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Dealing to pre-trial delay for vulnerable witnesses

17 November 2016 - By Dr Emily Henderson

The Law Commission’s report late last year on the reform of trials of sexual offences made a series of recommendations for reform for vulnerable witnesses.

These recommendations stretched from instituting a new alternative process to simply making greater use of measures already available. (See New Zealand Law Commission 2015 The Justice Response to Victims of Sexual Violence).

In the latter camp, one recommendation was to explore pre-recording cross-examination before trial under s 105 of the Evidence Act 2006. This is, of course, something the Court of Appeal confirmed was possible in 2011, but which it strongly discouraged except in extreme cases (R v M (CA335/2011); R v E (CA339/2011) on 30 June 2011 per Glazebrook, Chambers and Arnold JJ).

Pre-recorded cross-examination is a response to long pre-trial delays which has been pioneered in Western Australia since 1991.

Pre-trial delay is endemic in many common law jurisdictions, including ours, with studies showing average delays are actually longer in child witness cases.

Studies also show that – unsurprisingly – delay erodes memory and that waiting for trial can cause great stress.

While most countries – including ours – have tried to manage delay by directions prioritising child witness cases, this has proven unsuccessful.

In 2010, delays here stood at 15 months from charge to trial. In 1996, when the fast-tracking directive was first issued, delays were only eight months long. (See Hanna, Kirsten, Emma Davies, Charles Crothers, and Clare Rotherham. 2010. “Child Witnesses in the New Zealand Criminal Courts: A Review of Practice and Implications for Policy”, Auckland, Institute of Public Policy).

Western Australia already routinely pre-records evidence-in-chief for children, as do we. However, they then have an expedited discovery process after which, within a few months of charge, they convene a special hearing attended by judge, counsel and defendant where the child is cross-examined in the normal way and proceedings are recorded. Both tapes are then played to the jury at trial.


So successful has it been that every Australian state except NSW has enacted similar legislation.

Studies show that Western Australian practitioners – judges, prosecutors and defence counsel – find pre-recording unproblematic, regard it as benefiting both sides, and certainly do not see it as threatening the fairness of trial. (Henderson et al 2012; Jackson, Hal; 2012, “Children’s Evidence in Western Australia” in Children and Cross-examination: Time to Change the Rules? edited by John Spencer and Michael E Lamb, 75–91. Oxford: Hart Publishing.)

In 2013 England and Wales piloted the measure so successfully that this September they announced they will be rolling it out nationally.

So why don’t we do it?

In fact, for a while, we did: From 2010 to 2011 there were around 15 pre-recording hearings in the Auckland District Court. A favourable academic evaluation was published in 2012 – Davies, Emma, and Kirsten Hanna, 2013, “Pre-Recording Testimony in New Zealand: Lawyers’ and Victim Advisors’ Experiences in Nine Cases” Australian and New Zealand Journal of Criminology 46 (2): 289–305.

However, by the time the study was published, the Court of Appeal had already put a stop to further trials.

In coming to its decision, the Court of Appeal does not reference the Australian experience, nor much of the extensive international academic discussion then available. It could not, of course, have known that the New Zealand evaluation would go so well or that England and Wales would subsequently find the measure so useful.

Time to think again

On the back of the Law Commission’s recommendation, it may now be time to think again about pre-recording.

The Court of Appeal saw the only advantage of pre-recording as the reduction of stress on the witness, but in fact pre-recording delivers a range of benefits. (See Henderson et al 2012; Jackson, Hal. 2012. “Children’s Evidence in Western Australia”.)

First, of course, the usual delays are circumvented and the child is free of the stress of waiting much earlier.

The Court of Appeal feared that children might regularly be recalled at trial if further evidence emerged. However, Australian research shows that this happens only very rarely. Moreover, the recording is available for any re-trial or appeal.

Second – crucially – practitioners agree that the quality of the evidence is better as it is collected earlier.

Third, the recording the jury hears is shorter and streamlined because it can be edited of breaks and adjournments, not to mention prejudicial or inadmissible evidence, reducing the chances of an aborted trial.

Editing also enables the court to adopt a more flexible approach to a vulnerable witness, allowing more frequent breaks or even that the hearing be convened at a venue outside the court.

Practitioners also say that pre-recording cross-examination enables them to make better pre-trial decisions, since they already know the extent to which the child witness – generally the complainant – comes up to brief.

The ability to drop or amend charges or to plead at an earlier stage is much appreciated.

Pre-trial delay is a real and significant problem for our courts, but current attempts to deal with it are demonstrably failing.

Pre-recording cross-examination may seem a radical step. However, the experience of our closest legal counterparts show that, in fact, it is remarkably straightforward and delivers real improvements to the quality of the evidence.

Dr Emily Henderson is a senior litigator at Henderson Reeves Connell Rishworth in Whangarei. She publishes internationally on criminal trial reform and in 2012 was awarded the New Zealand Law Foundation’s International Research Fellowship to research cross-examination reform. In 2015 she was awarded the International Investigative Interviewing Research Group award for Academic Excellence. She is part of the Benchmark project, funded by the NZLRF and IHC, developing guidelines for practitioners working with vulnerable witnesses and defendants.

Last updated on the 17th November 2016