R v GJ
[2014] NZHC 2276
•18 September 2014
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
BETWEEN THE QUEEN
Plaintiff
AND
G J
Respondent
Hearing: 12 September 2014 Counsel
G C Hollister-Jones for Applicant
T Cooper for RespondentJudgment:
18 September 2014
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,
9 Richard Mahoney and others The Evidence Act 2006: Act and Analysis (3rd ed, Brookers, Wellington, 2014) at [EV105.05).
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, [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