​Use of alternative ways of giving evidence by vulnerable witnesses: current proposals, issues and challenges

Author(s) Tinsley, Yvette and Elisabeth McDonald
Title Use of alternative ways of giving evidence by vulnerable witnesses: Current proposals, issues and challenges
Source Victoria University of Wellington Law Review; December 2011; Volume 42; Issue 4; p 96-119
Date 2011
Document type Journal article
CoverageNew Zealand
Summary In this article the authors discuss the issues related to alternate ways of giving evidence originally raised in 1996 by the New Zealand Law Reform Commission. A key feature of the discussion is the application of the Evidence Act 2006 and it is noted that under this legislation a judge can direct any witness to give evidence in an alternate way. There are provisions for sexual assault complainants such as using a screen or giving evidence through CCTV but research has found that many complainants are not aware of these provisions. Recent reform proposals are explored in depth, such as the recommendation that there is a pre-recording of a child witness' entire evidence, including re-examination and cross-examination. A number of evidential challenges relating to pre-recording of evidence are discussed including the use of narrative evidence where the length could be prohibitive and it may not be well structured or in chronological order. A further challenge could arise if new evidence is required. The final section of the discussion examines the psychological research such as the difficulty in assessing the demeanour of witnesses who give evidence on pre-recorded tape or through CCTV. The authors conclude by suggesting that the needs of vulnerable witnesses should continue to be dealt with on a case by case basis and if appropriate pre-recorded evidence could be used as well as consideration of other alternative ways of giving evidence.
Keywords Criminal justice system; specialist courts; jury; judge-only; lay participation; New Zealand
Topic Criminal justice system; sexual assault