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Last Updated: 18 August 2017
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF THE TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2014-004-1289 [2014] NZHC 2276
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BETWEEN
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THE QUEEN
Plaintiff
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AND
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G J
Respondent
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Hearing:
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12 September 2014
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Counsel
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G C Hollister-Jones for Applicant
T Cooper for Respondent
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Judgment:
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18 September 2014
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JUDGMENT OF KATZ J
This judgment was delivered by me on 18 September 2014 at 4:30 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Ronayne Hollister-Jones Lellman, Crown Solicitor,
Tauranga
Counsel: T Cooper, Barrister, Auckland.
THE QUEEN v G J [2014] NZHC 2276 [18 September 2014]
Introduction
[1] The Crown alleges that, during the 1970s and 1980s, the defendant,
Mr J, committed a range of sexual offences against nine
young girls. Mr
J’s trial in respect of those charges is due to commence in the Rotorua
High Court on 28 October 2014. Eight
of the complainants were either members of
Mr J’s extended family or family friends. One complainant met Mr J
through his
place of work.
[2] The Crown has filed an application seeking pre-trial directions
enabling five of the complainants to give evidence at trial
in an
“alternative” way. Four of the complainants wish to give evidence
at trial from behind a screen. That is not
opposed by Mr J. Mr J does
oppose, however, an application that the evidence-in- chief of two of those
complainants, Ms H and Ms
J, be given by way of video recordings of interviews
conducted with them prior to trial. He also opposes an application for a
direction
that a further complainant, Ms L, give evidence via video link from
Canada, where she now lives with her family.
Giving evidence in an “alternative” way – the
law
[3] The principle that witnesses should generally give evidence through live oral testimony in open court has long been a feature of New Zealand law.1 It is embodied in s 83 of the Evidence Act 2006 (“Act”) as the “ordinary” way of giving evidence at trial. It is now widely recognised, however, that the requirement to give evidence orally at trial can place considerable stress on some witnesses. This can impact on the quality of the evidence they are able to give, which potentially undermines the truth finding process and the just determination of proceedings. For example, victims of sexual offending may find giving evidence in the ordinary way
particularly stressful. For them, the process of giving oral evidence in open court can be extremely traumatic. It requires them to recount explicit and highly personal evidence of a sexual nature in a public arena, in the presence of the alleged
perpetrator.
1 Donald Mathieson (ed) Cross on Evidence (looseleaf ed, LexisNexis) at [EVA83.5].
[4] In response to such concerns, the Law Commission, in its 1996 discussion paper The Evidence of Children and Other Vulnerable Witnesses2 and its subsequent
1999 report on a draft Evidence Code, Evidence: Reform of the
Law,3 proposed that
a broad discretion be conferred on Judges to allow evidence to be given in alternative ways in some cases. Those recommendations culminated in ss 103 and
105 of the Evidence Act 2006 (“Act”) which enable a judge to
direct that certain witnesses give evidence at trial in either
the
“ordinary” way (orally in open court) or in an
“alternative” way. Provision is also made for witnesses
who are
overseas to give evidence in an alternative way (usually by way of video
link).
[5] Alternative ways of giving evidence generally involve the adoption
of more witness friendly trial processes, such as the
use of live closed circuit
television cameras that enable witnesses to give evidence from a room remote
from the main courtroom (while
remaining visible and audible to those present in
the courtroom), the admission of video recordings of pre-trial witness
interviews
in place of oral examination-in-chief at trial, and the erection
of temporary screens around the witness box so that witnesses
do not have to
see the defendant while they are giving evidence.
[6] Before making an alternative evidence direction the Court must be
satisfied that:
(a) it has jurisdiction to make such a direction, which will only arise
if one or more of the grounds specified in s 103(3)
of the Act exist;
and
(b) it is appropriate that the Court exercise its discretion in favour of making an alternative evidence direction, which requires the Court to take into account the various mandatory considerations set out in s
103(4) of the Act.
2 Law Commission The Evidence of Children and Other Vulnerable Witnesses (NZLC PP26,
1996).
