Evidence Flashcards
Complainant’s Character
Section 44 of the Evidence Act 2006 covers evidence of sexual experience of complainants in sexual cases.
Generally, no evidence or questions (except with the judge’s permission) can be put to the complainant about their sexual experience with any person other than the defendant.
However, s44(1) is subject to the propensity rule in s40(3). Evidence of the complainant’s propensity to act in a certain way with the defendant, including sexually, may be offered as evidence but only if the judge grants permission.
Complainant’s Address
Section 87 of the Evidence Act 2006 protects a witness from having to state their address and having questions put to them about that information. This includes not only the name and number of the street, but also the name of the town or community the witness lived in.
However, these details may be disclosed where the judge determines that they are directly relevant to the facts in issue and that to exclude them would be contrary to the interest of justice.
Complainant’s Occupation
Section 88 (Restriction on disclosure of complainant’s occupation in sexual cases) of the Evidence Act 2006 protects a complainant from having questions put to them or to a witness about the complainant’s occupation, or having evidence given, or statements/remarks made about the complainant’s occupation.
However, an application can be made to the judge to disclose this information in court.
Corroborative Evidence
Section 121 (Corroboration) of the Evidence Act 2006 provides that, in any criminal proceeding, the complainant’s evidence does not have to be corroborated. This is especially important in cases of a sexual nature, where the offence is often committed with no independent evidence to corroborate the complainant’s account.
“Corroborate” is not defined in the Crimes Act 1961. Ordinary dictionary terms means, to strengthen or support with other evidence, to make more certain.
Standard procedure of giving oral evidence
The standard procedure allows under special circumstances on application for the court to agree to hear oral evidence. If this is granted, then the complainant of sexual offences will have protection surrounding who can be present and what can be asked. This is set out in s97 of the Criminal Procedure Act 2011.
Level 3 Specialist Interviewers
L3 Specialist Interviewers should be used whenever possible when interviewing witnesses to, or complainants of, major offences, eg, homicides, sexual and serious assaults, aggravated robberies with firearms, kidnapping, abduction and so on.
A select number of specialist interviewers for adult complainants and witnesses of major offences are available nationally.
The specialists use enhanced cognitive interview techniques to maximise the quality and quantity of information obtained from cooperative witnesses
Recorded Interviews
Due to the sensitive nature of sexual complaints, the courts have allowed the use of video recording to minimise stress to the complainant and ensure that an account of events, recorded as close in time to the offence as practicable, is put before the court.
To ensure a sound investigation there is a need to understand the regulations surrounding the recording and management of video of the complainant (Evidence Regulations 2007) as well as the production of the video in court proceedings (ss103 to 107 Evidence Act 2006).
When a specialist is not available
You should not record evidence by video unless you are trained in investigative interviewing and are a specialist interviewer.
In exceptional circumstances, if a specialist interviewer is not available, an NCO can authorise a suitably competent investigator to conduct and visually record the interview. Preference should be given to those trained in Investigative Interviewing Level 2, or if not available, trained in Level 1.
Advantages of visually recording evidence
The advantages of visually recording interviews can include:
- Greater quality and quantity of information obtained
- Minimising trauma to the witness by simplifying the process and having their interview played as their evidence in chief
- Reducing contamination by the interviewer through the process of transposing the interview into a statement
- Providing a valuable means for the witness to refresh their memory before judicial proceedings.
Make decisions about using specialists case by case
Make decisions about using specialist interviewers and recording interviews on a case-by-case basis depending on the availability of a specialist interviewer, appropriate rooms, equipment and transcription services.
If you think a specialist should be engaged to interview your witness, discuss this with your supervisor and if the witness is a child or young person seek advice from your local Child Protection Team or child forensic interviewer.
Court’s expectation that evidence will be presented by video
Any video/DVD record of a child complainant (for the purposes of the Evidence Act, a child is a person under 18 years of age) conducted in accordance with the provisions of the Evidence Regulations 2007 would normally be admissible in criminal proceedings.
This is supported by the Court of Appeal. In R v M 30, the court said “with a child complainant, evidence will normally be given by way of video record if there is one, unless there are exceptional circumstances”.
Video/DVD recording of child interviews is the best way to meet both the child’s needs and interests, and the interests of justice. It meets the child’s needs because:
- The interview process is focused on the child and allows them to state clearly and freely what (if anything) has happened according to the rules of evidence
- The recorded interview can be used for the basis of an investigation, subsequent criminal prosecution and/or care and protection purposes
- It avoids the need to re-interview the child for different purposes.
Video/DVD as alternative means of evidence
Sections 103 , 104 to 105 of the Evidence Act 2006 provide the basis for the Crown to present the video as evidence-in-chief in court.
Those sections provide an opportunity for the complainant’s or witness’s evidence to be admitted by an alternative means (eg the electronically recorded interview is played to the court or evidence is given orally but from a safe location via CCTV).
It is important that you explain to the complainant or witness that the Crown must apply to the court to use the ‘alternative means’ and it is the judge’s decision whether to allow this. Each application is considered on its merits and it is not guaranteed that the ‘alternative means’ will be authorised.
As an investigator you will be requested by the Crown to provide supporting evidence to assist the court in the decision (see s104). To assist in this process you must be guided by the grounds set out in s103.
The ability to record the complainant or witness statement electronically is not limited to sexual offences.
Section 107 provides directions about the way child complainants are to give evidence.
Evidence Regulations 2007
The rules surrounding the electronic recording of the interview of a complainant or witness are covered under the Evidence Regulations 2007.
All interviews must be carried out by Specialist Child Witness Interviewers and you may be called on to monitor the interview. You should be aware of regs 8, 17, and 31, which relate to the conduct and custody of recorded interviews.
Preparing witness before trial
The prospect of having to give evidence in court is daunting for most people and in particular for children. Any effort invested in preparing a witness for court, and minimising the effect of the court process on that person, will pay dividends, due to the quality of the evidence they are able to present.
Witnesses must be given the opportunity to view the video record before they testify in court. The child should meet the Crown Prosecutor before the trial, be shown the courtroom and may be given the booklet ‘Being a witness - going to court’.
This action will depend on local practices, but resource material is available through the court complainant advisor at your local district court.
Applying to court for authority to use video/DVD evidence
Once charges are filed and Police wish to present the complainant’s evidence in chief by an alternative method such as a video/DVD record, Police must apply to the court under s107 of the Evidence Act 2007, for the evidence to be admitted by this method. The applications are normally prepared by the Crown Solicitor.
The application must be made as early as possible before the trial and the judge is required to give all parties the right to be heard in chambers, and may call for reports from advisors.
