The Government says it will introduce law changes later this year to ensure that in prosecuting sexual violence cases the justice system does no more harm to victims and survivors.
The proposals include the use of pre-recorded cross-examination and specialist sexual violence training for lawyers.
Parliamentary Under-Secretary to the Minister of Justice Jan Logie says the proposed law changes include:
- Tightening the rules around evidence about a complainant’s sexual history, to better protect against unnecessary and distressing questioning;
- Ensuring specialist assistance is available for witnesses who need it to understand and answer questions;
- Giving sexual violence victims the right to choose how they give their evidence and undertake cross-examination – for example by audio-visual link or pre-recorded video;
- Recording evidence given at trial so it can be replayed at re-trial instead of having to be given again;
- More protections for sexual violence victims giving their victim impact statements in court; and
- Certainty for judges to intervene in unfair or inappropriate questioning, and to address common myths and misconceptions about sexual violence.
Ms Logie says research consistently shows that giving evidence is the hardest part of the justice process for sexual violence victims.
"We know fear and anxiety about appearing in court and going through cross-examination prevents many people from reporting what has happened to them.”
She says the reforms respond to Law Commission recommendations and reflect the calls for change that have been coming from the sector for over a decade.
The Cabinet paper on the changes says the proposed reforms respond to some of the Law Commission's recommendations in its 2015 report The Justice Response to Victims of Sexual Violence and its 2019 report The Second Review of the Evidence Act 2006 (which is currently awaiting a Government response).
Ms Logie says she proposes to accept three of the 2019 report recommendations as she believes they can be progressed coherently with her suite of proposals to bring clear benefits to victims of sexual violence.
Specialist sexual violence training for lawyers
She says she proposes to fund voluntary specialist training for defence lawyers on best practice in sexual violence cases.
"This training could be developed and delivered with a provider such as the NZLS Continuing Legal Education programme. I consider this is the best way to encourage the uptake of training for all defence counsel, which will improve the treatment of sexual violence victims in the criminal justice process."
She says the proposed voluntary training would be funded for a period of three years, as an incentive to undertake the training.
"The New Zealand Law Society has advised the training could count towards the 10 hours of professional development required annually by the CPD Rules. Uptake of the training would be reviewed after three years to determine whether it should be made mandatory."
Use of pre-recorded cross-examination
Ms Logie says she proposes to make legislative changes to increase the use of alternative ways of giving evidence in sexual violence trials, such as from behind a screen in court, via audio-visual link from a separate room, or in a pre-recorded video played to the court. This would include the use of pre-recorded cross-examination. She notes that a Court of Appeal decision - M v R  NZCA 303;  2 NZLR 485 - has limited the use of pre-recorded cross-examination to rare and exceptional circumstances.
She says overseas experience of pre-recorded cross-examination demonstrates potentially significant benefits for complainants.
"Some aspects of how New Zealand courts operate may mean the benefits experienced overseas would be less significant in some sexual violence cases here ... The legal profession, particularly the defence bar, has expressed strong concerns about the proposal to increase the availability of pre-recorded cross-examination."
Ms Logie says she considers the risks identified through consultation can be mitigated to some extent through the design and drafting of legislation. This could include specifying when in the trial process the pre-recording can or should be used.
"Despite the costs involved, I believe the potential to reduce the re-traumatisation of sexual violence complainants, during the most traumatic of their experiences in the justice system, warrants legislative change," she says.
Her proposals for legislative amendments would give sexual violence complainants the right to give all their evidence in alternative ways, including by pre-recorded cross-examination. Defence counsel would be able to challenge the elected way of giving evidence, and the trial judge would determine the way evidence is to be given.
Evidence about complainant's sexual experience and disposition
Ms Logie says following recommendations in the Law Commission's 2019 report, she proposes to extend and clarify a rule in the Evidence Act 2006 that requires certain evidence about a complainant's sexual history to meet a "heightened relevance test" before it can be admitted.
"Before evidence about the complainant's sexual experience with people other than the defendant can be admitted, a judge must decide that the evidence is so relevant that excluding it would be contrary to the interests of justice. The judge's permission to introduce this type of evidence must be sought by application prior to the trial."
