Lawyers say Sexual Violence Bill is 'flawed', fear changes may compromise right to a fair trial

Concerns have been raised by defence lawyers over a new law change designed to make the court process less traumatic for complainants. Photo / 123rf

The New Zealand Bar Association says a proposed law for sexual violence cases is "flawed" and could risk the fundamental right to a fair trial.

Concerns that some provisions of the Sexual Violence Legislation Bill before Parliament pose a risk to fair trial rights have been raised in submissions by the New Zealand Bar Association (NZBA) to the Select Committee considering the legislative changes.

Nicolette Levy QC, who presented the submissions and is a member of the NZBA's criminal committee, said the the right to a fair trial is fundamentally important to New Zealand's justice system.

In a statement she said the bill is "flawed" and there should be no law changes which could compromise the Bill of Rights Act.

"The NZBA absolutely supports legislation that can minimise distress caused to complainants through giving evidence in sexual violence cases. However, changes in the way evidence is presented in court cases should not mean a person's right to a fair trial is compromised," she said.

The NZBA is primarily concerned with the practicalities and fairness of using pre-recorded cross-examination of complainants as a standard procedure in sexual violence cases.

The Criminal Bar Association and the Auckland District Law Society have also raised similar concerns.

The bill aims to make the court process less traumatic for complainants and introduce a higher threshold before evidence can be used about a complainant's sexual disposition, reputation or experience, including any sexual history with the accused.

The bill was supported by all parties at the first reading last year and was hoped to be passed into law earlier this year.

But Justice Minister Andrew Little told the Herald the bill's progress has stalled until issues - the same concerns held by defence lawyers - raised by New Zealand First can be resolved.

A letter signed by 20 Wellington women criminal defence lawyers has also been sent to the Green Party, urging the bill to be changed to reflect National's proposed changes.

Top of the list of signatures was Elizabeth Hall, vice president of the Criminal Bar Association, whose submission on the bill said that it "crushes defendants' rights to offer an effective defence".

The National Party, in its minority view in the select committee report on the bill, said if new evidence emerged after a pre-recorded video and the complainant had to give evidence a second time, it could be a doubly traumatic experience.

National also opposed the higher threshold for evidence about the sexual history between a complainant and a defendant.

Calls for legislative changes grew louder after last year's trial for the murder of Grace Millane, where the now convicted murderer used a "rough sex" defence.

After the trial, top criminal defence lawyer Marie Dyhrberg QC, who is also now the president of the Auckland District Law Society, warned of "knee-jerk legislative change" after a particularly brutal or high-profile offence.

The bill, Dyhrberg told the Herald, was something "that takes away judicial discretion".

"Once you start making something mandatory and take away judicial discretion it's a slippery slope."