Andrew Little: Fair trial rights aren't there to give wrongdoers some headway

One proposed new rule is to limit questions about a complainant to just the event that is the subject of the charge before the court. Photo / Lynda Feringa, file

COMMENT

The changes to victims' rights proposed in the Sexual Violence Bill follow years of sexual violence cases having one of the lowest conviction rates of any crime and complainants left traumatised by the court process.

Only about one third of sexual violence cases reported to the police result in a prosecution. And only about half of those lead to a conviction. Compare this with homicide or serious assault cases that see around three quarters of those charged convicted.

Sexual violence is not just about an invasion of space. It is an invasion of one's intimacy, one's most private self, the one thing we jealously guard. It's an abuse of power and the ultimate act of disrespect. It is deeply emotionally scarring.

Alongside the comparatively low conviction rate sits the repeated stories of complainants, whether of successful or unsuccessful prosecutions, who talk of a brutalising, humiliating and traumatising process right up to trial.

My job is to stand by the fundamental principles of our criminal justice system. That someone charged with a crime is innocent until proven guilty. That the Crown bears the burden of proving its case against an accused to the high standard of beyond reasonable doubt. That accused are entitled to know the case against them before they get to court. And accused cannot be compelled to give evidence. Indeed, an accused has the right to silence from the time a police investigation into a crime starts.

These are our fair trial rights. They are not rules to give wrongdoers a head start. They are rules to protect the innocent.

As well as standing by our fair trial rights it is also my job to see that our justice system does justice to all parties – the complainant, the defendant and the whole community (who want to know that wrongdoers will be brought to justice).

In sexual violence cases the issue usually comes down to either whether what is claimed actually happened or, if that's not in dispute, whether the complainant consented to what happened. The Crown must prove what happened and must prove there was no consent or that the defendant could not reasonably have believed consent was given.

In our justice system, evidence against an accused is tested in open court. That means questioning witnesses who give evidence. The complainant always has to give evidence.

The basic rule of evidence is that it has to be relevant to the charge the accused is facing. Questioning a complainant is not a licence to ask any question at all in order to destroy their confidence or reputation.

This is why one of the proposed new rules is to limit questions about a complainant to just the event that is the subject of the charge before the court. What a complainant did or did not do on other occasions, whether with the same person or different people, before the time of the event is seldom relevant to the particular occasion.

In the rare case where the way a complainant has given consent to the defendant on previous occasions is relevant then under the proposed law change a judge can allow the defence to question the complainant about it. The defence loses no rights in this regard.

The law right now allows a judge to let a complainant give their evidence by video recording. But, in recent years, the courts have imposed rules to heavily limit this option.

The proposed law change allows a complainant to choose to give evidence, including being cross examined, by video recording. Some defence lawyers have complained that this means a defendant has to give away their defence before trial. Some say it amounts to a loss of the right to silence.

I reject these criticisms. A judge can manage the timing of the complainant's video evidence so it does not put the defence at any disadvantage.

Andrew Little. Photo / Mark Mitchell

The complainant's evidence, including cross examination, only follows full disclosure to the defence of the Crown case. The defence will be fully informed. If it wishes to challenge the admissibility of evidence before trial, it will do as it does now and make those applications well in advance of trial, thus disclosing its strategy, at least in part. The defence loses no rights in this regard.

Contrary to some legal commentators, these are not radical, ideological proposals. They come from the Law Commission which periodically suggests improvements to our evidence laws. These suggestion have been made before, as recently as 2019.

In the end, justice must be done for everyone. Better protecting the most vulnerable court
participants takes justice away from no one.

• Andrew Little is Minsiter for Justice and MP in charge of the Sexual Violence Legislation Bill.