Published May 2020

The present research was initiated in response to the establishment of New Zealand’s Sexual Violence Courts Pilot in late 2016. One of the stated intentions of the court was to improve the experience of complainants. This research aims to contribute to innovation in court processes and the further development of the Sexual Violence Court Pilot. It comprised two studies with a focus on young witnesses.
The first study involved interviews with caregivers and young witnesses who had
testified in Sexual Violence Pilot Court trials with the aim of identifying sources of stress and support during court involvement. Themes identified were that the period between reporting an alleged offence to police and the trial is far too long and is very stressful; it is difficult to move forward with life until the trial has concluded; cross examination is distressing; the court environment (comfort and safety) matters; safety and distance from the defendant when at court is extremely important; separation of young witnesses from their caregivers during the court appearance is difficult; there is a lack of information throughout the process; and parenting
young witnesses through the court process is challenging. The findings indicated that the pilot has yet to have a significant impact on the distress of young witnesses. A multi-agency approach is indicated to improve support and information provision during the period awaiting trial. Within the courts’ jurisdiction, reducing pre-trial delay and improving the conduct of trials is indicated if the courts are to achieve their goal of minimising the negative impact of court involvement on these vulnerable young witnesses.

The second study involved a detailed analysis of transcripts of testimony of young
witnesses from two pilot courts and two non-pilot courts. Analyses focused on the type of questions asked, complexity of language, the timing and duration of young witnesses’ evidence, provision of breaks, and judge intervention. The inclusion of non-pilot courts allowed for a snapshot of practice in Aotearoa New Zealand generally as well as a comparison between pilot and non-pilot courts. The average time between the complaint and trial for the pilot courts was 13.2 months and for the non-pilot courts was 16.3 months. The analysis of children’s courtroom testimony revealed that use of complex language likely to be confusing to witnesses
was common. There were few differences in use of complex language between pilot and nonpilot courts or between defence lawyers and prosecutors. In terms of question types, leading questions were common. Leading questions are generally regarded as contrary to children’s ability to give best evidence. Over a quarter of questions asked during cross examination were .leading (other) and more than one in ten questions were leading tag. Consistent with prior research, defence lawyers were 21.44 times more likely than prosecutors to use leading (tag) questions and were also significantly more likely to use leading (other) questions. Prosecutors were more likely than were defence lawyers to use open questions, facilitators, and option posing questions. Findings indicated that the pilot courts may have had some (although limited) impact on the use of different question types, although question types that are counter to best evidence were prevalent across both pilot and non-pilot courts. Provision of breaks and judge intervention in inappropriate questioning were rare.

Overall there appears to have been little change in the experience of young people and their caregivers in their participation in the courts. Nor has there been significant change in the conduct of lawyers in questioning young witnesses, either in comparison with similar studies over the last two decades, or between pilot and other courts. Proposals for change are presented. These have much in common with those contained in other recent reports, indicating a consensus about further reforms that would likely reduce the stress on young witnesses’ experience and facilitate their ability to give best evidence. (Author's abstract). Record #6691