Kirsten Hanna

Questioning Child Witnesses in New Zealand's Criminal Justice System: Is Cross-Examination Fair?

The way in which children are questioned in forensic contexts can impact on the accuracy of their responses. Past studies have shown that children were often questioned in the New Zealand courts in ways that profoundly contradict best practice. This study analyses the questions posed to 18 child witnesses by forensic interviewers, prosecutors, and defence lawyers during criminal trials held in New Zealand courts in 2008. The results suggest that, as was found in earlier studies, many of the questions posed to children during cross-examination in particular were inconsistent with best practice in terms of eliciting full and accurate information from children. Indeed, the heavy reliance on closed, leading and complex questions, along with other common practices, casts doubt on the forensic safety of cross-examination, calling into question its fairness for children. The implications of these results for policy and practice are explored.

Questioning Child Witnesses: Exploring the Benefits and Risks of Intermediary Models in New Zealand

The presumption of innocence is the primary value underpinning the trial. It is important to work out how to maintain the rights of defendants while better accommodating child complainants and witnesses in the pursuit of fact. One approach is to improve how childrens evidence is challenged in order that the fact-finder may have a better opportunity to assess the evidence. This article looks at the viability of achieving this aim through the use of intermediaries to question children on behalf of counsel. Three intermediary models were explored through mock examinations of a “child” witness. Reflecting on these, the article documents some of the issues and the potential benefits and risks of different intermediary models to improve this questioning of children, particularly during cross-examination.

Pre-recording testimony in New Zealand: Lawyers’ and victim advisors’ experiences in nine cases

This paper reports on lawyers’ and victim advisors’ experiences with nine pre-recorded hearings involving young people as witnesses in criminal court cases in Auckland. Focus groups, interviews and a questionnaire were used to elicit perceived advantages and disadvantages, issues in the preparation for hearings, conducting the hearings and showing the pre-recordings at trial. Although the sample is not large enough to generate definitive conclusions, 21 of 24 participants described pre-recorded hearings positively with only two prosecutors and one defence counsel expressing concern about increasing the use of pre-recording in the future. Participants raised a series of practice issues which could readily be addressed. Presuming provision to recall the child if necessary, late or incomplete disclosure from third parties is the only significant challenge to these pre-recorded hearings. The logistical challenge of accessing timely relevant information from child protection records was overcome in Auckland through the development of an inter-agency protocol. Pre-recording children’s and young people’s entire evidence appeared to be a constructive contribution to the criminal justice system.

THE ITALIAN MYTH OF GALILEO IN NEW ZEALAND OPERA

This paper begins by examining the myth of Galileo as passed down by historians, literary critics and artists, such as the German playwright Bertold Brecht and the Italian movie director Liliana Cavani. The focus then turns to the representation of the myth in Witi Ihimaera and John Rimmer’s recent production, Galileo Extravaganza.Opera has traditionally had the function of popularising, within its own artistic means, current topics. In this sense, Galileo Extravaganza can be considered a traditional opera. The very current issue of the repression of difference in self-proclaimed democratic societies is brought to the fore in this production. Ihimaera and Rimmer’s opera gives an interpretation of one of the most famous and controversial examples of repression of difference that modern history records: the forced recantation of Galileo Galilei. Rather than being a divertissement based on an exotic and distant tale, Galileo – the Opera, with the multimedia experience it offers, brings the myth of Galileo into a contemporary frame and thus forces us to think about how we deal with diversity.

‘[Expletive], that was confusing, wasn’t it?’ Defence lawyers’ and intermediaries’ assessment of the language used to question a child witness

While language specialists and legal professionals have voiced concerns about the language used to question child witnesses in the Aotearoa/NZ courts, it is unclear whether both groups share a common understanding of what those language problems are. This study compares five Aotearoa/NZ defence lawyers’ and two England/Wales intermediaries’ perceptions of the developmental (in)appropriateness of the language used to question an 11-year-old witness, based on their assessment of the witness’ anonymised trial transcript. The comparison showed that both groups agreed on the categories of language features that might confuse children, however, intermediaries identified many more instances of problematic language within those categories than lawyers. Training on developmentally appropriate language and pre-trial preparation of questions would certainly help lawyers improve the comprehensibility of their questions. However, the implementation of a full intermediary scheme, such as that in England/Wales, probably offers the best prospects for a sustained sea change in questioning practices.

Child Witnesses in the Criminal Courts

The criminal courts have traditionally viewed child witnesses as inherently unreliable. However, decades of research have shown that, under the right circumstances, children can be highly effective and reliable witnesses. Unfortunately, factors which can diminish children’s ability to produce best evidence are endemic in many Australian and New Zealand courts, such as long delays before trial and poor questioning techniques. This chapter briefly outlines these issues before examining innovations in Australian and New Zealand courts which aim to address them. It then explores recent attempts in England and Wales to facilitate children’s best evidence and how these experiences can inform practitioner-led innovations in Australia and New Zealand.