If we accept that the criminal justice system doesn't work for survivors of sexual violence now, and that the current Law Commission recommendations are a wonderful opportunity to make the system fairer, more effective, and less traumatising for survivors there is still the question of what the recommendations are saying, and how they might work.
This is a cheat sheet. I've borrowed liberally from the excellent work by Auckland Sexual Abuse Help. Sections refer to the Law Commission document, and I've noted whether the reforms are designed for sexual offences or could be open to all offences.
Section 2: Pre Trial
2A: Laying and reviewing charges - sexual violence
The complainant would be able to request a review of initial charging decisions (whether or not to charge and which charge is laid). The review would be conducted by a senior prosecutor who specialises in sexual offence cases.
2B Role of victim in pre-trial process - open
The victim would be able to request a review of any decision to amend or drop charges. If it was a police prosecutor decision, the review would be carried out by a senior prosecutor. If it was a Crown Solicitor decision, the review would be carried out by a Crown Solicitor based in a different area. This right of review would not apply to decisions to amend or drop charges in the context of a court appearance, where the decision is made in front of a judge.
2C: Guidelines for prosecution of sexual offences
Separate guidelines for the prosecution of sexual offence cases would be established, specifying the particular approach needing to be taken to the decision to prosecute in sexual offence cases. This would not necessarily result in a change to the threshold for evidential sufficiency.
2D Pre-trial evidence issues - open
A case dossier with all evidence available at the time would be prepared by the prosecutor in consultation with the defence. Any defence evidence would be provided for inclusion in the dossier. The expectation would be that all known witnesses would be identified in the dossier, though other witnesses could still be called.
Ideally the judge at the pre-trial stage would be the same judge as at trial. The judge would decide before the trial whether there was enough evidence to go to trial; which witnesses should be called; whether expert evidence was required, and if so which experts should be called; how evidence was to be given at trial, and the extent to which written statements would form the evidence; the complainant could apply to give evidence orally in court if they wished; whether to direct further investigation if the judge considered that it was required.
2E Pre-trial appearance of accused - open
Unless a hearing potentially required the input of the accused, the issue would be resolved by the judge and counsel without a formal court hearing. Formal court hearings would only be held:
- for the entry of a plea after (and not before) legal representation was arranged;
- for case review/callover stage, which would occur only if the defendant’s appearance was necessary to resolve the issue at hand;
- for pre-recording evidence before trial, if any;
- for trial;
- for sentence;
- whenever there was an application that the defendant be remanded in custody.
Section Three: Characteristics of the trial court
3A: Who should determine the verdict? Open to sexual offences; “problematic” offences or all cases able to be tried by jury
The facts in a trial would be decided either by a judge sitting alone or by a judge and two jurors. The jurors would receive a copy of the case dossier prior to trial so that they as well as the judge were familiar with the evidence. The judge and jurors would deliberate together as a joint panel.
3B: Verdict – open
The judge and jurors would give written reasons for the verdict, reflecting the views of the majority about the facts. Conflicts between judge and juror(s) would be noted, but they would all need to be satisfied beyond reasonable doubt as to the verdict. There would be no majority verdicts. The view of the judge would prevail on matters of law.
3C: Sentencing - application open
In cases being tried by a judge and two jurors, there would need to be a majority view about the factual basis for the offending on which sentencing should proceed. If facts relevant to sentencing had not been determined in reaching the verdict, the judge would ensure that those decisions are reached at the end of the trial. The judge would then impose the sentence using the current process.
3D: Specialist Judges - sexual violence
There would be a specialist training programme for judges who wished to preside in sexual offences cases. After initial training, judges would be required to undergo regular ongoing training to ensure they were up-to-date with recent developments.
3E: Accredited counsel for sexual offence cases - sexual violence
Both prosecution and defence counsel would be required to be accredited - by undergoing specialist training - before they could act on sexual offence cases. Further ongoing training would be required for counsel to remain accredited. Guidelines would set out the accreditation standards and obligations applying to accredited counsel.
Section Four: Trial Procedure
4A: How is evidence presented and who is in control of the process - open
The judge would be in control of the trial process and would be largely responsible for the way in which the evidence was given. The parties would have a more limited role. The judge would decide the order for witnesses to give evidence, and would question witnesses first. Parties would only ask questions of a witness after the judge had finished questioning.
The style of questioning engaged in by both judges and counsel would be substantially different from the style to which judges or lawyers in New Zealand have been accustomed. Significant training would therefore be required to ensure that evidence was elicited in the most effective way.
The witness’ statement in the case dossier would form their evidence but the witness would still be required to answer questions by the judge. However, evidence would be given in more of a narrative than a question-and-answer form, thus enabling witnesses to present their account of events in a more natural and conversational way.
4B: Evidence by the defendant - open
The defendant would give evidence first, unless the judge decided otherwise. The defendant would be subject to questions by the judge, but would not be obliged to respond to questions. The defendant could respond to questions, if he or she chose to do so, by speaking personally or through his or her lawyer. The defendant would be under an obligation to submit to questions whether or not he or she had provided a statement to the Court in the case dossier.
4C: Admissibility of evidence - open
If the fact-finder were to be changed to judge alone or to a judge sitting with two lay jurors, many rules of evidence could be dispensed with. Relevant evidence, including the defendant’s criminal history, would generally be admissible, with its weight being determined by the fact-finder.
