Irving v Irving
[2021] NZHC 2269
•31 August 2021
PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018 AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS
PROCEEDING MUST COMPLY WITH SS 11B, 11C, AND 11D OF THE FAMILY COURT ACT 1980. THIS JUDGMENT HAS BEEN ANONYMISED, HOWEVER, AND MAY BE REPORTED IN THIS FORM.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-000592
[2021] NZHC 2269
BETWEEN JOAN IRVING
Applicant
AND
SIMON IRVING
Respondent
Hearing: 10 June 2021 Counsel:
J Gandy for applicant
V A Crawshaw QC, counsel to assist the Court
Judgment:
31 August 2021
JUDGMENT OF KATZ J
This judgment was delivered by me on 31 August 2021 at 4:00 pm pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Thomas & Co, Auckland
Counsel: V A Crawshaw QC, Hobson Chambers, Auckland
IRVING v IRVING [2021] NZHC 2269 [31 August 2021]
Introduction
[1] Ms Irving1 sought and obtained a temporary protection order against her husband, Mr Irving, as well as an interim parenting order which provided for supervised contact between the parties’ four children and Mr Irving.
[2] The temporary protection order has since been discharged and the proceedings under the Family Violence Act 2018 concluded. The proceedings under the Care of Children Act 2004 remain afoot, however, and include allegations of family violence.2 Mr Irving wishes to have unsupervised care of his children and ultimately seeks to share their care with Ms Irving.
[3] A party to criminal or civil proceedings involving allegations of family violence is not entitled to personally cross-examine a complainant or party who has made allegations of violence.3 Rather, s 95(5) of the Evidence Act 2006 provides that the party precluded from cross-examining, if they are unrepresented, “may have his or her questions put to the witness” by a person appointed by the Judge for that purpose.
[4] Ms Irving is legally represented. Mr Irving is not. Section 95 of the Evidence Act is therefore engaged, and Mr Irving is not able to personally cross-examine Ms Irving.4
[5] There are disparate views held by Family Court Judges and family law practitioners about who can be appointed by a Judge to perform the s 95(5) role, and what the scope of the role is. The issue has significant practical implications, due to the number of unrepresented parties in the Family Court. The Family Court
1 Pseudonyms have been used to protect the identity of the parties.
2 [Irving] v [Irving] [2021] NZFC 2735 at [1]-[14].
3 Evidence Act 2006, s 95(1). For convenience I will refer to an unrepresented party who is precluded from personally cross-examining a witness as “the unrepresented party,” although in practice other parties may also be unrepresented.
4 Family Court Act 1980, s 12A provides that the Evidence Act applies to proceedings in the Family Court.
(Judge Emma Parsons) has therefore, of its own motion, stated a case for the opinion of the High Court.5 There are three questions for determination:
(a)Question 1: Is there jurisdiction in the Family Court to appoint Lawyer to Assist to fulfil the s 95(5) role of putting questions for the [unrepresented party], noting the role prescribed within s 9C of the Family Court Act 1980?
(b)Question 2: If there is jurisdiction for the Family Court to appoint a Lawyer to Assist to fulfil the s 95(5) role, is that role, in light of s 9C of the Family Court Act, limited to putting the [unrepresented party’s] questions (repeating the questions of the [unrepresented party] as prepared by the [unrepresented party])?
(c)Question 3: If there is jurisdiction for the Family Court to appoint a Lawyer to Assist to fulfil the s 95 role, is that role, in light of s 9C of the Family Court Act, to cross-examine the complainant (and implicitly comply with s 92 of the Evidence Act)?6
Current practice in the Family Court
[6]Section 95 of the Evidence Act provides that:
(5)A defendant or party to a proceeding who, under this section, is precluded from personally cross-examining a witness may have his or her questions put to the witness by—
…
(b)if the defendant is unrepresented and fails or refuses to engage a lawyer for the purpose within a reasonable time specified by the Judge, a person appointed by the Judge for the purpose.
