out of order

sophie stewart

 
sophie.jpg

Law Professor Elisabeth McDonald once said that many people working in the criminal justice system “would never encourage a family member to complain of rape.”[1]

Sexual assault starts with the perpetrator, but a justice system incapable of catering to the needs of victims is unacceptable.

Thankfully, the system is undergoing changes to help remedy these issues. A Sexual Violence Pilot Court has been established and the Law Commission has recommended changes to the Evidence Act 2006.

Presently, sexual violence cases have the lowest reporting rate of all offences. Fear of ‘re-victimisation’ through the court process stops people reporting the incident.[2] Between 2014-2015 it took an average of 443 days for the case to reach court from the day of the complaint.[3] For claimants, having to recount their experience in court after such long delay creates undue pressure and defers their recovery, instilling a distrust in the justice system.

How can we encourage victims to reach for the protection of the law, if such protection has proven to be a fallacy?

In response to the issue of re-victimisation, a 2015 Law Commission Report recommended a specialist Sexual Violence Court be established, and a statutory time limit on sexual violence cases be enforced. [4] 

Sexual Violence Court

The Commission advocated for the introduction of a Sexual Violence Court. It was thought that this would bring judges - trained to deal with cases of sexual violence – together with counsel, to conduct a trial that avoids re-victimisation while maintaining a fair trial for the defendant. [5] It would also allow participants to gain expertise in sexual violence cases while upholding consistent and efficient process.

Two Sexual Violence Pilot Courts were implemented in Auckland and Whangarei in mid-2017. The pilot is currently lead by Chief District Court Judge, Jan-Marie Doogue and is estimated to run for two years. Hearing cases where the defendant has pleaded not guilty and has elected a jury trial,[6] Judges are selected for the Pilot Courts on the basis of training and experience in sexual violence cases.

During the trials, judges are encouraged to consider the age and capacity of the complainant giving evidence and allow for regular breaks and flexibility of start and finish times. Judges also have to consider alternative means of giving evidence, including by pre-recorded video statements.[7]

The immediate aspiration of the court is to reduce the age of a case to six months.[8]

While this programme is still in its early stages, promising initial findings show they are making progress to reach their goal. The average age of a case has reduced from 18-24 months, to nine. Lawyers and judges are developing a greater awareness of the importance of applying different processes to sexual violence cases, and small changes –  such as taking the complaint to the court room prior to the trial to familiarise them with the space – are becoming the norm.[9]

A further testament to the Courts’ early success is the change they have inspired across the justice system. In January 2018 an education programme was implemented throughout New Zealand to teach District Court judges appropriate methods of adjudicating sexual violence cases.[10]  To ensure the lessons learnt in the Pilot Courts are taken advantage of, The Law Foundation is also backing a study to assess if the Courts have improved the experience for claimants.[11]

Legislation

 The effort of the Pilot Courts is complemented by The Law Commission’s Second Review of the Evidence Act 2006. The Commission’s preliminary view is that the Act is operating effectively, but particular attention has been drawn to sections 44 and 105 for reform. Both sections influence how a sexual violence complainant experiences the trial.

Section 44 is the ‘rape shield’ provision of the Act because it protects claimants from embarrassing and unnecessarily intrusive questions. It deems any evidence relating to the complainant’s sexual reputation inadmissible. It also limits evidence of the complainant’s sexual experiences with any other person, other than the defendant.[12]

However, the case of B v R identified a deficiency in the section,[13] because the Court was unsure if s 44 included evidence relating to the complainant’s sexual disposition. The Law Commission recommends s 44 should be changed to make it obvious that s 44 does include sexual disposition. This best upholds the purpose of the provision; to protect the claimant from intrusive questioning.[14]  

The Law Commission also questioned if s 44 should be amended to restrict questioning about the claimant and defendant’s sexual history. Currently, this topic is unrestricted outside of general limitations of relevance or unfair prejudice, however, there is argument that the trial should only focus on the defendant’s behaviour at the time of the incident in question.[15]

Changes are also advised for s 105 of the Act, which legislates for alternative ways of giving evidence. Ordinarily, evidence is given in front of the judge in a court room. Section 105 creates an exception; judges can exercise their discretion to allow witnesses to give their evidence from behind a screen, from a separate room, or via a pre recorded video.

These alternatives reduce the chance of re-victimisation because the claimant does not have to face the defendant or the jury and pre-recorded evidence can be given by the complainant earlier. Despite these benefits, the Commission found judges are underutilising these options for cross-examination. [16] They recommend that in sexual violence cases the starting assumption should be that cross examination will be recorded, unless this would be impractical and/or jeopardise a fair trial for the defendant.[17]

Despite the comfort this process could provide the victim, the Commission expressed concern that pre-recording cross-examination inhibits the defence from questioning the claimant about issues that arise organically during the trial. Unless the defendant is absolutely certain they have all the relevant information from the prosecution prior to the recording, pre-recording could result in an unfair trial. [18]

If the Sexual Violence Pilot Courts become a permanent fixture of our justice system and changes to the Evidence Act 2006 are made, the experience of sexual violence claimants will improve. There will be fewer delays, greater consideration of the needs of claimants and less intrusive questioning in a less intrusive environment. However, it remains to be seen if these changes go far enough to encourage people to report sexual violence.

Want a Say?

The Law Commission wants your opinion about the proposed changes to s 44 and 105 of the Evidence Act.

Speak up to help make the legal system more receptive to sexual violence claims. Your input is paramount to creating a future justice system that supports all victims and works for all New Zealanders.

Submissions on the changes are open until the 15th June and can be submitted by post or email.

Email:  ea2@lawcom.govt.nz

Postal address: "Re: Second Review of the Evidence Act"
Law Commission
PO Box 2590
Wellington 6140
DX SP 23534

The full Law Commission Report can be found at:  http://www.lawcom.govt.nz/our-projects/second-review-evidence-act-2006

 

[1] Lynda Hagen “Study to assess sexual violence court pilot” (2 March 2018) New Zealand Law Society <www.lawsociety.org.nz>.

[2] Anuja Mitra “Cross-Examination: A Less ‘Brutalising’ Way? A New Court for Sexual Violence Cases”(17 April 2017)  Equal Justice Project <www.equaljusticproject.co.nz>

[3] Mitra, above n 2.

[4] Mitra, above n 3.

[5] Law Commission The Justice Response to Victims of Sexual Violence (NZLC R136, 2015) at [18].

[6] “Sexual Violence Pilot Court: Guidelines and Designated Offences” The District Court of New Zealand <www.districtcourts.govt.nz>.

[7] Evidence Act 2006, s 105.

[8] “Sexual Violence Court pilot to continue” (19 December 2017) New Zealand Law Society <www.lawsociety.org.nz>.

[9] Kathryn Ryan “Pilot halves court time for sexual violence cases” (Radio Programme, 15 December 2017) RNZ Nine To Noon <www.radionz.co.nz>

[10] “Sexual Violence Court pilot to continue”, above n 6.

[11] Hagen, above n 1.

[12] Evidence Act 2006, ss 44 (1), 44 (2).

[13] B (SC12/2013) v The Queen (SC 12/2013) [2013] NZSC 151.

[14] Law Commission Second Review of the Evidence Act 2006 (NZLC IP42), at 198.

[15] Second Review of the Evidence Act 2006, above n 14, at 204.

[16] At 508.

[17] At 510.

[18] At 507.