Courtroom overhaul: A fair go for rape complainants or a pathway to miscarriages of justice?

An estimated one in 10 reported cases of sexual violence lead to a conviction, but only an estimated one in 10 cases are reported to police. Photo / 123RF

The justice process for rape complainants is described as being so broken that it allows some people to get away with rape. But defence lawyers say a law change to improve the court process would trample a defendant's right to a fair trial and lead to innocent people being jailed. Meanwhile, progress on the Sexual Violence Legislation Bill has stalled as NZ First considers these concerns. Derek Cheng reports.

Sex crime complainants' experiences with the criminal justice system make for harrowing reading.

"Traumatised…really, really victimised ... For a few hours he [the defence lawyer] was just telling me that I'm a liar, telling me that all I wanted was attention ... I was shaking and crying."

"The defence didn't even question me about the assault. They wanted to talk about anything else they could that would make me be mistrusted by the jury ... Did I have a history of hating men? How many times have I made things like this up?"

These anonymous accounts are included in a Justice Ministry-commissioned report about people's experience with what they describe as a broken justice sector.

According to Government figures, an estimated one in four women and one in seven people experience sexual violence in their lifetime. Of those reported to police, only a third go to court and only one in 10 end in a conviction.

But given the number of unreported cases, it is estimated that only 1 per cent of all potential sex crimes result in a conviction.

These issues are not new and previous governments have tried to improve the process; the Law Commission, for example, was asked to look into it eight years ago.

The commission's work, among others, has led to the Sexual Violence Legislation Bill currently before Parliament.

The bill was announced last November at a press conference with Justice Minister Andrew Little, Justice Under-Secretary Jan Logie, the Help Foundation, Wellington Rape Crisis, Chief Victims' Adviser Kim McGregor and lawyer Steph Dyhrberg, who convenes the Wellington Women Lawyers' Association.

Logie told the Herald the current system swings the balance so far against a complainant that it essentially lets some people get away with rape. The bill would make the system - which deters complainants from coming forward at all - more fair and just.

Supporters of reform include Help foundation's Conor Twyford, Wellington Rape Crisis' Kyla Rayner, Andrew Little, Jan Logie, Chief Victims' Adviser Kim McGregor, lawyer Steph Dyhrberg. Photo / NZH

But the bill has triggered angry blowback from the legal profession, defence lawyers in particular, who challenge the government's low conviction data and say it's closer to 40 per cent of those charged.

They say the bill would overturn fundamental pillars of the justice system - including the right to a fair trial and the right to silence - and would lead to innocent people in jail.

Their voices have been sufficiently loud for New Zealand First to stall the bill's progress and seek further information.

What does the bill do?

It aims to reduce the trauma and hostility that sexual violence complainants experience when they attend court and give evidence, including under cross-examination.

Aspects include ensuring complainants don't run into alleged offenders in, for example, the court elevator, and if a guilty verdict is returned, providing an easier way for Victim Impact Statements to be read.

A judge would also be required to stop inappropriate lines of questioning, such as ones that are improper, unfair, misleading, or needlessly repetitive.

The contentious provisions in the bill are around what evidence can be used, and how it is tested.

Currently there is a test that the defence has to meet before it can bring up the complainant's sexual experience with people other than the accused.

This is only admissible as evidence if the judge deems it of such "direct relevance" that excluding it would be contrary to the interests of justice.

In applying for the judge to consider it, the defence has to prove its case by including the scope of its questions and the reasons for asking them, which is shared with the prosecution.

This test is known as the "rape shield". It is meant to protect the complainant from being asked about intimate but irrelevant matters.

Many sexual violence complainants are deterred from coming forward because they fear and distrust the current system. The Sexual Violence Legislation Bill aims to address this. Photo / 123RF

The bill would expand the shield so it applied to the complainant's sexual disposition and reputation.

This includes so-called "rape myths" such as, for example, that a complainant is less credible or at least partially responsible if they dress provocatively, act flirtatiously, or use drugs or drink alcohol.

More controversially, the shield would also apply to all of the complainant's sexual experience, including with the accused - though the court could still be told about the fact that a history between them exists.

To protect complainants from an intimidating courtroom, the bill would also entitle them to give evidence and be cross-examined via pre-recorded video.

How relevant is the sexual history of the complainant and the accused?

The Law Commission's review of the Evidence Act in 2013 found that the sexual history of the complainant and the accused was "almost inevitably" relevant to consent or an honest belief in consent.

