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Endnotes

^[1] Murray, Live Television Link: An Evaluation of its Use by Child Witnesses in Scottish Criminal Trials (The Scottish Office, Central Research Unit, Edinburgh, 1995).

There is also a continuing need to keep judges and lawyers up-dated on emerging pyschological knowledge about child witnesses (iv).
[I]ntensive efforts are required to reduce delays, to sharpen skills and to remedy the imperfections in the system that can interfere with the accuracy and effectiveness of all children's testimony (169).

Australia, Law Reform Commission, The Use of Closed-Circuit Television for Child Witnesses in the ACT: Children's Evidence Research Paper 1 (ALRC, Canberra, 1992) para 7.87:

There was, however, clear recognition by all groups involved that closed-circuit television was not a panacea that resolves all the difficulties facing child witnesses in their interaction with the court system. Important issues still revolve around the human aspects of that interaction, and foremost among these is the ability to communicate and use appropriate language with children, both in court and before the case reaches court.

^[2] Evidence Law: Principles for Reform (NZLC PP 13, 1991).

^[3] This is sometimes referred to as "truth finding", although this suggests the truth is able to be ascertained by a finder of fact, which may not be the case. For further discussion, see paras 33_38 in Principles for Reform, above n 2.

^[4] Section 23D(4) of the Evidence Act 1908.

^[5] Cross on Evidence (Mathieson, New Zealand Looseleaf Edition, Butterworths, Wellington, 1996) para 7.1.

^[6] For example, children's testimony is thought to be untrustworthy because "children do not have adequate cognitive skills to either understand or accurately describe what they witnessed; children have no ethical sense and are prone to fabricate; and children have difficulty differentiating fact from fantasy". Ontario Law Reform Commission, Report on Child Witnesses (OLRC, Toronto, 1991) 3. These beliefs will be challenged later in this chapter.

^[7] The competence and compellability of other groups of witnesses, for example judges, juries and spouses, will be considered in the context of other research papers.

^[8] Cross on Evidence, above n 5, para 7.9. It also needs to be noted that "there is no rule of law or practice in [New Zealand] that the evidence of a very young child witness is inadmissible on the ground of tender age alone." R v Accused (CA 245/90) [1991] 2 NZLR 649, 653.

^[9] Cross on Evidence, above n 5, para 7.9.

^[10] R v Accused, above n 8, 652_653.

^[11] Cross on Evidence, above n 5, para 7.9.

^[12] The challenger, usually defence counsel, has the evidential burden of raising the issue, which then places the burden of proof on opposing counsel to show, on the balance of probabilities, that the witness is competent. R v Yacoob (1981) 72 Cr App Rep 313, 316_317.

^[13] People have been considered incompetent on the grounds of mental disorder as well as intellectual disability. Although traditionally the two conditions have not been clearly distinguished, they are regarded today as quite different. Intellectual disability is a permanent condition which usually originates pre-birth, in early childhood, or as a result of brain damage caused by injury or illness and is not regarded as treatable. Mental disorder, on the other hand, is an illness which usually develops in adolescence or adulthood rather than in childhood, is susceptible to treatment, often episodic in character, and from which there may be complete or at least partial recovery.

^[14] Cross on Evidence, above n 5, para 7.11.

^[15] R v Accused, above n 8, 652:

The question of competency of a child to give evidence is a matter for the trial Judge, and if there is to be a determination before trial then it should take place in circumstances in which counsel are given full opportunity to participate.

^[16] Which includes an inquiry made on pre-recorded videotape or via closed-circuit television.

^[17] R v P (1992) 9 CRNZ 119, 125.

^[18] Above n 8, 652.

^[19] These regulations have not been amended to make them explicitly applicable where an application is made under the statutory provisions to admit the videotaped evidence of a mentally handicapped adult. Section 23C(b)(ii) of the Evidence Act 1908, as amended by s 28 of the Summary Proceedings Amendment Act 1993, extended the availability of videotaped evidence to mentally handicapped adults in sexual cases.

^[20] Regulation 5(1)(c) provides:

(1) The video shall show the following matters: ...
(c) The interviewer _
(i) determining that the complainant understands the necessity to tell the truth; and
(ii) obtaining from the complainant a promise to tell the truth, where the interviewer is satisfied that the complainant is capable of giving, and willing to give, a promise to that effect ... .
Interviews under these regulations are conducted by a specialist interviewer rather than a judge or lawyer. The judge at trial determines competence and obtains a further promise to tell the truth for the purpose of the child's cross-examination and re-examination.

^[21] For example, see the Report of the Ontario Law Reform Commission, above n 6, 35, and the Report of the Advisory Group on Video Evidence (Home Office, London, 1989) (the "Pigot Report") para 5.4.

^[22] R v Accused, above n 8, 653.

^[23] R v Accused, above n 8, 652.

^[24] R v Accused, above n 8, 653.

^[25] A Private or Public Nightmare? (Report of the Advisory Committee on the Investigation, Detection and Prosecution of Offences Against Children, Wellington, 1988) (the "Geddis Report").

