Law Society supports proposed changes to child witness requirements
The New Zealand Law Society is strongly in favour of increasing the use of alternative ways for child witnesses to give evidence in the criminal justice system.
The Law Society commented to this effect after the Ministry of Justice asked the Society for its views on the Ministry’s Issues Paper Alternative pre-trial and trial processes for child witnesses in New Zealand’s criminal justice system recently. The Society supports the Government making a number of changes in this area.
Specifically, the Law Society believes that pre-recording children’s evidence before court proceedings should be the usual method, rather than a child having to give live evidence in court.
“The earlier the evidence can be recorded, the more likely it is to be complete and detailed,” the Society states. “Thus it is desirable, where possible, for both examiniation and cross-examination to take place as early as possible, and to be recorded as early as possible. Shortly after disclosure has taken place would be an appropriate time.”
Specific proccesses could be developed to deal with instances where the witnesses evidence may be the subject of challenge or potential cross-examination after being pre-recorded on a matter not readily anticipated until closer to the time of the trial.
The Issues Paper raises the option of removing the defendant from the courtroom while a child gave evidence. The Society states that, in the interest of providing a fair trial, this would only be acceptable if there are CCTV facilities available for the defendant so that they can see and hear the evidence accompanied. There would also need to be a firm judicial direction to the jury that no adverse inferences are to be drawn from that removal of the defendant from the courtroom.
“Without that there is a real risk of prejudice,” the Society says. “Regardless of judicial direction, the defendant must be able to see and hear the proceedings.”
Another possibility raised in the Issues Paper is that of using intermediaries to put questions from counsel to child witnesses in appropirate language. The Society says that overseas evidence suggests that “the use of intermediaries does not unduly interfere with legitimate trial approach of counsel” and that it was likely that “the use of intermediaries will lead to the giving of clear evidence, with less stress on child witnesses and complainants.” However, the Society warns that “there should be an overriding discretion for the trial judge to require the intermediary to put questions in a particular form, if it can be demonstrated by counsel that this is necessary.”
The consultation on the Issues Paper was the first step in a Ministry of Justice policy project on alternative pre-trial and trial processes for child victims and witnesses. Based on feedback received, Ministry will prepare further advice for consideration by the Minister of Justice by May 2011.