Contents

Chapter 1
Scope, approach, and context of this review

A note on the history of this project and the current scope of the review

1.64In 2010, the Law Commission was directed to undertake this review under the following terms of reference:

The Law Commission is asked to undertake a high-level review of pre-trial and trial processes in criminal cases. In particular, it should consider whether the adversary framework within which those processes operate should be modified or fundamentally changed in order to improve the system’s fairness, effectiveness and efficiency.

The Commission should include within its review, an examination of inquisitorial models and consider whether all or any part of such models would be suitable for incorporation into the New Zealand system.

The Commission is asked to put particular emphasis upon the extent to which a new framework and/or new processes should be developed to deal with sex offence cases. However, it should also consider the desirability of alternative approaches in other categories of cases such as those involving child victims and witnesses and family violence, and it should consider the extent to which the system needs to be modified more generally.

1.65Prior to this, there had been a number of government-led initiatives in the area of sexual violence. From 2009, the Ministry of Women’s Affairs received funding for research on the “well-being of adult victims of sexual violence” with an emphasis on seeking “a strong evidence base for policy and operational responses”.52 In 2007, the Taskforce for Action on Sexual Violence was constituted as a partnership between key government agencies and the sector “to lead and co-ordinate efforts to address sexual violence”.53 The Taskforce, which was supported by TOAH-NNEST, existed from July 2007 to July 2009 and made several recommendations to government to prevent and respond to sexual violence.54 Included was a recommendation that consideration be given to an alternative mechanism for dealing with sexual violence cases.55
1.66In 2008, in the context of a Report on the admission of evidence of criminal history to criminal trials, the Law Commission had suggested that the Government undertake an inquiry into whether the present adversarial trial model should be modified or replaced with an alternative model, either for sexual violence offences or for a wider class of offences.56 Subsequently, the Law Commission was directed to undertake a review on the terms of reference set out above.

Law Commission’s Issues Paper

1.67The Law Commission published an Issues Paper in 2012 that included a review of inquisitorial systems and concluded that “the traditional criminal justice process is limited in its ability to deliver justice”.57

1.68In the writing of the Issues Paper the Law Commission worked in collaboration with Elisabeth McDonald and Yvette Tinsley from Victoria University of Wellington and Jeremy Finn from the University of Canterbury, who received a grant from the Law Foundation for research on alternatives to pre-trial and trial processes in cases of sexual violence. The Commission was also assisted by a steering group consisting of Elisabeth McDonald and Yvette Tinsley, representatives from the judiciary, Police, prosecution and defence bars, community service providers working with victims of sexual offending, and offender treatment services.

1.69The Issues Paper raised a number of possible reforms that could be applied to all criminal trials, including putting the judge more in the role of fact-finder with increased direction over determining the issues at trial and the ability to ask questions directly of the parties. The Commission received submissions on its Issues Paper from a wide variety of groups and individuals, including legal professional organisations, the judiciary, community law centres and non-governmental organisations as well as individual counsellors, psychologists, lawyers, social workers and others.58
1.70The Law Commission was in the course of considering these submissions when the then Minister of Justice and then Minister responsible for the Law Commission, the Hon Judith Collins, indicated that the work was not to proceed further. The Commission collated a summary of submissions received on its Issues Paper but did not proceed to a final Report at that time.59

Revival of the reviewTop

1.71In late 2014, the Law Commission received a direction to restart the project working to the same terms of reference. The current Minister of Justice, Hon Amy Adams, made an additional request to put a “particular focus on sexual offence cases, to identify best practice for improving the court experience of complainants”,60 and to develop proposals to improve the criminal justice response to sexual violence.
1.72The matters covered in this Report differ from the scope and nature of the proposals put forth in the Issues Paper published by the Commission in 2012. Many of those proposals were very positively received.61 However, the focus of this Report is limited to sexual violence, given the timeframe for completion of the project, subsequent additional direction as to the terms of reference and the Commission’s subsequent assessment of the areas where the need for law and policy reform is most pressing.
52Ministry of Women’s Affairs “Factsheet 2009 – Sexual Violence Research Unit” (2011) <www.mwa.govt.nz> and see also Ministry of Women’s Affairs, above n 20.
53Te Toiora Mata Tauherenga – Report of the Taskforce for Action on Sexual Violence, Incorporating Views of Te Ohaakii a Hine – National Network Ending Sexual Violence Together, above n 11.
54Te Toiora Mata Tauherenga – Report of the Taskforce for Action on Sexual Violence, Incorporating Views of Te Ohaakii a Hine – National Network Ending Sexual Violence Together, above n 11.
55Te Toiora Mata Tauherenga – Report of the Taskforce for Action on Sexual Violence, Incorporating Views of Te Ohaakii a Hine – National Network Ending Sexual Violence Together, above n 11, at 67. Recommendations of the Taskforce would later inform the 2014 Social Service Select Committee Inquiry into the Funding of Specialist Sexual Violence Social Services, with government agencies being required to present progress updates against taskforce recommendations.
56Law Commission Disclosure to Court of Defendant’s Previous Convictions, Similar Offending, and Bad Character (NZLC R103, 2008) at v–vi.
57Law Commission Alternative Pre-trial and Trial Processes: Possible Reforms (NZLC IP30, 2012) at 7.
58Twenty-six submitters identified themselves as victims of sexual violence or other offending or family/whānau members of victims or indicated they had been defendants in criminal trials. Twenty-two organisations made unique submissions and 28 organisations made substantially similar submissions based on the submission of Auckland Sexual Abuse Help Foundation (HELP Auckland).
59Law Commission, above n 6.
60Letter from Amy Adams (Minister of Justice) to Grant Hammond (President of Law Commission) regarding revised Law Commission work programme 2014/15 (24 November 2014).
61See Law Commission, above n 6.