Pre-recording Children’s Evidence in New Zealand: R v M; R v E (excerpt from Crim LJ 35.5)

Pre-recording Children’s Evidence in New Zealand: R v M; R v E

by Dr Emily Henderson
Crown Prosecutor, Honorary Research Fellow at Auckland University

The Court of Appeal of New Zealand has released its much anticipated decision on two appeals regarding the pre-recording of children’s cross- and re-examination in criminal trials.¹

Recent research confirms New Zealandhas a serious problem with delays before trials involving child witnesses. The average delay from committal to trial is 15 months, considerably longer than the average for trials not involving children.² In late 2010, the Auckland Crown Solicitor decided to circumvent these delays by applying to pre-record every child complainant’s testimony at a pre-trial hearing, to be played at trial after their evidential interview videos. The Crown relied upon s 105(1)(iii) of the Evidence Act 2006 (NZ), allowing witnesses to testify “by a video record made before the hearing of the proceeding”. The District Court allowed several applications and a few pre-recording hearings have already been held.³

The Court of Appeal accepted that s 105 permits pre-recording. However, it stated that the “sole advantage” of the process is to reduce the stress which long delays can cause to witnesses, thereby hastening the complainant’s recovery. It concluded that that benefit will rarely outweigh the disadvantages to the accused, the court and the witness. Accordingly, pre-recording will only be appropriate in extreme situations, such as where the witness is dying or going overseas, and only where it can be completed significantly in advance of trial.

Unfortunately, the court’s analysis overlooks compelling evidence from Australia, where some States have used pre-recording successfully for nearly 20 years, and the extensive international academic literature.⁴ Western Australia has pre-recorded child witnesses’ entire evidence in sexual abuse cases since the early 1990s. Three other Australian States have since followed suit.⁵ Several studies of judges and counsel show that they overwhelmingly recommend pre-recording.⁶ These practitioners cite not one advantage, but five:

(1) Reduced delays; reduced stress

Australian practitioners universally agree with the Court of Appeal that pre-recording reduces the stress that delays can cause to children. Studies show children suffer significant stress waiting to testify and that delay exacerbates that stress.⁷

For many years in Western Australia, cases involving children were severely delayed (in 2005 the average delay was 18 months).⁸ With pre-recording, children usually testify within four to six weeks of committal. Since 2008, after significant investment in infrastructure, Western Australia shrunk delays before trial to almost the same level, reducing the need for pre-recording.⁹ New Zealand, however, cannot afford similar investment.

The Court of Appeal states that any reduction in children’s stress may be offset by their awareness that close relatives are still waiting to testify. Nowhere in the literature does any practitioner or party who has experienced pre-recording raise any such concern.

(2) Better quality of evidence

Secondly, and most importantly, pre-recording improves the quality of children’s evidence. Children’s memories, particularly for peripheral detail, erode more quickly than those of adults.¹⁰ Stress is known to erode memory more quickly.¹¹ Long delays before trial are therefore doubly damaging to children. Pre-recording their evidence early means it is likely to be more accurate and more complete.¹²

Better quality evidence improves decision-making, and therefore meets society’s interest in accurate adjudication. Elsewhere the Court of Appeal has said fairness in trials encompasses society’s interest in accuracy and cited the likelihood of improved evidence quality as a reason to admit evidential videos as evidence-in-chief.¹³

Taking evidence early should also benefit innocent accuseds, since untruthful children will be less credible should they claim not to remember.

Long delays also mean cases involving the very young, very old or intellectually impaired are nearly impossible to prosecute: their memories are too short lived. Pre-recording may offer these most vulnerable people their only hope of accessing justice.

(3) Editing

Thirdly, pre-recording allows prejudicial and inadmissible evidence to be edited before the jury hears it, preventing possible mistrials. Knowing such information can be edited also enables counsel to cross-examine on issues they might otherwise avoid.

Editing is also relevant to the court’s concern that an extra pre-trial hearing increases costs. Because tapes are edited of inadmissible evidence and also of adjournments, hearing the child’s evidence at trial is quicker, saving jury and court time. Watching the evidence without interruption may also make it more comprehensible.

(4) Better pre-trial decision-making

Australians also say that because the strength of the child’s evidence is known before trial more cases are resolved before trial (by plea or withdrawal of charges) and the prosecution can also amend the charges, streamlining the trial.¹⁴ The potential savings are obvious.

(5) Children need not testify at trial

In principle, pre-recording frees children from appearing at trial. The Court of Appeal asserts that this is illusory, stating children will often be recalled at trial when new evidence emerges. However, Australian practitioners say this is extremely unusual. Recently, one experienced Western Australian judge stated that he could find only two applications to recall a child, one of which was unsuccessful.¹⁵

The reason is obvious: children usually testify in abuse cases. Most abuse cases involve small groups of people, all well identified and available. Truly new information is very rare.¹⁶ Accordingly, Western Australia uses the child’s pre-recorded examination for any retrial (where the reason for retrial is not the child’s evidence), since any real change of defence is also unusual.