3 Law Commission Evidence: Reform of the Law (NZLC R55 Vol 1, 1999).
The jurisdictional threshold
[7] Section 103(3) sets out the grounds that may justify a direction that a
witness give evidence in an alternative way. They are:
(a) the age or maturity of the witness;
(b) the physical, intellectual, psychological, or psychiatric
impairment of the witness;
(c) the trauma suffered by the witness; (d) the witness’s fear of intimidation;
(e) the linguistic or cultural background or religious beliefs
of the witness;
(f) the nature of the proceeding;
(g) the nature of the evidence that the witness can be expected to give; (h) the relationship of the witness to any party to the proceeding;
(i) the absence or likely absence of the witness from New Zealand; (j) any other ground likely to promote the purposes of the Act.
[8] Putting overseas witnesses to one side, two broad categories of witnesses
are likely to meet one or more of these criteria:
(a) those whose personal characteristics or circumstances may give rise to particular challenges for them in giving evidence in the ordinary way (age, lack of maturity, physical or mental impairment, linguistic or cultural issues); and
(b) those who may face particular challenges in giving evidence in the
ordinary way due to the nature of the alleged offending
against them or their
relationship with the alleged offender (this will most often arise in cases of
sexual offending or domestic
violence).
[9] Obviously, some witnesses, such as complainants in cases involving
sexual offending against children, may fall
within both categories.
That is not a requirement, however. Jurisdiction to direct that evidence
be given in an alternative
way will exist if any one of the grounds
listed in s 103(3) is met.
[10] The grounds set out in s 103(3) are aimed at protecting witnesses who may be particularly vulnerable. One of the key rationales identified by the Law Commission for allowing vulnerable (or intimidated) witnesses to give evidence in an alternative way is that more witness friendly court processes are likely to significantly reduce the stress of giving evidence for such witnesses. That, in turn, is likely to benefit the
truth finding process.4 Obviously, this is a highly desirable
objective, provided it can
be achieved without compromising a defendant’s fundamental fair
trial rights. Section 103(4) seeks to balance those
competing
interests.
The exercise of the Court’s discretion under s
103(4)
[11] If one or more of the grounds in s 103(3) is made out, then the
Court has a wide ranging discretion to assist vulnerable
witnesses by directing
that their evidence be given in an “alternative” way. In exercising
that discretion the Court
must have regard to the mandatory considerations in s
103(4), namely :
(a) the need to ensure the fairness of the proceeding (this
includes fairness to all involved, including the Crown,
the defendant, the
witnesses and society generally);
(b) the need to ensure, in a criminal proceeding, that there is a fair
trial;
4 R v L [1993] 4 SCR 419 (SCC), cited in Law Commission Evidence: Reform of the Law, above n 3 at 117. Similar observations have been made in numerous cases under the previous law, in the context of child witnesses, see for example R v Raj [2007] NZCA 10 at [23]; R v Lewis (No
1) [1991] 1 NZLR 409 at 411, (1990) 6 CRNZ 350 (CA); R v J (2004) 21 CRNZ 178 at 181 (CA) and R v COV CA347/05, 2 November 2005 at [8].
(c) the views of the witness;
(d) the need to minimise the stress on a witness; and
(e) in a criminal proceeding, the need to promote the recovery of
a complainant from the alleged offence.
[12] In addition, the Court must have regard to “any other factor
that is relevant to the just determination of the proceeding”.5
The just determination of the proceeding therefore appears to be the
overarching consideration. The Court must have regard to all
of the specific
matters listed in s 103(4) and any other factor that is relevant to the
just determination of the proceedings.
[13] Some High Court decisions following the enactment of the new
provisions took the view that the appropriate starting presumption
is that
evidence be given in the ordinary way (orally in open court) and that giving
evidence in an alternative way is the exception
to that general rule.6
Such an approach has, however, been squarely rejected by the Court of
Appeal. For example, in R v Shone the Court of Appeal observed
that:7
The Court should not read down the general jurisdiction which Parliament has
provided by introducing presumptive positions, so long
as proper regard is had
to the fairness of the proceedings.
[14] Subsequently, in R v O, the Court of Appeal stated
that:8
Section 103 allows a broad fact-specific inquiry. It appears to signal a
distinctive shift in legislative policy to extend the scope
for the mode of
giving evidence by alternative means beyond the previous limitations to young
and mentally impaired complainants
in sexual cases. The provision vests a broad
and unfettered discretion in the trial Judge once the jurisdiction to make an
order
is established. As this Court has previously observed, there is now no
default position or presumption in favour of giving evidence
in the ordinary
way.
