Contents

Chapter 4
The court experience of complainants

Issue two: cross-examination of complainants in cases involving sexual violence

4.90Cross-examination of witnesses is a fundamental feature of the adversarial trial system. Yet, the indication from submitters to the Issues Paper and people we spoke to in consultation is that, for complainants, the prospect of cross-examination is one of the most feared and anxiety-inducing parts of trial. It seems relatively clear that this particular aspect of the trial affects the decision to report the alleged offending to Police, given the complainant’s knowledge that he or she is likely to be cross-examined by defence counsel.

The purpose of cross-examination

4.91Cross-examination affords the defence an opportunity to “put the complainant to proof” on aspects of the complainant’s evidence that the defence disputes. In R v Soutar the Court of Appeal said that cross-examination “relates to the challenge and confrontation of opposing witnesses under the adversarial system”.300 Each side has a duty to cross-examine witnesses in the circumstances set out in section 92 of the Evidence Act 2006:

92 Cross-examination duties

(1) In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.

(2) If a party fails to comply with this section, the Judge may—

(a) grant permission for the witness to be recalled and questioned about the contradictory evidence; or

(b) admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or

(c) exclude the contradictory evidence; or

(d) make any other order that the Judge considers just.

4.92The right of the defence to examine witnesses put forth by the prosecution is guaranteed under NZBORA 1990.301 However, cross-examination that is designed to humiliate, belittle or break a witness is not permissible.302 Section 85 of the Evidence Act 2006 allows judges to disallow questions or direct witnesses not to answer on certain grounds, and a judge might intervene in cross-examination if he or she considers that the questions asked are “improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand”. In full, section 85 provides:

85 Unacceptable questions

(1) In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.

(2) Without limiting the matters that the Judge may take into account for the purposes of subsection ​(1), the Judge may have regard to—

(a) the age or maturity of the witness; and

(b) any physical, intellectual, psychological, or psychiatric impairment of the witness; and

(c) the linguistic or cultural background or religious beliefs of the witness; and

(d) the nature of the proceeding; and

(e) in the case of a hypothetical question, whether the hypothesis has been or will be proved by other evidence in the proceeding.

The nature of the problem with cross-examination in sexual violence casesTop

4.93In a sexual violence case, the defence is often one of consent (i.e. that the complainant consented to sex or acted in such a way that the defendant could have reasonably believed they consented). If so, the defence will usually cross-examine the complainant witness on their evidence of absence of consent. Or, the defence might be that the sexual contact never occurred, in which case the complainant will be cross-examined on their evidence that the sexual contact did take place.

4.94We consulted with Dr Linda Beckett (see paragraph 2.42) who reported numerous examples in her research of defence counsel “rudeness to, and bullying of, complainants”. One prosecutor gave anecdotal evidence of defence counsel using body language and gestures to undermine complainants giving evidence (such as eye rolling towards the jury). Auckland Sexual Abuse HELP submitted on our Issues Paper that “[s]eldom have any of our staff reported a defence counsel being genuinely respectful towards a complainant.”303 A District Court judge we spoke to said that many questions are asked in an inappropriate fashion, and suggested that judges must be more prepared to apply some kind of filter to the questions asked and to require defence counsel to desist or reframe where necessary.
4.95However, representatives we spoke to from the Criminal Bar Association did not believe that, in general, defence lawyers question complainants too aggressively. They said:304

... it is inevitable that when a witness gives evidence contrary to the other side's case theory that they will find themselves under some form of attack in cross-examination. The purpose of the rules of evidence is to ensure that that attack is focused on what is relevant and in issue.

In some cases there is no avoiding the fact that that questioning attacks the very integrity of the witness. …it is to be expected that the process of being challenged about evidence will be very difficult for a witness.

4.96Our consultation revealed that supporters of sex offence complainants and experts in the trauma associated with reliving the experience through cross-examination take one view; lawyers who are responsible for defending the accused and who are trained to cross-examine witnesses in an adversarial system take another view. One trial lawyer summed it up to the effect that, quite simply, defence counsel questions are appropriate for lawyers and inappropriate for complainants.

4.97There is also disagreement on whether section 85 of the Evidence Act 2006, which allows judges to disallow inappropriate questions, is being adequately used in sexual violence cases. Some consultees suggested that judges are reluctant to take too interventionist an approach because of the risk of creating grounds on which the case may be appealed.

4.98We did not conduct an empirical study of how frequently section 85 is used in sex offence cases, but we do note one New Zealand study conducted in 2010 which looked at the willingness of judges to intervene where complex questions were asked of children in cross-examination. The study included 16 trials involving children (many of which were for sexual violence)305 and judges intervened 38 times in 10 trials. The authors found that, compared with a 1994 study judges were intervening more often;306 however, they also noted that a number of complex questions were not challenged by judges. The number of prosecutor objections had remained relatively steady between the 1994 and the 2010 study.

4.99In this context, we have considered what could be done to ensure that a complainant’s disputed evidence can be robustly put to proof by defence counsel, which is a defendant’s right and a feature of the existing system, while ameliorating or minimising some of the more distressing consequences for complainants.

