R v Rata [2017] NZDC 21994 (11 October 2017)

Last Updated: 8 May 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE DISTRICT COURT AT ROTORUA

CRI-2015-063-003774

[2017] NZDC 21994

THE QUEEN

v

[TANGAROA RATA] [KATHERINE BRAY]

Hearing:	6 October 2017
Appearances:	N Tahana for the Crown S Mills for the Defendant [Rata] H Edward for the Defendant [Bray]
Judgment:	11 October 2017

JUDGMENT OF JUDGE A J S SNELL

[As to availability of witness]

Introduction

[1] [Tangaroa Rata] and [Katherine Bray] are scheduled to stand trial in the Rotorua District Court as the lead trial in the week commencing 16 October 2017. Mr [Rata] is charged with assault and neglecting a child, Ms [Bray] with neglecting a child. The circumstances alleged by the Crown are that Mr [Rata] is said to have

R v [TANGAROA RATA] [2017] NZDC 21994 [11 October 2017]

caused the child’s broken leg by assaulting [the child], and the neglect charges against each defendant arise from them failing to seek timely and appropriate medical treatment for the child.

[2] While the child was in hospital, [the child’s] [relative] asked, “Baby, what happened to your leg?” The child replied, “Daddy hurt my leg. Daddy hurt my lip.”

[3] At an earlier pre-trial hearing heard on 10 March 2017 before Judge MacKenzie, Judge MacKenzie ruled that the statements to the [relative] by the child were admissible as a hearsay statement on the basis that the child was unavailable to give evidence pursuant to s 16(2)(c) Evidence Act 2006.

[4] That decision was appealed and heard in the Court of Appeal of New Zealand, CA304/20171, before Justices Cooper, Brewer and Peters.

[5] The decision of the Court was given by Brewer J who agreed that the statements were hearsay but indicated that in the absence of any evidence of the child’s fitness to give evidence, there can be no finding that the child was unavailable to give evidence and the hearsay evidence was accordingly inadmissible.

[6] The finding of the Court of Appeal was that the hearsay is inadmissible unless the child is subsequently found to be unavailable as a witness, in which case the hearsay evidence is admissible.

Present application

[7] The present application is made by the Crown to establish that the child is unavailable as a witness pursuant to s 16(2)(c) Evidence Act.

The evidence relied upon

[8] The Crown submitted three affidavits from social workers as evidence to satisfy s 16(2)(c) that the child was unfit because of [the child’s] age to give evidence

1 [R] v R [2017] NZCA 341

and therefore unavailable. The social worker affidavits were very brief and the first of those from [social worker 1], who is a specialist child interviewer, stated (without ever having met or spoken to the child) that she would not support the interview of this young four year old child about an event that occurred at an even earlier time when [the child] was two years of age; that “it is highly unlikely that [the child] would be able to accurately recall let alone retell of the events”; and finally, that she had a concern that any statements given now by [the child] could not be relied upon as evidentially safe.

[9] The evidence of [social worker 2] says that the child would not be suitable for an evidential video interview. She justifies this on the basis that the child is four years, four months old and does not have the ability to recall events from the time of [the] injuries and subsequent uplift from [the] parents’ care. She makes general comments about [the child’s] unreliability.

[10] Finally, there is the affidavit of [social worker 3], who is a social worker and appears to be the least experienced, although she is a specialist child interviewer. Her affidavit deposes that “I would be concerned about [the child’s] ability to recall and give evidence on events that occurred two years ago.”

The law

[11] Section 16(2)(c) states:

“(2) For the purposes of this subpart, a person is unavailable as a witness in a proceeding if the person—

(c) is unfit to be a witness because of age or physical or mental condition;

[12] The leading decision in this area appears to be the decision of TK v R2. The Court noted at paragraph [16]:

“In assessing fitness or otherwise to be a witness the focus will not necessarily be on the age of the child. There are wide spreads of developmental and language skills among children of the same chronological age. But certainly a

2 TK v R [2012] NZCA 185

child whose development and comprehension is insufficient to satisfy the requirements of reg 8 of the Regulations must be a child who, because of his or her age, is ‘unfit to be a witness’”.

[13] Furthermore at paragraph [22], the Court noted that:

“If a child was able to meet the requirements of an admissible evidential video interview then he or she would be able to give evidence. It is the inability of a child to meet that requirement which makes the child unfit to be a witness for s 16(2)(c) purposes.”