(footnotes omitted)
5 Section 103(4)(c).
6 See for example R v Briggs HC Whangarei CRI-2008-027-000660, 13 March 2009 at [12].
7 R v Shone [2008] NZCA 313 at [28].
8 R v O [2012] NZCA 475 at [37].
[15] Accordingly, if jurisdiction exists in terms of s 103(3) to make an
alternative evidence direction, then all evidence options
(ordinary or
alternative) are equally on the table. There is no presumption that a witness
should give evidence in the ordinary
way, in the absence of good reasons to the
contrary. On the other hand (unlike the position in the United Kingdom and
some Australian
states) there is no presumption in favour of an alternative mode
of evidence in certain types of cases, such as those involving sexual
offending.
Rather, the Court is required to undertake a “broad fact-specific”
inquiry in deciding whether the just determination
of the proceedings would be
better served by evidence being given in the ordinary way or in an alternative
way. As the Court of
Appeal observed in R v O, the Court’s
discretion is “broad and unfettered”, although it is subject, of
course, to the need to have proper
regard to the various matters set out in s
103(4).
The jurisdictional threshold - Do grounds exist for the named complainants
to give evidence in an alternative way?
[16] The grounds relied on by the Crown as establishing jurisdiction for
an alternative evidence direction are those set out at
s 103(3)(f) to (h),
namely the nature of the proceeding, the nature of the evidence that the witness
can be expected to give and
the relationship of the witness to any party to the
proceeding.
[17] These proceedings involve allegations of serious sexual offending
against young girls. The majority of the offending is
alleged to have occurred
when the girls were aged under 12, some as young as five. The nature
of the evidence the complainants
are expected to give is of an extremely
personal and sensitive nature. Further, four of the five complainants who seek
alternative
evidence directions are closely connected to Mr J (or were at the
time of the alleged offending) through family relationships or
friendships. In
light of these factors I am satisfied that the grounds for making an alternative
evidence direction are made out,
in relation to each of the five named
complainants.
[18] Indeed Mr J clearly accepted that the jurisdictional threshold for the making of an alternative evidence direction in relation to the named complainants was met, as he did not oppose a direction that they give evidence from behind a screen. The issue from Mr J’s perspective was not whether jurisdiction existed to make an
alternative evidence direction, but rather what specific alternative way(s)
of giving evidence are most appropriate in this case.
Should a direction be made that Ms H, Ms J, Ms M and Ms G give evidence
from behind a screen?
[19] It was common ground that Ms H, Ms J, Ms M and Ms G (and Ms L if the
video link application is declined) should be able to
give evidence from behind
a screen. I am satisfied that such a direction is appropriate. It is apparent
from the evidence of Detective
Paulsen (and the reports annexed to his
affidavit) that such a direction is likely to significantly reduce the stress of
the court
process for the five complainants and aid in their recovery from the
alleged offending. They have a clear preference to give evidence
from behind a
screen. Mr J does not oppose such a direction and has not raised any concern
that it would prejudice his fair trial
rights.
Should a direction be made that the evidence-in-chief of Ms H and Ms J be
given by way of a video recording?
[20] There is no prioritisation in s 105 of the different ways in which
evidence may be given. The learned authors of Evidence Act 2006: Act and
Analysis suggest that “the focus will no doubt remain on what measure
is most effective to ensure the witness gives the best evidence,
which will
enhance the ‘truth finding process”.9
[21] As I have outlined at [13] to [15] above, in deciding whether to
direct that the video interviews be played as the evidence
in chief of Ms H and
Ms J, there is no presumption in favour of giving evidence in the ordinary way.
Rather, I must take into account
all relevant factors, including, in particular,
those set out in s 103(4) of the Act, in exercising my discretion. I will
therefore
consider each of those factors in turn, after briefly outlining the
alleged offending against Ms H and Ms J.
The alleged offending against Ms H and Ms J
[22] Mr J was married to Ms H’s older sister throughout the
relevant period. Mr J
faces 10 charges of indecency relating to incidents that occurred during
the 1970s,
when she was between six
and 11 years old. He also faces one charge of assaulting her with intent to
commit sexual violation. The
charges include specific and representative
charges of oral genital contact, digital penetration and inducing indecent acts.
