Evidence Act 2006 Summary

Evidence Act  2006: A review by Robert Ludbrook.

The intention of the Evidence Act 2006 (which is likely to come into force in May 2007) is to draw together the statutory provisions and common law rules of evidence into one comprehensive Act. Some provisions of the Act are relevant to children and their rights

Evidence given by child complainants or witnesses in criminal proceedings
Children who are the victims of sexual abuse or physical abuse are often called as a witness to give evidence at the hearing of a prosecution against the alleged perpetrator of the abuse. Such prosecutions often fail because the child complainant or a child witness is cross-examined by an experienced criminal lawyer who sets out to discredit the evidence given. Defence lawyers have various techniques to upset and confuse child witnesses in order to convey to the jury the impression and a child witness is unreliable or has changed his or her story.

Changes made in recently  enabled the Judge presiding over a criminal trial for a sexual crime to direct that a child complainant under the age of 17 years may give evidence:

• by way of pre-recorded videotape with questions asked by defence lawyers in cross-examination being channelled via audiolink through an approved person sitting next to the child who repeats the question to the child;
• with a screen so that the child will not be able to see the accused while giving evidence but the judge and jury will be able to see the child.

In giving such directions, the Judge must have regard to the need to minimise stress on the complainant while at the same time ensuring a fair trial for the accused.

The Evidence Act 2006 retains these protections for child complainants and broadens their ambit by:

• extending to 17 year old complainants in a prosecution for a sexual crime the right to give evidence in one of the alternative ways referred to above. In the Evidence Bill, as introduced, the power to direct that a young complainant give evidence in an alternative way, did not apply to 17 year olds. It was amended at Select Committee to bring the provisions into line with the definition of ‘child’ in UN Convention on the Rights of the Child (UNCROC): s107.
• Empowering the presiding judge to direct that a witness in any civil or criminal proceeding (including a child witness) give evidence in an alternative way where the Judge considers there is a need to do so because of the age or maturity of the witness, any physical, intellectual, psychological, or psychiatric impairment of the witness, any trauma suffered by the witness, the witness's fear of intimidation or the relationship between the witness and the accused: s103.

Comment
These changes have the potential to give greater protection to child complainants and child witnesses and are to be welcomed. However, the amended provisions do not give adequate protection to child complainants and child witnesses and do not fully conform with the rights given to children in UNCROC:

• There is no presumption that a child complainant or child witness will be permitted to give evidence in an alternative way. In every case it is a matter for the discretion of the presiding judge (Art 3 & Art 39) ;
• There is no requirement that the views of the child complainant or child witness be taken into account when the judge makes a decision (Art 12.2;
• In the case of complainants and witnesses under 18 years relevant matters which should be taken into account by the presiding judge should include:
• the distress and psychological harm which may be suffered by the child at having to make face-to-face contact with the defendant; and
• the inhibition on the child’s ability to give evidence or the detriment to the quality of the child’s evidence which might result from the child having to face-to-face contact with the defendant (Art 19).

Power of Judge to disallow unacceptable questions
Section 85 Evidence Act 2006 gives a presiding judge the power to disallow a question put to a witness where the Judge considers  the question is improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand after taking into account the age and maturity of the witness, any physical, intellectual, psychological, or psychiatric impairment of the witness, and the linguistic or cultural background or religious beliefs of the witness: s85. This section is not specific to children but it is in broader terms than s14 Evidence Act 1908 which enabled the presiding judge to disallow questions which are indecent or scandalous or are intended to insult or annoy or are needlessly offensive.

The ability of a child to understand questions depends not only on the child’s age and maturity but also on the stage of language development attained by the child and by the form and language in which the questions are framed. The child’s comprehension and ability to answer questions is also influenced by the environment in which the child gives evidence. Children of the same age can vary considerably in their confidence and in their level of comprehension and oral language skills. Children often struggle with questions which lawyers put to them because of their unfamiliarity with the wording of the question and the language used by the questioner. It is well known that children respond best to open questions expressed in simple language. They struggle with leading questions, long rambling questions and questions which contain a double negative. Children find it difficult to tell the questioner or the Judge that they do not understand a question or to ask a lawyer to repeat a question they do not understand. The Queensland Law Reform Commission in its report Evidence of Children (2000) recommended that the Court should have the power to disallow a question put in cross-examination of any witness under the age of 18 years which is (a) misleading or confusing (b) phrased in inappropriate language, or (c) unduly annoying, harassing, intimidating, offensive, oppressive or repetitive.

Comment
While s85 is an improvement on the current legal position it is not specific to children under 18 years. Art 39 UNCROC requires the government to take all appropriate measures to promote the psychological recovery and social reintegration of children who have been abused in an environment which fosters their health, self-respect and dignity. In its 2003 report on New Zealand the UN Committee recommended that services and programmes aimed at assisting victims of abuse be expanded and that these be provided in a child-sensitive manner.

A separate section should be inserted in the Evidence Act to give the Court the power to disallow any question put to a witness under the age of 18 years where the question is:

(a)  phrased in language or in a form which is inappropriate or confusing taking into account the child’s age, language development and level of comprehension;

(b)  unclear, intimidating or oppressive or is likely to mislead or confuse the child.

