'Read before criticising', minister tells lawyers

Simon Power has set out to improve the justice system. Photo / Mark Mitchell

Justice Minister Simon Power has fired a broadside at lawyers criticising his proposed reform to stop the sexual history of rape-case complainants being raked over, telling them to "read proposals before criticising".

Lawyers have criticised Mr Power's plan made public in a major speech yesterday, saying such restrictions already exist and claiming he does not know the law.

But Mr Power said they had misinterpreted his speech.

"Lawyers should read proposals before criticising."

Lawyers such as senior Auckland defence lawyer Gary Gotlieb say the restrictions is already law under the Evidence Act, and therefore completely unnecessary.

But this relates to sexual history with people other than the accused. Mr Power said currently the previous sexual relationship between the complainant and the accused does not need the judge's agreement before being brought up in court.

Mr Power clarified his proposal by giving further detail that he wanted to ensure that all evidence relating to a complainants' sexual history was dealt with in a consistent way - irrespective of whether the sexual history involves the defendant or any other person.

"To make it absolutely clear: The proposed change would inhibit sexual history between the complainant and the defendant from being raised in open court without the prior leave of the judge."

Mr Gotlieb, a former President of the Auckland District Law Society, earlier said he was concerned the Justice Minister did not know the law.

"I'm just gobsmacked that we've got a lawyer who is Minister of Justice who has got no idea what the law is. How much confidence does that give you in our politicians who are making law and don't know what the law is."

Fellow Auckland defence lawyer Peter Tomlinson said such restrictions were first put in place in 1987, then amended to the current form in 2006.

"The simple fact is that what Mr Power proposes, in his wisdom, has been the law of New Zealand for at least the last 20 years or more."

There is already tension between Mr Power and defence lawyers over the fundamental review of legal aid he has ordered.

In his speech, Mr Power said he was considering: "Making evidence about previous sexual relationships between the complainant and any person inadmissible without prior agreement of the judge."

Talking to reporters afterwards, Mr Power said rather than the complainant being ambushed in court with cross-examination about her past, a judge should first rule on its relevancy.

"An individual - mainly a woman - being confronted in a court situation with those types of questions, in that type of forum, with no notice, is just not acceptable."

Mr Power also proposes changing the definition of consent so someone would have to say "yes", rather than the current law where a defendant is able to argue the woman did not say "no".

The court could also be required to consider any steps the defendant may have taken to ascertain whether the complainant consented.

Mr Power has also asked the Law Commission to investigate introducing a European-style inquisitorial justice system in sexual offending cases.

He said using such as system - where the judge is involved in collecting and determining the facts of the case - instead of the adversarial system that required "harrowing" cross-examination of victims was "worth a look".

He intends to travel to a country such as France where it is in use.

Mr Power said he wanted an "open debate" about the way sex cases were conducted in order to improve the reporting rate of 9 to 12 per cent of the estimated number of sex offences.

The minister also effectively sounded the death knell of the defence of provocation that has provoked an outcry since Sophie Elliott's murderer, Clayton Weatherston, used it at trial.

Mr Power echoed the words of Ms Elliott's father, Gil, immediately after the guilty verdict on Wednesday: "I do not believe this defence has any place on the statute books."

The minister said the defence "wrongly enables defendants to besmirch the character of victims and effectively rewards a lack of self-control".

The defence had "had its time" and there were other legal mechanisms that could be used in its place.

Mr Power said self-defence was available for cases where the threat was real and provoked a violent attack. And judges could now impose less than 10 years' jail for murder, meaning provocation arguments could be kept for sentencing.

Mr Power said a proposal could be put to the Cabinet and a bill introduced to Parliament within weeks.

FURTHER LAW REFORM

Justice Minister Simon Power outlined the next steps he will take in an increasingly extensive set of reforms to the justice system.

CRIMES AGAINST CHILDREN
Mr Power wants to ensure child victims are treated the same as adults. Areas being looked at include protection orders, the wrongful removal of youngsters from New Zealand and domestic violence legislation. The aim is to improve the responsiveness of the Family Court and enhance the protection of children.

ALCOHOL
Mr Power says alcohol - a "facilitator" for crime - has to be dealt with if the Government is to have any impact on the crime rate. He says this will be done in one package of law reform this parliamentary term and will take into account the ongoing work of the Law Commission. It has already suggested limiting the opening hours of liquor shops and bars, raising the drinking age to 19 or 20 and increasing tax on alcohol.

LEGAL AID
Although Dame Margaret Bazley's review of the system has yet to be completed, Mr Power says he is impressed by the Public Defence Service as an alternative to legal aid. It gets cases through court faster than legal aid lawyers, with no difference in outcome for clients, he says. Mr Power took another swipe yesterday at those in the legal system resisting his changes, telling them to put their "institutional interests" aside and declaring that "tradition is not good enough reason not to change".

COURT SIMPLIFICATION
Proposals already announced include increased use of video links to cut down on court appearances, and jury trials being available only in more-serious cases.