Contents

Chapter 4
The court experience of complainants

Issue one: the time between filing of charge and trial

4.6For sexual violence trials that took place in the District Courts in 2014/15 (including any commenced in the years prior), the mean age of a case from the date of filing of charges until the end of the trial hearing was 443 days. The median age was 419 days. In the High Court, those figures were 418 days (mean) and 424 days (median).231

4.7The amount of time that passes between filing of a charge and trial may be expected to have a disproportionately negative effect, specifically in cases of sexual violence. This is due to the effect of delay on the complainant themselves; on their domestic and social circumstances; and on the evidence.

Effect of delay on the complainant

4.8A unique feature of sexual violence as a form of criminality is that there are usually no other witnesses to it. This means that a successful prosecution is likely to depend, at least to some extent, on how comprehensively a complainant can recall the detailed facts of the incident at trial, in order to appear credible and not evasive. Thus, much is riding on a complainant’s ability to retain those facts in their head. The longer they are required to do so, the greater the potential effect on their long-term therapeutic recovery.232

4.9Lengthy periods of time between the alleged incident and the trial itself is also problematic for young complainants because of their age and the proportion of their lives they may spend with criminal proceedings pending. For example, a gap of two years between the incident and trial for a child of six years old amounts to one quarter of that child’s lifetime.

4.10The issue of delay and its effect on complainants was noted by submitters to the Issues Paper. Rape Prevention Education said that “[i]t is absolutely critical for the complainant to have a more streamlined process [in which] delays are minimised”.233 They referenced cases which had been adjourned three or more times and in which complainants had been required to put their lives “on hold” for sometimes two or three years.
4.11We note that the submissions on the Issues Paper were made before the passing of the Criminal Procedure Act 2011 (CPA 2011), which has sought to implement better pre-trial case management in order to decrease the time taken to resolve criminal cases. Although it is still relatively early to assess its effect on case disposal times, as the Act did not come fully into effect until 1 July 2013, initial assessments show some reduction in disposal times, which may be attributable to the legislation.234

4.12Reducing the time taken to dispose of all criminal cases is a worthy and ongoing goal. But we do not think that this is a complete answer to the need to deal with cases of sexual violence in a timely manner.

Effect of delay on the complainant’s domestic and social circumstancesTop

4.13The second unique feature of sexual violence is that many or most victims of sexual violence, as has been noted in previous research, are in a family or domestic relationship with the perpetrator. In one New Zealand study of 69 victims of sexual violence, 31 of the victims in question were assaulted by a current or ex-partner, 10 by a family or whānau member, and seven by a friend or family friend.235

4.14As such, delay between the incident itself and the trial affects not only the complainant but also their relationship and contact with the perpetrator, any children they may have, family/whānau members who know both the victim and the perpetrator and their respective relationships with friends and acquaintances if they move in a common social circle (for instance if the complainant and perpetrator are both at high school or university and share classes or are in the same university accommodation). Reducing delays in sexual violence cases will not only benefit complainants but also defendants and their respective domestic and social circumstances.

Effect of delay on the evidenceTop

4.15The third detriment of delay in sexual violence cases is its effect on the evidence itself. Unsurprisingly, long delays are likely to impact on a complainant’s ability to accurately and comprehensively recall facts. This is the case for all witnesses who are required to recall facts some time after the incident, but for a complainant witness in a sexual violence case, the effect of a failure to do so when questioned at trial may be significant. The complainant is often the sole witness to the alleged offending and their testimony is heavily relied upon. The closer in time to the incident itself that a complainant is able to recount the facts of that incident, the more detailed and more accurate their recall of the facts is likely to be, and therefore the higher the quality of their evidence – which, in sexual violence cases, is likely to be particularly important.

Status quo and options for reducing delayTop

4.16At present, sexual violence cases are afforded priority over certain other kinds of criminal cases when being scheduled for trial.236 However, there is no special process to enable those cases to be “fast tracked” through other steps in the pre-trial process that must be gone through before trial. This may be contrasted with the approach applied to certain other kinds of cases which are singled out for fast-tracking or subjected to statutory timelines due to the nature of the proceedings and the need for swift disposal. Two examples are the separate lists for dealing with certain proceedings heard in the High Court and the statutory deadlines for making certain orders in the Family Court, both of which are discussed below.

4.17A key difference is the sheer volume of cases involving sexual violence and the fact that they are criminal matters, in which adjournments and delays may be more common because of criminal-specific pre-trial matters such as disclosure and entry of pleas. Nonetheless, we have considered whether more can be done in this area to reduce the length of time between the filing of charges and the date of trial.

4.18We have contemplated what might happen in the future if barriers to reporting are addressed and greater numbers of incidents of sexual violence are reported. If that occurs, one can expect to see more cases entering the criminal justice system, which will have a consequential impact on case disposal times. Thought must be given to how sexual violence cases are to be dealt with in a timely manner, and what resources are required to do so both now and in the future, to avoid the risk that complainants will be encouraged to enter the criminal justice system only to wait an unreasonable amount of time for the proceedings to finally be disposed of.