^[26] For examples of cases where non-compliance with competency requirements was a ground for excluding evidence, see R v Crime Appeal (CA 400/92 and CA 404/92) (unreported, Court of Appeal, 29 March 1993, CA 400/92 and 404/92); R v Ogden [1985] 1 NZLR 344; R v H [1992] DCR 805; R v W (unreported, High Court, Wellington, 30 November 1992, T 91/92, Greig J); R v S [1993] 2 NZLR 142. For an example of a case involving a person with an intellectual disability, see R v T (unreported, High Court, Hamilton, 28 September 1994, T 1/93, Hammond J). The case was unable to proceed because the person was found to be incompetent, although the person had been found competent to give evidence by Penlington J in June of the same year. That trial resulted in a hung jury.

^[27] Sections 4 and 5 of Oaths and Declarations Act 1957.

^[28] Geddis Report, above n 25, 6: "We are not aware of any evidence that demonstrates a correlation between age and honesty."

^[29] Morton, "When Can Lying Start?" in Davies and Drinkwater (eds), The Child Witness _ Do the Courts Abuse Children? (British Psychological Society, Leicester, 1988) 35.

^[30] To illustrate the difficulty, we note that the concept of truth is ambiguous and its double meaning is revealed by examining its opposites _ a falsehood and a lie. One may make a false statement without intending to deceive. See Parkinson, "The Future of Competency Testing for Child Witnesses" (1991) 15 Crim L J 186, 189.

^[31] Haugaard, Reppucci, Laird and Nauful, "Children's Definitions of the Truth and their Competency as Witnesses in Legal Proceedings" (1991) 15 Law and Human Behaviour 253, 257_258.

^[32] Ontario Law Reform Commission, above n 6, 37.

^[33] Pigot Report, above n 21, para 5.11.

^[34] For example, see Pipe and Wilson, "Cues and Secrets: Influences on Children's Event Reports" (1994) 30 Developmental Psychology 515, 523.

^[35] Pigot Report, above n 21, para 2.17:

It seems to us that ... the formality and solemnity of the courtroom context which are often thought to promote truthfulness by witnesses may actually have a deleterious effect on the fullness and accuracy of children's testimony.

^[36] Cross on Evidence, above n 5, para 7.9. This phrase will be replaced in this paper with a reference to "intellectual disabilities".

^[37] See Appendix.

^[38] Pigot Report, above n 21; also R v Accused, above n 8, 653.

^[39] See Appendix.

^[40] For example, the length of time since the incident, the circumstances of the incident and the physical abilities of the witness (ie visual and auditory ability). See generally Loftus and Doyle, Eye Witness Testimony (2nd ed, Michie Co, Charlottesville, 1992).

^[41] Sections 27(1) and 27(3) of the Criminal Evidence Act 1992 (Ireland).

^[42] As proposed for this code in Evidence Law: Codification (NZLC PP 14, 1991) 20: "In any proceeding, the court shall exclude evidence if its probative value is outweighed by the danger that this evidence [will] ... result in unjustifiable consumption of time."

^[43] The Geddis Report, above n 25, 16.

^[44] Sexual Offences Against Children: Report of the Committee on Sexual Offences Against Children and Youths (Ottawa, 1984) (the "Badgley Report").

^[45] Law Reform Commission of Canada, Report on Evidence (Ottawa, 1975).

^[46] Report on Child Witnesses, above n 6.

^[47] Wigmore on Evidence, Vol 2, (Little Brown, Boston, 1940) para 509.

^[48] McCormick on Evidence (West Publishing Co, St Pauls, 1972) para 72.

^[49] Paciocco, "The Evidence of Children: Testing the Rules Against What We Know" (1996) 21 Queen's LJ 345, 393.

^[50] Federal Rules of Evidence (US), r 601.

^[51] Section 33A of the Criminal Justice Act 1988, as amended in 1991, provides that children under the age of 14 years must give unsworn evidence and removes any special inquiry into the competence of children. These changes implemented the recommendations of the Pigot Report, above n 21. See Halsbury's Statutes, Volume 17, 4 ed, 255.

^[52] Above n 44, 373.

^[53] This Committee provides commentary on the Federal Rules of Evidence.

^[54] Above n 50, commentary to r 601.

^[55] Above n 45, 88.

^[56] Above n 6, 41.

^[57] Above n 25, 6.

^[58] Report on Child Witnesses, above n 6, 41.

^[59] Sections 4 and 13 of the Oaths and Declarations Act 1957.

^[60] That is, there is no effective legal distinction between sworn and unsworn evidence: see s 33A of the Criminal Justice Act 1988 (UK), as amended in 1991.

^[61] Pigot Report, above n 21, para 5.14.

^[62] Pigot Report, above n 21, para 5.14.

^[63] Davies, Wilson, Mitchell and Milson, Videotaping Children's Evidence: An Evaluation (Home Office, London, 1995) 11.

^[64] Evidence Law: Codification (NZLC PP 14, 1991) 20.

