Chapter 11
Trial process
(Part 3 of the Act)

Vulnerable witnesses

11.62This section addresses some specific issues raised regarding the evidence of vulnerable witnesses in court, particularly complainants in sexual cases and child witnesses. Many of the recommendations considered are sourced from Elisabeth McDonald and Yvette Tinsley’s text, From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand.849

Alternative ways of giving evidence

Directions on whether evidence is to be given in an alternative way

11.63Section 103(1) provides that, in any proceeding, the judge may make directions that a witness may give evidence “in the ordinary way” or “in an alternative way”. Directions may be made on the application of a party or on the judge’s own initiative. The ordinary way of giving evidence set out in s 83 has been discussed above in the section under “questioning of witnesses”. Alternative ways of giving evidence are set out in s 105, such as giving evidence from behind a screen. Sections 103 and 105 provide:

103 Directions about alternative ways of giving evidence

(1) In any proceeding, the Judge may, either on the application of a party or on the Judge’s own initiative, direct that a witness is to give evidence in chief and be cross-examined in the ordinary way or in an alternative way as provided in section 105.
(2) An application for directions under subsection (1) must be made to the Judge as early as practicable before the proceeding is to be heard, or at any later time permitted by the court.
(3) A direction under subsection (1) that a witness is to give evidence in an alternative way, may be made on the grounds of—
(a) the age or maturity of the witness:
(b) the physical, intellectual, psychological, or psychiatric impairment of the witness:
(c) the trauma suffered by the witness:
(d) the witness’s fear of intimidation:
(e) the linguistic or cultural background or religious beliefs of the witness:
(f) the nature of the proceeding:
(g) the nature of the evidence that the witness is expected to give:
(h) the relationship of the witness to any party to the proceeding:
(i) the absence or likely absence of the witness from New Zealand:
(j) any other ground likely to promote the purpose of the Act.
(4) In giving directions under subsection (1), the Judge must have regard to—
(a) the need to ensure—
(i) the fairness of the proceeding; and
(ii) in a criminal proceeding, that there is a fair trial; and
(b) the views of the witness and—
(i) the need to minimise the stress on the witness; and
(ii) in a criminal proceeding, the need to promote the recovery of a complainant from the alleged offence; and
(c) any other factor that is relevant to the just determination of the proceeding.

105 Alternative ways of giving evidence

(1) A Judge may direct, under section 103, that the evidence of a witness is to be given in an alternative way so that—
(a) the witness gives evidence—
(i) while in the courtroom but unable to see the defendant or some other specified person; or
(ii) from an appropriate place outside the courtroom, either in New Zealand or elsewhere; or
(iii) by a video record made before the hearing of the proceeding:
(b) any appropriate practical and technical means may be used to enable the Judge, the jury (if any), and any lawyers to see and hear the witness giving evidence, in accordance with any regulations made under section 201:
(c) in a criminal proceeding, the defendant is able to see and hear the witness, except where the Judge directs otherwise:
(d) in a proceeding in which a witness anonymity order has been made, effect is given to the terms of that order.
(2) If a video record of the witness’s evidence is to be shown at the hearing of the proceeding, the Judge must give directions under section 103 as to the manner in which cross-examination and re-examination of the witness is to be conducted.
(3) The Judge may admit evidence that is given substantially in accordance with the terms of a direction under section 103, despite a failure to observe strictly all of those terms.
11.64At present it is not mandatory for the prosecution to apply for directions about the way in which an adult complainant in a sexual case should give their evidence. It is, however, mandatory to apply for directions for child complainants in criminal proceedings.850 This applies only to child complainants, not all child witnesses.
11.65 The guidelines in Victims of Crime Guidance for Prosecutors also do not require prosecutors to apply for directions, stating merely that doing so “may be appropriate ... from time to time” and that prosecutors “will have to consider whether a particular mode of evidence is appropriate and would improve the quality of the evidence given.”851 The guidelines further state that prosecutors “should confirm the views of the victim; inform the victim of the directions made (if any); or explain why it is not considered appropriate to apply for a direction.”852
11.66McDonald and Tinsley have recommended that the Act be amended to require the prosecution to seek directions as to how a complainant in a sexual case should give their evidence.853 Although the Prosecution Guidelines state that the prosecutor should seek the views of the victim when considering whether to seek directions on alternative modes of evidence,854 research by the Ministry of Women’s Affairs and anecdotal feedback from complainants and sexual violence agencies suggest that complainants are not always aware that they may be able to give evidence in an alternative way.855
11.67McDonald and Tinsley considered that a requirement to seek directions regarding mode of evidence for all complainants in sexual cases would ensure that complainants are aware of the availability of alternative modes; there would be a clear responsibility on the part of the prosecutor; and the court would need to address the question of how to achieve the best evidence from the complainant.856
11.68Similarly, the Ministry of Justice in an Issues Paper considered whether mandatory applications about alternative ways of giving evidence should be extended to child witnesses who are not the complainant.857 The Issues Paper noted that this change would likely result in an increase in child witnesses giving evidence in an alternative way. It noted the possible drawback that it could result in applications made where it is unnecessary to do so (for example where the witnesses is unconcerned about giving evidence in the ordinary way).858