A special list for sex offence cases

4.19Implementing a special court list for sex offence cases is one possible way of fast-tracking those cases through the court process. Special court lists are instigated by the judiciary to allow those cases to be separately managed and overseen by a particular judge or judges because of their urgent, important, or specialist subject matter.237 We discuss listing here because it is one method of reducing delay between filing and hearing a case, but it is also relevant to Chapter 5 where we discuss the general advantages of court specialisation for sex offence cases. A judicially managed list is a form of specialisation.
4.20We have considered the potential of a special list for sexual violence cases that would be overseen by the judiciary and that would allow those cases to be fast-tracked through the court process. We note, however, that the success of a special listing procedure may depend on how effectively it is managed and overseen by the judiciary. Judges would play a large part in the success of such a list and in ensuring that all the relevant parties comply with the administrative requirements of the list. Yet we note that one of the policy aims of the CPA 2011 was to enable administrative matters to be handled, as far as possible, outside of the courtroom, with cases going before a judge only when the exercise of judicial discretion is required.238 Making a proposal for a specialist list that would be managed and overseen by the judiciary may run counter to this policy objective.

4.21Fast-tracking through the use of a special list may put too much of a burden on the judiciary, and it may not provide a sufficient incentive for participants in the court system to ensure that sexual violence cases are heard in a timely fashion.

4.22Previous experience with attempts to fast-track cases involving child witnesses may be illustrative. In 1992 the Chief Justice and the Chief District Court Judge issued a practice note setting out a direction to fast-track cases involving child witnesses but, despite this, a 2010 study led by Kirsten Hanna of the Auckland University of Technology noted that delay times in cases with child complainants doubled throughout the 2000s, from eight months to 15 months.239

Statutory provisions with time limits

4.23A second possibility is for statutory provisions to set down firm time limits for hearing a case within a certain time period, and for a right of complaint to be extended to victims under the Victims’ Rights Act 2002 (VRA 2002) where a sexual violence case had not been dealt with in as speedy a manner as reasonably possible in the circumstances.

4.24It is not unusual for certain proceedings to be subject to statutory time limits for hearing. For example, certain applications in the Family Court are subject to time limits, including an application to vary a protection order under the Domestic Violence Act 1995, which must be heard within 42 days of the application.240 An application for a declaration that a child is in need of care and protection must be heard within 60 days of the application.241 In both cases exceptions may be made in special circumstances.
4.25No such time limits exist in New Zealand in regard to sex offences, but they do in Victoria, Australia. The time limit in question applies to the period between filing of the indictment or committal for trial, and the date of the trial itself. Trials must take place within 12 months for an offence other than a sex offence,242 but within three months for a sex offence.243 There is provision for an extension to be granted in the interests of justice, which in sex offence cases may be no greater than three months.244
4.26The Victorian statutory time limits have their origins in a government-led reform strategy for sex offences, which ran from 2006 to 2008.245 A 2011 evaluation of that strategy found, however, that the timelines are “virtually never complied with in relation to matters involving adult complainants” and that for cases involving adults, a waiting time of 15 to 18 months before trial was more common. It was noted that judges were giving priority to matters involving children and people with cognitive impairments and that these took place much more quickly.246 But one result of this was that other cases, including those involving sexual violence, were bumped further down the list.

4.27We have considered whether a statutory requirement would be of benefit in New Zealand and would actually lead to a decrease in disposal times for sex offence cases. On the one hand, simply imposing a statutory requirement will not increase the courts’ capacity to prioritise sexual violence cases, especially when that must be balanced against the need to give priority to other cases, such as ones involving children. Also, if such a limit were introduced, there would need to be sufficient “slack” to be able to divert judges to those cases when they came up, in order to ensure statutory time limits were met. Additional judicial resources may be required.

4.28On the other hand, a legislative time limit puts demonstrable importance on the desirability of prioritising disposal of sexual violence cases. In this manner it provides a clear signal to the courts and the public that, once proceedings are commenced, efforts will be made to bring those to trial as speedily as possible.

What would be the effect of a failure to comply with a statutory time limit?

4.29The VRA 2002 includes a number of rights for victims including the right to be given information about available court services247 and about the progress of the proceedings themselves.248 It also sets out the rights of victims of specific offences including the right to give views on matters such as bail249 and to be notified of certain decisions made in other matters relating to the proceedings.250 A victim or person who feels that a right to which they are entitled to be accorded has not been upheld can make a complaint to the Ministry of Justice under section 49 of that Act.
4.30If a statutory time limit were introduced, the VRA 2002 could include a right, in respect of charges filed for one or more sexual violence offences, to have the proceedings for those charges handled in as speedy a manner as reasonably possible. The Ministry of Justice could be the entity that is ultimately responsible for according the right to relevant persons. If a victim or person considers that the right has not been upheld, they can make a complaint to the Ministry of Justice as provided under section 49 of the Act. The number of complaints received and how they were dealt with would be required to be included by the Ministry of Justice in its annual report.251

4.31In this way, a legislative time limit would clearly signal the need for timely disposal of sexual violence cases and would also facilitate the gathering of examples of cases where those time limits were not met. We recommend that the legislation require that all sex offence cases be set down for hearing within a specified time of the filing of a charge. This should be properly qualified so that exceptions can be made for appropriate cases where more time is required.

