Dragged Through the Mud: Can Disincentives to Witness Participation in Criminal Trials be Removed?

AuthorRosalind Kós
PositionWinner, 2014 Canterbury Law Review Student Essay Prize
R K*
A signicant disincentive to witnesses’ participation in criminal trials is the
ease with which reputational damage can be done in court by the making of
unsubstantiated allegations. is impacts the willingness of complainants to
report crimes and the openness with which witnesses give evidence at trial. e
purpose of this paper is to identify the support structures currently provided to
witnesses in this regard and explore possible solutions. e paper argues changes
to the admissibility of evidence or separate repr esentation for witnesses at trials are
not appropriate responses to the problem. e paper examines the possibilities for
redress against publishers of unsubstantiated allegations made in court, ultimately
arguing that a right of reply enforceable by media regulatory bodies may be a
helpful although not complete solution.
I. I 
Witnesses in criminal trials are put in the unfortunate position where
untrue attacks ca n be made on their conduct or character with no redress
available to them. Wigmore argued the courtroom should not be allowed to
become the “slaughterhouse of reputations”, not only because this is indecent,
but also because it limits the avai lability of evidence by discouraging w itnesses.1
Complainants must be encouraged to come forwa rd so that crimes can be
prosecuted and other witnesses to fully pa rticipate so that all information is
available to allow the trial process to operate eectively.
1 John Henry Wigmore Evi dence in Trials at Common Law: Volume 3A (4th ed, L ittle, Brown,
Boston, 1970) at 983.
* Winner, 2014 Canterbury L aw Review Student Essay Prize . I am very gratef ul to Professor
Jeremy Finn for his inva luable assistance in t he preparation of this work.
Dragged rou gh the Mud 151
e law fails to give adequate support to witnesses in this respect.2 Whi le
witnesses can be compelled to give evidence,3 they must be encouraged to
inform someone of what they know so that counsel knows to compel them, or
alternatively, if compelled must not be deterred from free and frank evidence
due to their desire to protect themselves from unsubstantiated allegations.
As Durstan notes, “gratuitously al lowing distressing and humiliating cross-
examination contributes to the current, and often marked, reluctance of
witnesses to testify in criminal cases”.4 e same is true for harmful comments
in evidence-in-chief. As an indication, in the United Kingdom Witness
Satisfaction Survey 2009-2010, only two-thirds of witnesses sa id they would
agree to be a witness again if asked.5
e need to encourage witness participation is par ticularly stark in the
case of complainants. A signicant reason why complainants do not report
oences is fear and distrust of the criminal justice system.6 is may be
particularly so in t he case of sexual oences.7 Complaina nts are not parties
to criminal proceedings, but are usually the key witness, and therefore
improving the process for complainants may result in increa sed reporting and
conviction rates.8 If the criminal justice system was made more responsive
to complain ants, the ensuing increased public condence wou ld encourage
victims to report crimes.9
Reform is needed. is paper rst explores the ea se with which
unsubstantiated alleg ations can be admitted as ev idence in trial, and
concludes that, while a higher threshold for admissibility could exclude
gratuitous attacks, it could not exclude relevant ones. Secondly, the paper
argues that neither separate lega l representation nor the potential for name
suppression of the witness is a complete answer to this problem. Lastly,
the paper looks at possible avenues for redress against publishers of the
unsubstantiated alleg ation, including stricter requirements on the “fair and
2 While some suppor t for witnesses is enc ouraged, thi s is in terms of prepari ng for court
appearanc es such as seeing t he courtroom before the he aring, request ing special ar rangements
for the giving of e vidence or having a suppor t person present: Mini stry of Justice “Vic tim
Information” .
3 Evidence Act 200 6, s 71.
4 Gregory D urston “Bad Chara cter Evidence and Non-Part y Witnesses under t he Criminal
Justice Act 20 03” (2004) 8 E&P 233 at 235.
5 Minist ry of Justice (UK) (2012) Satis faction and willingness t o engage with the Criminal Jus tice
System: Findings f rom the Witness and Victim Exper ience Survey, 2009 -10 (Minist ry of Justice
Research S eries 1/12) London, United Ki ngdom: Ramona Franklyn at 58 . It should also be
noted that the United K ingdom has a Witness Serv ice, which New Zeala nd lacks.
6 Elisab eth McDonald “e View s of Complainants and t he Provision of Information, Suppor t
and Lega l Advice: How Much Should a Prosecutor Do ?” (2011) 17 Canterbury L. R ev. 66 at 71.
7 C ommonwealth Oce of the Statu s of Women (2003) Non-reporting and Hidden Recording
of Sexual Assault: An International Literature Review (Report) Australi a: Denise Lievore at
8 Jen ny McEwan “e testimony of vul nerable victims and witnes ses in criminal proceed ings
in the Europea n Union” (2009) 10 ERA Forum 369 at 369.
9 Mi nistry of Justic e (2009) A Focus on Vict ims of Crime: A Review of Vic tims’ Rights – Public
Consultation Document (Public Consultat ion Document) Wellington, New Zea land at 4.
152 Canterbury Law Revi ew [Vol 21, 2015]
accurate” requirement of qualied privilege for reports of court proceedings,
and a right of reply, both statutory and through media regulator y bodies. e
paper concludes that there are multiple options for reform, but due to easy
accessibility and appropriate balancing of rights, a right of reply enforceable
by media regulatory bodies is the most desirable course.
II. T A  U  A 
A. Relevance
It is very easy for unsubstantiated allegations against a witness to be
presented as evidence in court, either by evidence-in-chief or in cross-
examination. e funda mental principle of admissibility is that relevant
evidence is admissible,10 and the th reshold for relevance is ver y low.11 While
relevance is determined on a case-by-case basis, it appears that generally the
character or credibility of a witness will be relevant to credit and therefore
admissible.12 ese allegations, if not known by the court to be false, may be
relevant to character or credibility by tending to prove the witness’s lack of
vera cit y,13 past conduct that establishes their character is unreliable,14 or that
their evidence itself is inaccurate.
Evidence of veracity is admissible only if it is “substantially helpful”.15 is
higher threshold shall be retu rned to below. e other types of evidence are
only to be excluded either if they are not in fact relevant, or if their probative
value is outweighed by their prejudicial eect.16 “Prejudicial eect” does not
require any consideration of the eect of the evidence being admitted on the
witness, but rather simply prejudice to the fairness of the proceeding. ere
is an incredibly wide scope to admit evidence of alleg ations again st witnesses.
B. Inadequate Protective Scheme
Limited protections against unsubstantiated allegations being
made in court exist, however they presently do not solve the problem.
10 Evidence Act 200 6, s 7.
11 Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [8].
12 R v Wood [2006] 3 NZLR 743 (CA) at [39]; Hobbs v Tinling [1929] 2 KB 1.
13 Evidence Act 2006, s 37.
14 Section 4 0.
15 S ec tio n 37.
16 Section 8(1)(a).

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