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Preface

THE LAW COMMISSION’S evidence reference is succinct and yet comprehensive:

Purpose: To make the law of evidence as clear, simple and accessible as practicable, and to facilitate the fair, just and speedy judicial resolution of disputes.
With this purpose in mind the Law Commission is asked to examine the statutory and common law governing evidence in proceedings before courts and tribunals and make recommendations for its reform with a view to codification.

The evidence reference needs to be read together with the criminal procedure reference, the purpose of which is:

To devise a system of criminal procedure for New Zealand that will ensure the fair trial of persons accused of offences, protect the rights and freedoms of all persons suspected or accused of offences, and provide effective and efficient procedures for the investigation and prosecution of offences and the hearing of criminal cases.

Both references were given to the Law Commission by the Minister of Justice in August 1989, shortly after the Commission published a preliminary paper on options for the reform of hearsay.

This is the ninth in a series of Law Commission publications on aspects of evidence law. Papers on principles for the reform of evidence law, codification of evidence law, hearsay evidence, and expert and opinion evidence were published in 1991, while papers on documentary evidence and judicial notice and on the law of privilege appeared in 1994. The Commission also published Criminal Evidence: Police Questioning (NZLC PP21) in 1992, a major discussion paper jointly under the evidence and criminal procedure references. This was developed into the report Police Questioning (NZLC R31, 1994). A further discussion paper dealing with the evidence of character and credibility will be published later this year.

The Commission’s work on the evidence of children and vulnerable witnesses has been greatly assisted by consultation with legal practitioners, legal academics, judges, social scientists, psychologists and other specialists. The Commission would also like to thank the following, who provided comments on earlier drafts of this paper:

Toni Allwood (Rape Crisis National Office, Wellington), Wendy Miller Burgering (Strategic Policy and Resource Review Unit, Police National Headquarters) and Mark Copeland (Assistant Legal Adviser, Police National Headquarters), Catherine Coates (Analyst, Mental Health Services, Ministry of Health), Angela Cook (Senior Policy Analyst, Department for Courts), Fiona Coy (Senior Advisory Officer, Children and Young Persons Service), Emma Davies (Department of Psychology, University of Auckland), Dr Sabine Fenton (Director, Centre of Translation and Interpretation Services, Auckland Institute of Technology), James Johnston (Solicitor, Wellington), Lalita Kasanji, (Senior Analyst, Ethnic Affairs Service, Department of Internal Affairs), Richard Mahoney (Faculty of Law, University of Otago), Scott Optican (Faculty of Law, University of Auckland), Dr Margaret-Ellen Pipe (Department of Psychology, University of Otago), Dr Erihana Ryan (Director of Area Mental Health Services, Healthlink South Ltd, Christchurch), Catherine White (National Interpreter Co-ordinator, Deaf Association of New Zealand), Chief Judge R L Young (District Court, Wellington), Dr Karen Zelas (Consultant Psychiatrist, Christchurch).

We are also grateful for the support from the Working Party on Child Witnesses and the assistance of Professor Graeme Kennedy, Department of Linguistics, Victoria University of Wellington. We emphasise, however, that the views expressed in this paper are those of the Commission and not necessarily those of the people who have helped us. The code provisions were prepared by Mr G C Thornton QC, legislative counsel. The Commission also acknowledges the work of several past and present members of its research staff, and in particular Susan Potter, Louise Delany, and Elisabeth McDonald, in researching, writing, and preparing this paper for publication.

This paper does more than discuss the issues and pose questions for consideration. It includes the Commission’s provisional conclusions following extensive research and extensive preliminary consultation. It also includes a complete draft of the provisions on the evidence of children and vulnerable witnesses for a code and a commentary on them. The intention is to enable detailed and practical consideration of our proposals. We emphasise that we are not committed to the views indicated and our provisional conclusions should not be taken as precluding further consideration of the issues.

Submissions or comments on this paper should be sent to the Director, Law Commission, P O Box 2590, DX SP 23534, Wellington, by 6 January 1997 or by e-mail to Director@lawcom.govt.nz. We prefer to receive submissions by e-mail where possible. Any initial inquiries or informal comments can be directed to Elisabeth McDonald, Senior Researcher (Telephone: (04) 473 3453; fax: (04) 471 0959; E-mail: EMcDonald@lawcom.govt.nz).