4.32Our recommendation does not extend to setting down a specific time period, because we have not consulted with the sector on any particular time limit. A time limit of 12 months from the time of filing of charges to the time the case is set down for hearing might be appropriate (and achievable, given the mean disposal time of a sexual violence case in the District Courts in 2014/2015 was between 14 and 15 months.)252 However, further analysis and consultation would be required before an exact time limit could be finalised in legislation.

Recommendations

Pre-recording the evidence of a complainant in sexual violence casesTop

4.33We have noted that the testimony of a sexual violence complainant is usually heavily relied upon at trial. The private nature of sexual violence creates an imperative for a complainant to retain the facts of the incident in as much detail as possible, so that they can be recalled at trial. As noted earlier, while this is beneficial for trial, it can be detrimental to the long-term recovery of the complainant.

4.34Minimising the time between the filing of charges and the trial in the ways suggested above will help address this issue. However, we have also considered the possibility of recording the whole of a complainant’s evidence, including cross-examination, at a point in time that is close to the alleged incident and then to replay that evidence at the time of the trial, with the ability to recall the complainant for further questioning at trial if necessary. This would eliminate the detrimental effect of delay on complainants and on the evidence. It would also minimise the stress of giving evidence at trial, because complainants whose evidence is pre-recorded will only have to give evidence in person at trial if they are recalled to do so.

4.35Pre-recording evidence is not the only way to minimise the stress of giving evidence in court. It is also possible to give one’s evidence while in the courtroom but unable to see the defendant or other specified person (which would normally be done by the use of a physical screen) or from an appropriate place outside the courtroom (which would normally be done by setting the witness up in another room and asking them questions remotely via CCTV or video link). In each case, directions are required to be made by a judge under the Evidence Act 2006.

The options to pre-record the complainant’s evidence in chief under the Evidence Act 2006

4.36The giving of a complainant’s evidence in chief by pre-recorded video is made possible under the provisions of the Evidence Act 2006 which provide for alternative ways of giving evidence.253 In any proceeding, the judge may direct that a witness is to give evidence in chief and be cross-examined “in the ordinary way” or in an “alternative way”. One of the alternative ways is to give evidence by video record.

4.37If an order is made for evidence in chief to be given by video record, this would be done by playing a video of the Police interview with the complainant (which is sometimes referred to as the “evidential video interview” or the “EVI”). The video is made at the time the complaint is made to Police. The complainant is asked a series of questions by a member of the Police who is trained in behavioural interviewing.

4.38The video must, if is to be played at trial, comply with rules set down in the Evidence Regulations 2007, covering matters such as who may be present at the video recording and what must be on the video record, and requiring the prosecution to give a typed transcript to the defence.254 As a record which contains a witness’s statement, the video must be filed by the prosecution as a formal statement under section 85 of the CPA 2011, and may be accompanied by a summary of the parts of the video that the prosecutor intends to rely on as evidence at the trial.255

Pre-recorded evidence in chief: current practice

4.39Our consultation indicates that in sexual violence cases, there are significant regional variations throughout the country in the use of the EVI as the complainant’s evidence in chief (except where the complainant is under 16).256

4.40As far as we are aware, however, it is usual practice for the EVI to be recorded by Police for investigative purposes, and one might therefore always expect such a video to be available and able to be played at trial if necessary.

4.41Regional variations may be attributable to a number of things. Prosecutors are not, in sexual violence cases, required to apply for mode of evidence directions. Guidance directs them to consider doing so,257 but it is not mandatory, and the guidance does not deal specifically with potential use of the EVI as evidence in chief.
4.42This may be compared to the position for child witnesses in which case the prosecutor must apply to the court for directions on mode of evidence, although not specifically on playing the EVI as evidence in chief. In any case, it is apparently common practice to use the EVI for child witnesses under 16, although there is no actual entitlement to it for under-16s and defence counsel may oppose it.258
4.43One cannot expect complainants to know of their ability to apply to give evidence via alternative means. The VRA 2002 requires that victims be given information about their “role as a witness in the prosecution of the offence”259 but not the ability to apply for orders as to mode of evidence. In a study of sexual violence complainants commissioned by the Ministry for Women, only two out of 14 research participants said they had been informed of the options regarding mode of evidence.260    From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand included statements by a senior prosecutor that, in their experience, sexual violence complainants are either casually consulted about mode of evidence or are not consulted at all.261

4.44Regional variations may also be due to the exercise of judicial discretion which is inherent in the relevant sections of the Evidence Act 2006. A direction on mode of evidence may be made on one of the grounds listed in section 103(3) of that Act.262 Section 103(4) sets out what the judge must have regard to when giving a direction:

(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.

4.45It may also be that in some areas of the country, defence counsel more rigorously oppose the use of the EVI as evidence in chief than in other areas.