Expert opinion evidence
Under current law, a child psychiatrist or psychologist with experience in the treatment of sexually abused children may give evidence as an expert witness as to:

• the intellectual attainment, mental capability, and emotional maturity of the complainant;
• his or her professional assessment of the complainant based on examination of the complaint or observation of the complainant giving evidence;
• the general development level of children of the same age group as the complainant; 
• whether any evidence given during the proceedings by any person (other than the expert witness) relating to the complainant's behaviour is, from the expert witness's professional experience or from his or her knowledge of the professional literature, consistent or inconsistent with the behaviour of sexually abused children of the same age-group as the complainant.

This provision was introduced into the Evidence Act 1908 because experience had shown that children and young people who alleged sexual abuse were frequently placed at a disadvantage in a criminal court because of their youthfulness, naivety or lack of comprehension. Defence counsel might confuse a child complainant by repeatedly asking the same question or asking lengthy or convoluted questions and then suggest to the jury that the evidence of the complainant was unreliable because of conflicting or inconsistent answers.  It is quite normal for children (particularly young children) as a result of multiple interviews or under the pressure of cross-examination in court to agree with adult authority figures or to give an answer to a question when they have not fully understood the question or to give different answers at different times.

Section 23G of the Evidence Act 1908 serves a useful purpose in allowing juries to receive evidence of children’s developmental capacities and how their developmental immaturity is likely to affect their evidence, thus reducing the disadvantage that child complainants suffer in giving evidence in court and being cross-examined. Any difficulties with the section have been overcome by Court of Appeal rulings which clarify that a child psychiatrist or psychologist who gives expert evidence under s23G:

• must not comment on the truthfulness or credibility of the child complainant because it is for the judge or jury to draw their own conclusions as to the truthfulness of witnesses and the weight to be given to their evidence;
• must base their assessment of the child’s intellectual attainment, mental capability, and emotional maturity on their examination and observations of the complainant and not on hearsay evidence gathered from the child’s parents or others who know the complainant.

Comment
This provision is omitted from the 2006 Act and is replaced by more general provisions in section 25 which permits expert opinion evidence to be given where that evidence is likely to provide substantial help to the judge or jury in understanding other evidence or in ascertaining any relevant fact. This definitely weakens the protection available for child complainants.

Right of Judge to comment on the fact that a defendant has not given evidence at trial
Section 29 of the 2006 Act allows the presiding Judge to comment on the fact that an accused has not given evidence at the trial.

Comment
This is a minor departure from the right of silence enjoyed by all accused persons and will move the balance slightly in favour of the prosecution where an accused chooses not to give evidence in answer to the evidence given by a complainant.

Questions as to sexual experience of complainants in sexual cases
Limitations on asking witnesses in sexual cases about the complainant’s previous sexual experience or about her/his reputation in sexual matters were imposed by the Evidence Act 1908. Section 44 Evidence Act 2006 is in almost identical terms. It provides that, in a criminal trial for a sexual offence, questions may not, without leave of the Court, be put to a witness where the questions relate directly or indirectly to the sexual experience of the complainant with persons other than the defendant. Evidence on such matters cannot be given without the Court’s leave. The Judge can only admit such questions or evidence where satisfied that it would be contrary to the interests of justice to exclude the evidence because of the direct relevance of the question or the evidence to the facts in issue in the proceedings.

Comment
The section applies only to evidence of a complainant’s previous sexual experience with persons other than the defendant. The Law Commission in its report Evidence went further and proposed that questioning of a complainant about previous sexual experience with the defendant should not be permitted except where it is directly relevant to the conduct which constitutes the alleged offence or is of such direct relevance as to render its exclusion contrary to the interests of justice. It is disappointing that his recommendation of the Law Commission was not incorporated in the 2006 Act.

Any sexual experience of a child under the age of 18 years will usually be the result of a criminal offence committed by an older person. Such experience should not be able to be used to discredit a child complainant.

Support persons
Section 79 Evidence Act 2006 allows complainants to have, as of right, a support person seated close to them while giving evidence. Other witnesses are only entitled to a support person with leave of the Judge.

Comment
For a child witness who is not a complainant, giving evidence at a court hearing is likely to be traumatic and distressing and the child should be entitled to a support person as of right.

Witnesses under 12 years
Under s77 Evidence Act 2006 witnesses under the age of 12 years can give evidence without first having to swear an oath or make a formal affirmation. They must promise to tell the truth and their evidence will then be treated in same manner as if it had been given on oath. The Law Commission proposed in 1999 that younger children should not have to make a promise to tell the truth and that they be permitted to give evidence after the Judge has explained the importance of telling the truth and not telling lies. Under s77 it is open to the Judge to decide whether a child under 12 years should give a promise to tell the truth or whether it is sufficient for the Judge to instruct the child on the importance of telling the truth.

