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Evidence Act 2006

Trial process - Alternative ways of giving evidence - Giving of evidence by sexual case complainants or propensity witnesses

106E: Application by prosecutor for sexual case complainant or propensity witness who is child to give evidence in ordinary way

You could also call this:

"A child witness in a sexual case can ask to tell their story in court in the usual way."

Illustration for Evidence Act 2006

If you are a child who is a witness or complainant in a sexual case, you can tell the prosecutor if you want to give evidence in the ordinary way, as described in section 83. The prosecutor can then ask a Judge for permission for you to do so. The prosecutor must ask the Judge at a certain time, usually when some important documents are filed, as outlined in the Criminal Procedure Act 2011.

The Judge will decide if you can give evidence in the ordinary way, but only if they think you understand how it might affect you. The Judge can also ask for a report from someone who can advise on how giving evidence might affect you.

When the Judge is making their decision, they must think about what is fair and just, and consider things like whether you should give evidence in a different way, as mentioned in section 106D(3) and section 103(3) and (4).

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=LMS805381.

Topics:
Crime and justice > Courts and legal helpCrime and justice > Victim support
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106D: Giving of evidence by sexual case complainants or propensity witnesses, or

"How victims or witnesses of sexual crimes can give evidence in court in a way that feels safe for them"

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106F: Application by any other party for sexual case complainant or propensity witness to give evidence in ordinary way or different alternative way, or

"Asking a Judge to change how a witness gives evidence in a sexual case"

Part 3Trial process
Alternative ways of giving evidence: Giving of evidence by sexual case complainants or propensity witnesses

106EApplication by prosecutor for sexual case complainant or propensity witness who is child to give evidence in ordinary way

  1. If a sexual case complainant or propensity witness who is a child indicates their wish to give evidence or any part of their evidence in the ordinary way under section 83, the prosecutor may apply to a Judge for a direction that the complainant or witness be permitted to do so.

  2. Unless a Judge permits otherwise, an application under subsection (1) must be made no later than when a case management memorandum (for a Judge-alone trial) or a trial callover memorandum (for a jury trial) is filed under the Criminal Procedure Act 2011.

  3. The Judge—

  4. may direct that the complainant or witness give evidence or any part of their evidence in the ordinary way, if satisfied that the complainant or witness fully appreciates the likely effect on the complainant or witness of doing so; and
    1. before giving a direction, may call for and receive a report, from any person considered by the Judge to be qualified to advise, on the effect on the complainant or witness of giving evidence in the ordinary way or any alternative way.

      1. When considering whether to give a direction under this section, the Judge must have regard to—

      2. whether the interests of justice require a departure from the usual procedure under section 106D(3) in the particular case; and
        1. the matters in section 103(3) and (4).

          Notes
          • Section 106E: inserted, on , by section 16 of the Sexual Violence Legislation Act 2021 (2021 No 60).