Options to introduce more consistent use of the EVI as evidence in chief

4.46There is a strong argument in favour of more consistently using the EVI as the evidence in chief of a complainant in sexual violence cases. This is already the practice for witnesses under 16 years, with good reason, since younger witnesses are more likely to be particularly affected by delays and the potentially intimidating experience of giving their evidence in person at trial. Given that an EVI is made for investigatory Police purposes, and the legislation already provides for its use at trial, it seems logical that it be used wherever possible to minimise the stress on witnesses and to help ensure that good-quality evidence is put before the court.

4.47One prosecutor noted in correspondence with us that they:

… cannot see any real prejudice to a defendant if a complainant’s EVI is replayed in every trial where one has been recorded. Any inadmissible material can be edited in advance. The EVI [is] closer in time and taken with trained interviewers. I back myself as an asker of questions, but I am not a highly trained interviewer, court is months if not years after the fact, and there is no real basis for creating the mystery of a “previous statement” when the jury could have just watched that for themselves.

A requirement on prosecutors to apply for directions in sexual violence cases

4.48One way of introducing more consistent use of the EVI as evidence in chief in sexual violence cases might be to require prosecutors, in those cases, to apply to the court for mode of evidence directions. As noted, they are already required to do so in cases involving child witnesses.

4.49This option was considered by the Law Commission in 2013.263 However, the Commission concluded that a mandatory direction is not appropriate for sexual violence complainants, primarily because not all of those complainants will want or need alternative modes of giving evidence.264 Instead the Commission recommended that prosecutors be encouraged to apply for mode of evidence directions. That change has since been given effect,265 but regional variations continue to affect complainants in sexual violence cases. It may be that the guidance is not having its intended effect. It may also be that the judicial discretion to grant orders is being exercised differently across the country and/or that there are variations in defence counsel practice.
An entitlement to use of the EVI as evidence in chief

4.50Another option is to include an entitlement in legislation so that, wherever a complainant must give evidence in chief in a sexual violence case, that evidence will be given either by playing the pre-recorded EVI at trial or, if the complainant prefers, in the ordinary way or in one of the other alternative ways set out in section 103 of the Evidence Act 2006. Any entitlement needs to encompass all of the possible alternative ways of giving evidence, because not all complainants will want to give their evidence in chief via EVI and should not be required to do so. Some will want to give it in person but, for instance, behind a screen. They should be entitled to do so.

4.51Amendments to the Evidence Act 2006 are currently before Parliament which, if passed, will introduce an entitlement for all child witnesses in criminal proceedings to give their evidence in an alternative way.266 It will no longer be necessary for the prosecution to apply to the court for directions. If the child witness wishes to give evidence in the ordinary way, an application will need to be made to the court. Written notice of the intention to call a child witness and the way in which they will give evidence will be required to be provided to every other party and the court. Any other party will be able to apply for a direction that the witness gives their evidence in the ordinary way. When giving a direction the court will need to consider whether the interests of justice require a departure from the usual procedure (being the giving of evidence in an alternative way) and the matters in sections 103(3) and (4) of the Evidence Act 2006.

4.52These clauses reflect a policy decision that child witnesses should be entitled to give their evidence in an alternative way. We are satisfied that there is a solid policy basis for extending this entitlement to complainant witnesses in sexual violence cases, so that they may give their evidence in chief in an alternative means, including by playing the EVI at trial if that is desired. We discuss what we think the position should be for evidence given in cross-examination below.

Conclusion and recommendations on use of the EVI as evidence in chief and other alternative ways of giving evidence

4.53We therefore recommend that the Evidence Act 2006 be amended so that a complainant in a sexual violence case is entitled to give their evidence in chief in one or more of the alternative ways set out in section 105 of the Evidence Act 2006 or, if they prefer, in the ordinary way. There is a template for giving effect to this recommendation within clause 32 of the Evidence Amendment Bill 2015 that is currently in Parliament (see proposed new section 27).267
4.54We note that not all complainant witnesses in sexual violence cases will want or need an alternative mode of giving evidence. A legislative entitlement to give evidence via an alternative means should not preclude the ability to give evidence in the ordinary way if desired. In the Evidence Amendment Bill 2015, this is taken account of by enabling an application to the judge that a child witness is permitted to give evidence in the ordinary way.268 Such a provision is appropriate for children so that the court may be satisfied that the child fully appreciates the possible effect of giving evidence in the ordinary way, but the policy position is different for adults that have full capacity. It would be paternalistic to require an application to court to give evidence in the ordinary way. We therefore recommend that a complainant witness in a sexual violence case (who is not a child) should be entitled to give their evidence in the ordinary way if desired. Notice should be given to the other party and to the court of the way in which the complainant witness will give evidence in a sexual violence case.

4.55Prosecutors will need to consult with complainants on modes of evidence if these recommendations are to be given proper effect. Though a complainant may be entitled to give evidence in one of many different ways, such an entitlement is worth little if the complainant does not know that it exists. We therefore recommend that the Evidence Act 2006 should be amended to also include a requirement for prosecutors to consult with complainant witnesses in sexual violence cases on the mode of delivery of evidence in chief.

