M (Ca335/2011) v R

• Jurisdiction: New Zealand
• Judge: Chambers J
• Judgment Date: 09 August 2011
• Neutral Citation: [2011] NZCA 303
• Docket Number: CA335/2011
• Court: Court of Appeal
• Date: 09 August 2011

[2011] NZCA 303

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Glazebrook, Chambers and Arnold JJ

CA335/2011

CA339/2011

Between

M (CA335/2011)

Applicant

and

The Queen

Respondent

And Between

The Queen

Applicant

and

E (CA339/2011)

Respondent

Counsel:

P L Borich and S M Cowdell for M

P J Davey and K Maxwell for E

P K Hamlin and C A Brook for the Crown

JUDGMENT OF THE COURT

M (CA335/2011)

A The application for leave to appeal is granted. B The appeal is allowed.

C The order directing that the complainant's cross-examination is to be recorded prior to the trial and given at trial by a video record is quashed. In its place, an order is made that the cross-examination is to take place at the time of the trial. Whether the complainant should be cross-examined in an alternative way as set out in s 105(1)(a)(i) or (ii) of the Evidence Act 2006 is to be determined in the District Court.

E (CA339/2011)

D The application for leave to appeal is granted.

E The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Table of contents

	Para No
Cross-examining in advance of trial	[1]
Issues on the appeals	[4]
Is there jurisdiction to make pre-trial cross-examination orders?	[8]
If there is jurisdiction, how should it be exercised?	[29]
Was the jurisdiction correctly exercised in M's case?	[42]
Was the jurisdiction correctly exercised in E's case?	[61]
Postscript	[76]

Cross-examining in advance of trial

1 The Crown Solicitor at Auckland has been concerned about delays in getting sex cases, particularly child sex cases, to trial quickly. Such cases are given priority by the District Court and the High Court, but, notwithstanding that, there can still be many months' delay before the trials begin. Having to wait a long time can cause stress to complainants. As well, child complainants in particular may forget details relating to the offending they allege.

2 There is no problem with respect to child complainants' evidence in chief as that is now routinely the subject of an evidential video interview, undertaken as soon as possible after the alleged offending comes to light and conducted by skilled interviewers. But cross-examination of the complainant has, of course, awaited the trial itself. The Crown Solicitor formed the view that the Evidence Act 2006 now permits cross-examination to be taken in advance of trial if there are good reasons to do so. He has applied in a number of cases in the High Court and District Court for orders to this effect. Sometimes the applications have been granted, sometimes refused.

3 We have before us two appeals, one in which an order for pre-trial cross-examination was made and one in which the Court declined to make an order. We heard the appeals together as they are effectively test cases. The defence bar is keen to establish that there is in fact no jurisdiction for orders of this kind.

Issues on the appeals

4 Two issues arise. First, is there jurisdiction to make these pre-trial cross-examination orders (as we shall call them)?

5 Secondly, if there is, how should the jurisdiction be exercised?

6 Having answered those two questions, we shall then go on to apply our general reasoning to the two appeals at hand.

7 One thing that was not in issue was our jurisdiction to hear these appeals. All counsel assumed we had jurisdiction. We think that assumption was right. Effectively the Crown, in seeking pre-trial cross-examination orders, was attempting to have ruled admissible at trial evidence that would not otherwise have been admissible. The situation is on all fours with the position under the pre-Evidence Act law, as explained in R v Accused (CA32/91). 1 In that case, a High Court Judge had ruled that an interview with the complainant recorded on videotape could be used as her evidence in chief. The accused sought to appeal, pre-trial, from the Judge's ruling. The Crown cross-appealed on the ground that the Court of Appeal had no jurisdiction to review what was simply a direction as to how the complainant's evidence in chief was to be given at the pre-trial stage. It contended that applications for pre-trial determinations and subsequent appeals under ss 344A and 379A of the Crimes Act 1961 were limited to the content of evidence, not matters of procedure such as the mode or form of evidence. This Court held there was jurisdiction to entertain the appeal, the question essentially being one as to the admissibility of the videotapes. 2

Is there jurisdiction to make pre-trial cross-examination orders?