Rules requiring evidence to be relevant and avoid unnecessary repetition would still be required. So too would rules about the complainant’s sexual history, because of the impact on the complainant of the admission of such evidence.
4D: Evidence of vulnerable witnesses - open
Cases involving vulnerable witnesses should be fast-tracked wherever this can be achieved, so that the trial occurs as quickly as possible. Where fast-tracking is not possible, pre-recording of evidence (including cross-examination) ought to be considered.
Assistance in answering questions should be more widely available than solely for witnesses with a “communication disability”. This would allow phrasing of questions in an appropriate way.
4E: Role of the complainant - sexual violence
A victim of sexual offending would have an Independent Sexual Violence Advisor (ISVA) allocated to them from the first contact with the Police or another agency. The ISVA would provide support, advice and assistance for the victim until their complaint is resolved. The ISVA would liaise with the Officer in Charge of the case and the prosecutor during investigation and prosecution, and would have the expertise to inform a complainant about issues such as name suppression, the trial process, the stages of the criminal justice process, the role of the prosecutor, the complainant’s ability to have a support person (at trial, when giving evidence, or during pre-trial interview), the role of the complainant as a witness, what to expect from cross-examination and general witness preparation, and other applicable rules of evidence, including the availability of alternative ways of giving evidence.
4F: Child protection orders - sexual violence
If on the balance of probabilities it was determined that the defendant had offended and either the victim in this case or other children were still at risk, the court would have the ability to make child protection orders in relation to the accused. This would be a civil order that would be time-limited, subject to appeal and regular review. Such orders would not involve detention but might cover treatment and non-association with children.
Referral for assessment of risk would be limited to cases where there had been a criminal prosecution (whether that led to an acquittal or a conviction), so a civil order would be available only in those cases. There might be an argument that given that the order is based on the balance of probabilities, it should be available on application whether or not there had been a prosecution.
Section Five: Specialist sexual violence court – post-guilty plea
Where there is a complaint to the Police and an offender pleads guilty to a sexual offence, there would be an option of referral to a specialist sexual violence court. With informed victim agreement, the suitability of the offender for participation in some form of intervention would be the governing criteria for whether the case was dealt with in the specialist court. Cases which did not meet the criteria would progress in the usual way.
The referral would be assisted by a victim impact statement indicating the impact of the offending on the victim, and could include reasons why they support referral to the specialist court in this particular case. Once referred to the specialist court, the judge would remand for a specialist case assessment to ensure suitability for the specialist court process.
After assessment, a report addressing the suitability of the case for the specialist court process and the development of an intervention plan would be delivered to the court; the intervention plan would comprise a tailored set of actions for the individual to complete, to enable them to take responsibility for their behaviour and address its causes, and could include treatment, education, reparations, apologies or other actions as appropriate to the case.
If the specialist court judge was satisfied on the basis of the specialist report that the case was suitable for the specialist court process, the offender would be offered entry into the court and asked to commit to the proposed intervention plan.
Supervision of the intervention would be the responsibility of the specialist team who would have the ability to bring the case back before the court at any time if there were concerns about the offender’s compliance. The specialist court judge would also have discretion to seek periodic reports on the offender’s progress with the intervention plan and bring the offender back before the court.
If the offender was declined entry to for refused to commit to the intervention (or entered but later withdrew agreement to participate), the case would proceed to sentencing in the usual manner.
All counsel appearing in the court would be required to undergo specialist training.
At the conclusion of the intervention, the offender would receive a sentence that would reflect participation in and progress after the intervention, which may or may not involve imprisonment.
Section Six: Alternative processes for sexual offence cases
An alternative process outside of the criminal justice system would resolve sexual offence cases if the victim wished, either instead of a complaint to the Police or at the point of complaint to the Police. The process would be tailored to the nature of the case, the wishes and needs of the victim, and the need to ensure victim safety.
This could only proceed with the agreement of the accused. The case would be assessed by specialist providers to determine whether it was suitable for an alternative resolution process or whether it was unsuitable, for example because the accused’s previous convictions indicated that he or she posed too great a risk to community safety.
This assessment would be carried out in consultation with the police and other agencies where appropriate, such as the Child, Youth and Family Service, in order to properly assess the risk to community safety.
The accused would need to accept that there had been a sexual encounter of some kind and be willing to engage in an alternative resolution process, including agreeing to participate in an appropriate intervention.
Nothing the accused said in the course of the process could be used as evidence in any later criminal proceedings. However, information provided by the accused could be used to trigger further investigation by police, the outcome of which could be used if prosecution for that offence or any other offence ensued.
The process would result in a set of agreed outcomes that might include a requirement for the accused to undergo treatment or education; if an agreed outcome were treatment, then a further assessment would be required to assess the suitability of the accused for participation in treatment.
The case could be referred back to the criminal justice system if no agreed outcome could be achieved or an accused failed to participate in an acceptable way and to fulfill any undertakings made; protocols would be needed for what constituted acceptable participation, and for the conditions under which the case would be referred back to the criminal justice system (for example, additional offending).
If the accused participated in good faith and fulfilled all undertakings, referral back to the criminal justice system for this offence would not take place.