Recommendations

The current options for the mode of giving evidence in cross-examination

4.56The alternative modes of giving evidence provided for in section 105 of the Evidence Act 2006 apply equally to evidence in chief and to evidence given in cross-examination. Thus, a witness may be cross-examined while shielded from view of the defendant or some other person, or may be asked questions while seated in another room via CCTV or video link.

4.57Similarly, the pre-recording of cross-examination evidence is made possible by section 105 of the Evidence Act 2006, as was recently confirmed by the Court of Appeal in M v R.269 That can be achieved by conducting a hearing prior to trial in which the witness, the judge, counsel, defendant, and necessary court staff are present, purely for the purpose of conducting witness cross-examination. The hearing can be videoed and replayed at trial for the jury.

Pre-recorded cross-examination evidence: current practice

4.58Pre-recording of cross-examination happens more rarely than pre-recording of evidence in chief, especially for adults. We are aware of only two instances in which adult witnesses have had their cross-examination evidence pre-recorded. In R v Kereopa,270 Heath J directed that the prosecution witness’s entire evidence be pre-recorded on video because the witness was terminally ill and unlikely to be alive at trial. In R v Willeman271 Cooper J directed that the complainant, a tetraplegic, give all their evidence at home before the trial. Beyond this, our research has not revealed any criminal cases from 2011 onwards in which orders were made for adult complainants to be cross-examined in advance of trial. In most cases the alternative ways of giving evidence in cross-examination were via CCTV or behind a screen.

4.59However, a number of cases in Auckland between 2010 and 2011 successfully used pre-recording for the cross-examination evidence of children.

The experience in Auckland, 2010-2011

4.60Several applications for pre-recording the cross-examination of child complainants and witnesses were granted in the Auckland District Court throughout 2010 and 2011. The first application was approved in December 2010272 and there were subsequently 13 pre-recorded hearings completed between December 2010 and May 2011.
4.61Each hearing was attended by a judge, court staff, lawyers, the defendant, and the witness. The judge, counsel, defendant, and witness watched the pre-recorded video interview (which served as evidence in chief) the day before the hearing. At the hearing, the children were further examined and cross-examined via CCTV from a room in the courthouse in the usual way (although juries were not present at these hearings). The hearings were conducted according to a memorandum developed by the Ministry of Justice, outlining operational processes for use of pre-recorded cross-examination evidence.273
4.62A sample of nine of these trials was formally evaluated in 2011. Five of the sampled cases involved allegations of sexual violence. The youngest witness was six years old and the eldest was 19. The participants were interviewed on a voluntary basis, with four of the six potential defence counsel and all of the prosecutors and victims advisors participating. The participant’s perceptions of the advantages and disadvantages of pre-recorded cross-examination were summarised and the authors concluded overall that the pre-recorded hearings were making a positive contribution to the justice system, with one prosecutor interviewed stating that:274

I don’t see that there is any drama in connection with the innovation. It’s just another step to ensure that best evidence is put before the court. And there is provision to permit both sides to recall the witness if necessary.

Previous Law Commission work: 1996 and 2013

4.63In 1996 the Law Commission released a preliminary paper in which it proposed the increased use of pre-trial cross-examination for children and other vulnerable witnesses.275 However, the Commission did not make a final recommendation on this in its subsequent Report, citing strong opposition from the defence bar (although the proposal received support from a range of community groups). The Commission suggested that more should be known about the experience of pre-trial cross-examination in other countries before a recommendation to this effect was made.276
4.64In 2013, the Law Commission returned again briefly to this issue within the ambit of its review of the Evidence Act 2006. It concluded that the pre-recording of evidence has merit where fast-tracking of the case is not possible and that this area requires further attention.277

The position in 2015

4.65In 2011 the Court of Appeal in the case of M v R278 was asked to consider the jurisdiction to make orders for pre-recorded cross-examination and, at the same time, the Court provided some comments on factors relevant to the exercise of that jurisdiction. Among other things, the Court noted the general rule under criminal law that a defendant is not required to “show their hand” before the start of a trial. To the extent that requiring the defence to undertake cross-examination before trial might countermand that rule, this should not be done lightly.279 The jury would not be present for cross-examination, which has flow-on effects such as preventing defence counsel from “tailoring his or her cross-examination depending upon the reaction of the particular jury to it”.280
4.66The Court also noted practical implications, such as the overall greater use of court resources (because a judge and court staff and a courtroom have to be provided for the taking of the evidence).281 There may be a risk of complainants having to be recalled to give evidence again, if new matters come to light shortly before trial.282 Also, a judge should be “very slow to order pre-trial cross-examination in the absence of clear evidence” that full disclosure has occurred.283
4.67The Court was, however, satisfied that pre-trial cross-examination does not necessarily interfere with the fair trial rights guaranteed by the New Zealand Bill of Rights Act 1990 (NZBORA 1990), such as the right of every person charged with an offence to adequate time and facilities to prepare a defence.284 On this point the Court said:285

We do not accept that pre-trial cross-examination would necessarily infringe such rights. On the other hand, we do accept that fair trial rights guaranteed by the Bill of Rights should influence when the jurisdiction to order pre-trial cross-examination is exercised.