Ms H
is now in her late 40s.
[23] Ms J, who is the main complainant, is Mr J’s daughter. Mr J
faces a total of
49 charges, 17 of which relate to Ms J. Many of those charges are
representative. In particular, Mr J faces 14 charges of indecency
on Ms J in
the 1980s, when she was aged between five and 11 years old. He also faces a
charge of assaulting her with intent to commit
sexual violation and two charges
of assault on a child. The charges include specific and representative charges
of genital touching,
digital penetration, kissing with tongue and inducing
indecent acts. Ms J is now in her late 30s.
The views of Ms H and Ms J
[24] The officer in charge of the case, Detective Paulsen, has sworn an
affidavit summarising Ms H and Ms J’s concerns.
In relation to Ms H, he
says that:
[Ms H] was a sister-in-law of the respondent and expressed to me her
considerable reluctance at having to appear in the courtroom
with the respondent
present, her extreme fear of him and the stress associated with having to
describe the offending against her.
She has requested both a screen and that
her video record, made before the hearing of the proceeding, be played as her
evidence-in-chief.
[25] In relation to Ms J, Detective Paulsen’s evidence is as
follows:
[Ms J] is the respondent’s daughter and has likewise expressed to me
her considerable reluctance to appear in the courtroom
in circumstances where
she would see her father, the respondent, while she gives evidence outlining the
alleged sexual offending
by him against her. I have received a report from Ms
Magee of Insight Counselling Services...setting out the difficulties faced
by Ms
J in respect of her upcoming appearance.
[26] Both Ms H and Ms J wish to give evidence from behind a screen and, in addition, seek a direction that their video interviews be played as their evidence-in- chief. It necessarily follows that their views favour granting the application.
The need to minimise the stress on Ms H and Ms J and promote their
recovery from the alleged offending
[27] A report from Ms H’s doctor is annexed to Detective
Paulsen’s affidavit. It records that Ms H is currently on
antidepressants
for clinical depression. She has also been struggling with issues of alcohol
abuse for about the last three years
“due to the stress of what
happened”. That stress appears to have been exacerbated by her fears
regarding the forthcoming
court case. Ms H has been referred to the care of
Community and Drug Services for help with addressing her alcohol issues. Ms H
received counselling related to historic sexual abuse for about nine months in
2013 and intends to resume that counselling as
a result of the ongoing
stress she is suffering arising out of the alleged childhood sexual abuse and
the upcoming court case.
[28] In relation to Ms J, Detective Paulsen’s affidavit annexes a
report from Ms Debbie Magee. Ms Magee is a qualified
counsellor with a Bachelor
of Applied Social Science (Counselling). She has considerable experience in
working with clients who
have experienced sexual abuse or sexual assault. Ms
Magee states that she supports the application that Ms J give evidence in an
alternative way, as Ms M is “extremely fragile” and becomes very
distressed at just the thought of having to go to court,
“let alone see
her father or have him be able to see her”.
[29] Ms Magee’s professional opinion is that Ms J meets the criteria in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM IV) for post traumatic stress disorder “as a consequence of enduring from a very young age years of sexual abuse at the hands of her father”. Those who suffer from post traumatic stress disorder persistently re-experience the relevant traumatic events. This can include intense psychological or physiological distress at exposure to internal or external cues that symbolise or resemble an aspect of the relevant event and persistent avoidance of stimuli associated with the trauma. Post traumatic stress disorder causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
[30] Ms Magee notes that Ms J is experiencing extreme anxiety at the
thought of appearing in court and that it is not uncommon
for victims of
childhood sexual abuse to be unable to “self-soothe”. As a result
they can develop harmful behaviours
that can put them at risk. These become
more acute as anxiety and fear increases. Ms Magee notes that Ms J has told her
that she
is still terrified of her father. Further, as her level of distress
intensifies, so do her harmful (including self-harming) behaviours.
Ms Magee
concludes that the court needs to take into account Ms J’s fragility
regarding her emotional and psychological well-being
and that “the father
daughter incest dynamics are very complex and the court needs to take this into
account in regards to
the way that [Ms J] will be giving her
evidence”.
