The Government is being warned that proposals to overhaul how rape trials are run would see more innocent Māori men in jail.
The caution comes from Lady Heeni Phillips-Williams, co-president of the Sir Peter Williams QC Penal Reform League and criminal lawyer, in a letter she penned to Prime Minister Jacinda Ardern which has been obtained by the Herald.
"I also write as the relative of two innocent young males from Ngāpuhi who, falsely accused, sadly went through several months of incarceration on sexual violation charges," she said in her letter.
"It was a traumatising and frightening experience for both males and their whānau - who were later freed without conviction... You, I trust, will be eager to prevent such tragedies damaging more Māori."
Phillips-Williams told the Herald that Māori men would bear the brunt because they were more likely to be arrested by police, more likely to rely on legal aid, and more likely to be subjected to biases throughout the justice system.
The bill is hailed as long overdue by victims' advocates as making the process less traumatic for complainants in a way that would encourage them to come forward.
But it has divided the legal and justice fraternity. Crown Law, police, academics, the Law Commission and victim advocates support it, but it is opposed by the NZ Bar Association, the Public Defence Service, the Criminal Bar Association, and judges on the Law Commission's judicial advisory panel and from the Sexual Violence Court pilot.
It is expected to pass with the support of Labour and the Greens, but the National Party are hoping to change two contentious clauses which were both highlighted in Phillips-Williams' letter.
The first would make it harder for the sexual history between the accused and the accuser to be used as evidence, and the second would entitle complainants to be cross-examined via pre-recorded video before a trial.
Phillips-Williams said such sexual history - including their common routines and past practices - was often relevant to how an accused might have reasonable grounds for consent.
The "somewhat diffuse and difficult to isolate rationale" for the proposal, she said in her letter, was to save complainants the embarrassment of being questioned about their sexual history, but it would lead to a greater likelihood of innocent men being convicted.
Pre-recorded cross-examination, instead of protecting complainants from an intimidating courtroom setting, would subject them to a "double-ordeal" when they were cross-examined again at trial following new evidence emerging, she said.
She also took a swipe at Green MP Jan Logie, who championed the bill last parliamentary term when she was Justice Under-Secretary.
"Pre-trial cross-examination has been presented by Ms Logie as if it is an internationally-tested idea of incontestable merit. One could easily gain the impression that this idea had never received detailed analysis by any impartial and native judicial body of high authority with the expertise to do so," said Phillips-Williams, noting a Court of Appeal decision on the issue.
"One must point out that she [Logie] is not legally trained and has therefore obviously not run even one criminal case in court, but assures the public of certitude about the future 'safe' effects of this bill - effects she is uncredentialled to guarantee.
"She [Logie] will have more Māori males in prison, through their rights being obliterated. Not many will be able to afford a QC. This bill is shameless and shameful."
Logie said she wasn't fazed about being singled out for criticism.
"It can be convenient to create an enemy and I think that's what's happening in this situation."
She said it was a government bill "soundly based on evidence", and would improve the system for defendants as well as complainants.
The status quo was "untenable", she said, noting government statistics that show less than a third of sexual violence cases reported to police make it to court, and only about one in 10 see a conviction.
She has described the current law as allowing people to get away with rape; the Justice Ministry estimates the bill would likely lead to an extra eight to 20 prison sentences a year.
Court said jury misses out with pre-trial cross-examination
The 2011 Court of Appeal decision highlighted by Phillips-Williams is M v R, which found that a jury and the defence team would lose "significant benefits arising from a live cross-examination".
"They [jurists] would not be able to assess the accused's reaction to the evidence as it was being given.
"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."
The court also noted the likelihood of a complainant having to be cross-examined at trial anyway because new matters "almost inevitably" came to light after the pre-record.
Crown law advice to Attorney-General David Parker noted the findings in M v R but found that 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 also involved protecting witnesses and their families from intimidation, which could influence their evidence.
Crown law found that the judge would still have the power and responsibility under the bill to ensure a fair trial.
"The right to a fair trial does not provide the defendant with an absolute right to put any evidence or question to a complainant.
"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."
Phillips-Williams dismisses Crown law advice, Law Commission, 'emotional' complainants
Phillips-Williams, who was married to Sir Peter Williams QC before he passed away, dismissed the Crown law advice as that of "one government-employed lawyer", while also brushing aside other supporters of the bill.
"The small handful of commissioners of the Law Commission (non-expert in sexual cases), very questionable unreported-crime-to-conviction-figure-ratios, and deeply emotional former sexual case complainants (who are often outraged that men should actually be formally tried and not convicted on the basis of mere allegation) are all in no way as authoritatively expert as the voices of true experience that are speaking against these provisions," she said.
"Those who understand these provisions give them no endorsement."
She also challenged the bill's proposal for tighter controls on questions about a complainant's sexual disposition, which could make consent to certain behaviours seem more likely.
"For instance, there are reportedly people who like being tied up during sexual activity. Focus on a single (charged) incident would look seriously aggravating to a jury, unless the defendant can explain and the complainant can be asked about the complainant being known to prefer the practice.
"That context, in short, may change everything for the jury."
A spokesman for the Prime Minister referred the Herald to Justice Minister Kris Faafoi, who said the status quo was unacceptable rates of sexual violence, low numbers of complaints with police, and low rates of conviction.
The proposed changes, he said, are "well-founded in both principle and in evidence from comparable jurisdictions that indicates they can function fairly, without eroding fundamental fair trial rights".
"I appreciate that the bill's changes will involve shifts in the way defence lawyers need to approach their advocacy, which is of utmost importance to the integrity of our system.
"The Government's view is that such shifts are necessary to reduce the harm the system often inflicts on those who are seeking justice. I am confident lawyers can adapt to them in a way that is conducive to a better justice system for all participants."