News Item

The latest report on Questioning child witnesses from the Foundation-funded AUT study has just been released. A full copy of the report can be downloaded here. The research was undertaken by Dr Emma Davies, Dr Kirsten Hanna, Dr Emily Henderson and Dr Linda Hand. The JR McKenzie Trust was a co-funder of this research.

The purpose of the current study was to explore the potential benefits and risks of different intermediary models at trial by conducting mock examinations of a “child” wintess (role-played by an adult). Exploration of intermediaries was not undertaken on the basis that all children will be truthful. A thoughtfully constructed model might, by improving questioning, highlight false allegations more efficiently and effectively than now. The basis for this project was that regardless of whether a witness is thought to be truthful or not, the best approach to any child witness is one which does not increase the risks of contaminating his or her evidence.

UPDATE:

The Law Foundation-funded study has helped prompt the Government to propose major changes making it easier for children to testify in court.

A just-released Cabinet paper proposes a raft of reforms, including a legislative presumption in favour of pre-recording young children’s entire evidence (including cross and re-examination) before trial to reduce delays.

It also proposes that specialist intermediaries be used to improve the questioning of child complainants aged under 18. The detail of the intermediary model would be developed by the Ministry of Justice in consultation with experts.

Justice Minister Simon Power said the package was shaped in part by AUT University work on child witnesses. The AUT team’s most recent study, completed in September 2011, involved role-playing court hearings involving child witnesses to test intermediary models.

Study leaders Dr Emma Davies, of Rowe Davies Research, and Dr Kirsten Hanna, of AUT’s Institute of Public Policy, said the team was thrilled that the Government had acted so quickly on their recommendations.

“Child witnesses are especially vulnerable to long delays in processing cases and poor questioning practices,” Dr Davies said.

“The proposed reforms build on best overseas practice. They will help ensure the court process better accommodates child witnesses and enhances children’s ability to provide best evidence.”

The latest AUT study followed an earlier major report, released in April 2010, on how children might participate more effectively in the criminal courts, including providing best possible evidence.

Dr Hanna said the first report generated considerable media and official interest, prompting the Ministry of Justice to draft best practice guidelines for child witnesses. Many of that report’s recommendations were included in a Ministry of Justice Issues Paper that formed the basis of consultation on alternative pre-trial and trial processes for children.

In this latest report, the researchers say:

“In summary, there was broad consensus between project participants that children are often poorly cross-examined in New Zealand’s criminal courts and that intermediaries might improve the quality of children’s evidence. Most participants perceived the idea of an intermediary system as worthy of further careful exploration and, while cautioning against precipitous action, the authors also see promise in the idea. The topic-by-topic model was generally perceived to be more effective than the other two models considered; however, there is more than one viable model of operation. For example, intermediaries could conduct communications assessments of individual children and then monitor proceedings as in England/Wales; or they could assist counsel to prepare their questions in advance of trial and then monitor counsels’ questioning of the child at trial; or they could question the child directly under the directions of counsel and the presiding judge in something similar to the topic-by-topic model. Whichever model, a pre-trial assessment of the child’s communicative competencies would be an ideal component.”

“While we are far from having developed a fully workable model, the exercise helped to highlight some of the issues that would need to be carefully considered in developing an intermediary system, including:

• The context of pre-recording children’s entire testimony
• The criteria for children’s access to an intermediary
• The need for highly trained intermediaries with skills in children’s language and relevant law
• Delineation of roles (including the intermediary’s and the judge’s, bearing in mind that the judge would remain responsible for controlling the questioning, as is the case now)
• The recruitment of suitable candidates
• Guidelines on how the pre-trial briefing should be conducted and on maintaining a
  paper-trail of interactions in case of appeal.
• Consideration as to pre-trial interactions between the intermediary and child, on the one hand, and between counsel, the intermediary and the judge on the other.”

Next steps

Reflecting on the mock examinations and participants’ views, the authors propose the
following as next steps towards enhancing the courts’ facilitation of children’s best evidence:

1. Create a legislative presumption in favour of pre-recording children’s entire testimony and evaluate implementation of pre-recorded hearings.
2. Develop training programmes for the judiciary and counsel on communicating with children, particularly during cross-examination (Institute of Judicial Studies, New Zealand Law Society and Law Schools).
3. Establish a multidisciplinary Child Witnesses Working Group with terms of reference over an extended period to:
   • Communicate research findings on children’s language and the problem of poor communication with children in the criminal courts to inform legal discussions about ways the courts can improve the quality of evidence from children.
   • Draft guidelines to depict best practice in cross-examining children, drawing from expertise in children’s communication as well as the law.
   • Explore the possibilities of mandatory training for judges and counsel on best practice with children.
   • Develop an intermediary model for New Zealand including:
     *Framing the roles and responsibilities of the intermediary and counsel;
     *Developing a code of conduct for intermediaries;
     *Specifiying the core components of a training package for intermediaries;
     *Outlining pre-trial processes of engagement between the intermediary and other parties;
     *Establishing protocols for courtroom practice; and
     *Determining criteria for children’s access to an intermediary.
   • Contribute advice on legislation.
   • Monitor and evaluate the first six cases which use an intermediary in a similarprocess to Whitney and Cook’s (1990) evaluation of the first six cases using closed-circuit television in New Zealand.

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