[31] As I have noted above, one of the key rationales identified by the
Law Commission for allowing vulnerable witnesses to
give evidence in an
alternative way is that more “witness friendly” courtroom processes
are likely to significantly reduce
the stress of giving evidence for such
witnesses. The evidence indicates that both Ms H and Ms J are currently
experiencing high
levels of stress in relation to the forthcoming court case, as
well as ongoing stress and trauma related to the alleged offending
itself. It
is likely that, for both of them, giving evidence in court of the alleged
offending against them by a close family member
(father and brother-in-law
respectively) will be extremely stressful and traumatic. In such circumstances
I have no difficulty in
accepting the Crown submission that directing that their
evidence-in- chief be given by way of their video interview would assist
in
minimising the stress on them and also serve to promote their recovery from the
alleged offending.
[32] Obviously, the extent to which the stress of the courtroom process can be minimised is limited. Ms H and Ms J will both be subject to cross-examination, which may well be highly stressful. However, as the Court of Appeal observed in R v O:10
We agree with the Judge that P’s cross-examination will doubtless be a
stressful part of his court experience. However, we disagree
that this factor of
itself negates any minimisation of the stress of giving evidence which would
result from playing P’s video
interviews. If the fact that a witness
will inevitably suffer stress under cross examination was a decisive
consideration, s 103(4)(b)(i)
would have little application.
10 R v O above n 7 at [44].
Fairness of the proceeding and Mr J’s fair trial
rights
[33] I now turn to consider the two remaining 103(4) factors, namely the
fairness of the proceeding and Mr J’s fair trial
rights.
[34] The concept of “fairness of the proceeding” extends beyond a defendant’s rights to also require consideration of the interests of the complainants, the Crown and society generally. As Lord Steyn observed in Attorney General’s Reference (No 3 of 1999):11
There must be fairness to all sides. In a criminal case this requires the
court to consider a triangulation of interests. It involves
taking into account
the position of the accused, the victim and his or her family, and the
public.
[35] Ms Cooper submitted that fairness to Mr J required that the evidence of the complainants be “tested properly in open court with all the difficulties this entails”. She submitted that this requires the complainants to describe in evidence-in-chief, in their own words and in the presence of the defendant, their account of what happened to them. This is one aspect of what is sometimes referred to as the right of a defendant to confront his or her accuser, although no such “right” to a face-to-
face confrontation existed at common law.12
[36] The common law rights to a fair trial are now largely embodied in s 25 of the New Zealand Bill of Rights Act 1990. They relevantly include the right to be present at trial and to present a defence, and the right to examine the witnesses for the prosecution. Neither of these rights require that live oral evidence-in-chief be given in the presence of a defendant. Rather, the key evidential safeguard in an adversarial system is the right to test the prosecution witnesses through cross-examination. This has long been recognised as a fundamental fair trial right. Allowing the video interviews of Ms H and Ms J to be played as their evidence-in-chief will not
prejudice that right. Mr J will have a full opportunity to seek to
undermine the
11 Attorney General’s Reference (No 3 of 1999) [2001] 2 AC 91, 118; in a New Zealand context see also R v M (CA590/09) [2009] NZCA 455 at [40]; R v O above n 7 at [43] for similar observations.
12 Law Commission The Evidence of Children and Other Vulnerable Witnesses above n 2 at 51; R v Accused (T4/88) [1988] 1 NZLR 660 (HC) at 667-668, (1988) 3 CRNZ 94 and R v Moke & Lawrence [1996] 1 NZLR 263, (CA).
complainants’ evidence, adduce evidence favourable to him or attack Ms
H and Ms
J’s credibility and veracity, through the cross-examination
process.
[37] Ms Cooper submitted that one aspect of the testing process is a
defendant’s ability to compare the evidence given in
court against a
complainant’s former statement(s) to investigators. If there are
inconsistencies, then it will be possible
to cross-examine the complainant on
their previous statement. The opportunity to test the complainant’s
evidence in court
against their former statement(s) will be lost if their former
statement (in this case the video interview) is used as their evidence-in-
chief. I accept that this would be a potential disadvantage to Mr J if the
direction sought was made. It is a potential disadvantage,
however, that arises
in every case where a complainant’s video interview is permitted to be
used as their evidence-in- chief
at trial. To some extent this is simply a
necessary consequence of a legislative scheme that allows for prior
statements to
be used as evidence-in-chief in appropriate cases. I do
not accept that it represents any significant erosion of the right
to a fair
trial.