(6)In respect of each such question, the Judge may—
5 I acknowledge at the outset the helpful submissions of Ms Crawshaw QC (counsel appointed to assist the Court), and Mr Gandy (counsel for Ms Irving), as well as the helpful and comprehensive Minute provided by Judge Parsons. Mr Irving abides the decision of the court.
6 Section 92 requires a party to “cross-examine” on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.
(a)allow the question to be put to the witness; or
(b)require the question to be put to the witness in a form rephrased by the Judge; or
(c) refuse to allow the question to be put to the witness. (emphasis added)
[7] The current Family Court practice is to appoint “Lawyer to Assist” to perform the s 95 role. Lawyers to Assist in Family Court proceedings may be appointed by the Court under the Care of Children Act,7 the Family Violence Act,8 and (less relevantly for present purposes) other legislation such as the Oranga Tamariki Act 19899 and the Protection of Personal and Property Rights Act 1988.10
[8] To date it has been assumed that there is jurisdiction in the Family Court to appoint Lawyer to Assist to carry out the s 95(5) role. Indeed, it has become standard practice for such appointments to be made. Judge Parsons notes in her Minute that there is almost an assumption that the person appointed under s 95(5)(b) should be Lawyer to Assist.
[9] As for the ambit of the s 95 role, the Principal Family Court Judge recently provided the following guidance in her November 2020 newsletter to Family Court Judges:11
The interpretation of s 95 Evidence Act 2006 remains problematic. There are differing views on the role of counsel appointed to assist for the purpose of putting the party’s questions to the witness; in particular, whether counsel bears any responsibility to ensure that the party meets his or her s 92 duty to put his or her case to the witness.
For my part, I adopt the affirmative view expressed by former PFC Judge Ryan in the attached memorandum.
7 Care of Children Act 2014, s 130.
8 Family Violence Act 2018, s 166.
9 Oranga Tamariki Act 1989, s 160.
10 Protection of Personal and Property Rights Act 1988, s 65A.
11 This memorandum has also been circulated amongst family lawyers.
[10]The “Judge Ryan memorandum” is set out in full below:
Dear Judges,
At the last Administrative Family Court Judges Meeting, Judge McHardy advised that there had been a misunderstanding within the Auckland Family Registry regarding appointments of counsel to assist for the purpose of s 95(1) Evidence Act 2006. A Registrar had assumed that the appointed counsel could only ask questions that he or she was told to ask by the person prevented from cross-examining.
Judge Pidwell addressed this issue by describing what approach should be taken when Counsel to Assist is appointed under s 95(1) of the Evidence Act 2006:
(i)A registrar needs to identify when there is a self-represented respondent in DV proceedings, or COCA (where there are allegations of DV).
(ii)The issue of a s 95 appointment should be referred to box work before the matter is set down.
(iii)The judge then makes a direction for the appointment of counsel to assist.
(iv)That person’s role is to conduct the cross examination on behalf of the self represented party. In doing so, they must comply with their obligation under s 92 of the Evidence Act which sets out the duties to put the case.
(v)In order to comply with the s 92 duty, counsel to assist must have a copy of the proceedings, meet with the respondent to discuss the matters in issue, explain the term “relevance”, and prepare cross examination. Their role is not simply to voice the respondent’s questions but to conduct the cross examination.
The Administrative Judges agree with Judge Pidwell’s approach.
[11] Although not issued as a practice note, the guidance from the Principal Family Court Judge contained in the newsletter and memorandum has broadly the same status, pursuant to s 6(7) of the Family Court Act. The guidance does not have any legal effect, but rather outlines “best practice” to promote the orderly discharge of the business of the Court.
