R v Gallagher [2017] NZDC 19788

Published 14 March 2018

Mode of evidence application — pre-recorded DVD interview — evidence from behind a screen — how complainant to give evidence. In this pre-trial application, the court gave directions as to how the complainant in a trial regarding charges of rape, indecent assault and burglary. The crown sought to have the complainant's evidence in chief be given by way of playing a pre-recorded interview, and cross-examination to take place with the complainant behind a solid screen. The defence opposed the application to play the DVD interview and argued that the interview was long, repetitive and not given in chronological order which would make it difficult for a jury to follow. The defence also submitted that in order to explore issues of credibility it was necessary to compare and cross examine the complainant on differences between information given in her evidence in chief against what was said in the DVD interview. The court found that it was in the interests of justice for the complainant's evidence in chief to be given by way of playing the DVD interview noting the complainant's fears that she may panic, freeze and forget important information. In respect of matters relating to the admissibility of statements made in the interview, the court ruled that statements relating to the complainant's sexual reputation were inadmissible but that comments made by the complainant in an attempt to dissuade the defendant from engaging in the alleged conduct were admissible. Judgment Date: 4 September 2017.