Case Commentary
| Published date | 01 October 2016 |
| Date | 01 October 2016 |
| Author | Jeremy Gans |
| DOI | 10.1177/1365712716657720 |
| Subject Matter | Case Commentary |
Case Commentary
Jeremy Gans
University of Melbourne, Australia
Vulnerable witnesses – New Zealand
Subject: Trials involving children
1. As you are all aware, we have commenced a protocol in Northland in an attempt to improve the way we
deal with child witnesses.
2. There is now a written protocol which although applicable in the jury Court is equally applicable to a
summary defended hearing and to hearings in the Youth Court.
3. At a recent meeting of Counsel I told them that in future, Judges would be somewhat more proactive in
controlling improper or unfair cross examination of children. I explained the reasons for this and confirmed
that what we were doing was based on very solid research. I was asked to provide references to this
research.
4. Attached to this memorandum is an excerpt from a publication known as the ‘Advocate’s Gateway’. This is
essentially the Advocate’s bible in England. To find this pub lication you simply need to search ‘th e
Advocate’s Gateway’ and I commend the publication to you. This document has been prepared as a result
of a huge amount of research over many years.
5. The attachment to this memorandum deals primarily with questioning style, framing answers and
questions that are likely to be either misunderstood or result in unreliable answers. You will see that
at the end of the document is an extensive bibliography providing you with references to the relevant
research.
6. Research has clearly demonstrated that children will not give best evidence if asked complicated or tagged
questions. In fact any question which suggests the answer is likely to either confuse the child/vulnerable
witness or result in unreliable evidence. Tagged questions such as ‘your father didn’t touch you did he?’ is a
dangerous question likely to result in an inaccurate answer. Children, even older children, do not like to
argue with an adult and may therefore simply agree. Within the limits of our knowledge of linguistics we
are endeavouring to stop counsel asking tagged questions, questions containing a double negative, ques-
tions which contain two or more propositions and questions which suggest the answer.
The above memorandum was sent by Judge Duncan Harvey to ‘All Counsel in Northland’ on 27
March 2015. It included an excerpt from an English publication, ‘The Advocate’s Gateway’, of a
passage identifying, as a type of question ‘easily misunderstood/risking unreliable answers’, the
following:
‘Tag’ questions combine a statement and a short question inviting confirmation of its truth, eg ‘Jim didn’t slap
you, did he?’ or ‘Jim didn’t slap you, right?’ ...They are powerfully suggestive and linguistically complex.
Corresponding author:
Jeremy Gans, Melbourne Law School, University of Melbourne, 185 Pelham Street, Carlton, Melbourne, Victoria 3052, Australia.
E-mail: Jeremy.Gans@unimelb.edu.au
The International Journalof
Evidence & Proof
2016, Vol. 20(4) 363–366
ªThe Author(s) 2016
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1365712716657720
epj.sagepub.com
To continue reading
Request your trial