But in its second review, released last year, the commission recommended extending the rape shield to cover such sexual history.

Requiring the defence to explain why certain evidence should be admissible would promote fairness, the commission said, by putting the focus on the relevance of the evidence rather than the relationships involved.

"Consent is given to a particular person on a particular occasion – it is not given to a person for all time," the 2019 report said.

It would also help counter the "erroneous assumptions" that a person of a certain reputation, disposition or sexual experience was more likely to have consented, or was of less credible character.

It noted that this proposal was already the law in comparable jurisdictions overseas including the UK, Canada, and several Australian states.

The commission's consultation found support from Crown Law, police, academics, and victim and complainant advocates.

The proposal was opposed by the NZ Bar Association, the Public Defence Service, the Criminal Bar Association, and judges on the commission's judicial advisory panel and from the Sexual Violence Court pilot.

The NZ Law Society previously objected to the proposal but now supported it, saying it struck the right balance between the relevance of sexual history and "ensuring the complainant will not be unduly questioned about matters of an intimate nature".

It also noted that the profession was divided on the bill: "There are strong views on either side."

Fierce legal blowback

But criticisms were scathing in submissions from the NZ Bar Association, the Criminal Bar Association and the Auckland District Law Society.

Sexual history between the accused and the complainant may be crucial in trying to establish consent or the accused's reasonable belief in consent, the Bar Association said.

"By way of example, a complainant's consent to sexual activity with a defendant close in time to the activity complained about may well be relevant."

The Criminal Bar Association said a judge shouldn't dismiss a similar sexual interaction that was previously consented.

"The risk is that the judge might say, 'What counts is this occasion' - which is unfair to the defendant because people behave in the context of their prior dealings.

"An example of the difficulties a defendant might face is the defendant who says that his girlfriend might be unwilling initially but once he masturbates her, she comes around to consenting. So, his actions which he says were not previously resisted suddenly feature as a charge."

The Auckland District Law Society said the proposal was "totally unreasonable and unacceptable".

"In any relationship, there are events that are specific to each case and go to the heart of issues such as consent, motive to fabricate, credibility and reliability.

"To disavow any evidence in respect of the complainant and defendant is to so unreasonably fetter any defence the defendant may legitimately have."

They all argue that the bill trampled over protections enshrined in the Bill of Rights Act, including the right to a fair trial.

Forcing the defence to show its hand

Legal blowback also centres on the defence having to prove the relevancy of its intended evidence by revealing the scope and nature of its questions.

An expanded rape shield that applied to sexual disposition, reputation and experience would effectively mean the defence would have to "show its hand", defence lawyers say.

The Bar Association said that would be an invitation for the prosecution to "deliberately or inadvertently tailor/manipulate their evidence, and thereby potentially distort the truth".

Criminal defence lawyer Marie Dyhrberg QC is strongly opposed to the Sexual Violence Legislation Bill. Photo / Supplied

Prominent criminal defence lawyer Marie Dyhrberg QC described this as eroding a defendant's right to silence.

This right is commonly thought of as a person's right to refrain from giving evidence for a number of reasons, including potential self-incrimination.

But it also meant the defence didn't have to show its hand until the trial, Dyhrberg said.

"We do not have to have a defence. 'You make an allegation and accusation, you prove it. And if you can't prove it, I walk free.'

"Or if we do have a defence, we don't have to disclose it because that's going to allow you to go and prepare your witnesses.

"A complainant, therefore, is able to pre-prepare for something that they would normally find very difficult to answer in a trial ... If we say they are lying witnesses, they will be prepared to bolster the lying testimony."

The Bar Association also slammed the proposal about pre-recording evidence and cross-examination, which would deprive the defence of the ability to tailor its questions to a jury's reaction.

Pre-recording could also defeat the purpose of the bill; if new evidence emerged afterwards, complainants may have to give evidence again and be exposed to a doubly traumatic experience.

Does the bill violate the right to a fair trial?

The 2011 M V R Court of Appeal decision found that a compelling case was needed to justify pre-recorded evidence.

That was because a jury would lose the "significant benefits arising from a live cross-examination".

"They would not be able to choose where they looked. They would not be able to assess the accused's reaction to the evidence as it was being given."

The decision said that new matters "almost inevitably" came to light after the pre-record but before the trial.

