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Summary of views

• Under current law, all witnesses must be competent to give evidence. For children under 12, the court is under an obligation to test competence. The competence of any other witness may be challenged where it is at issue; for example, in the case of intellectual disability. The test for competence contains two limbs: a witness must have a sufficient level of understanding or intelligence to give a rational account of past events; and the witness must understand the nature and consequences of the oath (for children, the duty to speak the truth).
• Recent research indicates that even young children are able to give reliable (accurate and rational) evidence and that age alone cannot predict the quality of the evidence presented. Further, the current test of competence, in particular the requirement to understand the nature of a promise, can only assist in a minimal way with any decision on the accuracy of the witness’s evidence. In order to increase the amount of relevant evidence, and allow the fact-finder to make an assessment of reliability and credibility, the Commission proposes abolition of the current competence requirement. Testimony which is unhelpful because of incoherence or because of communication difficulties which cannot be adequately overcome, may be ruled inadmissible on one of the general exclusionary grounds (for example, time-wasting). This proposal has implications for the administration of oaths, affirmations or declarations. (Chapter 2.)
• At present, child and mentally handicapped complainants in sexual cases are eligible to give evidence in alternative ways; for example, on closed-circuit television, from behind a screen or on a pre-recorded videotape. Their evidence may also be given at any preliminary hearing in writing or on videotape, and they need not appear in person or be cross-examined, except with leave of the court. (Chapter 4.)
• The Commission believes that giving evidence in alternative ways may assist all witnesses in appropriate cases, and will normally result in fuller and more reliable evidence being available to the fact-finder. The Commission proposes that in the case of child complainants, directions must be sought from the court on how the child will give evidence. In all other cases, the witness may apply to the court to give evidence in an alternative way, based on the needs of the individual. This procedure will apply in both civil and criminal trials, and will be available to defendants who give evidence. In the case of preliminary hearings, the Commission proposes that any prosecution witness who is required by the court to give evidence in person, may apply to give that evidence in an alternative way, based on individual need. Videotaped evidence which is presented at the preliminary hearing may or may not be shown at any later defended hearing. (Chapter 5.)
• To be consistent with the purposes of the evidence code, the Commission believes that in some cases it may also be appropriate to allow cross-examination to be pre-recorded on videotape. Witnesses who may apply to give evidence in this way will be child complainants (for whom assisting early recovery from trauma is also an important consideration) and any other witnesses for whom memory retention may be an issue, and who have also been permitted to give evidence in chief on videotape. A witness whose cross-examination has been pre-recorded may also be required to give further evidence at trial if necessary. They may then give the new evidence on closed-circuit television or from behind a screen. Cross-examination may also occur prior to any preliminary hearing for a witness who is required to give evidence in person, rather than in writing. (Chapter 5.)
• Witnesses may also be assisted in giving evidence by other mechanisms. For example, a support person, who sits near the witness to give emotional support and encouragement, may well assist the witness to give more helpful and complete evidence. The Commission recommends that all complainants have the right to one or more support persons while testifying, but the identity and conduct of the support persons will be controlled by the judge. All other witnesses may apply to use a support person. (Chapter 6.)
• Some witnesses may have communication difficulties, particularly difficulties in comprehension, which means they will be assisted in giving evidence by someone who can rephrase the questions put to them. The Commission believes that the code should provide for the appointment of experts to assist in this way, either by asking the questions themselves, or by advising counsel and the parties on the most appropriate way to communicate with the particular witness. (Chapter 6.)
• At present, an unrepresented defendant in sexual cases may not personally cross-examine a child or mentally handicapped complainant. In such cases, the court appoints another person to put the questions to the complainant. The Commission believes that in other cases it would assist in reducing stress for the witness, and therefore increase the quality of evidence heard, if the witness were not personally cross-examined by the defendant or opposing party. Such cases would include sexual cases involving adult complainants, cases involving child witnesses of violence (especially domestic violence), or any cases where the relationship between the witness and the unrepresented party would impact on the quality of the evidence given. This situation may equally arise in civil, especially family, and criminal proceedings. The Commission believes it should be open to any witness to apply to avoid personal cross-examination by an opposing party. (Chapter 6.)
• The other kind of communication assistance which is already available in New Zealand courts is that provided by an interpreter. In the criminal context, s 25(g) of the New Zealand Bill of Rights Act 1990 makes such assistance a right for a defendant. The Commission believes that any criminal defendant who is unable to sufficiently understand the proceedings should be entitled to free interpretation of the proceedings, including any relevant preliminary matters or documents. For any other witnesses, in civil or criminal proceedings, an interpreter should be available to assist communication with the court, but the cost of this service would normally be met by the party calling the witness. The provisions of the Mäori Language Act 1987 which provide an entitlement for any witness to give evidence in Mäori are not affected. (Chapter 7.)
• The rights of a criminal defendant are an important consideration for any reform options. Most important in this context is the right to confrontation. In New Zealand it appears that the right to present a defence and the right to examine witnesses for the prosecution (ss 25(e) and (f) of the New Zealand Bill of Rights Act 1990), which together comprise the right to confrontation, do not include a right to face-to-face confrontation. To the extent that the Commission’s proposals do not impinge on the right to cross-examine, but only suggest changing the way cross-examination is conducted (in terms of time and place), they do not breach the New Zealand Bill of Rights Act 1990 nor erode fairness to the defendant. (Chapter 8.)