These are the main advantages. There are others, for example, pre-recording children’s evidence reduces the likelihood of encounters with and intimidation by the accused’s supporters attending trial.¹⁷ Practitioners also say that without a jury to accommodate judges are more flexible in allowing children breaks. Further, whereas now children routinely wait for hours before testifying while juries are empanelled and pretrial arguments heard, at a pre-recording they are called straight away.¹⁸

However, the Court of Appeal also saw other problems. First, pre-recording forces the accused to show his or her hand early. However, this is unlikely to be a major issue with child witnesses: The vast majority of these cases concern child abuse, where defences are almost invariably restricted to a few well-known arguments.¹⁹ There will be cases where the defence is unanticipated, but that pre-recording is not a universal panacea is no reason to dismiss it.

The court also contends that since pre-recording children’s evidence removes any need to prioritise the trial, defendants will have to wait longer. However, priority was never accorded defendants. It was accorded the child. It cannot be unfair to lose something which was never yours. Nothing suggests defendants in child cases merit prioritisation over other defendants. Thus, de-prioritising child cases makes trial allocation fairer to all. Pre-recording also means child cases can be given “back-up” fixture dates, and so may get heard faster.

The court also raised concerns about juries’ reactions to recorded rather than live evidence. First, it stated counsel would lose the opportunity to tailor questions to the jury’s reactions. This is curious. The traditional purpose courts ascribe to cross-examination is to test the evidence. That counsel might tailor the examination to audience reaction suggests that it is acceptable to cross-examine not on what is objectively questionable about the evidence but as a kind of theatrical performance to attract sympathy. Either a question raises a valid concern or it should not be put. Alternatively, if a valid question is not put (because counsel fears audience reaction or otherwise), counsel is remiss. Counsel can explain the reasons for unsympathetic questions in submissions.

Secondly, the court was concerned that only seeing the witness on screen reduces jurors’ ability to assess witness credibility. This overlooks the fact that many children already testify via evidential video interview and/or CCTV, and that Parliament (and previous courts) accepted that juries can accommodate those options and still make fair assessments. Moreover, researchers cannot find that viewing witnesses on screen has any discernable impact upon juries.²⁰

Thirdly, the court stated that pre-recording weakens jurors’ ability to assess the accused’s credibility because the accused, having already seen the tape, may stage his or her reactions. Again, this ignores the ubiquity of evidential videos, which the accused will also have seen. Arguably, the accused’s reaction to a witness first making allegations is far more telling a moment, yet Parliament elected to weather that loss.

Unlike the Court of Appeal, Western Australia defence counsel do not believe pre-recording disadvantages the accused. Several stated that it is an advantage since (a) they are much better prepared; and (b) pre-recorded testimony lacks the emotional impact of live evidence.²¹

The Court of Appeal concluded its discussion declaring that delays are better solved by prioritising trials involving children than by pre-recording. This ignores the fact that the first judicial direction to fast-track children’s cases was in 1992,²² yet delays now are nearly twice as long as those in 1995.²³ Prioritising trials failed, but it is far easier to schedule a day to pre-record a child’s evidence than to fast-track a week’s trial.

The court is right that pre-recording necessitates early prosecutorial disclosure: the accused must be fully prepared. Some English critics have argued sufficiently speedy disclosure is impossible,²⁴ although Australian States adapted quickly.²⁵ The court does not suggest that New Zealand could not also adapt.

By overlooking nearly 20 years of international experience and debate, the court has missed evidence that pre-recording can be very useful in facilitating children’s evidence.

Ironically, past Courts of Appeal have used their inherent jurisdiction to push beyond the legislation to adopt worthwhile procedural initiatives for child witnesses.²⁶ Here the court finds it has legislative jurisdiction but yet will not take the initiative.

1 R v M (CA335/2011); R v E (CA339/2011) delivered on 30 June 2011 by Glazebrook, Chambers and Arnold JJ.

2 See Hanna K, Davies E, Henderson E, Crothers C and Rotherham C, Child Witnesses in the Criminal Courts: A Review of Practice and Implications for Policy (The Law Foundation, Auckland, 2010). By comparison, English child witnesses wait on average eight months in Crown Courts (High Court equivalent) and three months in the lower courts, which is considered a significant problem.

3 R v Sadlier (unreported, Auckland District Court, CRI-2010-044-4165, 7 December 2010).

4 See, for example, Hoyano L and Keenan C, Child Abuse: Law and Policy Across Boundaries (1st ed, Oxford University Press, 2007); Hoyano L, “The Child Witness Review: Much Ado About Too Little” [2007] Criminal Law Review 849; cf Birch D and Powell R, Meeting the Challenges of Pigot: Pre-trial Cross-examination of Vulnerable Witnesses Under s 28 of the Youth Justice and Criminal Evidence Act 1999 (Home Office United Kingdom, 2003).