[38] In terms of other possible fair trial issues, I note that no criticism was made of the interviewing style adopted in the videos, which appears to follow standard investigative techniques.13 Counsel were agreed, however, that if the video interviews were to be played as evidence-in-chief, some editing would be required to remove inadmissible material. Further, the interviews are somewhat “stream of consciousness” in parts, rather than being presented in a strictly chronological
sequence. However, this does not appear to give rise to any particular fair trial issues, and Ms Cooper did not submit otherwise. I note that a similar interviewing style appears to have been used in Tu’uaga v R.14 In that case the Court rejected the defendant’s complaint that the diffuse interviewing style elicited more detail from the complainant than a more traditional technique may have done and that this raised
fair trial issues.15
13 Given that no specific issues were raised with the interviewing style adopted in the video interviews counsel did not invite me to view them. I have, however, carefully reviewed the transcripts of the interviews.
14 Tu’uaga v R [2013] NZCA 81.
[39] I have also considered whether the fact that the video interviews were recorded many years after the relevant events gives rise to any fair trial issues. This issue was considered in R v O, in relation to video interviews conducted between two to four years after the alleged offending. The High Court Judge appeared to have placed weight on the Crown’s inability to rely upon the contemporaneity and thus reliability of the evidential interviews. The Court of Appeal found this to be in error,
stating:16
But, with respect, that is not the point. The Crown does not rely upon them
for that purpose but for the discrete statutory purpose
of establishing an
available alternative means of giving evidence.
[40] In the particular circumstances of this case, the timing issue
appears to be neutral. Regardless of whether the video interviews
are played as
evidence-in-chief or Ms H and Ms J give oral evidence in court, they will be
recalling events that allegedly occurred
very many years ago.
[41] Society has a legitimate interest in seeing that justice is done and
that the fact-finder has the best evidence available
to them to assist in the
truth finding process. Parliament has recognised that the use of traditional
criminal justice processes
can sometimes result in unfairness, particularly
where vulnerable complainants are involved. In such cases the giving of
evidence
in an alternative way may improve the overall fairness of the trial
process. In my view, this is such a case. Given Ms H and
Ms J’s
vulnerability and psychological issues, their relationship (or former
relationship) to the defendant, and their
fear of him, the trial process is
likely to be particularly stressful and traumatic for them. This could
potentially impact on
the quality of their evidence-in-chief, if it were
required to be given in the ordinary way.
Taking all of these matters into account, should a direction be made
allowing the use of Ms H and Ms J’s video interviews as
their
evidence-in-chief?
[42] I have concluded, for the reasons I have outlined above, that all of the various mandatory considerations in s 103(4) of the Act favour the giving of evidence in an alternative way. I have not been persuaded that making the direction sought would
prejudice Mr J’s fair trial rights in any material way. Allowing the
admission of the video interviews is not likely to result
in the admission of
evidence that is less truthful, accurate or reliable than evidence adduced in
the ordinary way. Further, Mr
J will have a full opportunity to test
the credibility and reliability of the complainants’
evidence-in-chief
through cross-examination. He will also have the benefit of
knowing the precise content of Ms H and Ms J’s evidence well
in advance of
trial.
[43] I have not overlooked Ms Cooper’s submission that a review of previous case law suggests that adult (as opposed to child) complainants should only be allowed to give their evidence-in-chief by way of video recording in “exceptional” circumstances. For example, in R v O the 24 year old complainant was borderline Asperger’s and was relatively immature. In Tu’uaga v R, the complainant was also fairly young (21). In R v Bradnock, a psychologist deposed that the complainant’s symptoms of stress and anxiety were so extreme that there was a real prospect she would simply be unable to give evidence in the ordinary way without suffering
serious emotional, and possibly also physical,
consequences.17
[44] Each case will necessarily turn on its own facts. I do not accept, however, that the circumstances must be extraordinary or exceptional before a direction can be made that an adult complainant give evidence-in-chief by way of a video interview. On the contrary, as the Court of Appeal observed in R v O, the Act signalled a distinctive shift in legislative policy to extend the scope for the mode of giving evidence by alternative means beyond the previous limitations to young and
mentally impaired complainants in sexual cases.18
[45] There is no hierarchy of grounds for an alternative evidence direction (or indeed of ways of giving evidence). Although the youth and maturity of a witness are one of the grounds on which an alternative evidence direction may be sought, there are a number of others. To require a case to be exceptional before evidence can be given by an adult complainant in an alternative way would run