8 Mr Hamlin, for the Crown, pitched his case on the basis of Subpart 5 of Part 3 3 of the Evidence Act. The starting point for his argument was s 103(1):

In any proceeding, the Judge may, either on the application of a party or on the Judge's own initiative, direct that a witness is to give evidence in chief and be cross-examined in the ordinary way or in an alternative way as provided in section 105.

9 Subsections ( 3) and (4) provide guidance as to how the discretion under s 103(1) is to be exercised. We shall return to those subsections shortly.

10 Section 105 then sets out the alternative ways of giving evidence:

105 Alternative ways of giving evidence

• (1) A Judge may direct, under section 103, that the evidence of a witness is to be given in an alternative way so that—

  • (a) the witness gives evidence—

    • (i) while in the courtroom but unable to see the defendant or some other specified person; or

    • (ii) from an appropriate place outside the courtroom, either in New Zealand or elsewhere; or

    • (iii) by a video record made before the hearing of the proceeding:

  • (b) any appropriate practical and technical means may be used to enable the Judge, the jury (if any), and any lawyers to see and hear the witness giving evidence, in accordance with any regulations made under section 201:

  • (c) in a criminal proceeding, the defendant is able to see and hear the witness, except where the Judge directs otherwise:

  • (d) in a proceeding in which a witness anonymity order has been made, effect is given to the terms of that order.

• (2) If a video record of the witness's evidence is to be shown at the hearing of the proceeding, the Judge must give directions under section 103 to the manner in which cross-examination and re-examination of the witness is to be conducted.

• (3) The Judge may admit evidence that is given substantially in accordance with the terms of a direction under section 103 despite a failure to observe strictly all of those terms.

11 Mr Hamlin submitted that the phrase “the evidence of a witness” in subs (1) includes the evidence that witness gives in cross-examination or re-examination. That must be correct. For instance, for many years complainants in sex cases have given their evidence in court with a screen between them and the accused. That procedure continues to be sanctioned under the Evidence Act by s 105(1)(a)(i). Clearly, that “alternative way” of giving evidence applies not only to the witness's examination in chief but also to the time when the witness is being cross-examined or re-examined.

12 The third alternative way sanctioned is evidence “by a video record made before the hearing of the proceeding”. Clearly that permits the continuation of evidential video interviews, as had been occurring under pre-Evidence Act law. Mr Hamlin submitted that it also permitted cross-examination to be undertaken “by a video record made before the hearing of the proceeding” in suitable circumstances.

13 We accept that, on the plain wording of ss 103 and 105, Mr Hamlin's submission appears correct. Any evidence, including evidence given in cross-examination, may be given “in an alternative way”, which includes “by a video record made before the hearing of the proceeding”. There is nothing surprising about that interpretation when one remembers that ss 103 and 105 can apply in any proceedings – civil or criminal – and to any witness. Suppose a prospective witness in a civil case was expected to die prior to trial or was going to be out of New Zealand at the time of trial. It would make very good sense that that witness's evidence, examination in chief and cross-examination, could be taken by means of a video record prior to the trial.

14 Notwithstanding the clarity of the language and the apparent sensibleness of permitting pre-trial cross-examination in some cases, Mr Borich, for the appellant M, and Mr Davey, for the respondent E, both submitted that s 105(1)(a)(iii) did not permit a witness to be cross-examined “by a video record made before the hearing of the proceeding”. They submitted that pre-trial cross-examination orders were not intended by Parliament for five reasons.

15 First, they submitted the Law Commission, on whose draft code the Evidence Act is based, expressly considered the issue of pre-trial cross-examination and rejected it. They cite in support the following passage from the Law Commission's report accompanying its proposed Evidence Code: 4

459 The Law Commission's original proposals included allowing pre- trial cross-examination in the case of child complainants or elderly witnesses. This received strong support from a wide range of community groups and some practitioners, but met with almost unanimous opposition from the defence bar. One submission stated:

[O]ne of the real problems with bringing in a regime requiring cross-examination prior to trial at an early stage is that full details of the contamination and influences are not available (if at all) until detailed enquiries have been carried out by Counsel and often only at trial. This problem is exacerbated by the tendency of the police and prosecutors only to tender the evidence of the complainant (often in a videotaped form) and one or two other witnesses (sufficient to establish a prima facie case) at a...