Barristers have reacted to the Governments plan to introduce law changes to ensure the justice system does not do more harm to victims when prosecuting sexual violence cases.
People giving evidence potentially being re-victimised during court procedures has been a concern of both the previous government and the current government. The law changes are designed to manage that issue.
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.
Discretion to intervene in improper questioning
Barrister Simon Shamy is on the New Zealand Law Society Criminal Law Committee and has provided opinion on some key aspects of the proposed law changes.
How do you feel about an amendment that would mean if a judge considers the questioning is improper, the judge would be required to intervene?
The background is that presently s85 of the Evidence Act 2006 sets out that the Judge may disallow or direct that a witness is not obliged to answer any questions the Judge considers improper, unfair, misleading, repetitive or too complicated, taking account of the specific matters set out in relation to the witness. In addition, s92, cross-examination duties are limited to issues that are relevant. The amendment seems to take intervention by the Judge from being a matter of discretion to one being mandatory, however it would still come back to the Judge’s assessment of whether questioning is inappropriate or not. I am not certain that the amendment takes matters any further in a practical sense. That is, I am not aware of any evidence that indicates Judges decide a question is inappropriate but don’t intervene anyway. Whether a question is appropriate or not will obviously depend on the question and the context / case. Questions which are inappropriate in some cases may not be inappropriate in others. I would have thought that in reality, if a Judge thinks that a question is inappropriate, they would intervene.
Judicial directions - Judges will be encouraged to give judicial directions, where appropriate and to address common myths and misconceptions about sexual violence, relevant to the trial. What are your thoughts on this?
There already exists the discretion to give directions in relation to delay or failure to complain in sexual cases (s127). It is unknown what other “myths and misconceptions” would be likely to be subject of standard directions.
The updated release makes reference to the Law Commission's 2019 report on the Evidence Act, which summarises some common rape myths at Recomendation 22, pg 201.
- A complainant who dresses ‘provocatively’ or acts ‘flirtatiously’ is at least partially responsible for the offending.
- A complainant who drinks alcohol or takes drugs is at least partially responsible for the offending.
- “Real rape” is committed by strangers and/or sexual violence by a partner or acquaintance is less serious.
- It is not rape unless the offender uses force and/or the complainant suffers physical injuries.
- A victim of family violence can avoid future violence by leaving the relationship.
I think that the first four misconceptions, in relation to sexual matters, can usefully be dealt with by the Judge. As a matter of practical reality, I don’t think a large proportion of juries would actually buy into these four misconceptions.
The fifth item is a little problematic. A victim of family violence “can” leave the relationship. Some victims do, the majority don’t. Probably the misconception would be best phrased along the lines of - A victim of family violence can have great difficulty avoiding future violence because, for a number of reasons (including emotional attachment, financial dependence and fear of partner reaction), leaving the relationship is very difficult.
Record of evidence at retrial - What about recorded evidence from an original trial being used at a retrial as an alternative way of giving evidence?
The obvious issue is that new evidence can come to light between trials. In addition, cross-examination is tailored to any reactions of a jury. There are also issues in terms of the Crown wanting to “tidy up” evidence the complainant may have given previously. This is also relevant in light of further disclosure / defence evidence at the first trial. Consequently, until we know more about exactly how this would work in practice, I think that the decision whether or not to adopt this approach needs to be taken on a case by case basis.
Defence Counsel training - What do you think about Defence Counsel Training? Budget 2019 included funding to develop and implement specialist training?
This may be helpful, particularly in relation to inexperienced defence Counsel. It may also, in my view, be helpful for inexperienced Crown Counsel. This is because Crown Counsel also lead evidence from a complainant and need to be aware of the issues involved in the particular type of trial. The Criminal Law Committee has previously indicated its support for training through the submission process.
Complainant's sexual experience with the defendant - Any evidence of a complainant’s sexual experience or past will only be admissible if it was contrary to the interests of justice to exclude it. What's your thoughts on this?
I would think that it would almost always be relevant, even if as background narrative to assist a jury’s understanding of the relationship between the two. I’m not sure of the need to change the test so that evidence would be excluded unless it was in the interests of justice to include it. The test of normal relevance would seem sufficient.
What does the Criminal Bar Association think of the proposed changes?
Len Andersen is the President and told NewsTalk most of the proposed changes appear to be a good idea.
“But the real concern is that there are proper rights to cross-examination. I don’t think that people could argue about the prohibition on unacceptable questions, but that happens now despite what some people have said. You are required to ensure when defending someone on a sexual violence charge that the questions you ask are relevant.”
He said it would not be appropriate to question somebody about they were wearing or to suggest that they were asking for it [a sexual attack].
“It would not be appropriate to ask random questions about somebody’s sexual history when it is not related to the night in question,” he said.
Mr Andersen told NewsTalk that a victim giving evidence by video link is generally not an issue.
“There’s no suggestion that it has been ineffective playing evidence by video or cross examination by audio visual link. Both Defence and Prosecution lawyers would generally agree that it has been a success,” he said.
Ministry of Justice figures show a 50% conviction rate for total sexual offences brought before the courts in 2018. Broken down, rape charges had a conviction rate of 44%.