^[65] See the forthcoming Law Commission discussion paper: Evidence Law: Character and Credibility, chapter 4.

^[66] In response to cases like R v B [1987] 1 NZLR 362.

^[67] Above n 42.

^[68] General issues relevant to the oath or affirmation requirement have been under review by the Ministry (formerly the Department) of Justice.

^[69] Section 108 of the Crimes Act 1961.

^[70] Except in some specialist courts; for example the Family Court, and tribunals.

^[71] Written statements of evidence are increasingly accepted in tribunals and in some civil cases.

^[72] In sexual cases, however, an unrepresented defendant may not cross-examine a child or mentally handicapped complainant in person: s 23F(1) of the Evidence Act 1908.

^[73] Cross on Evidence, above n 5, para 1.3.

^[74] Twining, Rethinking Evidence: Exploratory Essays (Basil Blackwell, Oxford, 1990) 183.

^[75] Australia, Law Reform Commission, above n 1, para 7.23; the Geddis Report, above n 25, 23; Murray, above n 1, (iii):

The fact that some of the younger children's evidence reached trial at all was a significant step forward. Both the prosecution and defence lawyers agreed that by using the provision a number of children gave evidence who would otherwise have been unable to speak.

^[76] Research indicates that young children's memory may be negatively affected by long delays. See for example, Poole and White, "Two Years Later: Effects of Question Repetition and Retention Interval on the Eyewitness Testimony of Children and Adults" (1993) 29 Developmental Psychology 844. See also Appendix.

^[77] See chapter 5 of forthcoming Law Commission discussion paper, Evidence Law: Character and Credibility.

^[78] Geddis Report, above n 25, 20.

^[79] Saywitz and Nathanson, "Children's Testimony and their Perceptions of Stress In and Out of the Courtroom" (1993) 17 Child Abuse and Neglect 613, 620_621. See also the comments of the Court of Appeal in R v Lewis [1991] 1 NZLR 409, 411.

^[80] Section 185C of the Summary Proceedings Act 1957.

^[81] Section 185CA of the Summary Proceedings Act 1957.

^[82] The application is heard by a judge of the court in which the defendant has been committed for trial: s 23D(1) of the Evidence Act 1908.

^[83] Section 23D(2) of the Evidence Act 1908.

^[84] R v Paikea (unreported, High Court, Whangarei, 18 July 1991, T 23/91, Wylie J) 2_3:

Section 23D(2) of the Evidence Act 1908 entitles the prosecutor (and of course defence counsel) to call any relevant evidence as part of the exercise of the opportunity to be heard in respect of the application.

^[85] Section 23D(3) of the Evidence Act 1908. Although the existing section refers to "modes", we prefer the use of the term "ways" for our recommendations; hence this term is adopted throughout the paper.

^[86] Section 23D(4) of the Evidence Act 1908.

^[87] R v Lewis, above n 79, 411.

^[88] This statement of relevant factors is taken from R v W (1990) 6 CRNZ 157, 158.

^[89] R v Hauiti (1990) 6 CRNZ 599, 602.

^[90] Section 23E(2) of the Evidence Act 1908.

^[91] See R v Crime Appeal, above n 26, 7.

^[92] As required by the rules on competency (see chapter 2) and reg 5(1)(c) of the Evidence (Videotaping of Child Complainants) Regulations 1990 (SR 1990/164).

^[93] See for example discussion in R v Crime Appeal, above n 26, and R v S [1993] 2 NZLR 142.

^[94] Although guidelines have been in draft form for some years they have been widely circulated and applied. A final set of guidelines is now being developed jointly by the Police and New Zealand Children and Young Persons Service and are due for publication in June 1996: Operating Guidelines for Evidential and Diagnostic Interviewing on Video Under the Evidence Amendment Act 1989.

^[95] See joint policy directive from the Police and New Zealand Children and Young Persons Service: Policy and Guidelines for the Investigations of Child Sexual Abuse and Serious Physical Abuse 1995/12.

^[96] R v Lewis, above n 79, 411; R v Crime Appeal, above n 26, 13.

^[97] R v Crime Appeal, above n 26, 13.

^[98] J v J (1993) 10 FRNZ 269, 272.

^[99] In R v H (unreported, High Court, Wellington, 27 August 1993, T 34/93, Heron J) a number of diagnostic interviews had taken place prior to the psychologist advising the police that the child was "now able to participate in a further evidential video interview". A "diagnostic" interview is described as "a formal interview with a child where there are strong indicators of sexual abuse but the child has not said anything about sexual abuse to anyone"(2). In addition each child in R v H had participated in evidential interviews on no less than 10 occasions (5).

^[100] R v Crime Appeal, above n 26, 13_15.

^[101] See for example R v Accused (T 4/88) [1989] 1 NZLR 660, 667_668 and the more recent case of R v Moke and Lawrence [1996] 1 NZLR 263. Tompkins J in R v Trenouth (unreported, High Court, Auckland, 10 October 1995, T 132/95) found that "the court's inherent jurisdiction would enable the court to order that evidence in chief be given by the videotape of an interview, but it would in my view require exceptional circumstances to justify the adoption of that course" (3). In the case, he did not permit the use of videotaped evidence, finding no exceptional circumstances but did allow the child witness (not a complainant) to give his evidence by closed-circuit television.