"Defence counsel should not have to cross-examine a complainant when the defence has not had an opportunity to consider carefully all the relevant information in the prosecutor's hands."

Crown law advice to Attorney-General David Parker noted the issues raised in the M V R decision but said the bill was not inconsistent with the Bill of Rights Act.

"The [M V R decision] did not hold that pre-recorded cross-examination is always or inherently unfair, or determine exactly where the threshold lies."

It noted a 1997 Court of Appeal decision, R v Hines, which ruled that a fair trial had to consider the effective prosecution of charges, and for witnesses and their families to be protected from intimidation, which could influence their evidence.

"We acknowledge that the proposed regime changes the 'established' way in which cross-examination occurs and that some may view this as highly undesirable," the Crown law report said.

"But it does not change the fact a judge is ultimately responsibility for ensuring a defendant's fair trial."

Attorney-General David Parker said the judge would still have the power and responsibility under the bill to ensure a fair trial. Photo / 123RF

It applied the same rationale to concerns about expanding the rape shield provisions and the defence having to show its hand in applying for certain evidence to be heard.

"The right to a fair trial does not provide the defendant with an absolute right to put any evidence or question to a complainant.

"They are not blanket prohibitions but rather have inbuilt flexibility … controlled by the judge.

"The question is whether the regime set out in the bill directs or requires a judge to conduct an unfair trial. We do not consider this is the case."

Dyhrberg had a blunt response to the Crown law advice: "It's wrong."

The bill represented a "huge, huge shift".

"If this legislation is passed, it will lead to enormous numbers of miscarriages of justice. It's the whole reason we're battling so hard.

"We are hoping that this doesn't become a political decision, where parties are trying to gain favour and votes with other parties who are far too complainant-oriented."

Jan Logie: Not world-leading or radical legislation

Justice Under-Secretary and Green MP Jan Logie would not say whether opposition to the bill was motivated by self-interested defence lawyers.

"I am not going to characterise it that way. I recognise that in every other jurisdiction, defence lawyers have had the same concerns. But those concerns have not been realised once those changes have been made.

"We're not leading the world in this area. This is not a radical piece of legislation.

"The cases should be tested on the facts, not the ability to intimidate, confuse or wear out the complainants."

Justice Under-Secretary Jan Logie says the proposed bill aligns New Zealand law with jurisdictions overseas including the UK, Canada and parts of Australia. Photo / Pool

Justice Minister Andrew Little also rejected criticisms of the bill, but said its progress now depended on discussions with New Zealand First.

Logie said the estimate of only 1 per cent of potential sex crimes leading to a conviction showed that some people were getting away with rape.

This sentiment appears to be supported by the Justice Ministry's regulatory impact assessment of the bill, which found it would likely lead to an extra eight to 20 prison sentences a year.

But Dyhrberg said the statistics - from low conviction rates to low numbers of complaints - were not a fair representation of the system, which defendants also described as unfair.

"Those stats are from victim advocacy. When you've got an acquitted client who's been brutalised by the system, do you think he wants to become a stat? You can make stats whatever you like.

"The reason why you get acquittals is because these complaints are not vetted by the police right from the very beginning. Therefore shonky, unsubstantiated cases go to court and juries are the ones who say, 'What a load of rubbish this is', and they're the ones that acquit."

She said there was nothing wrong with the current system, a view supported by, among others, the NZ Bar Association.

"The law as it currently stands is suitably flexible and applies to all complainants/witnesses, irrespective of the nature of the alleged offending," the association said.

Something's gotta give?

The bill was meant to be the first step in wider reforms before a second stage, which is looking at the nature of consent, the role of juries and alternative processes.

The work was in part a response to complainants' experiences with the system, which are distressing regardless of whether you think the current system allows some to get away with rape, or if you think the bill would see innocent people jailed.

"Traumatic", "degrading" and "disgusting" is what complainants told a Ministry of Women's Affairs report in 2009.

Fear and distrust of the system was a factor in not coming forward, according to the 2015 Law Commission report The Justice Response to Victims of Sexual Violence.

The report included comments from a Crown prosecutor: "In my view the process for complainants in sexual violence cases is brutal. Every aspect of the complainant's character and conduct is questioned and exposed, and the likely outcome is not guilty."

And from a police officer: "I wouldn't put myself through this, and certainly would let a friend or family know how degrading it is and that they will be revictimised and the chances of a guilty verdict are very, very low."