4.68When M v R was delivered, existing applications for pre-recording in Auckland were frozen and no subsequent pre-recording hearings have since taken place.286 However, the experience with pre-recording that came out of those trials has, as noted above, been positively evaluated.

The potential benefits and drawbacks of pre-recorded cross-examination

4.69Pre-recorded cross-examination has a number of potential benefits. One is that it can lighten the burden of holding on to the facts of the incident for later presentation at trial. If the trial occurs some time after filing of the charge, pre-recording would shield the evidence from deterioration by delay, and may also shield the complainant witness against some of the anxiety of waiting for the trial.

4.70It has also been suggested that pre-recorded cross-examination may reduce the risk of a mistrial by allowing judges to more robustly control questioning in the knowledge that interventions could be edited out. It may also make it easier to give witnesses breaks during the cross-examination process.

4.71The Court of Appeal in M v R noted its concerns that pre-recording should not take place before full disclosure has been made; otherwise, the defence loses the opportunity to question a witness on relevant aspects of the prosecution’s case which are only subsequently disclosed to the defence. This, however, is a practical problem which we think can be addressed in the design and operation of the processes for pre-recording.

Stakeholders’ views

4.72Many of the people we spoke to in the drafting of this Report were supportive of moves towards pre-recording cross-examination where appropriate. We received the collated views of 20 District Court Judges noting that consideration should be given to greater use of pre-recorded evidence.287
4.73We consulted with a group of highly experienced stakeholders including two senior prosecutors (see paragraph 1.60), who supported the use of pre-recording evidence by way of video. They commented that pre-recording hearings give an opportunity to explore and test the complaint before trial:288

Some factual and reality testing before the courtroom is beneficial. The prosecution may have an opportunity to consider the video-evidence in the light of reality testing and cross-examination. It is sometimes the case that issues raised at trial come as a surprise to the prosecution. These issues can often be answered if time is available. But time is often not. So some trials run aground in a way that could be considered quite unfair; but understandable on the current burden of proof method. Early video interview, and cross-examination after charge, may be very beneficial on different levels.

4.74We also note that in 2011 the Ministry of Justice released an issues paper considering among other things a proposal for pre-recording of cross-examination for child witnesses, and the proposal received a number of supportive submissions.289 The New Zealand Law Society submitted that for children it “should be the usual, but not mandatory, method of proceeding”.

4.75Some submitters to our Issues Paper opposed the pre-recording of cross-examination on the basis that new matters may come to light or additional disclosure may occur after the pre-recorded hearing has taken place. This might then require the witness to be recalled or might disadvantage the defendant’s case.

Our conclusion and recommendations for reform

4.76There have been significant developments in the years since the Law Commission first considered the matter of pre-recording cross-examination evidence in 1996. There has been positive experience of the practice in Auckland for child witnesses and complainants. There is empirical research and a considerable volume of international commentary that is strongly in favour of it.290 Western Australia in particular has been using the measure for over twenty years, and reports that it has been successful.291

4.77While it will never suit all cases, pre-recording of cross-examination could be of benefit to many complainant witnesses in cases involving sexual violence, as a means of shielding complainants from delay-related harm and with the concomitant benefit of shielding the evidence itself against deterioration by the passage of time.

4.78Recall of witnesses will sometimes be necessary but, with refined processes, the need to recall should be able to be managed and minimised as much as possible. Any increase in costs may be offset by consequential cost savings in other areas, for instance there might be reduced trial time in some cases because the evidence is captured in advance.

4.79As framed our proposal should, we suggest, enable countervailing considerations relating to the fair trial rights of defendants to be taken into account. We therefore recommend that the Evidence Act 2006 include a provision to the effect that the starting point for all complainant witnesses in sexual violence cases is that they may pre-record their cross-examination evidence. This would be subject to an order made by a judge that there are good countervailing reasons why cross-examination is required to occur on the day of trial itself. Countervailing reasons should include those that pertain to the fair trial rights of defendants; so for instance where the judge is not satisfied that criminal disclosure requirements have been met. They could also include where pre-recording of cross-examination would be impractical or excessively expensive.

4.80To give operational effect to this recommendation, we suggest that the Ministry of Justice should be responsible for issuing up-to-date memoranda outlining operational processes to be followed where applications to undertake pre-recorded cross-examination are made and granted.

Recommendations

Early disclosure of defenceTop

4.81An underpinning principle of criminal trial procedure is that a defendant is not required to show their hand (disclose what or how they propose to argue in defence) before trial. This applies equally to sexual violence cases as to all criminal cases. The prosecution, by comparison, must disclose all relevant information to the defence unless there is good reason to withhold it, and is under a number of requirements to disclose certain information about its case.

4.82The Criminal Disclosure Act 2008 does impose some limited disclosure obligations on the defence relating to evidence relied on where the defence intends to run an alibi defence and when the defendant proposes to call an expert witness. Otherwise, there are no legislative requirements on the defence to identify those aspects of the prosecution case that it intends to challenge or the evidence it intends to lead.