^[102] R v Kaio (unreported, High Court, Auckland, 12 March 1993, T 259/92, Robertson J) 2. The defence made no opposition to the order.

^[103] See for example R v Accused above n 101, 667. But in R v Accused, (CA 32/91) [1992] 1 NZLR 257, 262 Cooke P stated:

But I respectfully suggest also that Parliament may wish to legislate in this field. It seems likely that the limitation of s 23C and the following sections of the Evidence Act to child complainants did not represent a deliberate decision to exclude other child witnesses from the statutory protection. The point may have been simply overlooked.
In the same case Hardie Boys J agreed that the use of closed-circuit television would be within the court's inherent jurisdiction, but not videotaped evidence (271).

^[104] R v Moke and Lawrence, above n 101. In R v F (unreported, Court of Appeal, 6 May 1996, CA 130/96) the Court of Appeal upheld the trial judge's refusal to exercise jurisdiction to view videotaped evidence of two non-complainant witnesses stating:

[T]he present [case] does not involve any question of putting them for a second time through the trauma of a lengthy disclosure interview. Their proposed evidence does not bring them into conflict with their parents. No evidence has been brought before the Court regarding any stress that is likely to fall on them through requiring them to give evidence which ... is not going to involve any reference to sexual offending ...

^[105] R v Daniels (1993) 10 CRNZ 165, 168 (CA). The Court approved the use of a screen in the trial proceedings while stating that "it would only be in rare circumstances when such a procedure should be adopted in the case of a complainant of mature years".

^[106] Whitney and Cook, The Use of Closed-Circuit Television in New Zealand Courts: The First Six Trials (Department of Justice, Wellington, 1990).

^[107] Report to the Courts Consultative Committee from the Working Party on Child Witnesses, Child Witnesses in the Court Process: A Review of the Practice and Recommendations for Change: Appendices to the Main Report (Department for Courts, Wellington, 1996) Appendices 4 _ 6.

^[108] Pipe, Henaghan, Bidrose and Egerton, "Perceptions of the Legal Provisions for Child Witnesses in New Zealand" [1996] NZLJ 18, 23.

^[109] Pipe et al, above n 108, 26.

^[110] Dixon, "`Out of the Mouths of Babes'... A Review of the Operation of the Acts Amendment (Evidence of Children) Act 1992" (1995) 25 Western Australian LR 301, 314; the Geddis Report, above n 25, 25; Ontario Law Reform Commission, above n 6, 84.

^[111] Australia, Law Reform Commission, above n 1, 135.

^[112] In some cases the interviewer may need not only to be a specialist in communicating with children, but also in interpreting minority languages.

^[113] Davies et al, above n 63.

^[114] Above n 63, ii.

^[115] Above n 63, 13.

^[116] For example, see the Pigot Report, above n 21, para 2.17; Murray, above n 1, para 12.11.

^[117] Cashmore and Bussey, "Judicial Views of Witness Competence" (1996) 20(3) Law and Human Behaviour 313, 324.

^[118] Whitney and Cook, above n 106, 9.

^[119] Whitney and Cook, above n 106, 9.

^[120] Results of a Survey of Jurors in Western Australia conducted Between November 1994 and February 1995 (Ministry of Justice, Strategic and Specialist Services Division, Western Australia, 1995).

^[121] Quoted from above n 120, 36.

^[122] The following are the recommendations from the Western Australian research:

When CCTV or removable screens are used, jurors should be asked at the earliest convenient point whether any aspect of the equipment _ such as reflections on television monitors or the placement of removable screens _ is interfering with their ability to judge evidence.
When CCTV is used, consideration should be given to showing jurors the separate room from which evidence is given _ before the witness enters _ so that jurors have a better understanding of the surroundings in which the witness is giving evidence. This may assist the minority of jurors who have difficulty with an image relayed by television. (Above
n 120, 37).

^[123] Above n 1, para 7.55.

^[124] Above n 1, para 7.32 (emphasis added).

^[125] Australia, Law Reform Commission, above n 1, para 7.48.

Participants, ... especially the magistrates, had little difficulty in assessing the demeanour of the witness via closed-circuit television. Some magistrates, in fact, believed that the close-up views of the screen made it easier than the child being in court.

^[126] Murray, above n 1, para 10.29.

^[127] Pipe et al, above n 108, 18.

^[128] Goodman et al (eds), Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims (Monograph of the Society for Research in Child Development, vol 57, No 5, 1992) 115. See also Haralambie, "The Role of the Child's Attorney in Protecting the Child throughout the Litigation Process" (1995) 71 North Dakota LR 939, 971.

^[129] Australia, Law Reform Commission, above n 1, para 7.15.

^[130] Murray, above n 1, iv.

