Contents

Chapter 4
The court experience of complainants

Issue four: court facilities and physical environment

4.133The design of the courtroom, in a criminal case, permits a defendant to be put “on trial” in a place that is open to the public in the interests of transparent justice. However, as a place where complainants must come to give intimate evidence of a sexual nature, the courtroom and the court buildings themselves tend to be intimidating and poorly designed. Complainants may have to mingle with defendants and jurors in waiting rooms and, when giving evidence in court, the feeling that they are the ones “on trial” may be exacerbated by their isolation in the courtroom.

Court facilities

4.134Guidance for prosecutors notes that sex offence complainants may need special arrangements at trial, including an allocated room,338 but that will depend on the facilities of the particular court. Based on our consultation it seems that New Zealand’s court buildings are lacking in this area, although the Crown is often well provided for. Particularly in the District Courts, complainants may be required to wait in the common waiting areas along with jurors, the defendant, and his or her supporters or family members.
4.135From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand records the following comment from a lawyer during consultation:339

I have direct experience of complainants and prosecution witnesses being verbally abused, spat at and harassed when entering court to give evidence. There are often no facilities for a separate entrance for witnesses, and some judges have refused to allow judicial access points to be used because they do not wish their private passageways to be intruded upon by witnesses.

Many witness waiting rooms are appalling places, with no natural light, and no access to refreshments: often witnesses and complainants have to go out for morning tea or lunch, risking running the gauntlet of defendant’s families and supporters. More should be done to make the courthouse experience for complainants and witnesses, and indeed defendants and their witnesses, more civilised.

4.136This may be compared to specialist court facilities for sexual violence cases in South Africa, for instance, which include separate waiting rooms for complainants, separate entrances, and other amenities to make those complainants feel more comfortable.340
4.137Ideally, court buildings should include safe parking, a separate entrance and waiting rooms, and facilities and resources to accommodate victims and their support people.341 Separate access routes, waiting rooms, and refreshment and toilet facilities are desirable to ensure complainants or witnesses are not brought into contact with the defendant or the defendant’s family or supporters. Undoubtedly, establishing courts with facilities of this kind would go some way towards minimizing the stress of trial for complainants in sexual violence cases (and would also be of benefit to vulnerable witnesses in other proceedings). However, it would also require significant investment.

4.138In the first instance, we suggest that funding should be focused on the areas of greatest need. We recommend that the Ministry of Justice consider setting aside some funding to develop separate entrances, separate waiting rooms, and separate refreshment facilities in those District Courts which have high volumes of sexual violence cases. Complainants in sexual violence cases, and their supporters, should be entitled to the use of those facilities.

4.139We would also strongly suggest that whenever new court buildings are being constructed or existing buildings refurbished, thought should be given to how those buildings could be designed in a way that permits separation of sexual violence complainants and other vulnerable witnesses from areas used by defendants, jurors, and the general public.

4.140We also believe that a greater focus and effort should be put on ensuring that, wherever reasonably possible, a complainant in a sexual violence case is given access to a separate entrance and separate waiting room and refreshment area at court. To help give effect to this we recommend that the VRA 2002 include a right of complainant witnesses in sexual violence cases to access these facilities where available.

Courtroom configurationTop

4.141There might be a benefit in enabling judges to reconfigure the courtroom in cases where that is appropriate, for instance so that a complainant in court does not have to give evidence on the stand but can do so from a more comfortable part of the courtroom and one that is more amenable to having support people close by. A judge could direct, for instance, that this should occur where he or she considers it is required to avoid causing unnecessary harm to a complainant witness.

The view of the complainant on a change of court venueTop

4.142Under section 157 of the CPA 2011, a judge can direct a change of court venue if satisfied that this is required in the interests of justice. The High Court has previously said that one of the relevant considerations to a decision to change venues is the interests of the complainant or of the relatives of a victim.342 However, the section itself is silent as to interests of complainants and witnesses, and consideration of their interests is neither mandatory nor decisive.
4.143This is surprising when considered in light of recent amendments to the VRA 2002, which have put a greater focus on taking account of victims’ views or their right to certain information in respect of court proceedings. For example, the Act now requires that for specified offences the victim’s view on the release of an accused or offender on bail be ascertained and communicated to the court.343
4.144From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand makes a recommendation to this effect.344 The position has not changed subsequently. We believe that this remains a desirable measure, and therefore recommend that the CPA 2011 require the court to take account of the views of the victim, as ascertained and conveyed by the prosecutor, when considering a change of venue in cases of sexual violence. We also recommend that the VRA 2002 be amended to include a right of a victim in a sexual violence case to be informed by the prosecutor of an application to change the court venue and to have their views conveyed to the court.

Power of a judge to direct clearance of the courtTop

4.145Currently, section 199 of the CPA 2011 provides that the court must be cleared when the complainant gives oral evidence in a sexual violence case (excepting the key participants at trial such as the judge and jury, the defendant, counsel, the officer in charge of the case, and necessary court staff). We have given some thought to whether the Act should also provide for the court to be cleared during other parts of a sexual violence proceeding.

4.146One such time, for example, is sentencing. We were told of one example of a woman who attended the sentencing of her kidnapper and rapist and found that law students were giggling and whispering in court. Also of note is that at sentencing, a victim impact statement may be read, sometimes by the victim him or herself.345 If a record of the effect on the victim of the offence is being read aloud at court, one might expect that the statute would provide for the court to be cleared at that time in the interests of the victim, or at the least that the judge would consider whether that should be done.
4.147Under section 197 of the CPA 2011 the court can make an order to clear the court in any proceeding, wherever satisfied that this is necessary to avoid one of the outcomes in section 197(2) of the CPA 2011346 and where satisfied that a suppression order would not be sufficient. Thus, a judge has the power to clear the court at all stages of any proceeding, including at all stages of a sexual violence proceeding. But section 197 of the CPA 2011 does not make reference to the risk of harm to complainant witnesses as one of the outcomes that would justify clearing the court. An explicit legislative direction on the potential desirability of clearing the court at any stage of a sexual violence proceeding would be beneficial.

4.148As such, we recommend that a provision be included in the CPA 2011 which authorises a judge to consider at any point in a proceeding involving sexual violence, whether closure of the court is required to avoid causing unnecessary harm to a complainant witness. We recommend that an order under that provision should be able to be made subject to an exception for members of the media, as is currently the case for orders to clear the court under the general power contained in section 197 of the CPA 2011.

Recommendations

338Crown Law, above n 257, at [15].
339Finn, McDonald and Tinsley “Identifying and qualifying the decision-maker: The case for specialisation” in McDonald and Tinsley (eds), above n 228, 221 at 273.
340Ministerial Advisory Task Team on the adjudication of sexual offence matters Report on the re-establishment of sexual offences courts (South Africa Department of Justice, 2013).
341Te 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 (Ministry of Justice, 2009) at [59].
342R v Te Kahu [2006] 1 NZLR 459; Warren v Police [1995] 3 NZLR 411 at 414.
343Victims’ Rights Act 2002, s 31.
344McDonald Complainant desire for information, consultation and support: How to respond and who should provide? in McDonald and Tinsley (eds), above n 228, 168 at 181.
345Victims’ Rights Act 2002, s 22.
346
The outcomes listed in section 197(2)(a) are:
(i) undue disruption to the conduct of the proceedings; or
(ii) prejudicing the security or defence of New Zealand; or
(iii) real risk of prejudice to a fair trial; or
(iv) endangering the safety of any person; or
(v) prejudicing the maintenance of the law, including the prevention, investigation and detection of offences.