Brakes slammed on pre-trial cross-examination orders
By Samuel Beswick, High Court Judges’ Clerk
Orders for the pre-trial cross-examination of complainants should be exercised sparingly and only where there are compelling reasons for doing so. That was the decision of the Court of Appeal in M v R  NZCA 303, released earlier this month.
M v R was brought as a test case to clarify the jurisdiction of the Courts to make orders that cross-examination of witnesses take place and be recorded prior to trial. It concerned appeals against two separate District Court decisions. Both cases involved alleged sexual offending against child complainants; the Crown applied in each case for orders that the complainants give all of their evidence by pre-trial video record. In one case (M v R CA335/2011), the Judge made an order for pre-trial cross-examination. In the other (R v E CA339/2011), an order was refused.
The Crown sought the orders on the basis that sex cases, particularly those involving child witnesses, should proceed to trial without delay. To ease the stress on complainants and to assist in their recovery, routinely victims of sexual offending give evidence-in-chief by evidential video interview, which is later played at the trial.
The practice of some Crown Solicitors has been to seek orders requiring the defence to cross-examine in this manner, although under conditions equivalent to those prevailing at trial. That is, with the complainant giving evidence in court (usually behind a screen or by way of live video link) before a judge with lawyers and the accused present.
The position on behalf of the defence bar on appeal was that there is no jurisdiction for orders of this kind.
The Court of Appeal addressed two issues:
- Is there jurisdiction to make pre-trial cross-examination orders?
- If there is, how should the jurisdiction be exercised?
Jurisdiction to make pre-trial cross-examination orders
The Court answered the first question in the affirmative. Section 103(1) of the Evidence Act 2006 grants judges discretion in any proceeding to direct that a witness is to give evidence in the ordinary way or in an alternative way. The ordinary way for a witness to give evidence is orally in a courtroom (section 83). Section 105(1)(a) outlines three alternative ways of giving evidence:
- in the courtroom behind a screen;
- from outside the courtroom via video link; or
- by a video record made before the hearing.
The Court accepted that a plain reading of sections 103 and 105 permits a judge to order cross-examination to be undertaken by a video record made before trial (at ).
On behalf of the defence bar, five arguments were put forward in support of the submission that there was no jurisdiction to make such orders (at -). The Court held that none of the considerations advanced were sufficient to read down the plain words of the sections, although some were relevant to the exercise of the discretion.
Guidelines for exercise of the discretion in criminal (sex) cases
After determining that judges can make pre-trial cross-examination orders in criminal cases, the Court turned to whether they should.
Section 103(3) sets out various grounds on which a judge may order that evidence is to be given in an alternative way. These include matters pertaining to the vulnerability of the witness (either generally or in the circumstances of the proceeding), any hardship the witness might face giving evidence in the ordinary way, and the nature of the proceeding and of the witness’s evidence.
In considering whether to make an order in a criminal proceeding, under section 103(4), the judge must balance: (a) the need to ensure there is a fair trial; and (b) the need to minimise the stress on the witness and to promote the recovery of the complainant. The Court said of section 103(4) (at ):
“The factors in [paragraph] (a) pull in a different direction from the factors specified in [paragraph] (b). We do not see it as appropriate to try to lay down guidance as to how the factors in [subsection] (4) should be weighed. In so far as the statutory words need elucidation, such assistance will have to come on a case by case basis.”
Notwithstanding that caveat, the Court ultimately concluded that orders for pre-trial cross-examination of complainants will be appropriate only in “rare” circumstances (at ). The Court commented that such orders are “a poor solution to the problem of delay in child sex cases” (at ). It would require a “compelling case … for the views of the witness or complainant to overcome the considerations” going against pre-trial cross-examination orders (at ). The Court offered six reasons for not granting such an order (at -):
- The general rule that the accused is not required to show his or her hand before the start of the trial is not lightly to be countermanded;
- A judge should be very slow to order pre-trial cross-examination in the absence of clear evidence that full disclosure has taken place;
- The sole advantage of the Crown’s stratagem is the avoidance of delay in completing the complainant’s evidence. But there are “considerable disadvantages”, including a greater burden on court resources, counsel effectively having to prepare for trial twice (which increases costs and undermines efficiency), and increased delay in the resolution of the trial;
- If the Crown’s approach were adopted, the jury would lose the significant benefits arising from a live cross-examination of the key witness;
- There would be increased difficulty of enabling juries to ask questions (the witness would need to be recalled); and
- Invariably, complainants would end up giving evidence twice, as, when new matters came to light shortly before trial, defence counsel would submit that fair-trial rights require further cross-examination of the witness. This would be “entirely self-defeating”.
The Court decided against the Crown in both of the appeals. In M v R, the Court held that the District Court Judge had placed undue weight on extraneous factors, such as an assumption that being cross-examined in advance of the trial would make the witness “feel more comfortable” (at ). There was no evidence to support that conclusion, and any advantage “was clearly outweighed by the fair trial considerations” (at ). The Court ordered cross-examination to take place at the time of trial (albeit in an alternative way).
In R v E, the Judge had undertaken a balancing analysis similar to that discussed by the Court of Appeal and held that the victim’s desire to give evidence sooner did not outweigh fair-trial considerations. The Court affirmed the Judge’s conclusion as “plainly right” (at ).
The Court’s decision has curtailed the Crown’s ability to obtain orders for pre-trial cross-examination of complainants in criminal proceedings. The benefits to complainants that justify giving evidence-in-chief via video record do not necessarily flow through to pre-recording cross-examination. More importantly, the disadvantages – particularly the impact on fair-trial rights – are intensified. For an application to succeed in such cases, the Crown will have to point to a particular need of the complainant going beyond considerations that subsist generally for victims of crime.
The decision will be disappointing for prosecutors of sex trials and for advocates of victims’ rights. Some of the reasons put forward by the Court might be difficult to reconcile with the rationale behind prioritising sex trials – to benefit complainants, not defendants. Hence the inconvenience of delay for an accused would not in itself outweigh the benefits to a complainant of completing evidence at an early stage. On the other hand, it is in neither party’s interests that there should be increased delay in receiving a verdict.
There are circumstances when pre-trial cross-examination will be appropriate. In a criminal or civil proceeding where the witness is not a complainant or a key witness, or his or her evidence is not central to the case or is not disputed, a judge may be inclined to permit all of that witness’s evidence to be recorded before trial. The Court need not make such orders on the basis of a witness’s vulnerability; it may simply be practically more convenient for the witness and not a significant burden on the proceeding.
Nevertheless, where full disclosure has not been completed or there is a reasonable possibility that further cross-examination will be sought at trial, judges should not order pre-trial cross-examination. As the Court of Appeal observed, there is little point making such orders if the witness will be required to give further evidence at trial.
NZLawyer magazine, issue 167, 26 August 2011