Legislative history of s 95 of the Evidence Act
[12] The Evidence Act 1908 as enacted did not prohibit an accused person from cross-examining a complainant. In 1989, however, the Evidence Act 1908 was amended to prohibit an unrepresented defendant from personally cross-examining a
child or intellectually disabled complainant in cases of alleged sexual offending.12 The new s 23F provided, in relation to such cases, that:
23F Cross-examination and questioning of accused
(1)Notwithstanding section 354 of the Crimes Act 1961, but subject to the succeeding provisions of this section, the accused shall not be entitled in any case to which this section applies to cross-examine the complainant.
(2)Nothing in subsection (1) of this section nor any direction given under section 23E of this Act shall affect the right of counsel for the accused to cross-examine the complainant.
(3)Where the accused is not represented by counsel, the accused may put questions to the complainant (whether by means of an appropriate audio link or otherwise as the Judge may direct) by stating the questions to a person, approved by the Judge, who shall repeat the questions to the complainant.
(4)No direction given under section 23E of this Act shall affect the right of the Judge to question the complainant.
(5)Where the complainant is being cross-examined by counsel for the accused, or any questions are being put to the complainant by the accused, the Judge may disallow any question put to the complainant that the Judge considers is, having regard to the age of the complainant, intimidating or overbearing.
(emphasis added)
[13] Section 23F therefore provided for the accused to state their questions to the appointed person, who would then repeat those questions to the complainant. No restrictions were placed on who could be appointed to the role of putting the accused’s questions to the complainant. There are examples of both a layperson and a lawyer being appointed to carry out the s 23F role,13 although it appears that the more usual practice was to appoint a lawyer.
[14] The law of evidence was comprehensively reviewed by the Law Commission in the late 1990s. In 1999, the Commission produced its final report, which included
12 Section 23C.
13 See R v Sharma CA360/04, 6 July 2006 where counsel was appointed to the s 23F role; and R v DGO HC Auckland T 219-91, 23 July 1992 where a “Miss Tannis Laidlaw” was appointed to the role, as she was a person experienced with young children. It does not appear that she was a lawyer.
a proposed new Evidence Code and associated commentary. The Commission made the following recommendations:14
The Law Commission recommends an absolute bar on personal cross-examination by unrepresented defendants in the case of:
•all complainants in sexual cases;
•all complainants in cases of domestic violence (as defined in the Domestic Violence Act 1995); or harassment (as defined in the Harassment Act 1997); and
•all child witnesses in sexual and domestic violence cases.
All other witnesses should be able to apply not to be personally cross-examined, or the court should be able to make an order of its own initiative. These proposals, contained in s 95, are consistent with developments overseas.
While the Law Commission agrees that appointing an amicus to ask questions in the place of an unrepresented defendant is the most appropriate solution, it considers it essential that the rule remain flexible to deal with differing circumstances. Section 95(5) therefore allows the judge to ask the questions on behalf of the unrepresented party, or to appoint an appropriate person for the purpose. It also empowers the judge to rephrase a question (for example, one that is unacceptable (under s 85)) or to refuse to ask (or to allow the person appointed to ask) a question (such as a question prohibited by s 46 of the Code).
[15] The proposed new Evidence Act included a section that ultimately became s 95, with one material change.15 The Commission’s accompanying commentary on the section stated that:16
C341This section is a much broader version of the provision in s 23F of the Evidence Act 1908, which it replaces. Section 23F applies only to child complainants and mentally handicapped complainants in sexual cases. This new section enacts an absolute bar on cross-examination by unrepresented defendants of all complainants and child witnesses in sexual cases, and all complainants and child witnesses in domestic violence cases.
…
14 Law Commission Evidence Volume 1: Reform of the Law (NZLC R55, 1999) at 110-111.
15 Law Commission Evidence Volume 2: Evidence Code and Commentary (NZLC R55, 1999) at 220-223. The Parliamentary select committee removed the reference in the Evidence Bill 2005 permitting the judge to undertake the cross-examination, but without giving reasons for this amendment: See Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013) at [11.60] as cited in Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act and Analysis (4th ed, Thomson Reuters, Wellington, 2018) at 655.
16 Law Commission Evidence Volume 2: Evidence Code and Commentary (NZLC R55, 1999) at
223.
