Alternative court processes for child witnesses

Wednesday 5 October 2011, 1:42PM
By Simon Power

Cabinet has approved an inquisitorial-style package of reforms that will dramatically improve the way child witnesses are treated in the criminal justice system, Justice Minister Simon Power announced today.

He said the package has been shaped by an Auckland University of Technology report on child witnesses, his visit to Germany and Austria last year to investigate inquisitorial systems of justice, and consultation with stakeholders.

“It disturbs me that AUT’s research found that 30 per cent of children wept while testifying, more than 70 per cent of them did not understand a question posed by a defence lawyer, and that 65 per cent were accused by the defence of lying,” Mr Power said.

“We simply must do better to ensure that the estimated 750 children who give evidence in criminal courts each year – the majority of them complainants in sexual offending cases – are not re-brutalised by their participation in the process.

“They are in the criminal justice system through no fault of their own and they deserve special protection.

“It’s the Government’s expectation that the new processes will resemble an inquisitorial system by requiring the judiciary to play a more active role in determining whether questions to be put to child witnesses are appropriate.

“Despite the courts already having special provisions and processes in place for dealing with child witnesses, I remain concerned that delays of up to 15 months and inappropriate questioning of children are reducing the court’s ability to elicit reliable and accurate evidence.

“Waiting 15 months to give evidence is a long time in anyone’s life, let alone that of a child.”

Mr Power said significant reforms in the package fall into three categories:

Reducing the impact of time delays

• Introduce a legislative presumption that all children under the age of 12 give their evidence by video record or CCTV. This will increase efficiency in the court process by removing the requirement that prosecutors make an application to the court.

• Introduce a legislative presumption in favour of pre-recording a child’s entire evidence (under the age of 12) including cross-examination and re-examination at a pre-trial hearing conducted in an age appropriate setting. This presumption would apply unless there was good justification why a child should not give evidence in this way.

• Introduce a requirement to hold pre-recording evidence hearings within a specified timeframe. This has the potential to reduce the waiting time for children giving evidence to less than six months.

• Clarify legislation which guides the way in which pre-recording operates in the courts. This will include clarifying that a child witness could be recalled for further questioning only when absolutely necessary.

Improving the questioning of child witnesses

• Introduce specialist intermediaries trained in the cognitive development and language comprehension of children, to improve the questioning of child complainants (under the age of 18) in court. The exact nature of the model will be developed by the Ministry of Justice in consultation with a working group of legal and judicial professionals and other key stakeholders. The use of specialist intermediaries will be phased in over two years and will be funded from the $50 Offender Levy.

• The Ministry of Justice to work with the judiciary and Law Society to improve the availability of guidance, education, and training for the judiciary and lawyers on how best to question and cross-examine child witnesses.

Other enhancements relating to child witnesses and their evidence

• Extend to all child witnesses the automatic right to have a support person present while giving evidence. If they are not the complainant, they currently have to apply to the judge.

• Direct judges to warn juries that they should not draw inferences from the demeanour of the child witnesses giving evidence by an alternative mode, such as pre-recording. These measures are designed to reduce stress and may make the child appear relatively relaxed when talking about traumatic events. It is important that the jury do not infer that this means they are not telling the truth.

“These changes will ensure child witnesses consistently benefit from the protection of alternative modes of giving evidence and that there is a clear expectation on court staff, the judiciary, and lawyers that cases involving child witnesses be given priority.

“Introducing specialist intermediaries and pre-recording a child’s evidence and then playing it back at trial can be an effective way of sparing the children the trauma of attending trial many months later.”

Mr Power said the proposals underline the Prime Minister’s Statement to Parliament in February that the Government is particularly focused on improving the results of public services for vulnerable children.

The changes will be contained in the Evidence Amendment Bill which is expected to be introduced into Parliament next year.

The announcement follows the publications of national guidelines for how child witnesses are supported through the criminal justice system. The guidelines can be found here.

The Cabinet paper can be found here.