Contents

Chapter 5
Court specialisation for sexual violence cases

A specialist sexual violence court for New Zealand

5.56We reach the conclusion above that a specialist court for sexual violence in some form would be beneficial. In the following paragraphs we deal with how such a court might be designed and might operate in New Zealand. We explain our conclusion that it should begin operation as a pilot, with potential for expansion later on.

Could the court deal with sex offences at High Court level?

5.57We considered whether a new sexual violence court could hear all sexual violence cases, even ones that, because of their seriousness or for other reasons, must be heard in the High Court (see Chapter 3). Although the High Court hears a much smaller number of cases, we note in Chapter 3 that the issues faced by a complainant in the High Court are likely to be similar. According to our consultation, the same issues as to delay, courtroom facilities, communication with the prosecutor and others may arise whether a case is being heard in the High Court or a District Court.

5.58We therefore considered whether it might be possible to establish a unified court that could hear all sexual violence cases, whether they would otherwise have been heard before a District Court or the High Court. There is a court of this kind in the United Kingdom in the form of the Crown Court, in which judges from various court levels can sit. In New Zealand, however, such a court would need to be designed from scratch and might entail considerable amendments to the existing court structure.

5.59Alternatively, the categorisation of sexual violence offences under the Criminal Procedure Act 2011 would need to be revisited, as would the “court of trial” protocol,395 so that all sexual violence offences could go before a specialist court sitting at District Courts level. That would involve stepping outside the existing categorisation system of criminal offences. It might require wider consultation on how offences involving sexual violence should be categorised and potentially broader questions about the substance of the offences themselves, which is beyond the scope of this review.

5.60Our recommendation, therefore, is that the specialist court should sit at District Courts level. However, the reform proposals we make in Chapter 4 would apply to all court cases involving sexual violence, whether in the High Court or the District Courts. It would also be worth contemplating whether the pilot sexual violence court proposed in this chapter could be a “testing ground” for new rules and procedures that, eventually, could be applied to sexual violence cases heard at High Court level.

Should the court be set up through new legislation?Top

5.61The literature distinguishes between a court established through separate legislation (which we will refer to as a “legislated court”) and a court established by organisational decisions and practice (which we will refer to as a “dedicated court”).396

5.62That distinction is evident in the array of existing New Zealand specialist courts. The Family Court and the Youth Court are both legislated courts; they exercise a separate jurisdiction carved out by statute. The Family Courts Act 1980 provides for the establishment of Family Courts, the appointment of Family Court judges, and rules about how the court should operate. The Children, Young Persons, and their Families Act 1989 performs the same function in respect of the Youth Court.

5.63The Family Violence Courts, by comparison, are dedicated courts, established through organisational decisions and practice. They were created to respond to concerns about growing rates of family violence in New Zealand.397 There are now eight in operation throughout the country.398 They have no statutory basis, and to the extent that different rules and procedures apply in those courts, this is done by the judiciary and the Ministry of Justice implementing special policies and practices for those courts, which enable them to work to meet an identified need.399
5.64Legislated and dedicated courts are both a form of court specialisation and share broadly the same rationale.400 A key difference, however, is that a legislated court would operate throughout the country. The Youth Court and Family Courts, for instance, sit at every District Courts location in New Zealand. This brings the advantage of nationwide access, a higher public profile, and more permanence. But it is also more resource-intensive.
5.65Also relevant is the fact that a legislated court at District Courts level would hear all sexual violence cases at District Courts level throughout the country. This would be a large workload, as sexual violence constitutes a significant proportion of the District Courts’ current criminal work. In 2014/2015 (up to 23 October 2015) 429 sex offence trials were heard at the District Court (out of a total of 8,372 criminal trials) and 22 at the High Court (out of a total of 87 criminal trials).401 A legislated court would, therefore, need to be properly resourced to take on all cases of sexual violence throughout the country. Proper resourcing would be critical to the success of the proposal.

