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Simon Power viewpoints on children’s evidence

Introducing a more inquisitorial approach to gathering and presenting evidence from child witnesses will be given major attention in 2011, Justice Minister Simon Power says.

In fact, he sees this project as so important, Mr Power has told the Ministry of Justice to “prioritise” its work on this matter and to have it ready “earlyish” in the year.

The Minister identifies two major benefits that could come from such a change:

  • One is that the credibility of the evidence would be enhanced.
  • The second is that the child would not be subjected to “a process of rebrutalisation through the adversarial system.”

“I’m starting with children,” Mr Power says, “but I’d like to see it extended to victims of sexual violence eventually.”

His investigation into introducing a more inquisitorial approach has been going on for some time now.

It has included a visit to Austria and Germany in May 2010, where he and Secretary for Justice Belinda Clark “looked at how court systems interacted with children in particular.”

What they observed was a room at the back of the main courtroom. That room was “basically done out like a kindergarten”.

A child expert – “somebody who understands language and linguistics and intonation from children” – sat in the back room with the child.

“The judge in the courtroom had the prosecution and defence there, who put to the judge questions they thought should be asked of the child, either by way of evidence in chief or cross examination, and the judge made a determination about whether they were appropriate.

“Then they were put to the child expert, who then put the questions to the child. It was videotaped.

“Counsel in the main courtroom could see it all on a screen, could watch the reactions and, of course, could cross examine effectively.

“The idea behind it is that their evidence was taken and tested as close to the commission of the alleged offence as possible.

“In our system, it is tested quite a long way away from the alleged offence. On average, it takes 15 months for a case involving a child from the time the information is laid until the time they appear in court.

“The credibility of the evidence, frankly, is enhanced if it is tested as early as possible.

“What happens then is the videotape of that interview is effectively entered as evidence in the trial and is not contestable unless exceptional circumstances arise, like an alibi.

“So the idea is that the child is not hanging around for 15 to 18 months and is not subjected to a process of rebrutalisation through the adversarial system, which would occur having that evidence tested 15 months later,” Mr Power says.

“So I’m having a very hard look at it. I’m very keen on it and the Ministry of Justice have been beavering away on papers for early 2011.”

This article was published in LawTalk 764, 28 January 2011, page 14.

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Last updated on the 11th May 2012