contrary to the scheme of the Act. It would suggest that the default
position or
17 R v Bradnock [2014] NZHC 1045.
presumption under the Act is that witnesses who meet one or more of the s
103(3) criteria should nevertheless give evidence in the
ordinary way, in the
absence of exceptional circumstances. The Court of Appeal has squarely
rejected that proposition.19
Should Ms L be permitted to give evidence via video link from
Canada?
[46] The final issue I must determine is whether Ms L should be permitted
to give her evidence via video link from Canada, where
she now lives with her
family.
[47] Ms L was related to Mr J’s wife. The alleged offending
against her occurred when she was age 10 or 11 and has resulted
in three charges
of indecency with a girl aged less than 12 years. Ms L had regular contact with
Mr J’s family, often spending
time at his home. It is alleged that Mr J
induced Ms L to rub his genital area on two occasions and that, on a third
occasion, Mr
J climbed into bed with Ms L while he was naked, rubbing against
her body and touching her genital area.
[48] Detective Paulsen’s second affidavit outlines Ms L’s
concerns regarding travelling from Canada to New Zealand to
give evidence and
the impact that this would have on her, her family, and the family business. Ms
L works full-time with her husband
in their family business and travelling to
New Zealand to attend court would mean she would need to employ someone else to
replace
her during her absence, which would require some prior training for the
relevant person. Ms L advises that the cost of that, including
wages, training
and insurance, would be significant for the family run business and the entire
process is simply “too daunting
for her to cope”. Ms L accordingly
requests that she be permitted to give evidence via video link from a suitable
venue near
her home in Canada, avoiding the need for travel to New
Zealand.
Mr J’s opposition to Ms L giving evidence by way of video
link
[49] Ms Cooper submitted that if Ms L were allowed to give evidence via video link then this would detract from the effectiveness of her cross-examination. As one
of the complainants, Ms L’s credibility will be determined by not
just what she says
19 See discussion at [13] to [15] above.
but also by her demeanour or body language and how she responds
when her evidence is tested. Ms Cooper submitted that
Ms L’s credibility
will be more readily assessed by a jury if she appears in person to give her
evidence.
[50] Ms Cooper further submitted that, given that Ms L was previously
prepared to return to New Zealand and give her evidence
in person, the Court
should not grant the application in the absence of an “exceptional or
unexpected turn of events”
as occurred in R v Simi.20
In addition, Ms Cooper submitted that the absence of a sanction of perjury
if Ms L were to give evidence from overseas is another
factor for the Court to
consider. Taking all of these matters into account Ms Cooper submitted that
allowing Ms L to give her evidence
by video link would jeopardise Mr J’s
fair trial rights.
Discussion
[51] The first inquiry is whether one of the grounds for an alternative evidence direction in s 103(3) has been made out. That was not in dispute, given that Ms L is absent from New Zealand.21 It is therefore necessary to consider the various s
103(4) factors.
[52] Giving evidence by video link is no longer an “unusual or
novel” mode of giving evidence.22 I do not accept that an
exceptional or unexpected turn of events is necessary to justify such an order
in circumstances where a witness
had previously indicated a willingness to
attend court in person. Circumstances can change. A witness may not turn
their mind
to the practicalities of travelling around the world to give evidence
until the trial date approaches. Indeed they may not have
previously been aware
that giving evidence by video link was even possible.