11.69At present we do not consider it is necessary to require mandatory applications in respect of evidence of all complainants in sexual cases. We appreciate that complainants in cases involving sexual offending may experience distress in giving evidence in the courtroom in front of the defendant. We acknowledge that such complainants will often benefit from giving evidence via an alternative way and this will often produce the best evidence as well as reduce the distress to the witness. However, we are not aware that there is currently a significant problem with cases where directions were not sought, and it would have been appropriate to do so.

11.70We also consider that there may be difficulties in introducing into the Act a requirement to seek directions particularly for sexual offending complainants. Child complainants as a class broadly require the protection of mandatory applications for directions, but not all sexual offending complainants will want or need alternative modes of giving evidence. Moreover, while the distinction between child complainants and all other witnesses is clear and easy to draw,859 the situation is not so straightforward for sexual offending complainants. Similar considerations may apply to complainants in other cases, such as those involving serious violence.
11.71The decision of whether to apply for directions on alternative ways should be based on the needs of the individual witness, rather than by virtue of them belonging to a particular category. This rationale formed the basis for s 103 making all witnesses eligible to give evidence in alternative ways; the previous section had only applied to child sexual offending complainants and those with a mental handicap.860
11.72We agree that it is important for the prosecutor to consider carefully whether an alternative way of giving evidence would be appropriate for sexual offending complainants, and should seek complainants’ informed views on this. We note concerns about a lack of clarity and inconsistency of practice about whose responsibility it is to provide information to complainants in this area and obtain their views; we understand that in some cases complainants may be inadequately consulted or not consulted at all.861 However, this is an issue to do with communication and practice, rather than the drafting of the Act.

11.73It may be desirable to clarify Crown Law’s Victims of Crime Guidance for Prosecutors to more strongly state that prosecutors “should” consider whether an application is appropriate, and to note that an application will generally be appropriate for complainants in sexual cases, and perhaps for complainants in cases involving serious violence.

R32 We recommend that the Crown Law Office consider whether it would be appropriate to amend its Victims of Crime Guidance for Prosecutors to provide a clearer indication to prosecutors that they should consider making an alternative mode of evidence application for complainants in sexual cases or cases involving serious violence.

Evidence of child complainants

11.74Section 107(1) provides that in criminal proceedings involving child complainants, the prosecution must apply to the court for directions about the way in which the complainant is to give evidence-in-chief and be cross-examined.

11.75A submitter recommended that child complainants should give evidence via audio-visual link in all cases. They proposed that s 107(1) be repealed and replaced with a provision requiring that in a criminal proceeding in which there is a child or young person complainant aged 17 and under, all evidence will be given by the complainant from a CCTV room within the court building via CCTV; this would be mandatory and the courtroom would be closed while the complainant gives their evidence.862
11.76We do not consider that it is appropriate to specify that child complainants give evidence in any particular way. There is already provision for mandatory applications by the prosecution for directions about the way in which child complainants are to give evidence. As noted by the Court of Appeal, child complainants already normally give evidence by way of video record if there is one, unless there are exceptional circumstances.863 It is not practical or appropriate to dictate a particular mode of evidence and it may not be necessary to use an alternative mode of evidence in every case.