^[131] Cecchettini-Whaley, "Children as Witnesses after Maryland v Craig" (1992) 65 Southern Carolina LR 1993, 2013_2018.

^[132] Above n 1, para 7.24.

^[133] Whitney and Cook, above n 106, 14_15.

^[134] See the New Zealand studies, above n 106, 107 and 108.

^[135] For example, Queensland legislation refers to intellectual impairment and cultural differences; Western Australia includes mental disability, cultural background, relationship to any party of the proceedings, nature of the subject matter of the evidence; Northern Territory and South Australia refer to the circumstances of the case or circumstances of the witness.

^[136] Commonwealth Attorney-General's Department Report, Access to Interpreters in the Australian Legal System (Australian Government Publishing Service, Canberra, 1991) para 1.3.2.

^[137] Te Whainga i te Tika (Government Printer, Wellington, 1986) 35 (in relation to Pacific Islands people).

^[138] Australia, Law Reform Commission, Multiculturalism and the Law (ALRC 57, Canberra, 1992) para 10.43.

^[139] In this case the ideal would be to support the person by an "oral interpreter" who mouths the speeches given in court by different people to the hearing impaired person. Smith, "Confronting Silence: the Constitution, Deaf Criminal Defendants and the Right to Interpretation During Trial" (1994) 46 Maine LR 87, 100_101.

^[140] Laster and Taylor, Interpreters and the Legal System (The Federation Press, New South Wales, 1994) 90_94.

^[141] Law Reform Commission of Western Australia, Report on Evidence of Children and Other Vulnerable Witnesses (Project No 87, Perth, 1991) 117_118.

^[142] Justice Thomas "Was Eve Merely Framed; or Was She Forsaken?" (Part II) [1994] NZLJ 426, 427.

^[143] A distinction made by the Deaf Association of New Zealand is that the word "deaf" is used as a general term for people with a hearing loss while the capitalised Deaf is used to describe those who identify as part of a distinct Deaf community with its own culture and language, for example, New Zealand Sign Language. Such people are usually born deaf or become so early in life.

^[144] For example, Martin Bryant, charged with the deaths of 35 people in Tasmania, appeared in Hobart Magistrates Court by way of videolink from prison because of doubts over security: The Dominion, Wellington, Thursday 9 May, 1996, 5. The issue of witness protection will be discussed further by the Commission in our work on witness questioning rules.

^[145] Australia, Law Reform Commission, above n 1, para 7.15:

The main finding concerned the significance of children's wishes in relation to the use of closed-circuit television. Children's observed emotional state was influenced more by whether they were able to use closed-circuit television when they wanted to than by whether they did or did not use it. [Emphasis in original.]

^[146] See Palmer v Attorney-General [1992] 3 NZLR 375, 384 for a reference to the need to remove any doubt on the availability of alternative ways of giving evidence in summary proceedings.

^[147] For judgments where these questions have arisen, see R v Ellis (No 2) [1993] 3 NZLR 325 and R v Ellis (No 3) [1993] 3 NZLR 335. In the second decision, Williamson J held (338) that although the Crown was not obliged to produce videotapes on which it did not rely, "[t]he obligation on the Crown is rather to make available to the defence such material so that the defence can then determine whether or not to use that material ... in cross-examination of the Crown witnesses". However, in the case of tapes not made in conformity with regulations, Williamson J held in Ellis (No 2) (330) that they could not be admitted, "until any contradicting matters are put to the particular child and his or her answer known".

^[148] This disclosure should be timely: see the Commission's recommendations in Criminal Procedure: Part One Disclosure and Committal (NZLC R14, 1990).

^[149] See reg 13 of the Evidence (Videotaping of Child Complainants) Regulations 1990

(SR 1990/164).

^[150] Under the Commission's proposals, videotapes or briefs of evidence made in contemplation of civil litigation would be privileged: Evidence Law: Privilege (NZLC PP23, 1994) chapter II.

^[151] For an example, see above n 144.

^[152] Section 185CA(1)(b) of the Summary Proceedings Act 1957 and see para 88.

^[153] For example, because not every case will proceed to a jury trial.

^[154] NZLC R14, 1990, chapter VIII.

^[155] See, for example, Goodman and Clark-Stewart, "Suggestibility in Children's Testimony: Implications for Child Sexual Abuse Investigations" in Doris (ed), The Suggestibility of Children's Recollections (American Psychological Association, Washington DC, 1991) 97_98.

^[156] Pigot Report, above n 21, 69_70, especially recommendations 4, 7 and 8.

^[157] Section 33 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 provides that if a child is to give evidence the court may appoint a commissioner to take the evidence of the child in some circumstances. Proceedings before the Commissioner are to be recorded by a videorecorder (s 33(2)); and the defendant shall not, except by leave of the commissioner, be present in the room but entitled "by such means as seem suitable to the commissioner to watch and hear the proceedings" (s 33(3)).

