By Judge Eddie Paul
A communication assistant is available to participants in the sexual violence courts being piloted in Auckland and Whāngārei.
Communication assistants are for defendants, complainants and other witnesses who need help because of physical, educational, emotional, mental or other difficulties in understanding the trial process, the evidence against them (if any) and any questions put to them.
The potential for using communication assistants is highlighted in guidelines drawn up for the two pilot courts, but they are available to any trial court under the Evidence Act 2006.
In the pilot courts, the need for a communication assistant may be raised by the lawyer for the prosecution or the defence. An assistant is appointed if the court is satisfied such assistance is necessary. Talking Trouble Aotearoa NZ provides the communication assistants in Auckland. In Whāngārei, this service is provided by Moretalk.
In one trial, for example, once the judge had decided communication assistance was necessary for a complainant with a mild intellectual disability, court staff made a referral to a communication assistant. The assistant was then asked to prepare a report setting out the complainant’s communication abilities and difficulties.
Arrangements were made with the detective in charge to set up an assessment appointment. Before that meeting, a letter was sent to the complainant’s family to let them know what would happen at the appointment. Because of the complainant’s disability, it was appropriate that family members could come as well.
As the trial progressed, whenever the complainant was unclear, unsure or got upset with the types of questions being put to her, the communication assistant was able to intervene.
The communication assistant set out detailed recommendations to be adopted when the complainant was questioned during the trial. These included having the communication assistant seated directly alongside.
There was also a pre-trial hearing to establish ground rules between the judge, the lawyers and the communication assistant. The communication assistant was then able to answer questions about the complainant’s communication ability and the way questions were to be framed.
Topic signposts were required to keep the complainant focused on the sequence of events. The questions had to be short, avoiding passive constructions. For example, rather than asking, “was the car chased by the dog?”, the question was phrased, “did the dog chase the car?”.
Long complex questions, leading questions and legal jargon were to be avoided.
The complainant was encouraged to say so whenever unsure about a question. If need be the question was put in writing. Verbal signposts were also used, such as diagrams and cue-cards, for example, by saying “we are talking about the time in the blue car”.
Ultimately the communication assistant’s report was a comprehensive “how-to” check list when questioning the complainant.
The communication assistant spent time with the lawyers, before and during the trial, helping them with the appropriate wording of questions.
As the trial progressed, whenever the complainant was unclear, unsure or got upset with the types of questions, the communication assistant was able to intervene and suggest ways of resolving problems. This could be by taking a break, or suggesting an alternative way of asking a question or reminding counsel to signpost where they were up to in terms of the case narrative.
My observation in this example was that the case was particularly challenging. The complainant was diagnosed with a mild disability, could communicate in two languages but appeared to be more comfortable in English. As a young person, the complainant was also comfortable using text language.
Finally, the complainant would become upset and at times visibly angry when challenged on the truthfulness of evidence. The communication assistant was required to navigate all these occurrences more than once throughout the trial.
When the lawyers followed the communication assistant’s recommendations they were able to elicit better quality answers. However, when the lawyers failed to follow those recommendations, the complainant became frustrated and upset and counsel had to be corrected and the questions reframed.
The example I have referred to is perhaps a little unusual given it also required interpretation in another language for the benefit of the defendant, so there were several layers of communication. But ultimately the complainant’s ability to give evidence was enhanced by having a communication assistant in court.
Critical to the successful use of communication assistants is that counsel take their recommendations on board and use them throughout the trial, and that they are not afraid to meet with the communication assistant and seek their advice on the correct way to deliver their questions. In this way, the complainant can better understand and reply to the questions.