Buffering Inappropriate Questioning of Child Complainants: the Use of Intermediaries in New Zealand

Abstract

Concerns with the treatment of child complainants in the New Zealand courts have been raised again recently. Involvement in the court process can be stressful and confusing for children (persons under the age of 18) and this is exacerbated by inappropriate questioning, particularly during cross-examination. As a result, the best evidence is not elicited from the complainant and the system does not ensure fairness to all those involved. A number of provisions in the current system allow special treatment for child complainants; however, children are subjected to cross-examination through the ordinary means. During cross-examination, the opposing counsel, who is not necessarily trained in communicating with children, scrutinises the evidence of the complainant in a manner that is often aggressive and intimidating. Cross-examination is considered as “the primary evidential safeguard of the adversary process” as it allows the defendant to test the prosecution’s case and guarantees their right to a fair trial. However, this right must be balanced against the promotion of fairness to complainants and need to obtain accurate and reliable evidence.