This section does not specify whether the commissioner also cross-examines the child (or that the defendant's counsel may do so) with the effect that no further cross-examination may take place. It seems safe to conclude, however, that this was the intention of the legislature, because the provision closely reflects cl 1 of the draft statute in the Scottish Law Commission's Report on the Evidence of Children and Other Potentially Vulnerable Witnesses (Scottish Law Commission, No 125, Edinburgh, 1990) and the report clearly envisages that cross-examination would be completed at the pre-trial stage (16_17).

^[158] See paragraph 150.

^[159] The Pigot Report recommended pre-trial cross-examination should be available for child complainants in jury trials in cases of violent and sexual offences, and offences of child cruelty and neglect: above n 21, para 2.37.

^[160] For example, in the witness's home or hospital room.

^[161] Dixon "`Out of the Mouths of Babes ...'," above n 110.

^[162] Resulting in 5 convictions, 1 acquittal and 1 hung jury: Dixon, above n 110, 314.

^[163] In the event that a new defence counsel opposes the use of the videotape on the ground that they wish to ask the child witness additional questions, the trial judge may allow those additional questions to be dealt with at a second pre-trial hearing convened for that purpose. This would avoid the possible tactical advantage to the defence of the child having to be put through the ordeal of another trial _ a prospect that may mean a re-trial becomes impossible where the child witness is very young or particularly traumatised.

Obviously for any witness who may be traumatised by the trial process, a re-trial in which a videotape of their previous evidence can be used is very advantageous.

^[164] NZLC R14, 1990, 49_50.

^[165] Most of the cases which mention support persons (R v Ellis (No 2) [1993] 3 NZLR 325; R v Honana (unreported, High Court, Rotorua, 8 March 1993, T 65/92, Fisher J); R v Paparahi (1993) 10 CRNZ 213) concern s 375A of the Crimes Act 1961 which limits those who may be present when a complainant gives evidence. These cases confirm that people whom the complainant wishes to be present may usually stay, subject to the court's inherent jurisdiction.

^[166] The Law Reform Commission of Western Australia in their Discussion Paper on Evidence of Children and Other Vulnerable Witnesses (Project No 87, Perth, 1990) describes the role of support persons in the following way:

"Support" can, of course, cover a wide range of activities. At its minimum it would usually involve accompanying a child to court and sitting near him or her either in court (or in a monitor room) when he or she is giving evidence. In the United States, where some very young children have given evidence, the support person has been the child's mother who has held the child on her lap while the child was questioned. The role of the support person is to give the child some emotional security in a strange situation, thereby enhancing the child's ability to withstand the ordeal of giving evidence. This is valuable for both child and prosecution. It is not the part of a support person to coach or prompt the child in what he or she has to say, but the role should not preclude a gentle encouragement to "tell the judge what happened" when a child seems to freeze, or giving a soothing pat to a distraught witness. Experience will obviously determine acceptable limits to such support and provide guidelines for support persons (para 4.83).

^[167] This term derives from McKenzie v McKenzie [1970] 3 All ER 1034, where it was held that an unrepresented litigant was entitled "to have a lay friend in Court to assist by giving advice and taking notes; but the friend may not act as an advocate": Garrow and Turkington, Criminal Law in New Zealand (Looseleaf Edition, Butterworths, Wellington, 1991) S 354.4. See also Mihaka v Police [1981] 1 NZLR 54.

^[168] Myers, "Steps Towards Forensically Relevant Research" in Goodman, Taub et al (eds), Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims (Monographs of the Society for Research in Child Development, 1992, Vol 5, No 5) 143.

^[169] Cashmore and Bussey, above n 117, 324.

^[170] Section 106E of the Evidence Act 1906 (WA).

^[171] Section 106R(3) of the Evidence Act 1906 (WA) provides:

The grounds on which a person may be declared a special witness are that if the person is not treated as a special witness he or she would in the Court's opinion _
(a) by reason of mental or physical disability, be unlikely to be able to give evidence, or to give evidence satisfactorily; or
(b) be likely _
(i) to suffer severe emotional trauma; or
(ii) to be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily,
by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject-matter of the evidence, or any other factor that the Court considers relevant.

^[172] In R v V (1988) 3 CRNZ 423, counsel for the defendant was concerned that the presence of the psychologist, at the complainant's request, would lend credibility to the complainant. Hillyer J held that the psychologist could be present, as complainants in sexual cases have "a right to say who should be in court, and that a Judge should not exclude such a person unless there were compelling reasons for doing so ... If for example the person requested was to be disruptive of the proceedings, or was menacing the accused, a Judge could decide he should not be allowed in Court" (424).

^[173] Murray, above n 1, 151.

^[174] For a general discussion in relation to children, see Brennan and Brennan, Strange Language _ Child Victims under Cross-Examination (2nd ed, Riverina Murray Institute of Higher Education, 1988).

^[175] Section 106F(2) of the Evidence Act 1906 (WA).

^[176] Section 14 of the Criminal Evidence Act 1992 (Ireland).

^[177] The characteristics of an intermediary are discussed in R v Accused (unreported, High Court, Wellington, 5 March 1993, T 91/92, Neazor J) 5.

