Contents

Chapter 3
The existing court process for sexual violence cases

Introduction

3.1This chapter sets out how criminal court cases involving sexual violence are dealt with in the New Zealand criminal justice system. The first step is the reporting of a complaint of sexual violence to Police. If Police decide to file charges, the offence will be prosecuted, the defendant will enter a plea, there will be a trial if the defendant pleads not guilty and the defendant will be sentenced if the offence is proven. There may also be appeals at the pre-trial stage, after trial or at sentence.

3.2We set the process out in some detail in this chapter, because the conduct of criminal proceedings is now governed by the Criminal Procedure Act 2011 (CPA 2011), the relevant parts of which were not in force when these matters were last examined by the Law Commission in its Issues Paper.131

A note on the study of inquisitorial criminal justice models

3.3The Issues Paper for this review included a discussion of the differences and similarities between the adversarial and the inquisitorial models of criminal justice.132 Researchers travelled to Europe to observe trial processes in Germany, Austria, the Netherlands, Denmark, and Sweden and these were summarised in an appendix to the Issues Paper.

3.4New Zealand’s criminal justice system is based on an adversarial model. In general, this can be described as a model under which the parties to a dispute bring the matter to court, define the issues to be determined, and identify and present the relevant evidence to the court. The judge is a neutral arbiter who oversees the fairness of the process and decides the verdict (or directs the jury to decide the verdict) on the basis of the evidence presented by each party and tested under cross-examination by the opposing party. In contrast, in an inquisitorial model of criminal justice (which is the dominant model in European jurisdictions including France, Germany, and the Netherlands) the judge plays a much more active role. The judge may interview witnesses before trial; direct further lines of investigation; decide which witnesses should be called at trial; and does most of the questioning.

3.5In reality, no country’s system can be described as demonstrating the “pure” version of either model. Most countries’ trial systems have both adversarial and inquisitorial characteristics. However, a common criticism of adversarial systems is that the very nature of the model encourages aggressive and adversarial behaviour that may damage the interests of justice rather than promote them, and it is suggested that the limitations of the adversarial system are particularly profound in cases of sexual violence.133

3.6We wish to note that in the writing of this Report we were assisted by the research undertaken on inquisitorial models and included in the Issues Paper.

131Law Commission Alternative Pre-trial and Trial Processes: Possible Reforms (NZLC IP30, 2011).
132At 7–9 and Appendix 1.
133At 8–9.