Less stress in the courtroom

Last updated 08:46 27/11/2013

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OPINION: Changes to the law announced yesterday by Justice Minister Judith Collins, and designed to make it less traumatic for the victims of sexual violence and child witnesses to give evidence in court, are timely.

As recent events surrounding the so-called Roast Busters case have demonstrated, the victims of sexual offences are often extremely reluctant to formally complain against those who have offended against them.

One compelling reason for that is the prospect many fear of having to relive their experience in the courtroom and particularly having to undergo cross- examination.

The changes Collins proposes are modest but if they are accompanied by changes in courtroom approach they may encourage more victims to feel they can testify and help to ensure that more offenders are properly made to answer for their crimes.

As Collins has said before, the need to ensure that trials are fairly conducted makes reform in this area a difficult balancing act. While justice demands that those who are guilty are brought to book, justice also demands that no-one who is innocent is wrongly convicted.

Among Collins' proposed changes is a new rule requiring defence counsel to give notice beforehand of their intention to introduce evidence about a victim's previous sexual experiences.

At present, a judge may allow this evidence to be introduced at any time during the trial. Allowing a complainant some warning that this will happen is designed to reduce the possibility they will be unfairly put off balance by surprising and uncomfortable questions.

That may be a small step, but it is an important one. To those familiar with court processes, cross-examination, the sometimes rigorous questioning of a witness to test the truth and accuracy of their testimony, is a well understood and necessary part of justice procedure. Most witnesses, however, are not familiar with it and they can find it harrowing. This can be true of witnesses in all kinds of cases but is particularly so for the victims of sexual offending.

Another of Collins' reforms will give greater protection to child witnesses. The most important of these will be a presumption that they will give their main evidence through the video of their police interview, reducing the time they need to be in court. In addition, they will have the right to a support person in court.

In addition, extra guidance and training for lawyers and judges dealing with child witnesses will also be given.

These follow changes of practice with child witnesses in Britain. In that country they have been effective in curbing the sort of barristerial verbal trickery that may be effective and acceptable in the cross-examination of self-composed adult witnesses but has been shown to be practically useless, if not positively harmful, in eliciting truthful answers from the less secure, such as child witnesses.

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As welcome as Collins' changes in the law will be, such alterations in approach are likely to be as effective as any changes in the law in making giving evidence in court a less traumatic experience for vulnerable witnesses.

- © Fairfax NZ News

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