Pre-recording testimony in New Zealand: Lawyers’ and victim advisors’ experiences in nine cases

AuthorKirsten Hanna,Emma Davies
Publication Date01 August 2013
DOI10.1177/0004865813485590
SubjectArticles
Australian & New Zealand
Journal of Criminology
46(2) 289–305
!The Author(s) 2013
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DOI: 10.1177/0004865813485590
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Article
Pre-recording testimony in
New Zealand: Lawyers’ and
victim advisors’ experiences
in nine cases
Emma Davies
Rowe Davies Research, Auckland, New Zealand
Kirsten Hanna
AUT University, New Zealand
Abstract
This paper reports on lawyers’ and victim advisors’ experiences with nine pre-recorded
hearings involving young people as witnesses in criminal court cases in Auckland. Focus
groups, interviews and a questionnaire were used to elicit perceived advantages and disad-
vantages, issues in the preparation for hearings, conducting the hearings and showing the pre-
recordings at trial. Although the sample is not large enough to generate definitive conclusions,
21 of 24 participants described pre-recorded hearings positively with only two prosecutors
and one defence counsel expressing concern about increasing the use of pre-recording in the
future. Participants raised a series of practice issues which could readily be addressed.
Presuming provision to recall the child if necessary, late or incomplete disclosure from
third parties is the only significant challenge to these pre-recorded hearings. The logistical
challenge of accessing timely relevant information from child protection records was over-
come in Auckland through the development of an inter-agency protocol. Pre-recording chil-
dren’s and young people’s entire evidence appeared to be a constructive contribution to the
criminal justice system.
Keywords
child witnesses, cross-examination, pre-recorded testimony, victims
Background
New Zealand has an adversarial criminal justice system in common with Australia. The
majority of New Zealand’s child witnesses under 12 give their evidence-in-chief at trial
via pre-recorded forensic interview. Additional questions in evidence-in-chief and cross-
examination are usually conducted live through closed-circuit television (‘CCTV’).
Corresponding author:
Emma Davies, Rowe Davies Research, 36 Roslyn Terrace, Devonport, Auckland, 0624 New Zealand.
Email: emma@rowedaviesresearch.co.nz
Teenagers more commonly give live evidence in the courtroom, but screened from the
defendant.
These alternative modes of evidence have been used for over 20 years, codif‌ied in the
Evidence Amendment Act 1989. These modes were initially reserved for child complain-
ants of sexual assault. However, through the court’s inherent jurisdiction (and, subse-
quently, the Evidence Act 2006) they have been extended to other child witnesses,
including children and young people alleging physical assault and non-complainant
witnesses to violent crimes.
In Western Australia, the entire evidence of child complainants of sexual assault has
been pre-recorded since 1992, although forensic interviews were not admissible until
2004. Pre-recorded testimony was extended to Queensland in 2003 and the Northern
Territory in 2004 (Henderson et al., 2012), however there are no studies which have
systematically evaluated the process.
Despite legislative provision to pre-record children’s testimony in New Zealand,
1
it
was not until December 2010 that the f‌irst application to pre-record a child’s entire
testimony was approved (R v Sadlier, 2010). Since then, there have been a number of
hearings completed in the Auckland District Court, some by consent between parties.
These hearings were attended by a judge, court staf‌f, lawyers, the defendant and the
witness. Victim advisors prepared witnesses for the pre-recorded hearings and debriefed
them after they had testif‌ied. The judge, counsel, defendant and witness watched the
children’s forensic interview before the day of the hearing. At the hearing, the children
were further examined and cross-examined via CCTV from a room in the courthouse in
the usual way (although juries were not present at these hearings). The hearings were
conducted according to a memorandum outlining operational processes for pre-record-
ing evidence developed by The Ministry of Justice (‘the Ministry’) in the f‌irst half of 2011
(Ministry of Justice, 2011). This circular details processes for applications, transcrip-
tions, hearing requirements and procedure, security and storage of DVDs, and editing
procedures.
In December 2010 the Ministry had called for submissions on a discussion paper
which explored alternative pre-trial and trial processes for child witnesses (Ministry of
Justice 2010); among the options canvassed was pre-recording children’s entire evidence
before trial. This option was supported by stakeholders, including the New Zealand Law
Society and the New Zealand Psychological Society. In 2011, the Government released a
Cabinet paper signalling its intention to legislate in favour of pre-recording the entire
evidence of children under 12, with provision to recall the child if necessary, alongside a
raft of other measures designed to improve the testimony of children under 18 (DOM
Min (11) 10/1).
2
In late June 2011, the Court of Appeal heard two appeals in relation to pre-trial cross-
examination: MvR(CA 335/2011) and RvE(CA 339/2011). The Court was satisf‌ied
that pre-recording children’s entire testimony is within jurisdiction (para 28) but
restricted its use to rare circumstances (para 41). While awaiting the Court’s f‌indings
and reasons for those f‌indings, 17 planned pre-recorded hearings were frozen (Davies
et al., 2011). After the Court’s judgement none of these pre-recorded hearings scheduled
for later than June 2011 went ahead. However, some of the trials, involving pre-recorded
hearings conducted before the Court’s f‌indings, went ahead by consent.
290 Australian & New Zealand Journal of Criminology 46(2)

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