C350Section 95(5) carries forward the provisions of s 23F(3) and (5) of the Evidence Act 1908 in allowing an unrepresented party who is precluded from personally cross-examining a witness to put questions to the witness through the judge or through a person appointed by the judge for this purpose. In considering whom to appoint, the judge should have regard to the factors in s 95(3) and (4). It may not be appropriate, for example, for a friend or relative of the unrepresented party to ask the questions. Under s 95(6), the judge is given express powers to rephrase a question or require that it be rephrased, or to refuse to allow the question to be put – for example, if it is unacceptable in terms of s 85.
(emphasis added)
[16] The new s 95 therefore expanded the categories of persons that an unrepresented defendant was precluded from cross-examining. In all other respects, however, it appears that the amendment was intended to restate the law as it then was.17 In particular, the Law Commission appeared to contemplate a process where the appointee is simply a mouthpiece for the questions – as they were under s 23F of the Evidence Act 1908 – by “put[ting] questions through the judge or through a person appointed”.
Question 1: Is there jurisdiction in the Family Court to appoint Lawyer to Assist to fulfil the s 95(5) role?
[17] Question 1 asks whether the Family Court can appoint Lawyer to Assist to carry out the s 95(5) role, noting the now restricted and codified role for Lawyer to Assist in the Family Court, as set out in s 9C of the Family Court Act 1980.
[18] On 31 March 2014, the Family Court Act was amended to insert a new section prescribing the role of lawyers appointed to assist the Family Court:
9C Role of lawyer appointed to assist court
(1)The role of a lawyer who is appointed to assist the court in proceedings is to—
(a)provide independent legal advice to the court on any complex factual or legal issue requested by the court:
17 See (21 November 2006) 635 NZPD 6638 where the Hon Christopher Finlayson commented that “The rest of Part 3, dealing with trial process, is largely unexceptional and essentially enacts what is currently the law”; and (23 November 2006) 635 NZPD 6802 where he reiterated that “Part 3 deals with the trial process… I particularly refer to clause 79, and I say one last time in relation to clause 88 that it is intended by this clause to restate the current law; the challenge has been on the part of the Law Society, the officials, and the parliamentarians to find the right form of words”. See also [Irving] v [Irving] [2021] NZFC 2735 at [36]-[37].
(b)offer an impartial perspective in relation to any issue arising in the proceedings:
(c)undertake any other task required by or under any other Act.
(2)A lawyer appointed to assist the court in proceedings may—
(a)call any person as a witness in the proceedings:
(b)cross-examine witnesses called by any party to the proceedings or by the court.
[19] Section 95(5) simply provides for the Judge to appoint a “person” to carry out the role of putting the unrepresented party’s questions to the witness. The plain and ordinary meaning of “person” is clearly broad enough to include a lawyer. The specific role of Lawyer to Assist, however, is set out in s 9C of the Family Court Act. Is that role wide enough to allow the Court to appoint Lawyer to Assist to undertake the s 95(5) role? Or is the statutory role of Lawyer to Assist more limited than that?
[20] In my view the two roles are compatible. Section 9C(1)(c) of the Family Court Act provides that Lawyer to Assist may be appointed by the Court to “undertake any other task required by or under any other Act”. This is clearly broad enough to include an appointment for the purposes of carrying out the role under s 95(5). The s 95(5) function falls within the scope of “any other task … under any other Act”.
[21] Jurisdiction therefore exists for the Family Court to appoint Lawyer to Assist for the purpose of carrying out the s 95(5) role. An appointment for the purposes of s 95(5) aligns with the prescribed functions in s 9C(1). When read together, s 95 of the Evidence Act and s 9C(1)(c) of the Family Court Act, along with the specific power to appoint contained in the relevant legislation (in the present case, s 130 of the Care of Children Act) provides the jurisdictional basis for the appointment to be made.
