«“Did you Not Say No?” How Cross-Examination May Influence Child Witnesses’ Accuracy and the Viability of the ‘Intermediary’ Solution ...»
“Did you Not Say No?”
How Cross-Examination May Influence Child Witnesses’
Accuracy and the Viability of the ‘Intermediary’ Solution
A dissertation submitted in partial fulfilment of a Bachelor of
Laws (Honours) degree.
University of Otago
14 October 2011
I am sincerely grateful to my supervisor, Donna Buckingham. Her encouragement,
patience, and positivity from start to finish gave me the confidence to develop my
own ideas, and take ownership of this project. Donna, your approach to supervision ensured that I gained the absolute maximum from this year. Thank you.
I am indebted to the assistance of Bridget Irvine, whose advice on elements of the psychology research literature was so very useful. Bridget your readiness to help out and be a sounding board throughout the year is so appreciated.
Mum and Dad, thank you for always being “just a phone call away”. Your unwavering support, in all its forms, and belief in me remains truly invaluable.
Thanks also to Rosalind and Emily for always thinking of me and cheering me on.
Finally thanks must go to friends whose ‘pep-talks’, genuine offers to help out, and coffee breaks helped me stay (relatively) together throughout the year. Knowing that I could count on you was so important.
Thank you all, I appreciate it so much.
Table of Contents Introduction 6 Chapter One From Deprecation to Facilitation: the Development of the Law Relating to Child Witnesses 9 I The Traditional Approach to Child Witnesses’ Evidence 9 II The Evidence Amendment Act 1989 10 III The Current Law Relating to Child Witnesses’ Evidence 11 Chapter Two A Focus on Cross-Examination 15 I Developmentally Inappropriate Questions and how they May Affect Accuracy 16 A Developmentally Inappropriate Question Types 16 B Developmentally Inappropriate Question Types in Cross-Examination 22 II Lawyers’ Attitudes to Cross-Examination of Child Witnesses 24 III Regulation of Cross-Examination to Date 25 IV Chapter Two Summary 31 Chapter Three 33
Consider the case of the nine year old child, whose ability to recall a licence plate was
challenged through defence counsel asking her:
“Did you just pick that up just because you talk – you plan your time to fill your space, the spacing off or riding your bike, or did anybody tell you you should read licence plates?”1
The same child’s identification evidence was tested in the following way:
“Prior to seeing Mr. B in his front yard on that night – on that day – and the individual in the car, did you ever see Mr. B get into his car before that or get out of his car?”2
Consider also the case of a seven year old, asked during cross-examination:
“Now this happened on a Friday, was it not?”3
And finally the case of the fourteen year old, asked:
“I suggest to you that you picked the wrong person.”4 Regarding the first two questions, the likelihood of an accurate response is significantly diminished by the complexity of the language employed. With many parts requiring a response, the central ‘question’ is not clear. Even if able to respond, Actual court transcript extract. NW Perry and others “When Lawyers Question Children: Is Justice Served?” (1995) 19 Law & Hum.Behav. 609, at 609.
Actual court transcript extract. M Brennan "The discourse of denial: Cross-examining child victim witnesses" (1995) 23 Journal of Pragmatics 71, at 88 (transcript, 7 years).
Actual court transcript extract. J Plotnikoff and R Woolfson “The Challenge of Questioning Children at Court” (speech to Middle Temple Hall, 21 February 2011).
a child may answer a ‘sub-question’ instead of the main question, leaving the questioner open to interpret and explain which part of the question was supposedly answered.
To accurately understand and answer the third question the respondent is required to undertake seven stages of reasoning to unravel its meaning. The linguistic processing capacity of a child is typically not sufficiently developed to allow him or her to adequately complete this unraveling exercise, particularly as the question contains a negative—a structure not properly understood by a child until he or she is at least nine years old.
In the case of the fourth question, the formulaic courtroom language employed and the structure of the question means that many a child witness will process it as a statement, not a question that he or she can refute if incorrect. In the case highlighted, the fourteen year old complainant’s failure to refute the ‘alternative hypothesis’ posed by defence counsel led to the collapse of the prosecution case, which was centered on the complainant’s identification evidence. The defendant was consequently acquitted.