[14] The circumstances in TK v R were that two evidential video interviews were attempted with the child. Neither of those evidential video interviews complied with reg 8.

[15] Brewer J said in [R] v R at paragraph [13]:

“It is not ‘so known and accepted’ that all young children are unfit to give evidence. Otherwise, provisions facilitating the taking of evidence of child witnesses would not exist. The Evidence Regulations 2007 prescribe the procedure for recording video evidence that is to be offered as evidence in a criminal proceeding. The child is now four years of age and if [the child] were to give evidence it would be through the means of a videotaped interview with a specialist interviewer of young children. ....”

[16] And further at paragraph [14]:

“Whether a particular child is able to give evidence must be assessed on a case- by-case basis. It follows that there should have been evidence of the child's fitness to give evidence upon which Judge MacKenzie could have based her decision. It is not difficult to get such evidence and we are surprised that it was not obtained.”

Decision

[17] In this case one of the social workers has never met [the child]. Without meeting and considering [the child’s] individual circumstances, the observations of that social worker ([social worker 1]) does not meet the appropriate test.

[18] Of the two remaining social workers, neither attempted an evidential video interview with the child. I can find no case where a child has been declared to be unavailable or otherwise without at least an attempt to conduct an interview. The

evidence before me [social worker 2] and [social worker 3] does not say that the child is unable to be interviewed, merely that [the child] was “not suitable”, or there “would be concern” as to [the child’s] evidence. No attempt was even made to complete an evidential video interview. In my view, this evidence falls significantly short of what will be required to say that this child is unavailable. [social worker 3] says that “I would be concerned about [the child’s] ability to recall and give evidence on events that occurred two years ago.” [Social worker 2] says that, “At this time [the child] would not be suitable for an evidential video interview. [The child] is four years, four months of age and does not have the ability to recall events from the time of [the child’s] injuries and subsequent uplift from [the] parents’ care.” Both of these statements are assertions or assumptions without ever having attempted to do the evidential video interview. The assumptions are not backed by evidence.

[19] It would seem that the evidential video interview required under reg 8(d) is not an onerous task and is not likely to be traumatic for the child.

[20] I enquired of Ms Tahana, for the Crown, as to why no attempt at an evidential video interview had been made. Ms Tahana explained that she had requested that an attempt be made and it simply had not been done. The best evidence here would be that an attempt had been made and that the child was either able or unable to comply with reg 8(d). Equally, even if there had been compliance with reg 8(d), it would have become very clear whether or not [the child] could remember the actual events that had occurred almost half a lifetime earlier when [the child] was aged two years, three months as opposed to four years, four months now.

[21] If this information had been provided, it would have established one way or the other the witness’ ability or inability to meet the requirements in terms of s 16(2)(c).

[22] In this particular case, no attempt at an evidential video interview has been made and I am left in the unenviable position that through a lack of actual particulars from the social workers and a lack of actual evidence as to the matters at issue, that the only conclusion on the evidence I have before me is that the witness is available. The Crown have not succeeded in calling evidence to show [the child] was

unavailable. This strikes against common sense and also strikes against the ease by which appropriate evidence could have been obtained.

[23] I have considered independently whether the combined assertions that the child is unable to be considered for an evidential video interview based on [the child’s] age, boisterous ‘centre of attention’ nature and demonstrated unreliability are sufficient evidence for [the child] to be unfit to be a witness because of age or mental condition. While general assertions about [the child’s] young age, lack of credibility and memory issues are relevant, I do not consider that they are sufficient or proximate enough to make the assessment. Much of what is said is historical, are age based assumptions which the legislation actively guards against, or is of limited relevance.

[24] At the present time, my only option is to find that the witness is available. The Crown have not provided evidence to satisfy me that [the child] is unavailable. If there was an evidential video interview attempted and the witness failed either:

• (a) To comply with reg 8(d) requirements; or
  
• (b) Had no recollection of the events from significantly earlier on
  

then the witness would undoubtedly be unavailable for s 16(2)(c) purposes. This simply has not been done despite very clear requests from Ms Tahana.

[25] Finally, I should comment that the assertions by the various social workers relating to the demonstrated unreliability of the child causes independent concern. In suggesting that the witness could not be assessed for an evidential video interview, the social workers are saying that the witness is unreliable and should not and could not be relied upon. This is potentially new and additional information which may give significant concern as to any reliance or weight being placed on the child witness’ comments at all.

A J S Snell

District Court Judge