Questions 2 and 3: Scope of the role of Lawyer to Assist appointed to fulfil the s 95 role
[22] The second and third questions before the Court are closely interrelated. They concern the scope of the s 95(5) role and, in particular, the duties and obligations of a Lawyer to Assist who is appointed to carry out the role. Specifically:
(a)is the role limited to putting the unrepresented party’s questions (repeating the questions of the unrepresented party as prepared by the unrepresented party) (“the restrictive view”); or
(b)is the role to conduct a full cross-examination of the complainant (and implicitly comply with the cross-examination duties in s 92 of the Evidence Act) (“the broad view”)?
What interpretation does the plain language of s 95 support?
[23] The starting point is, of course, the plain language of the section. Section 95(5) states that an unrepresented party “may have his or her questions put to the witness” by the person appointed. The plain and ordinary meaning of s 95(5), viewed in its statutory context, is that the appointee is acting as an intermediary, or mouthpiece, for the unrepresented party, to enable the unrepresented party to communicate his or her questions to the witness. It is the unrepresented party’s questions that are put.
[24] This interpretation is further supported by the wording of s 95(6), which provides that “in respect of each such question” the Judge may allow the question to be put to the witness, rephrase the question, or refuse to allow the question to be put. However, s 85 of the Evidence Act already provides Judges with the power to disallow unacceptable questions, or direct that a witness not answer them. Why then does s 95(6) provide for an enhanced degree of supervision from the Court? In my view this reflects that:
(a)the questions are intended to be crafted by the unrepresented party himself or herself, rather than a lawyer; and
(b)the person appointed to put the questions to the witness (who may not be a lawyer) is simply the mouthpiece of the unrepresented party.
[25] The fact that s 95 simply provides for the Judge to appoint a “person” to the s 95 role, rather than a lawyer, further supports the restrictive interpretation of the section. The Law Commission’s 1999 report indicates that this wording was
deliberate, to preserve flexibility.18 A layperson appointed under s 95 would be unlikely to have the skills to conduct a full cross-examination. Parliament cannot have intended that the interpretation of s 95 vary with the qualifications of the person appointed to the role.
[26] In conclusion, the plain language of s 95, viewed in its statutory context, supports the restrictive view. It contemplates a process whereby the person appointed by the Judge simply communicates or repeats the unrepresented party’s questions to the witness.
What interpretation does the legislative history support?
[27] I have set out the legislative history in some detail at [12] to [16] above. That history also supports the restrictive view.
[28] Under s 23F of the Evidence Act 1908, a defendant could put questions to the complainant “by stating the questions to a person, approved by the Judge, who shall repeat the questions to the complainant.”19 The role of the appointed person was to repeat questions and nothing more.
[29] As described above, the ambit of s 23F was subsequently expanded by Parliament (as set out in s 95 of the Evidence Act) to extend the protection offered to a wider class of vulnerable witnesses. However, there is nothing in the legislative history to suggest that Parliament intended to expand the role of a s 95 appointee. Under s 23F that role was limited to putting the questions prepared by the unrepresented party. Other than extending the class of vulnerable witnesses entitled to the protection of the section, s 95 was intended to restate the law as it then was.
Does the broad view risk undermining the legal aid system and giving an unfair advantage to the self-represented party?
[30] Ms Crawshaw submitted that another factor favouring the restrictive view is that the broad view risks creating an alternative system to the legal aid system for
18 Law Commission Evidence Volume 1: Reform of the Law (NZLC R55, 1999) at 110.
19 Evidence Act 1908, s 23F.
unrepresented parties, potentially giving them an unfair advantage. This, she submitted, would undermine the purpose of s 95. In particular, the primary purpose of appointing a person (usually Lawyer to Assist) to carry out the s 95(5) role is not to benefit or assist the unrepresented party, but to protect vulnerable complainants or other witnesses. Section 95 establishes a mechanism that enables the evidence of such witnesses to be tested without the vulnerable person having to face direct questioning by their alleged abuser.
