For complainants in sexual and family violence cases, going to court to give evidence can be traumatic.
Judges can instead direct that complainants have their entire evidence video-recorded before the trial. The video is played at the trial, meaning the complainant does not need to go to court and face the defendant.
But in practice, this rarely happens.
The Law Commission is looking at why this is and whether it should be easier for complainants to pre-record their evidence.
This would protect complainants from potentially traumatic experiences in the courtroom and may also provide better quality evidence in cases that rely on the complainant’s memory.
However, if the law makes it easier for complainants to pre-record their evidence, it will also need to make sure defendants still receive a fair trial. For example, before the evidence is recorded, the judge would need to make sure the defendant has all the relevant information from the prosecution to prepare their defence. Otherwise the defendant may lose the opportunity to question the complainant on relevant aspects of the prosecution’s case.
The Commission would like to hear whether the Evidence Act 2006 should better support complainants to pre-record their evidence. Find out more in [9.64]-[9.70] of our Issues Paper reviewing the Evidence Act.