Comment
Earlier laws as to the competency of child witnesses required Judges to question children as to their understanding of “telling the truth” and “the consequences of telling lies”. Such requirements often worked to the disadvantage of child witnesses who lack the powers of abstract thought to give satisfactory answers to questions about the meaning of truth and falsehood and what happens to liars. These questions have occupied the minds of philosophers and theologians for centuries and would stump many adults.

Section 77 is an improvement on existing law and partially incorporates the recommendation of the Law Commission.

Withholding address and occupation of a complainant or witness in sexual cases

Under ss77 and 78  Evidence Act 2006 the full address of a complainant or witness can only be given in Court with the permission of the Judge and in sexual cases the occupation of a complainant or witness can only be given with the Judge’s permission.

Comment
This provision should be extended prevent disclosure of the name and address of any school attended by a child complainant or witness.

Restrictions on cross-examination by unrepresented party

Section 95 Evidence Act 2006 states that a party to a sexual case who is not represented tin court by a lawyer is not entitled to personally cross-examine the complainant. It further provides that an unrepresented defendant is not entitled to cross-examine a witness under the age of 18 years unless the Judge gives express permission to do so

In civil or criminal proceedings of whatever nature the Judge can make an order that an unrepresented party cannot cross-examine a witness. In making such an order the Judge must take into account the matters in s95(3) which include:

• the age or maturity of the witness;
• the physical, intellectual, psychological, or psychiatric impairment of the witness;
• the linguistic or cultural background or religious beliefs of the witness;
• the relationship of the witness to the unrepresented party: s95(3).

Comment
A child witness in a criminal case is likely to be confused and sometimes intimidated or oppressed by being cross-examined by a defendant acting in person. It is common experience that persons representing themselves often ask irrelevant or inadmissible questions. This is likely to result in delays, legal argument as to the propriety of a particular question and consequent rephrasing and repetition of questions by the unrepresented party and a dragging out of the proceedings.

The interests of the child complainant in sexual cases should be a primary consideration and there is a strong case for amending s95(1) by adding the words “in exceptional circumstances” before “the Judge gives permission”. This would establish a presumption against cross-examination of child complainants by unrepresented litigants.

It is further recommended that the restrictions on cross-examination of complainants and child witnesses in s95 should apply to all criminal proceedings where violence is alleged, not only to those proceedings concerned with “domestic violence”.

Article 3 of UNCROC requires that in all actions concerning children in courts of law the best interests of the child shall be a primary consideration. In order to comply with the requirements of UNCROC the list of relevant matters in s95(3) should be amended to add:

“(a) in respect of a child witness the welfare and best interests of the child”;

Judicial directions about children’s evidence
In criminal jury cases where the complainant is under 17 years s125 Evidence Act 2006 requires that the Judge must not give any warning about the need for corroboration of the complainant’s evidence that would not have been given in respect of an adult complainant. If evidence is given by a witness under 17 years the Judge must not instruct the jury that there is a need to scrutinise the evidence of children with special care or suggest that children generally have a tendency to invent or distort.

The Bill as introduced contained a proviso that the presiding judge could, in the case of a witness under the age of six years, give the jury directions that:

• even very young children can accurately remember and report things that have happened to them in the past but because of developmental differences they may not report their memories in the same manner and to the same extent as an adult and that this does not mean that a child witness is more or less reliable than an adult witness;
• very young children typically say very little without some help to focus on the events in question;
• very young children, depending on how they are questioned, can be more open to suggestion than older children or adults;
• the reliability of the evidence of a very young child depends crucially on the way they are questioned and it is important, in deciding how much weight is to be given to their evidence, to distinguish between open questions aimed at obtaining information and leading questions that put words into their months: cl125(3).

This proviso was not carried through into the Evidence Act 2006 although some of these issues may be dealt with in Regulations which are likely to be promulgated before the Act comes into force.

Comment
It is disappointing that the power of the presiding judge to give directions as to the credibility of evidence of young children was not carried through into the Evidence Act 2006.  It will not be known until Regulations are promulgated whether these issues will be covered by Regulation.

Other issues relating to children’s evidence
Because New Zealand courtrooms are designed by adults for adults they often fail to meet the needs of children who are required to give evidence whether as complainants or as witnesses.

The Queensland Law Reform Commission in its report Evidence of Children (2000) recommended that:

• 2.1 Child witnesses should be provided with a waiting area which is comfortable and age-appropriate and where their privacy is secure. If there is no suitable facility within the court precinct, then the party calling the child as a witness should be responsible for making and incurring the costs of alternative arrangements;
• 2.2 A courtroom in which a child witness gives evidence should be equipped with
  • a suitable chair which enables the child to be seated comfortably;
  • adequate amplification to enable the child to be clearly heard.

It is not unusual in criminal cases for child complainants and/or child witnesses to have to wait for long periods in public waiting rooms where supporters of the defendant are also waiting. Not surprisingly, children find this situation intimidating and distressing.

While it may not be appropriate to include these issues in the Evidence Act they should be the subject of a Regulation. An obligation should be imposed on the party calling a child as a witness to ensure that the child and any support person is aware of and able to make use of these facilities.

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