KEY POINTS:
Nothing in the law should stop the son of murdered Tokoroa teacher Lois Dear from telling her killer exactly how he feels about him, a victims' expert says.
Peter Sankoff, a senior lecturer in law at Auckland University and a researcher on the interaction between victims and the
criminal justice system, says the Victims' Rights Act 2002 allows victims to talk about any effect of a crime on them - and this could include comments directed at the offender.
But he says judges have interpreted the law conservatively and case law now dictates that victims not criticise the offender or the justice system, confining their comments to the crime's impact on them personally.
"I think that's an inaccurate interpretation of what victim impact statements are designed to do," Mr Sankoff said. "If a victim feels let down by the system, they should be able to say so, and I can't see any good reason why they shouldn't. That to me is part of the harm they've suffered."
His comments follow a report in the Herald yesterday about Kevin McNeil, the son of murdered Tokoroa teacher Lois Dear, who was asked to tone down a victim impact statement he plans to read to his mother's killer, Whetu Te Hiko, at Te Hiko's sentencing tomorrow.
Police told Mr McNeil that critical comments he directed at Te Hiko and the justice system would not be accepted by the judge or prosecution.
Mr McNeil has vowed to read the statement and said he would give it to media if prevented from doing so.
"It's 30 hours of work and tears that have fallen on the paper," he said.
Victim impact statements were introduced under the Victims of Offences Act 1987, marking a change in the victim's role - or lack thereof - in the criminal justice system.
Mr Sankoff said historically victims had been excluded from the system because they were viewed as not objective, whereas the system was supposed to be purely dispassionate.
Victim impact statements were intended by Parliament to help the victim, but he said as early as 1989 Court of Appeal judges were viewing their purpose as only to provide "useful information".
Anything outside those bounds, such as criticism of the criminal or system, was viewed as disrupting a court's ability to administer justice.
Mr Sankoff said the introduction of the Victims' Rights Act 2002, which allowed victims to read out victim impact statements in court, had not changed the situation, and police and prosecutors were under pressure to ensure victims did not include comments considered inappropriate.
Prosecutors had been told off for allowing victims to include criticism of the criminal or system, he said.
He agreed that certain limits should be imposed, such as not allowing victims to "go off the rails" or swear, because courtroom decorum needed to be maintained.
But he argued that judges needed to make a more open interpretation of the 2002 act's section 17, which set out the rules governing the statements.
The Sensible Sentencing Trust has expressed alarm at victims being asked to change statements, but Mr Sankoff said it was not an increasing trend. Rather, more victims were choosing to give the statements and read them out in court.
Brian Brown, whose daughter Natasha Hayden was killed by a man in 2005, was stopped from reading parts of his victim impact statement because they were deemed offensive.
Mr Brown said reading the statement to the man, who was found guilty of manslaughter but cannot be named for legal reasons, was as important to him as reading the eulogy at his daughter's funeral and he resented being asked to cut out certain parts.
"What's the point of having a victim impact statement if the impact that it has on you, you can't tell the court?"
Victims' Rights Act:
* Section 17(1) says victim impact statements can include information on:
* Any physical injury or emotional harm suffered by the victim through the offence.
* Any loss of, or damage to, property.
* Any other effects of the offence on the victim.