She is professionally experienced and has no therapeutic obligation to or bond with the child. ... I think it would be going too far to say the intermediary must not "jolly along" the child to answer ... so long as the intermediary is responsibly and fairly putting the questions as asked, careful supplementary comments or requests to the child to attend or answer would not be objectionable. If it seems that the child does not understand the question the intermediary will understand that it will be for counsel to rephrase it or approach the matter from some other angle. [Emphasis added.]

^[178] As discussed by the Law Reform Commission of Victoria, Discussion Paper No 12: Sexual Offences Against Children (Melbourne, 1988) 44.

^[179] The latter was suggested by Justice Thomas in "Was Eve Merely Framed", above n 142, 426:

The physical proximity of the victim to her assailant, the hated cause of her distress, is too close for it to be otherwise. Asking the questions directly when challenging the complainant's version of the incident imposes an intolerable burden upon even an adult woman and the slender defences which she will have erected to cope with the trauma.

^[180] Above n 21, 70.

^[181] Kunnatu v The State [1993] 4 All ER 30 (PC) applying R v Lee Kun [1916] 1 KB 337, 340_341.

^[182] Alwen Industries Limited and Karwong v The Collector of Customs (unreported, High Court, Auckland, 24 April 1996, M 1402/95, Robertson J). In this case it was argued that "because of the volume of the charges and the complexity of the allegations, the mere provision of an oral translation at the trial will not be sufficient to enable the applicants to `meaningfully instruct' counsel, nor for them `meaningfully to be present' in court" (3).

^[183] Above n 182, 9.

^[184] Re Fuld, Hartley v Fuld (Fuld intervening) [1965] 2 All ER 653; Re Trepca Mines Ltd [1959] 3 All ER 798. Although these cases concern civil proceedings, there is no reason to limit availability to this kind of proceedings. The Employment Court recently considered on appeal whether the Employment Tribunal's failure to provide and pay for an interpreter meant there was a breach of natural justice under s 27 of the New Zealand Bill of Rights Act 1990. Judge Colgan, in dismissing the appeal on this ground, held there was no breach, but "the position may be otherwise ... where the proceedings are penal in nature and may result in a loss of liberty": Zinck v Sleepyhead Manufacturing Company Ltd (unreported, Employment Court, Auckland, 8 December 1995, AEC 130/98; A 153/94) 11.

^[185] Section 4(1) of the Mäori Language Act 1989. Legal proceedings are defined by reference to proceedings conducted in the courts listed in the First Schedule and include District Courts, High Courts, the Court of Appeal and the Family Courts.

^[186] The payment of interpreters' fees is regulated by the Witnesses and Interpreters Fees Regulations 1974 (SR 1974/124), although some interpreters consider the levels specified inadequate. The fees compensate the interpreter for time spent "attending" to provide an oral translation into English from any other language or from English into any other language. Interpreters may also be compensated for travelling time, and there are allowances for overnight stays and meals. The regulations do not appear to envisage compensation for time spent in preparation. It is not clear whether the regulations would permit communication assistance where the witness's native language is English but the witness has a communication disability. The fee payable for attending is $14 for each hour or part of the hour, provided that the fee in respect of any day shall not be less than $41.00 nor more than $95.50 (Schedule A (2)).

^[187] Multiculturalism, above n 138, para 1.29.

^[188] Section 30 of the Evidence Act 1995 (Aust).

^[189] See s 24(g) of the New Zealand Bill of Rights Act 1990, as applied in Alwen Industries, above

n 182.

^[190] Alwen Industries, above n 182, 14.

^[191] For an account of issues relevant to the role, training and competency of interpreters, see Laster and Taylor, Interpreters and the Legal System, above n 140. A recent New Zealand publication is also useful: Kasanji, Let's Talk: Guidelines for Government Agencies Hiring Interpreters (Department of Internal Affairs, Wellington, 1995).

^[192] This is an accreditation of general interpreting skills and does not indicate the candidate's knowledge of legal systems and terminological competence.

^[193] See, for example, issues relating to removal of the competence requirements in para 68.

^[194] R v Accused, above n 101, 664.

^[195] R v Accused, above n 101, 670, quoting a paragraph from R v Lee Kun [1916) 1 KB 337, where Lord Reading CJ said:

The reason why the defendant should be present at the trial is that he may hear the case made against him and have the opportunity, having heard it, of answering it. The presence of the defendant means not merely that he must be physically in attendance, but also that he must be capable of understanding the nature of the proceedings (341).

^[196] R v Accused, above n 101, 672.

^[197] R v L [1994] 2 NZLR 54.

^[198] R v L, above n 197, 61, quoting R v Dagg [1962] NZLR 817, 820. R v L was followed in R v Petaera [1994] 3 NZLR 763.

^[199] 2nd ed, Blackstone Press, London, 1993.

^[200] Yale University Press, New Haven, 1994.

^[201] Above n 6.

^[202] American Psychological Association, Washington DC, 1995.

^[203] For instance, thinking and talking about it.

^[204] "[I]t is clear that children _ even preschoolers _ are capable of accurately recalling much that is forensically relevant": Ceci and Bruck, above n 202, 235.