[31] The specific concern raised by Ms Crawshaw is that an unrepresented party who was either ineligible for legal aid, or who refused a legal aid lawyer, could nonetheless receive the benefit of a publicly funded Lawyer to Assist to conduct the cross-examination of the opposing party (who will usually be the key witness). This would potentially undermine the legal aid system – an outcome generally recognised as undesirable by the courts.
[32] For example, in a criminal context the Court of Appeal held in Fahey v R that appointments of counsel to assist to represent or benefit a party should be exceptional, including because:20
[r]outine appointments tend to undermine the legal aid regime, for Parliament has chosen not to insist that all defendants be represented or to provide counsel for them. In Hinds v Attorney-General of Barbados this was characterised as a prerogative of democratic government. It would also be inappropriate to appoint counsel where the defendant can pay for legal services, or where preferred counsel wants to be paid at more than legal aid rates.
(footnote omitted)
[33] Similarly, in a civil context, the High Court has held that a Court must adopt a principled approach when exercising the discretion as to whether to appoint counsel to assist the Court.21 Such an appointment should not be made where the primary purpose is to assist a party in the presentation of their case in circumstances where legal aid may have been refused, or for some other reason the party is unable or unwilling to access a lawyer for the purpose of representation.22
20 Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392 at [85(e)]
21 Erwood v Holmes [2017] NZHC 1278, [2017] NZAR 971.
22 At [40].
[34] A further concern is that an unrepresented vulnerable party may be required to contribute to the costs of Lawyer to Assist (whose costs will likely be much greater if they are not simply the mouthpiece for the unrepresented party). As pointed out in Judge Parsons’ Minute:
[52] … The imbalance of providing an allegedly violent party with free representation while the alleged victim remains unrepresented or underrepresented remains a concern brought into sharp relief by the prospect of s 135A costs payments orders in [Care of Children Act] proceedings which would see the alleged victim pay contributions to the costs of the counsel appointed to cross-examine them and represent the allegedly violent party.
(footnote omitted)
[35] The Court does have a discretion under s 135A of the Care of Children Act to decline to order a party to pay an equal share of a costs contribution order for reasons of “serious [financial] hardship”,23 or where the court is satisfied that such an order would be inappropriate “in view of the circumstances of the case” (including the other party’s conduct).24 The default position under s 135A(3), however, is that the parties contribute towards the cost of Lawyer to Assist in equal shares.
[36] The intent of s 95 is simply to protect the alleged victim from being questioned by his or her alleged abuser directly. The aim is not to ensure that the unrepresented alleged perpetrator of violence has access to legal representation.
[37] For the reasons outlined, I accept Ms Crawshaw’s submission that the broad view risks undermining the legal aid system, potentially giving an unfair advantage to the unrepresented party (particularly where the other party is also unrepresented).
Difficulties with the restrictive view
[38] The restrictive view is not without its difficulties. The learned authors of Adams on Criminal Law, while seeming to acknowledge that the plain words of s 95 favour the restrictive view, express concern that in practice such an approach could render cross-examination less effective, and prolong the proceedings:25
23 Section 135A(2). The meaning of “serious hardship” is defined by s 135A(5).
24 Section 135A(4).
25 Simon France (ed) Adams on Criminal Law – Evidence (online looseleaf ed, Thomson Reuters) at [EA95.03(1)].
Section 95(5) refers only to the party’s questions being put to a witness by (a) the lawyer or (b) the person appointed. This raises the issue of the extent to which the person actually conducting the cross-examination can follow his or her own initiative in posing questions suggested by the way in which the cross-examination develops. It is arguable that each question asked must have been previously authorised by the otherwise unrepresented party. Only then will the questions be those of the party (i.e. “his or her questions” per s 95(5)). However, this restriction could damage the effect of the cross-examination and prolong the proceedings.
[39] The first way in which the restrictive view could render cross-examination less effective relates to process. Cross-examination conducted through a third party will inevitably be slower and more disjointed than direct cross-examination. The practical effect is probably somewhat similar to conducting cross-examination through an interpreter (although the delays caused by cross-examining through an interpreter are likely greater, given the need to interpret both the questions and the answers).
