Chapter 3
The existing court process for sexual violence cases

The giving of evidence at trial

3.45The giving of evidence forms a substantial part of the trial itself and is governed primarily by the Evidence Act 2006. Evidence may be presented in written form at trial or by witnesses giving evidence in person.

3.46Any person is eligible to give evidence at trial (apart from the trial judge, jurors, and counsel),181 and those who are eligible may (apart from a defendant) be compelled to do so.182 The defendant has a right to generally be present at the trial,183 but no defendant in a criminal trial can be compelled to appear as a witness either for the prosecution or for the defence.184
3.47Where a witness is giving evidence at trial, the usual process is for the witness to give their evidence in chief first and to subsequently be cross-examined on it by all parties who wish to do so, followed by re-examination if necessary.185
3.48The purpose of cross-examination is to enable each side to test the evidence put forth by witnesses from the opposing side. In Gutierrez v R, the Court of Appeal said that if a fact-finder is asked to disbelieve a witness, the fact-finder must have a reasonable opportunity to properly assess the evidence in question.186 In Tootell v Police, the High Court said that cross-examination gives the finder of fact the opportunity to “make a comparative evaluation of the evidence of both complainant and defendant when [each is] taxed with the other’s story”.187
3.49The Court of Appeal has accepted, however, that “[a]ggressive cross-examination will become improper when it is calculated to humiliate, belittle and break the witness”.188 The judge is expected to control inappropriate cross-examination and, under section 85 of the Evidence Act 2006, may intervene if a question asked of a witness is deemed to be “improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand”. A lawyer for one of the parties may also raise an objection with the judge if they consider an opposing counsel’s cross-examination is improper.

Ordinary and alternative ways of giving evidence

3.50The ordinary way of giving evidence is to do so in the courtroom in the presence of the judge and jury, the defendant(s) and their lawyer(s), and any member of the public who is not excluded by the judge.189

3.51A witness may also apply to give evidence in one of a number of alternative ways as listed in section 105 of the Evidence Act 2006, including:

3.52A witness is also entitled to “communication assistance” to enable that witness to give evidence in court.190 Communication assistance is defined in the Evidence Act 2006 as:191

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.

Evidence of the complainant in sexual violence casesTop

3.53In sexual violence cases, the complainant is usually always the principal witness for the prosecution and will usually always be required to appear at trial to give evidence. The complainant is entitled to have one or more support persons nearby when giving evidence.192 When the evidence of a complainant in a sexual violence case is being given (whether in person, via video, or some other means) the court must be closed to the general public.193

3.54It is sometimes the case in proceedings for sexual violence that the complainant’s evidence in chief is given by playing the video record of their interview with Police. The consultation process suggested there is significant variation throughout the country, however, which we discuss further in Chapter 4.

3.55Cross-examination of the complainant on their evidence will almost always occur in person at the trial itself (with the use of a screen or video link if orders have been made to that effect under section 105 of the Evidence Act 2006). In Chapter 4, we consider the circumstances in which it might be appropriate for both the evidence in chief and the cross-examination of the complainant to be given to the jury by playing a video that has been recorded prior to trial.

Medical evidence in sexual violence casesTop

3.56In a sexual violence case the evidence of the medical doctor who treated the complainant may be put forth either in the form of a formal written statement or by the doctor appearing in person at trial. The doctor’s evidence may include both forensic evidence taken from the complainant and any information obtained by the doctor from the complainant about the incident.

Expert opinion evidence in sexual violence casesTop

3.57Expert witnesses may be called on to give opinion evidence, which is admissible “if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding”.194 This is an exception to the rule that, in general, witnesses must speak only to observed facts and are not permitted to express their opinions or beliefs.195
3.58The courts have long taken into account the opinion of experts.196 In R v Hutton the Court of Appeal said that expert witnesses in both criminal and civil cases “must not be an advocate for the party but must assist the court impartially on matters within his or her area of expertise”.197
3.59In sexual violence cases the prosecution might put forth expert evidence to explain to and educate the jury about how victims of sexual violence behave – for instance, that some victims are as likely to freeze as to physically resist an attack. This is sometimes referred to as counter-intuitive evidence and seeks to correct erroneous beliefs or assumptions that fact-finders may hold about the offending. The legitimate use of such evidence for that purpose was recently confirmed by the Supreme Court in DH v R.198

3.60In Chapter 6 we give further consideration to the appropriate use of this kind of expert opinion evidence in sexual violence trials.

181Evidence Act 2006, s 72. Jurors and counsel can, however, give evidence with the permission of the judge: s 72(2).
182Evidence Act 2006, s 71.
183Criminal Procedure Act, s 117.
184Evidence Act 2006, s 73(1).
185Evidence Act 2006, s 84.
186Gutierrez v R [1997] 1 NZLR 192 (CA), at 199.
187Tootell v Police HC Rotorua CRI-2005-470-37, 16 November 2005 at [9]. 
188R v Thompson [2006] 2 NZLR 577 (CA) at [68].
189Evidence Act 2006, s 83.
190Evidence Act 2006, s 80(3).
191Evidence Act 2006, s 4.
192Evidence Act 2006, s 79.
193Criminal Procedure Act 2006, s 199.
194Evidence Act 2006, s 25.
195Morgan v Nicoll [1933] NZLR 1087.
196See Buckley v Rice Thomas (1555) 1 Plowd 118; 75 ER 182.
197R v Hutton [2008] NZCA 126 at [169]–[170]. Although not directly applicable to criminal proceedings, guidance as to the proper role of an expert witness can be found in the High Court Rules and the Code of Conduct for Expert Witnesses which the rules incorporate: Judicature Act 1908, sch 2: High Court Rules, rr 9.43–9.46.
198DH v R [2015] NZSC 35, [2015] 1 NZLR 625.