5 Queensland adopted it in 2003, the Northern Territory in 2004 and South Australia in 2010. New South Wales, the Australian Capital Territoryand Victoria have all debated its introduction but so far have not followed suit. The Australian Law Reform Commission (ALRC) and its Human Rights and Equal Opportunity Commission also support pre-recording strongly: ALRC, Seen and Heard: Priority for Children and the Legal Process, Report No 84 (1997).

6 See, for example, Australian Federal Police (AFP) and the ACT Office of the Director of Public Prosecutions (ACT DPP), Responding to Sexual Assault: The Challenge of Change (2005); Eastwood C and Patton W, The Experiences of Child Complainants of Sexual Abuse in the Criminal Justice System (Queensland University of Technology, 2002); Hanna et al, n 2. See also Jackson H, “Child Witnesses in the WA Criminal Courts” (2003) 27 Crim LJ 199.

7 AFP and ACT DPP, n 6, p 133; Eastwood and Patton, n 6, p 115; Hoyano and Keenan, n 4, p 640. Conversely, Plotnikoff and Woolfson indicated that in England defendant/witness contact and intimidation is still a regular occurrence at United Kingdom trials (conducted without pre-recording): Plotnikoff J and Woolfson R, Measuring Up? Evaluating Implementation of Government Commitments to Young (2009).

8 ACT and ACT DPP, n 6, p 144. Similarly, in 2002 the average was 17.5 months (Eastwood and Patton, n 6, pp 49, 114).

9 Personal communication with Judge Hal Jackson (14 April 2010).

10 Malloy LC and Quas JA, “Children’s Suggestibility: Areas of Consensus and Controversy” in Kuehnle K and Connell M, The Evaluation of Child Sexual Abuse Allegations: A Comprehensive Guide to Assessment and Testimony (Wiley, Hoboken, NJ, 2009) p 267.

11 Nathanson R and Saywitz KJ, “The Effects of the Courtroom Context on Children’s Memory and Anxiety” (2003) 31 Journal of Psychiatry and the Law 67.

12 Spencer JR and Flin RH, The Evidence of Children: The Law and Psychology (2nd ed, Blackstone, 1993); AFR and ACT DPP, n 6, p 132; Hoyano and Keenan, n 4, pp 638-639; Spencer JR, “Evidence and Cross-Examination” in Lamb ME, La Rooy DJ, Malloy LC and Katz C (eds), Children’s Testimony: A Handbook of Psychological Research and Forensic Practice (John Wiley & Sons, 2011).

13 R v E (CA 308/06) [2008] 3 NZLR 145.

14 Hanna et al, n 2, Ch 5; Davies E, Henderson E and Hanna K, “Facilitating Children to Give Best Evidence: Are There Better Ways to Challenge Children’s Testimony?” (2010) 34 Crim LJ 347 at 351.

15 Judge Hal Jackson speaking at the Conference on Children’s Evidence (Cambridge University, 14 April 2011).

16 Spencer J, “Evidence and Cross-examination” in Rooy LDL, Malloy LC, Katz C and Lamb ME (eds), Children’s Testimony (2nd ed, Wiley).

17 Hoyano and Keenan, n 4, p 641.

18 AFP and ACT DPP, n 6, p 133.

19 Spencer JR, “Children’s Evidence: The Barker Case, and the Case for Pigot” [2010] 3 Archbold News 5; Davies E, Henderson E et al, “In the Interests of Justice? The Cross-examination of Child Complainants of Sexual Abuse in Criminal Proceedings” (1997) 4 Journal of Psychiatry, Psychology & the Law 217.

20 New Zealand Law Commission, The Evidence of Children and Other Vulnerable Witnesses, A Discussion Paper (1996) p 28; Davies G and Noon E, An Evaluation of the Live Link for Child Witnesses (United Kingdom Home Office, 1991).

21 Hanna et al, n 2, Ch 5.

22 New Zealand Law Commission, n 21; Davies E and Seymour F, “Questioning Child Complainants of Sexual Abuse: Analysis of Criminal Court Transcripts in New Zealand” (1998) 5 Psychiatry, Psychology and Law 47.

23 Lash B, Time Taken to Process Sexual Abuse Cases Through the Courts, unpublished report for the Department of Justice (Wellington, New Zealand, 1995) pp 4, 13. Similarly, in Western Australia the situation in 2002 and 2005 (17.5 and 18 month delays respectively) had worsened since 1998 despite various initiatives to improve case management and prioritise cases involving children: Eastwood and Patton, n 6, p 115.

24 See Birch, n 4; cf Hoyano, n 4.

25 Jackson, n 6.

26 For example, before the Evidence Amendment Act 1989 (NZ) came into force, the High Court used the inherent jurisdiction to introduce screens – see R v Rihari (unreported, T4/88, Whangarei High Court, Hillyer J, May 1988); R v Vloet (No 2) (unreported, T34/88, Auckland High Court, Hillyer J, June 1988) – and evidential video interviews: R v Accused [1992] 1 NZLR 257.

The citation for this article is (2011) 35 Crim LJ 300.