Ms Logie says no such rules exist in New Zealand for the complainant's sexual experience with the defendant. She says it has been argued that the sexual history between a complainant and defendant is inevitably relevant to whether, for example, the defendant reasonably believed consent had been given.
"However, I believe the relevance of this evidence should be actively considered in each case. This aligns with the notion that 'consent' is invidividual to each instance of sexual contact."
She says she proposes to expand the current rule, to cover evidence about the nature of the complainant's sexual experience with the defendant. Evidence of the mere fact of sexual history between the complainant and defendant would remain subject to the normal admissibility rules.
On evidence relating to sexual disposition, she says she proposes to clarify that evidence of a complainant's sexual disposition is subject to the same heightened relevance test, with a requirement to seek the judge's permission before trial, as sexual experience evidence. Evidence of a complainant's reputation for having a particular sexual disposition would be inadmissible, in line with the general bar on evidence of sexual reputation.
Ms Logie proposes to amend the Evidence Act so that a judge must intervene if he or she considers the questioning of a witness to be improper, unfair, misleading, needlessly repetitive or too complicated. Another amendment will also explicitly include a victim's vulnerability as a factor the judge must take into consideration when deciding whether to intervene.
Explicit provision for judges to issue directions to jurors addressing common myths and misconceptions in sexual violence cases is also proposed.
"Legislation would provide that judges should give these directions in appropriate cases, and the judiciary would be invited to determine, publish, and update their content in line with new research and emerging needs."
Ms Logie says she also proposed to allow for judges, after consultation with the victim, to clear the court when the victim is reading their victim impact statement, "where this is necessary to avoid causing the victim undue distress". Victims would also be explicitly enabled to read impact statements to the court in alternative ways - such as via audio-visual link, CCTV, pre-recorded video, or from behind a screen.
Other changes being considered
In the Cabinet paper Ms Logie says she is also proposing to initiate further work on other Law Commission recommendations, looking at the appropriateness and feasibility of alternative resolution options outside the current system for sexual offending (including kaupapa Māori models), and of a specialist, post-guilty plea sexual violence court.
"I also propose to consider whether other changes to trial procedure might better protect victims of sexual violence, while maintaining the overall integrity and protections of our system. Finally, I propose to reconsider the definition of 'consent' and the continuing role of juries in sexual violence trials. Change in these areas could involve significant shifts in the way our system deals with sexual offending. Careful consideration would be given to any impact on defendants' fair trial rights, and the wider impact on the criminal justice system."
She says the Taskforce for Action on Sexual Violence recommended a positive definition of consent back in 2009, which would bring New Zealand into line with similar overseas jurisdictions: "I consider this proposal is worth revisiting".
Ms Logie says around 80% of sexual offence cases are currently tried by jury and she proposes to consider the continuing role of juries as the fact-finder in sexual violence trials. She says research has shown that myths and preconceptions about sexual violence affect how jurors, and juries, consider evidence and make decisions.
"The secrecy of jury deliberations means there is a lack of clarity or accountability around these effects in criminal trials. Following the Law Commission's observations [in its 2015 report] I propose work to further examine the potential beliefs, risks, and options to change decision-making arrangements in sexual violence cases, including impacts on the wider justice system."
Ms Logie says agencies which were consulted on the Cabinet paper were Crown Law, New Zealand Police, the Ministries of Social Development and Health, Department of Corrections, ACC, Ministries for Women and for Pacific Peoples, Te Puni Kōkiri, Office for Disability Issues, Oranga Tamariki, the Treasure and the Joint Venture Business Unit. The Law Commission and Chief Victims Advisor were also consulted. She says most proposals have also been tested with a group of key organisations and experts across the sexual violence sector.
"Overall agencies and stakeholders were supportive of the proposals in this paper and there was agreement with the immediate package of reforms," she says.
"Legal professional organisations have been consulted on the proposals relating to pre-recorded cross-examination and specialist sexual violence training for defence counsel. Strong concerns were expressed by the defence bar, both within and outside Government, about pre-recorded cross-examination.
"Consultation on proposals stemming from the 2019 [Law Commmission] Report [on the Evidence Act 2006] was limited to Government agencies, noting the Law Commission consulted extensively in developing its recommendations. Feedback from the defence bar about these changes again reflects concerns about the potential erosion of fair trial rights, and the risk of appeals and retrials undermining the expected benefits to complainants."