R v Kline  NZDC 4630
Published 17 April 2019
Mode of evidence — sexual offending — right to fair trial — Connolly v R  NZCA 41 — R v O  NZCA 475 — Evidence Act 2006, s 103.
The Crown made an application for mode of evidence directions in relation to the three complainants, who together alleged 12 charges of sexual offending, including sexual violation and rape. The complainants were the defendant's nieces.
The complainants wished to give their evidence in chief by playing their evidential interviews. They said that having to give evidence in open court would cause them to feel stress, trauma and a sense of re-victimisation.
In respect to the first complainant, there was some confusion around the mode of evidence. Initially, an application was made for a change in mode of evidence, but it was recorded that the complainant would give her evidence orally with a screen. However, the police job sheet brought to the attention of the Judge the day before the trial suggested the complainant had been consulted and she would not have agreed to her video record being removed as part of the Crown application for her mode of evidence.
The Judge noted that the Crown's application fell well short of the requirement in s 103(2) of the Evidence Act, which states that an application for directions must be made as early as practicable before the proceeding is to be heard. However, in this case, the defence had been engaged in a proactive editing process of the videos and so the prejudice would not be as great. The impact on the complainants also meant that it would not be fair or just to not consider the Crown's application. Therefore, the Judge permitted the late application in terms of s 103(2).
The Judge then considered the statements of another of the complainants, who already had her statements available. She had already been advised by Police of alternative ways to give evidence and discussed the stress and trauma of having to re-live and re-tell everything. She expressed a preference for her evidential video to be played.
The Judge held that he was satisfied that the trauma of giving evidence, given the relationship between the complainant and the defendant and the nature of the proceeding, warranted a change of mode of evidence. The Judge stated this would not lead to an unfair trial, as the fairness of the proceeding includes fairness to a witness and enabling witnesses to give their best evidence. Further, the evidential videos were being edited and could meet the rules of evidence.
Judgment Date: 12 March 2018. * * * Note: names have been changed to comply with legal requirements. * * *