Pre-trial recording of evidence

11.77McDonald and Tinsley recommended that where fast-tracking of cases was not possible, consideration should be given to pre-recording of the complainant’s evidence including cross-examination and re-examination, should that be appropriate.864 It was also suggested that we consider the current position regarding pre-trial cross-examination,865 which the Court of Appeal addressed in M v R.866
11.78In that case the Court concluded that it was possible for orders for pre-trial cross-examination to be made under sections 103 and 105 as they currently stand, but that such orders would only be available in a “compelling case”,867 and that as a general rule, cross-examination should not take place pre-trial. The Court cited problems with pre-trial cross-examination such as the general principle that the defendant not be required to show their hand before trial, issues with disclosure, recall of witnesses, the absence of the jury, increased use of courtroom resources, requiring repeat preparation for trial, and contributing to delay for the trial of the defendant.868
11.79In 2011, just prior to the Court of Appeal decision in M v R, Cabinet approved the introduction of a legislative presumption that child witnesses (excluding defendants) under the age of 12 give their evidence via their evidential interview video record (where one exists) and CCTV, regardless of whether a child gives evidence at a pre-trial pre-recording hearing or at trial. It also approved introduction of a legislative presumption in favour of pre-recording children’s entire evidence in criminal proceedings, applying to child witnesses (excluding defendants) under the age of 12. In these cases, an application for how a child witness is to give evidence should not be required.869 This set of Cabinet decisions is currently on hold.
11.80The Law Commission has previously suggested that pre-recording of evidence (including cross-examination) should be considered.870 We remain of the view that pre-recording of evidence has some merit, where fast-tracking is not possible, and this area requires further attention. However as indicated clearly by the decision in M v R, the area raises a number of significant policy and practical issues that would need to be fully explored. This statutory review is not the appropriate place for that enquiry.
849McDonald and Tinsley, above n 809, Elisabeth McDonald and Yvette Tinsley (eds) From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (Victoria University Press, Wellington, 2011).
850See Evidence Act 2006, s 107(1).
851Crown Law Office Victims of Crime – Guidance for Prosecutors (5 March 2012) at [22].
852At [23].
853McDonald and Tinsley, above n 809, at 355.
854Crown Law Office, above n 851, at [23].
855Venezia Kingi and others Responding to Sexual Violence: Pathways to Recovery (Ministry of Women's Affairs, Wellington) at 20 and 95.
856McDonald and Tinsley, above n 809, at 288.
857Ministry of Justice Alternative Pre-trial and Trial processes for Child Witnesses (2010) at [58].
858At [59].
859Law Commission The Evidence of Children and Other Vulnerable Witnesses (NZLC PP26, 1996) at 35.
860At 32–35.
861Elisabeth McDonald “Complainant desire for information, consultation and support: How to respond and who should provide?” in McDonald and Tinsley, above n 809, at 175-178.
862Letter from the Wellington Institute of Technology Social Policy to Law Commission regarding child and young person complainants giving evidence in criminal proceedings (2 May 2012).
863R v M [2009] NZCA 455 at [39].
864McDonald and Tinsley, above n 809, at 305.
865Letter from Justice Ellen France (Judges’ Evidence Committee) to Grant Hammond (President, Law Commission) regarding the Evidence Act review (14 June 2012).
866R v M [2011] NZCA 303, [2012] 2 NZLR 485.
867At [41].
868At [34]–[41].
869Cabinet Domestic Policy Committee “Child Witnesses in the Criminal Courts: Proposed Reforms” (29 June 2011) DOM Min (11) 10/1 at [2]–[4].
870Law Commission Alternative Pre-Trial and Trial Processes: Possible Reforms (NZLC IP30, 2012) at 38–39.