[40] The second way in which the restrictive view could render cross-examination less effective relates to the substance of the cross-examination. Generally, a lawyer (assuming the person appointed is a lawyer) will be more skilled and effective at cross-examination than a layperson. This problem applies equally, however, to all unrepresented litigants. Nevertheless, our legal system recognises the right of litigants to choose to represent themselves. The rationale for this is that it protects personal dignity and autonomy and allows defendants to present their own cases in their own way, which is appropriate given that they bear the sole consequences of failure.26 The Court of Appeal in Fahey noted that the right to self-represent “is not limited to defendants who are well equipped by ability, education and temperament, nor is it denied to those whose trials are serious or complex”.27 Further:28
[44] A self-represented lay defendant lacks the knowledge of rules of procedure and evidence, and experience and skill in their application in the trial context. Litigants in person do not often give evidence or cross-examine in an orderly way that focuses on what is relevant and avoids repetition. Nor do they generally have the advantage of the detachment of counsel in conducting the defence. The right to self-representation exists despite these features, and they cannot be advanced to gainsay it.
26 Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392 at [43]-[44] citing Faretta v California (1975) 422 US 806. Although this is in a criminal context, the same reasoning applies, by analogy, to civil cases.
27 At [45].
28 R v Cumming [2006] 2 NZLR 597 (CA).
[41] A further difficulty with the restrictive view is that it necessarily follows that it will be the unrepresented party, rather than the appointee, who is subject to the s 92 cross-examination duties. The unrepresented party may not be aware, however, of what those duties are.
[42] Again, however, this is a difficulty faced by all self-represented litigants. If the unrepresented party fails to discharge their cross-examination duties, the Judge may take steps to intervene under s 92(2). Further, the Judge has the responsibility of explaining the trial process to the unrepresented party, outlining the relevant rules of evidence, and intervening as necessary to ensure overall fairness to each side, including giving guidance in putting questions to witnesses.29
[43] These “difficulties” with the restrictive view are far from insurmountable and/or are difficulties shared by all unrepresented litigants. They cannot justify interpreting s 95 in a manner that is not in accordance with either its plain language or the apparent legislative intent, as evident from the legislative history of the section.
Scope of the role if a layperson is appointed under s 95
[44] Although they do not form part of the stated questions before the Court, Judge Parsons raised two additional questions concerning the scope of the s 95(5) role where a layperson is appointed. Those questions are:
(a)what are the criteria for appointing such a person; and
(b)is this person’s role to be a mouthpiece, or are they expected to go beyond simply repeating questions as provided (noting that a person not legally trained is unlikely to be able to undertake effective cross-examination)?
[45] As regards the first question, there is no guidance in the legislation. However, as the Law Commission observed, the Judge should have regard to the factors in s 95(3) and (4) in determining whether a particular appointee is appropriate.
29 Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392 at [50].
[46] In respect of the second question, the role of a person appointed under s 95(5) does not alter depending on the qualifications of the person appointed. The role of a layperson appointed under s 95(5) is the same as that of a lawyer appointed under the section, as set out above.
Could Lawyer to Assist be appointed to perform a broader role than that mandated by s 95?
[47] A related issue that was briefly addressed at the hearing is whether there are circumstances in which Lawyer to Assist could be appointed to perform a broader role than that envisaged by s 95 (potentially including full cross-examination).
[48] Obviously, where a party is unrepresented in criminal proceedings a court can appoint either counsel to assist or standby counsel, in appropriate cases. This reflects the fundamental importance of fair trial rights in the criminal jurisdiction. The appropriate parameters of the role of counsel to assist or standby counsel in criminal cases, and the circumstances in which it may be appropriate for the Court to make such an appointment, are outlined in Fahey. If the interests of justice require it, their role may involve conducting a full cross-examination of witnesses called by the opposing party, including the complainant.