4.100We make recommendations for court specialisation in Chapter 5, including a recommendation that judges and prosecutors be required to complete training before they can be involved in sexual violence cases. This may help contribute to a change of culture in the way that sexual violence cases are heard in court. However, we have also considered the options for a specific legislative amendment of section 85 of the Evidence Act 2006.

Amendment of section 85 of the Evidence Act 2006Top

4.101McDonald and Tinsley in From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand recommended that the Evidence Act 2006 should be amended to include a provision that the judge may disallow a question if asked in a way that is unduly intimidating or overbearing, by taking into account the matters in section 85(2).307 They noted calls for greater judicial management of inappropriate cross-examination, and considered such a change may assist such judicial control. They observed that this amendment ought to be a separate section, since the inquiry into the extent to which a question may “intimidate” is focused on the person asking the question:308

However, the inquiry as to the extent to which a question may “intimidate” the witness is arguably focused on a different inquiry to the other aspects of s 85, as it is likely to be about the manner or behaviour of the person asking the question, rather than the substance or content of the question itself. A proper question may be asked in an intimidating way; such a question should still be able to be asked but in a different manner.

4.102The word “intimidating” was in fact included in a draft Evidence Code written by the Law Commission some years earlier,309 but when the Evidence Act 2006 was passed, the word was removed from the legislation at select committee stage on the basis that “there are other definitions of unacceptable questioning which protect the interests of the witness, and we consider that grounds to disallow a question because it is intimidating could lead to the loss of relevant information.”310
4.103The Law Commission returned to the question of amending section 85 to include a reference to “intimidating” questioning in its 2013 review of the Evidence Act 2006.311 The Commission ultimately made no recommendation to amend section 85, partly because the Select Committee had seen fit to remove the reference to intimidating questioning, and partly because the Commission was not convinced it would add much to the section.312
4.104The 2013 review of the Evidence Act 2006 was an operational one, not a “first principles” review.313 It was also a general review of the Act’s operation, and the Commission was not in a position to consider the experience of complainants in sexual violence cases and how their experience is shaped or affected by the approach to questioning of defence counsel in cross-examination.

4.105If section 85 is to be considered again, we consider that this should take place as part of a consideration of how that section operates within the Act as a whole, perhaps as part of a future review of the Evidence Act. For the present instance we make no recommendation in respect of section 85.

Use of intermediariesTop

4.106It has been noted by Hanna and others that the cross-examination of children raises particular issues and that overseas, intermediary models for children and vulnerable witnesses have proven successful.314 Intermediaries, as they operate in England and Wales, are third parties who sit alongside the witness to communicate questions to the witness and answers to the court. They do not decide what questions to put. Their role is to assist communication and understanding, not to take on the function of investigator.315

4.107Due to time constraints we have not been able to consider a full proposal for intermediaries in sexual violence cases involving children and vulnerable witnesses. With greater consideration, it may however be possible for that to be further explored within a pilot sex offences court (see Chapter 6).

4.108From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand reached the conclusion that further research was required on implementing an intermediary model.316 They recommended, however, that an amendment be made to the Evidence Act 2006 in its definition of “communication assistance”. The definition pertains to section 80(3) of the Evidence Act 2006, which provides for the entitlement of a witness in a civil or criminal proceeding to “communication assistance” to permit that witness to give evidence. “Communication assistance” is defined at section 4 as:

… oral or written interpretation of a language, written assistance, technological assistance, and any other assistance that enables or facilitates communication with a person who—

(a) does not have sufficient proficiency in the English language to—

(i) understand court proceedings conducted in English; or

(ii) give evidence in English; or

(b) has a communication disability.

4.109As noted by McDonald and Tinsley, however, although a witness in proceedings may struggle to answer questions (for example, because of age) they may not have a “communication disability” as defined in the statute.317 They suggested that an amendment could make it clear that communication assistance should be available not only to people who have a “communication disability”, but also to those who may struggle to comprehend questions. We support that recommendation and reproduce it in our Report.

Recommendation

300R v Soutar [2009] NZCA 207 at [27]. The Court said that it is not, however, an absolute rule.
301New Zealand Bill of Rights Act 1990, s 25(f).
302R v Thompson [2006] 2 NZLR 577 (CA) at [68].
303Law Commission, above n 232, at 275.
304Letter from the Criminal Bar Association to the Law Commission regarding the alternative trial process reference (9 September 2015).
305Hanna and others, above n 239, at 88.
306At 91.
307Elisabeth McDonald and Yvette Tinsley “Evidence Issues” in McDonald and Tinsley (eds), above n 228, 279 at 317.
308At 317.
309Law Commission Evidence: Volume 2 (NZLC R55, 1999) at 208.
310Evidence Bill 2005 (256-2) (select committee report) at 10.
311Law Commission, above n 263.
312At [11.23].
313At iv.
314Hanna and others, above n 239.
315Ministry of Justice Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures (London, 2011) at [2.196].
316Elisabeth McDonald and Yvette Tinsley “Evidence Issues” in McDonald and Tinsley (eds), above n 228, 279 at 312-313.
317At 312-313.