^[205] Goodman and Bottoms (eds), Child Victims, Child Witnesses Understanding and Improving Testimony (The Guildford Press, New York, 1993) 21. See also Firush and Shukat, "Content, Consistency and Coherence of Early Autobiographical Recall" in Zoragoza, Graham, Hall, Hirschman and Ben-Porath (eds), Memory and Testimony in the Child Witness (Sage Publications, California, 1995).

^[206] For a recent summary, see McGough above n 200, chapter 4. Note also that although there is some evidence that younger children may forget more quickly than older children, sometimes older children may forget more over time than younger children, perhaps in part because they remember more in the first instance.

^[207] It must be remembered that adults also pay more attention to events or details which have personal significance.

^[208] Like adults, children may have difficulty answering questions about peripheral detail. In some instances, however, children will provide details which adults would have overlooked. This is because "what is central and what is peripheral in any given situation are entirely in the eye of the beholder, irrespective of the beholder's age": Spencer and Flin, above

n 199, 302.

^[209] For a comprehensive summary of recent research, see Doris (ed), The Suggestibility of Children's Recollections (American Psychological Association, Washington DC, 1991).

^[210] See for example Spencer and Flin, above n 199, 303; research referred to by the Ontario Law Reform Commission, Report on Child Witnesses, above n 6, 14_16. Also Bruck, Ceci, Francover and Barr, "`I Hardly Cried When I Got My Shot!' Influencing Children's Reports About a Visit to Their Pediatrician" (1995) 66 Child Development 193.

^[211] Ceci and Bruck, "Suggestibility of the Child Witness: An Historial Review and Synthesis" (1993) 113 Psychological Bulletin 403.

^[212] Spencer and Flin, above n 199, 308_306; McGough, above n 200, 71_73.

^[213] See for example Goodman and Schwartz-Kennedy, "Why Knowing a Child's Age is Not Enough: Influences of Cognitive, Social and Educational Factors on Children's Testimony" in Dent and Flin (eds), Children as Witnesses (John Wiley & Sons, Chichester, 1992) 30.

^[214] A child will be less suggestible concerning central events, but more suggestible concerning peripheral detail. The same trend has been observed in relation to adults. The results of some studies have caught some researchers by surprise. They demonstrate that young children regard some details of an event as central which older children and adults would not. Foley, "Differentiating Fact from Fantasy: The Reliability of Children's Memory" (1984) 40 Journal of Social Issues 33, 33_36.

^[215] This is also true for adults: see Loftus and Davies, "Distortions in the Memory of Children" (1984) 40 Journal of Social Issues 51, 63.

^[216] Interviewing techniques may reduce the risk of suggestion, for example, by emphasising to the child that he or she is not expected to know all the answers and that the child may say "I don't know".

^[217] Spencer and Flin, above n 199, 306. Powerful social rules may operate on the child; for example, the desire to please the adult, to terminate the interview as soon as possible, and a belief that the adult knows best or has superior knowledge.

^[218] Goodman and Schwartz-Kennedy, above n 213, 31.

^[219] Bull and Cullen, "Witnesses Who Have Mental Handicaps", unpublished paper, 4 March 1992, 7. This is a paper by two psychologists for the purpose of informing Scottish Procurators Fiscal (prosecutors who interview suspects and witnesses) on the effective interviewing of people with mental retardation. See also Ashton and Ward, Mental Handicaps and the Law (Sweet and Maxwell, London, 1992) 87; Hoggett, Mental Health Law (3rd ed, Sweet and Maxwell, London, 1990) 150.

^[220] Bray, Biasini and Thraser, "The Effect of Communicative Demands on Request Making in the Moderately and Severely Mentally Retarded" (1983) 4 Applied Research in Mental Retardation 13.

^[221] That is, they are more likely to respond "yes" to a question regardless of its content: Rosen, Floor and Zisfein, "Investigating the Phenomenon Acquiescence in the Mentally Handicapped" (1974) 20 British Journal of Mental Subnormality 56; Sigelman et al, "Surveying Mentally Retarded Persons: Responsiveness and Response Validity in Three Samples" (1980) 84 American Journal of Mental Deficiency 479.

^[222] Sigelman et al, "When in Doubt Say Yes: Acquiescence in Interviews with Mentally Retarded Persons" (1981) 19 Mental Retardation 53; Sigelman et al, "Asking Questions of Retarded Persons: A Comparison of Yes-No and Either-Or-Formats" (1981) 2 Applied Research in Mental Retardation 347. These studies were conducted to determine how people with mental retardation respond to survey questions. The second study by Sigelman et al was conducted with a small sample, and questions were restricted to a few highly subjective topic areas. See also Perlman, Ericson, Esses and Isaacs, "The Developmentally Handicapped Witness: Competency as a Function of Question Format" (1994) 18 Law and Human Behaviour 171.

^[223] Bull and Cullen, above n 219, 9_20, 25.

^[224] See distinction made previously in footnote 13 above.