The processing required to correctly understand, and respond to, typical crossexamination questions is beyond that which a child witness is likely able to undertake.
The possibility that evidence elicited under cross-examination will consequently be inaccurate constitutes the present focal problem. The New Zealand Government’s current review of how children give evidence raises allowing for the appointment of third party ‘intermediaries’, to assist with communication, as one possible solution.
What are intermediaries? What might their role at trial be? How will their involvement alter current trial procedures? And, finally, is this alteration tenable within the constraints of New Zealand’s adversarial system? It is these critical questions that guide the present discussion. Their answers help shape the model of intermediary scheme that is ultimately proposed as being the most appropriate for New Zealand to introduce.
Chapter One From Deprecation to Facilitation: the Development of the Law
I The Traditional Approach to Child Witnesses’ Evidence “The court deprecates the calling of a child of this age…the jury could not attach any value to the evidence of a child of five: it is ridiculous to suppose that they could…”5 The above statement may invoke incredulity today. It exemplifies the traditional, sceptical approach to children’s evidence: that a child’s innate tendency to fantasise and distort rendered his or her account inherently unreliable, and worthy of little weight.6 Stringent evidentiary requirements, in force when this traditional attitude
prevailed, greatly decreased the likelihood of a child being heard at trial:
The rule against hearsay meant that a child’s account of events was inadmissible at trial unless that child testified.7 However, a child could only give evidence in court if the presiding judge deemed him or her competent to do so.8 Wallwork (1958) 42 Cr. App. R. 153, per Lord Goddard. This statement was made in the course of rejecting an application to allow a five year old child to give evidence.
M Ellen-Pipe and M Henaghan "Accomodating Children's Testimony: Legal reforms in New Zealand" (1996) 23 Crim.Just.& Behav. 377 at 379; W Ball "The law of evidence relating to child victims of sexual abuse" (1995) 3 Wai L Rev 63, at 63.
The common law exceptions to the rule against hearsay, such as where a statement was a ‘spontaneous utterance’ would have allowed some hearsay statements to be entered as evidence.
However, as a general rule, in-court testimony was required.
Note that this was a modification of the common law approach to child witnesses. Common law required a child to be sworn in before his or her evidence could be heard. Section 13 of the Oaths and Declarations Act 1957 amended this, to allow a child under 12 to give evidence either sworn or unsworn. Unsworn evidence could only be heard providing the child made a promise to tell the truth (Oaths and Declarations Act 1957, s 13). However, neither oath nor promise could be taken in the absence of satisfaction of the test of competence. To satisfy competency, the child was required to Children deemed competent were required to give evidence in the same manner as adults.9 Judges almost invariably directed juries that the evidence of a child was inherently suspect.10 This was a practice recommended as “prudent” by the Court of Appeal.11 Through it, judicial instruction effectively ensured that little weight would be afforded to a child’s version of events.
II The Evidence Amendment Act 1989 The Evidence Amendment Act 198912 was designed to facilitate the presentation of children’s evidence, and remove the traditional scepticism towards its reliability.13 The common law competency requirement remained,14 however the Act introduced a range of alternative modes by which a child complainant15 could give evidence:16 via pre-recorded video interview; closed circuit television (CCTV); or from behind a screen.17 Where the trial was for an offence of a sexual nature, the prosecution was demonstrate an adequate understanding of the difference between truth and falsehood and an appreciation of the duty to tell the truth, given the solemnity of the occasion (R v Accused (CA245/90)  2 NZLR 649).
That manner being from the witness box at the time of trial. Ellen-Pipe and Henaghan, above n 6, at 379.
R v Parker  NZLR 325 at 329.
The Evidence Amendment Act 1989 inserted ss 23C – 23I into the Evidence Act 1908.
R v S  2 NZLR 142 at 144; Ball, above n 6.
Videotape evidence was only admissible provided competence was demonstrated at the start of the recording (Evidence (Video Taping of Child Complainants) Regulations 1990, SR 1990/164, regs 5(1) and 5(2); R v AR & MR (CA302/05, 309/05) 15 March 2006).
