It has become increasingly clear in recent years that the New Zealand public expects the justice system to improve the way it responds to people who rely on it to resolve sexual violence allegations.
The court process lies at the heart of that system, and mostly it is in District Courts where pleas related to sexual violence charges are entered, evidence is tested, and verdicts delivered.
When a jury instead of a judge is tasked with the decision-making, judges still play a vital leadership role in guiding the process, explaining the legal principles and ensuring the rules of criminal procedure are followed fairly so as not to disadvantage one party.
My colleagues and I have been listening closely to the calls for change, and have resolved to do what we can to improve those areas that are within our control, mindful that we must always work within the bounds of statute and case law.
For most of this year my office, with the specialist support of a project team from the Ministry of Justice, has been exploring the feasibility and operational impact of establishing a dedicated sexual violence court.
A specialist court was among the recommendations of the Law Commission in its 2015 report: The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes.
The concept of aggregating like cases into a single list or dedicated court is not new to the District Courts. In some centres, judges have led initiatives along these lines for family violence cases and for homeless people who come before the courts. The aim has been to bring together like cases to assist in the cohesive and consistent application of applicable legal principles within existing legislative frameworks.
Jury trials pilot starting
Our investigations have led me to conclude that the District Courts can press ahead along similar lines with piloting a specialist court for jury trials in sexual violence cases. The pilot will be based in Whangarei and Auckland and – provided support and resourcing remains in place – is scheduled to start in December this year.
Entry criteria will be all Category 3 sexual violence cases proceeding to jury trial in the Whangarei and Auckland District Courts and from their satellite courts, which represents about one in five cases nationally. These venues were selected because they represent a mix of urban and provincial caseload, and provide enough volume for a pilot sample.
However, because for now we must work within existing laws, the pilot is focusing on where judges can have most impact. This means harnessing our potential to lead best practice in pre-trial case management. It also involves gaining more specialised education.
I hope these approaches will foster more discipline in trial processes and preparation and therefore more timely disposal of cases. In turn, this stands to improve the court experience by reducing delay and uncertainty for all those involved, especially child and vulnerable witnesses.
Research tells us that lengthy proceedings may delay recovery when people have to keep fresh in their minds over a long period past distressing experiences.
In the absence of law change, other Law Commission recommendations such as having accredited prosecutors, competence requirements for defence counsel, and alternative trial practices – including alternative ways to give and cross-examine evidence – fall outside the pilot scope.
In no way do the pilot’s Best Practice Guidelines, which are drawn up for judges by a governance board of senior jury trial judges, attempt to impose charter-type restrictions on counsel. (See the Guidelines)
On this, I want to reassure all litigators that the pilot emphatically does not depart from Bill of Rights principles relating to a fair trial, the presumption of innocence, and the right to present a defence and examine witnesses.
Intensive case management
It is proposed that the intensive case management makes full use of the Criminal Procedure Act 2011 and the Evidence Act 2006, drawing on the Best Practice Guidelines to ensure all pre-trial matters are dealt with well in advance of a trial.
An education programme is being developed for judges and is designed to upskill them on the complexities of sexual violence matters and update them on latest research. The 20 judges involved in the pilot will receive training in January, and it will be extended to all District Court trial judges later next year through the Institute of Judicial Studies.
Although the pilot is relatively modest in ambition, it has the potential to make a significant contribution. It will test how much process improvements can lessen trauma for participants and, just as importantly, indicate whether other supplementary measures will be required to achieve this.
Judges of the District Court feel a duty to explore and test every tool within our means to ensure the timely, impartial delivery of justice in this sensitive area. This is an important step. I look forward to the goodwill and co-operation of members of the bar in helping us achieve that.
Sexual Violence Court Pilot Guidelines For Best Practice
1. The object of these guidelines for best practice (“the Guidelines”) is to improve case and trial management of offences of sexual violence.