[53] The key s 103(4) factor relied on by the Crown is the need to minimise the stress on the witness. Ms L has significant family and business obligations and travelling to New Zealand would greatly increase her stress. She has told Detective
Paulsen that she finds the prospect “too daunting”. This
must be balanced, however,
20 R v Simi [2008] NZCA 515.
21 Evidence Act 2006, s 103(3)(i).
22 Deutsche Finance NZ Ltd v Commissioner of Inland Revenue (2008) 23 NZTC 21,758 (HC)
at [14].
against Mr J’s fair trial rights which, he submitted, would be
prejudiced by making the direction sought, as the use of a video
link would
detrimentally impact on the jury’s ability to assess Ms L’s
credibility.
[54] This particular objection has previously been considered by the
Courts in a number of cases. In R v Wong, Hugh Williams J expressed the
view that:23
[T]here is no difference in principle between having a witness present in
person in the witness box giving evidence and the same person
being effectively
present in the courtroom with his or her image portrayed electronically.
Technology nowadays is such that, even
in cases where credibility is the issue,
people commonly make judgments on such issues on nothing more than electronic
images.
Indeed, for many people, television and electronic media are their principal
sources of information about the World. They make judgments,
big and small,
political, legal and moral, largely or solely on what they see depicted on a
screen. So it would be odd if, in the
21st century, courts were to refuse to use
such technology and insist on compliance with an aphorism which long pre-dates
the electronic
age.
[55] Similarly, in R v Simi, the Court of Appeal concluded that “evidence by video link has not previously been seen as adversely affecting an ability to assess credibility”.24 There have been numerous other judicial observations to similar
effect.25 There appears to be little or no evidence
that the use of video links
significantly impacts on a jury’s ability to assess witness demeanour
and veracity. This is particularly so given the sophistication
of modern
technology, which is far superior to the video link technology used in the
past.
[56] Ms L is one of nine complainants. Without detracting in any way from the serious nature of the alleged offending against her, she is not one of the main complainants. Only three of the 49 charges faced by Mr J relate to offending against
Ms L and each of those charges relate to a discrete incident, rather
than being
23 R v Wong HC Auckland CRI-2005-004-15296, 17 May 2006 at [55]–[56].
24 R v Simi above n 20 at [27].
25 See R v Raj [2007] NZCA 10 at [44]; R v Williams HC Auckland CRI-2009-092-10225,
16 December 2009 at [30]; R v Check [2009] NZCA 548 at [78] and R v Munro [2007] NZCA
510[2007] NZCA 510; , [2008] 2 NZLR 87 at [76]. Deutsche Finance NZ Ltd v Commission of Inland Revenue above n 22 from [14]; Omni Marketing Group, Asia Pte Limited v Transactor Technologies Limited HC Auckland CIV-2007-404-430, 29 May 2008 at [15]; Yang v Chen HC Auckland CIV-2007-404-1751, 13 May 2010 at [52]; R v Ming HC Auckland CRI-2009-092-10550,
26 August 2010 at [36].
representative in nature. Accordingly, Ms L’s evidence is likely to be
fairly brief and focussed, relative to a number of the
other
complainants.
[57] I am satisfied in all the circumstances that a direction that Ms L
give evidence by way of video link from Canada is appropriate.
There can be no
justification for requiring Ms L to travel to New Zealand to give evidence in
circumstances where an alternative
mode of evidence, that will not prejudice Mr
J’s fair trial rights, is readily available.
Result
[58] The Crown’s alternative mode of evidence applications dated 20
August 2014 and 5 September 2014 are granted. I direct
as follows:
(a) That Ms M and Ms G give evidence and be cross-examined and
re-examined from behind a screen that ensures that they cannot
see the
defendant, but that the Judge, jury, counsel and the defendant can see and hear
them.
(b) That the evidence-in-chief of Ms H and Ms J be admitted in the form
of their video interviews. I note that counsel
are agreed that
redactions will need to be made to remove some inadmissible material from the
video interviews Counsel are to
endeavour to agree on any such redactions,
failing which further directions should be sought from the trial Judge,
pursuant
to s 106 of the Act.
(c) That Ms H and Ms J be cross-examined and re-examined from behind a
screen that ensures that they cannot see the defendant,
but that the Judge,
jury, counsel and the defendant can see and hear them.
(d) That the evidence of Ms L is to be transmitted by video link from an appropriate location in the Canadian city identified in the Crown’s application of 5 September 2014.
(e) That publication of this judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database is prohibited until final disposition of the
trial. Publication in Law Report or Law Digest
permitted.
Katz J
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