For the purposes of the provision of alternative modes to give evidence, a child was classified as being any person under the age of 17 years at the start of the proceedings (s 23C(b)(i) of the Evidence Act 1908).
The Evidence Amendment Act 1989 restricted the availability of alternative modes to child complainants where offences were of a sexual nature (Evidence Act 1908, s 23E). The New Zealand courts, however, extended eligibility for alternative modes to all classes of child witnesses (i.e.
witnesses or complainants) irrespective of the nature of the crime (Ellen-Pipe and Henaghan, above n 6, at 380). See for example R v M  1 NZLR 54 (CA); R v Moke and Lawrence  1 NZLR 263 at 272.
Evidence Act 1908, s 23E(1).
required to apply for direction as to how a child complainant was to give evidence.18 Whether an alternative mode was used was at the judge’s discretion.19 The Evidence Amendment Act 1989 legislated against the previously recommended standard practice of warning the jury about a child witness’s reliability. It statutorily barred judges from instructing juries to scrutinise a child’s evidence with particular care, or suggesting that children tended to distort or invent information.20 In arguably a complete reversal of the common law approach, where alternative modes were used, the judge was required to instruct the jury not to draw any adverse conclusion from their use.21 III The Current Law Relating to Child Witnesses’ Evidence The Evidence Act 2006 and the Evidence Regulations 2007 together govern the way in which child witnesses give evidence in proceedings today. Designed to “facilitate the admission of relevant and reliable evidence”,22 the legislation contains few restrictions on witness status.
Evidence Act 1908, s 23D(1).
Evidence Act 1908, s 23D(4) provided the only guidance. It required that a judge, in exercising this discretion, have “regard to the need to minimise stress on the complainant while at the same time ensuring a fair trial for the accused”. Consistency in decisions was not prevalent (Ellen-Pipe and Henaghan above n 6, at 380), and there was notable geographical variation between applications and orders (E Davies and FW Seymour "Questioning Child Complainants of Sexual Abuse: Analysis of Criminal Court Transcripts in New Zealand" (1998) 5 Psychiatry Psychol. & L. 47, at 47).
Evidence Act 1908, s 23H.
New Zealand Law Commission Evidence: Reform of the Law (NZLC R55 Vol 1, 1999), at 3.
The common law competency rules no longer exist. An assumption of eligibility to give evidence is now the starting point.23 Where individual characteristics of a witness may invite concern as to reliability, the Act makes provision to mitigate their effects, rather than exclude a witness’s evidence altogether.24 Evidential rules governing the use of alternative modes of giving evidence are set out in ss 102A – 107 of the Act.25 The objective of the Evidence Act 2006, to facilitate the admission of evidence,26 is supported by a focus in the provisions which recognises a need to accommodate and assist all witnesses:27 Section 103 extends statutory eligibility to give evidence in an alternative way to all witnesses in all proceedings.28 The Judge may direct that a witness is to give evidence in the ordinary way or in an alternative way, on his or her own initiative, or on the application of either prosecution or defence.29 Such an application is mandatory where the complainant is a child.30 Under s 105, there are currently only three ‘acceptable’ deviations from the ordinary way of giving evidence available:31 in the R v Tanner  NZCA 391 at . See Evidence Act 2006, s 77(1)(a) which states that “in a civil or criminal proceeding any person is eligible to give evidence”.
See R v Tanner, above n 23 at  where the Court held “that if a young child is unable to give coherent evidence a Judge will still retain a discretion to exclude the testimony under s 8 of the Act (the general exclusion provision)”.
Despite s 5 of the Evidence Act 2006, pursuant to s 102A of the Evidence Act 2006 the Courts (Remote Participation) Act 2010 does not override the rules relating to the applications and/or directions for the use of alternative modes in giving evidence. See further Elisabeth McDonald and Yvette Tinsley “Use of Alternative Ways of Giving Evidence by Vulnerable Witnesses: Current
Proposals, Issues and Challenges” VUWLRP 2/2011. Available at SSRN:
http://ssrn.com/abstract=1885145, at 6.
New Zealand Law Commission, above n 22.
Compare this with the 1989 Amendments which were predominantly focused on reducing the marginalisation traditionally experienced by ‘victim witnesses’ (complainants) only.