidence in chief in person, which may be recorded on videotape for use at the trial, or a pre-recorded videotape may be played. The witness will then be cross-examined on that evidence, and the cross-examination and re-examination will be recorded on videotape for use at the trial. C59 There is provision for further cross-examination of the witness, either at the trial, or at another pre-trial hearing. If at trial, the witness will usually be cross-examined by use of an alternative way; for example, closed-circuit television. Further cross-examination can be ordered in the interests of justice, but it is envisaged that this will usually occur only in the case of new evidence which could not reasonably have been available at the earlier date. Further cross-examination will not be available; for example, where counsel has held back information in an attempt to force a witness to testify in court. C60 Cross-examination may also occur prior to a preliminary hearing, when the complainant or witness is required to testify. An application for early cross-examination will usually be made at the same time as an application to have the witness testify in person at a preliminary hearing. A witness who is able to give evidence on videotape may also be cross-examined on videotape prior to such a hearing.
[TO BE LOCATED ELSEWHERE] Directions to jury [Section 23H of the Evidence Act 1908 may be preserved in a modified form in a provision of more general application.] Regulations The Governor-General may make regulations by Order in Council prescribing all matters that are required or permitted by this Code to be prescribed or are necessary or convenient to be prescribed for giving effect to the purposes of this Code and in particular (a) prescribing the procedure to be followed, the type of equipment to be used, and the arrangements to be made, where the evidence of a witness is to be videotaped; (b) providing for the approval of interviewers, or classes of interviewers, for witnesses who are child complainants in sexual cases, and providing for such approvals to be proved by production of certificates in the prescribed form; (c) prescribing the form of certificate by which an interviewer is to formally identify a videotape; (d) providing for the consent of witnesses to be videotaped and specifying who may give consent on behalf of witnesses who are children; (e) prescribing the uses to which any videotape recordings may be put and prohibiting their use for other purposes; (f) providing for the safe custody of videotape recordings intended to be offered as evidence; (g) providing for the preparation of transcripts of videotape recordings and for their uses and safe custody; (h) regulating excisions that may be made from videotape recordings intended to be offered as evidence.