Context to the issue

4.83In 2005, the Law Commission reviewed the disclosure obligations on defendants in criminal trials292 and made a recommendation that all defendants who are proceeding to trial should be required by statute to disclose the issues in dispute.293 The Commission noted that court practice at the time indicated growing acceptance of the benefits of clarifying the issues to be tried at trial294 and it looked also at defence disclosure precedents overseas.295 It concluded that even in New Zealand’s adversarial criminal justice system, in which it might be considered justified to make the prosecution jump through as many “hoops” as possible before trial, “the greater societal interest in efficiently processing criminal cases demands a degree of mutual cooperation”.296
4.84A proposal for inclusion of a global requirement of early defence disclosure in all criminal proceedings was subsequently included in the Criminal Procedure (Reform and Modernisation) Bill.297 However, that provision was ultimately removed because of concerns that such a provision might infringe the defendant’s right to silence, or might contribute to an erosion of those rights.298 This was despite the Law Commission having concluded that, based on its review of the authorities the right to silence was not engaged by a requirement to disclose one’s defence.299

The issue as it applies in this review

4.85We considered in the course of this present review whether to reconsider the disclosure obligations on defendants in cases involving sexual violence specifically. The suggestion was made that requiring the defendant to disclose certain information about the defence before the trial might reduce the time to get to trial. Time would not then need to be spent on, for example, setting out a range of facts or matters which may not be contested at trial.

4.86It was also suggested that introducing disclosure obligations on defendants might have the additional benefit of helping to reduce potential anxiety felt by complainants. This would be because if the defence case was properly advanced then the complainants may be in a better position to give a measured reply to the questions asked in cross-examination.

Consultation and conclusion

4.87Prosecutors with experience in sexual violence cases were somewhat divided as to whether such a proposal could achieve its aims. Some pointed out that the defence in a sexual violence case usually turns on consent. Requiring the defence to disclose that fact in advance would not, it was suggested, add much of value to pre-trial procedures.

4.88For similar reasons, nor would it necessarily greatly assist a complainant to know that the defence to be argued is the defence of consent. Usually that will already be clear from the facts of the alleged offence. Questions were also raised as to who would inform the complainant of this, and how it would be explained to them what this actually means for their experience of trial, and whether that would in fact go any way towards improving their experience of trial itself.

4.89Ultimately, our consultation on this point did not suggest that the proposed disclosure requirements would effectively address the issues of delay or of complainant anxiety about cross-examination. We therefore make no recommendation for specific defence disclosure obligations in cases involving sexual violence. However, we suggest that it would be worthwhile examining how much information is being voluntarily disclosed already in case management discussions under the CPA 2011 specifically in sexual violence cases. There might be a case to formalise some of those disclosures in a way that might expedite pre-trial procedures and help limit the parties to the relevant issues at trial. That might also put the judge in a position to better identify and control irrelevant questions asked in cross-examination, which we discuss below.

