R v Taine [2017] NZDC 16159

Published 18 January 2018

Pre-trial application — disclosure of video records — video recorded interview — child complainants — evidential interview to be used as evidence in chief — EVI — whether interests of justice require departure from usual procedure — Evidence Act 2006, s 106 — Evidence Regulations 2007, regulations 20-20D, 24D & 32 — New Zealand Bill of Rights Act 1990, ss 25 & 26 — Interpretation Act 1999, s 7 — R v J [2009] NZCA 529 — R v Bain [2008] NZCA 585. The defendant applied for disclosure of video interviews that were to be used as the evidence in chief in respect of two child complainants. Noting that the rules around evidential interviews had recently changed, the court was required to determine whether the new provisions applied to the video recordings, which were made prior to the changes coming into force. The court found that the amended provisions applied to the trial despite the fact that the alleged offending and the interviews in question took place prior to the amendments coming into force. The amendments were procedural in nature and did not introduce a penalty. In reaching this decision, the court further referred to s 5 (3) of the legislation which sets out that the Act applies to all hearings commenced before, on, or after commencement of the EA Act. Leaving aside the issue of whether or not the Crown retains a discretion to provide the recordings without making an application to the Court,an application had been made and the court was required to determine whether the defendant's lawyer should be provided with the video record. The court then considered whether it was in the interests of justice for the "usual procedure" to be departed from. It was found appropriate to order that a copy of each video interview be released to the defence counsel as a single viewing of the interviews at a police station would not be sufficient for the required careful analysis of the interviews in order to prepare the defence case. The court was satisfied that the video interviews would be used appropriately and ordered copies of each interview be released to defence counsel. Judgment Date: 26 July 2017. * * * Note: names have been changed to comply with legal requirements. * * *