2. The guidelines operate completely within existing jury trial practice under the Criminal Procedure Act (“Act”), the Criminal Procedure Rules (“Rules”) and case and trial management techniques.
3. The guidelines are designed to reduce pre-trial delay and to ensure flexible, workable trial arrangements.
Entry of cases into the sexual violence court pilot
4. Charges covered by the sexual violence court pilot (“the Pilot”) are those listed in Appendix (1) where the defendant has pleaded not guilty and elected trial by jury.
5. The case enters the Pilot at the time of a case review hearing.
6. Only judges designated for the purpose may preside over a case in the Pilot. (Any reference to “a judge” or “the judge” in the Guidelines is to a judge designated in accordance with this guideline.) The Chief District Court Judge will designate judges from time-to-time based on experience and training.
The case review hearing
7. All cases in the Pilot must be dealt with by a judge at the case review stage.
8. All defendants must be present at the case review hearing unless attendance has been specifically excused, in advance, by the judge.
9. Both Crown and defence must engage in case management discussions and jointly complete the case management memorandum (CMM) as directed by s 5 Act.
10. The CMM must contain the matters set out in s 6 Act and r 4.8 Rules. It must also contain a summary of facts.
11. Judges must be prepared to engage their power under s 64 Act to make a costs order for procedural failures.
12. At the case review hearing the judge, apart from the matters set out in ss 7 and 58 Act, shall enquire into and make appropriate directions as to:
12.1 whether the case is, or has been identified as, a case falling within the Court of Trial Protocol;
12.2 whether there are issues of disclosure, including disclosure by a non-party;
12.3 whether there are issues of joinder of charges and/or defendants under s 38 Act;
12.4 alternative ways of giving evidence under ss 02 – 107 Evidence Act 2006;
12.5 admissibility of evidence including but not limited to, propensity, complaint;
12.6 the length and content of evidential video interviews, and whether they can be truncated or reduced in length;
12.7 the need for interpreters;
12.8 the need for communication assistance under s 0 Evidence Act 2006;
12.9 support persons under s 9 Evidence Act 2006;
12.10 the likelihood of expert evidence (forensic, counter-intuitive, medical) and the availability of expert reports;
12.11 likely trial length;
12.12 any other likely pre-trial applications.
13. All judicial directions will be recorded in writing and distributed to the Crown and defence.
14. All cases in the Pilot must be dealt with by a judge at trial callover stage.
15. All defendants must be present at the trial callover hearing unless attendance has been specifically excused in advance by the judge.
16. Both Crown and defence must file trial callover memoranda as required by s 7 Act and r 5.6 Rules. The memoranda must contain the information required by s 8 Act and r 5.8 Rules. In addition, the trial callover memoranda must address the directions given by the judge at the case review hearing.
17. At the first trial callover, dates will be allocated for any pre-trial application and the trial.
18 .Further callovers, prior to trial, will be a matter entirely within the discretion of the judge.
19. As well as dealing with the matters set out in paragraph 16, the judge will enquire into, and make such necessary directions about:
19.1 whether court and witness facilities have been explained to the complainant, and inspection has been arranged;
19.2 whether a complainant intends to view his or her evidential video interview before trial;
19.3 witness availability.
20. The testing of electronic equipment, eg CCTV used for the complainant’s evidence, is to be done in court as part of the trial process.
21. The judge is to ensure flexibility for the evidence of the complainant recognising the complainant’s age and capacity, including regular breaks, early/later start and finish times.
22. Where the complainant gives evidence from another location any documents, eg photographs, sketches, written statement, letters, should be made available in the witness room for use by the complainant prior to the commencing of his/her evidence.
23. The judge must be alert to and intervene if questioning of any witness, particularly complainants, is unacceptable in terms of s 5 Evidence Act 2006.
24. The order of prosecution witnesses is a matter for the prosecutor, but judges should ensure that expert evidence (medical, counter-intuitive) is addressed to actual trial issues.