231Figures provided by the Ministry of Justice (4 November 2015). Reference to a “sexual violence trial” is to any trial that includes an offence of sexual violence as its most serious charge (being the charge carrying the highest penalty). They include all cases in which the judge/jury delivered a verdict, all cases in which a mistrial was declared, and all cases determined by guilty plea and/or dismissal either during the trial or on the morning a trial was scheduled to begin. This excludes any time the case was on hold due to outstanding warrants to arrest the defendant for failing to appear at court. The sexual violence offences included in the statistics cited are listed in Appendix A.
232Law Commission Alternative Pre-Trial and Trial Processes: Summary of Submissions to Consultation (NZLC, 2012) at [95].
233Submission from Rape Prevention Education in response to the Law Commission’s Issues Paper.
234Ministry of Justice Criminal Procedure Act 2011: Caseload performance for first twelve months (November 2014). The Report covers the period from 1 July 2013 to 30 June 2014 and is intended to provide an overview of the behaviour of cases from which further qualitative analysis can be based. It states that overall, cases commenced under the Act are progressing faster through the court system and that the new Act may be contributing to this improvement: at 2.
235Venezia Kingi and Jan Jordan Responding to sexual violence: Pathways to recovery (Ministry of Women’s Affairs, 2009) at 48.
236Chief District Court Judge Doogue Rostering Protocol for District Courts of New Zealand (Ministry of Justice, 11 November 2014) at 4.
237“High Court lists” Courts of New Zealand <www.courtsofnz.govt.nz>.
238Law Commission Criminal Pre-Trial Processes: Justice through Efficiency (NZLC R89, 2005) at 37.
239Kirsten Hanna and others Child Witnesses in the New Zealand Criminal Courts: A Review of Practice and Implications for Policy (AUT Institute of Public Policy. 2010).
240Domestic Violence Act 1995, s 46(5).
241Children, Young Persons, and Their Families Act 1989, s 200.
242Criminal Procedure Act 2009 (Vic), s 211.
243Criminal Procedure Act 2009 (Vic), s 212.
244Criminal Procedure Act 2009 (Vic), s 247(2).
245Known as the “Sexual Assault Reform Strategy”, its overall aim was to improve the effectiveness of the system’s response to sexual offending and to victims of sexual violence. The Victorian Government allocated $34.2 million in the 2006/07 state budget to a range of initiatives, and another $8 million in the 2008/09 budget to improve access to prosecution services in regional Victoria: Department of Justice Sexual Assault Reform Strategy – Final Evaluation Report (Department of Justice, Melbourne, 2011) at 7.
246At 106.
247Victims’ Rights Act 2002, s 11.
248Victims’ Rights Act 2002, s 12.
249Victims’ Rights Act 2002, s 30.
250Victims’ Rights Act 2002, ss 34–39.
251Victims’ Rights Act 2002, s 50A.
252Figures provided by the Ministry of Justice (4 November 2015).
253Evidence Act 2006, ss 103-106.
254Evidence Regulations 2007, pt 1.
255Criminal Procedure Act 2011, s 82.
256For children, especially those younger than 16, replaying the EVI is routine: see comments of the Court of Appeal in M v R [2011] NZCA 303 at [2] and Emma Davies and others “Prerecording children’s entire testimony” [2011] NZLJ 335 at 335.
257Crown Law Victims of Crime – Guidance for Prosecutors (6 December 2014).
258Note that the position will change upon enactment of the Evidence Amendment Bill 2015 (27-1). Under clause 32 of that Bill a child witness, when giving evidence in a criminal proceeding, will be “entitled to give evidence in 1 or more alternative ways”. At the time of writing the Bill was awaiting report back from select committee.
259Victims’ Rights Act 2002, s 12(1)(c).
260Kingi and Jordan, above n 235, at 48.
261Jeremy Finn, Elisabeth McDonald and Yvette Tinsley “The potential impact of other proposed reforms on the processes in sexual violence cases” in McDonald and Tinsley (eds), above n 228, 105 at 116.
262Section 103(3) lists the age or maturity of the witness; the physical, intellectual, psychological, or psychiatric impairment of the witness; the trauma suffered by the witness; the witness’s fear of intimidation; the linguistic or cultural background or religious beliefs of the witness; the nature of the proceeding; the nature of the evidence that the witness is expected to give; the relationship of the witness to any party to the proceeding; the absence or likely absence of the witness from New Zealand; and any other ground likely to promote the purpose of the Act.
263Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013) at 223-227.
264At [11.70].
265See Crown Law, above n 257, at [24].
266Evidence Amendment Bill 2015 (27-1), cl 32.
267Evidence Amendment Bill 2015 (27-1), cl 32.
268Pursuant to clause 32 of the Evidence Amendment Bill 2015 (27-1), the new section 107A will provide that if a child witness indicates his or her wish to give evidence in the ordinary way, the party calling the witness may apply to a judge for a direction that the child be permitted to do so.
269M v R [2011] NZCA 303.
270R v Kereopa [2008] DCR 29 (HC) at 11.
271R v Willeman (Tetraplegic: Interpreter) [2008] NZAR 664 (HC) at [5] and [48].
272R v Sadlier DC Auckland CRI 2010-044-004165 (7 December 2010).
273Davies and others, above n 256.
274Emma Davies and Kirsten Hanna “Pre-recording testimony in New Zealand: Lawyers’ and victim advisors’ experiences in nine cases” (2013) 46 Australian & New Zealand Journal of Criminology 239 at 304.
275Law Commission The Evidence of Children and Other Vulnerable Witnesses: A Discussion Paper (NZLC PP26, 1996).
276Law Commission Evidence (NZLC R55, 1999) at 121.
277Law Commission, above n 263, at [11.80].
278M v R [2011] NZCA 303.
279At [34].
280At [38].
281At [36].
282At [40].
283At [35].
284At [25].
285At [25].
286Davies and others, above n 256.
287Letter from Jan Doogue (Chief District Court Judge) to the Law Commission regarding alternative trial processes practice reference (6 October 2015).
288Letter from Jonathan Temm to the Law Commission regarding alternative trial processes (sexual offences trials) (28 October 2015).
289Ministry of Justice Alternative pre-trial and trial processes for child witnesses in New Zealand’s criminal justice system: Issues Paper (2010).
290See Laura Hoyano “Reforming the Adversarial Trial for Vulnerable Witnesses and Defendants” (2015) 2 Crim LR 107 and John Spencer Review of Public Prosecution Services (2011).
291Emily Henderson “Communicative competence? Judges, advocates and intermediaries discuss communication issues in the cross-examination of vulnerable witnesses” (2015) 9 Crim LR 659; Emma Davies and others, above n 256; and Kevin Sleight “Managing Trials for Sexual Offences - A Western Australian Perspective” (paper presented to AIJA Criminal Justice in Australia and New Zealand - Issues and Challenges for Judicial Administration, Sydney, 7 September 2011).
292Law Commission, above n 238, at 52-58.
293At R 26.
294At [170-171].
295At [172-177].
296At [190].
297Criminal Procedure (Reform and Modernisation) Bill 2010 (243-2), cl 64.
298(27 September 2011) 676 NZPD 21418.
299Law Commission, above n 238, at 180-182.