[49] In the Family Court, a lawyer may be appointed to assist the court under the Care of Children Act, the Family Violence Act, or various other enactments. As set out above, the role of Lawyer to Assist in the Family Court is to:30
(a)provide independent legal advice to the court on any complex factual or legal issue requested by the court;
(b)offer an impartial perspective in relation to any issue arising in the proceedings; and
(c)undertake any other task required by or under any other Act (which I have found includes putting the unrepresented party’s questions to a vulnerable witness).
30 Family Court Act 1980, s 9C
[50] Section 9C(2) provides that a Lawyer to Assist may call witnesses or cross-examine witnesses called by any party. It is therefore arguable that a Lawyer to Assist appointed to perform one or more of the above roles under s 9C could be directed by the Judge to conduct a full cross-examination of the vulnerable party. Any such direction, however, should not undermine the unrepresented party’s right under s 95 to have his or her own questions put to the vulnerable witness.
[51] Further, many of the concerns expressed by the Court of Appeal in Fahey regarding the appointment of counsel to assist for the purposes of representing or benefitting a party in criminal proceedings apply with equal or greater force to civil proceedings. This is reflected in the observation in Erwood v Holmes that such an appointment should generally not be made where the primary purpose is to assist a party in the presentation of their case in circumstances where legal aid may have been refused, or for some other reason the party is unable or unwilling to access a lawyer for the purpose of representation.31
[52] Of course, there will inevitably be exceptions, where it is in the interests of justice for counsel to assist to be directed (either pursuant to specific legislation or using the Family Court’s inherent powers)32 to conduct a full cross-examination of one or more witnesses called by the opposing party. Sharva v Sharva appears to have been such a case.33 Counsel to assist was appointed for the specific purpose of undertaking cross-examination on behalf of an unrepresented party, against a party who held a final protection order.34 The predominant consideration, however, was not to advance the interests of the unrepresented party, but to promote the best interests and welfare of the child involved.35 The Judge accordingly extended the role of counsel to assist to conduct cross-examination of a s 133 psychologist report writer and also to assist the unrepresented party with presentation of his evidence.36
31 At [40].
32 The inherent powers of the District Court have recently been considered in District Court at Christchurch v McDonald [2021] NZCA 353.
33 Sharva v Sharva [2015] NZFC 6830.
34 At [2].
35 At [4].
36 At [6].
Result
Question 1
[53] The answer to Question 1 is “yes”. There is jurisdiction in the Family Court to appoint Lawyer to Assist to fulfil the s 95(5) Evidence Act 2006 role of putting questions for an unrepresented party, noting the role prescribed within s 9C of the Family Court Act 1980.
Question 2
[54] The answer to Question 2 is “yes”. The role of a person appointed pursuant to s 95(5) is limited to putting the unrepresented party’s questions (repeating the questions of the unrepresented party as prepared by the unrepresented party). I note, however, that there is nothing in s 95(5) that precludes the unrepresented party from conferring with their appointed representative during the course of the cross-examination, to update and/or modify the questions to be asked, or add additional questions, as the cross-examination proceeds.
Question 3
[55] The answer to Question 3 is “no”. The person appointed to the s 95(5) role is not required to conduct their own cross-examination of the vulnerable witness, including complying with the cross-examination duties in s 92 of the Evidence Act.
[56] I further note that it is the unrepresented party, not the person appointed under s 95 (usually Lawyer to Assist) who is subject to the s 92 cross-examination duties. If the unrepresented party fails to discharge their cross-examination duties, the Judge may take steps to intervene under s 92(2). Further, the Judge has the responsibility of explaining the trial process to the unrepresented party, outlining the relevant rules of evidence, and intervening as necessary to ensure overall fairness to each side,
including giving guidance in putting questions to witnesses.37 In addition, the Judge has an enhanced supervisory role in relation to the questions asked, pursuant to s 95(6).
Katz J
37 Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392 at [50].
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3
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