5.66Judicial rostering would need to be carefully managed. Sufficient judges would need to be rostered to the court so that cases are heard in a speedy manner, while also permitting frequent rotation of judges to avoid the risk of “burnout” by sitting in a court that hears only sexual violence cases. This might require judges to be redirected from other District Courts work and could impact on non-sexual violence cases.

5.67A dedicated court could be rolled out progressively, rather than being required to take on the full workload of sexual violence cases throughout the country. It could begin operating in those areas where there is a disproportionately higher incidence of sexual violence and/or where there is particular demand and judicial and community buy-in. The Rangatahi Courts, for example, have been established at 13 locations throughout the country and in each case this is the result of a coordinated effort between the marae that hosts the court, local kaumātua, and Youth and District Court judges.402

5.68We therefore recommend that a specialist sexual violence court be implemented, first as a dedicated pilot court in one or more of the District Courts throughout New Zealand where there is a high concentration of sexual violence cases and also judicial capacity and resourcing to implement the pilot.

5.69We note comments received in the drafting of this Report that this does not go far enough and that a specialist court should be implemented by legislation as a permanent measure. We would support our proposal being used as the platform for further consideration and analysis of the value of a permanent, legislated court. As such, we recommend that after two years’ operation, the pilot court should be formally evaluated and further analysis done of whether a specialist sexual violence court should be legislated to hear all sexual violence cases across the country, potentially as a division of the District Court under changes to be introduced through the Judicature Modernisation Bill.403 Two years would, we think, be sufficient time for the pilot to “bed in”. We also recommend that while an evaluation is underway, further thought be given to what rules of evidence should apply in that legislated court, and who the fact-finder in that court should be.

How should the court operate?Top

5.70We have not set out in detail the practices or procedures that should be implemented in a specialist sexual violence court. To the extent that the practices and procedures diverge from what happens in the usual criminal courts, this would be achieved by judicially-implemented operational guidelines to enable the court to work in a different way in particular respects.404 Those guidelines should be designed by the Ministry of Justice in collaboration with the bench of the District Courts and experts from the sexual violence sector.

5.71In essence, the specialist sexual violence court should seek to, and should be designed to, bring specially trained judges and counsel together in a venue that enables robust fact-finding without re-traumatising the complainant. The court must facilitate a coordinated and integrated approach among the various people who deal with complainants in sexual violence cases.

5.72The overseas experience with sexual violence courts may be drawn on in designing the court guidelines. We note that in Wynberg, South Africa, the sexual offences courts adopted a victim-centred approach, with a full-time coordinator appointed to coordinate and provide intermediary, counselling and other appropriate services for victims.405 As constituted, the court had two special, allocated prosecutors, with one in charge of investigatory out-of-court matters while the other was in court.406 These are features that could be adopted in New Zealand.

5.73We also recommend that administrative staff in the court receive training and education on what constitutes good practice when dealing directly with complainants.

The piloting of new initiatives through the courtTop

5.74In the course of our review we heard about various initiatives and measures that would be worth exploring further and potentially implementing at some stage in the future. The pilot sexual violence court could serve a useful secondary purpose as a forum for further investigation, assessment, and testing of certain reform measures. One such measure could be independent counsel appointed to assist the court, who could be specially trained to do the cross-examination of all witnesses in the proceedings.

recommendations

395The protocol identifies cases and classes of cases which must always be considered for transfer to the High Court in accordance with section 66 of the Criminal Procedure Act 2011: see Chapter 3.
396See Attorney General's Department of New South Wales, above n 348, at 148.
397A Mills and others Family Violence Courts: A Review of the Literature (Centre for Mental Health Research, 2013).
398At the District Courts in Whangarei, Auckland, Waitakere, Manukau, Palmerston North, Porirua, Masterton and Hutt Valley.
399Family Violence Courts National Operating Guidelines (Ministry of Justice, 1 September 2008).
400Antony Altbeker Justice through Specialisation?: The Case of the Specialised Crime Court (Institute for Security Studies, Pretoria, 2003) at ch 3.
401Figures provided by the Ministry of Justice (4 November 2015).
402Te Ururoa Flavell “Rangatahi Court opens in Tauranga” (press release, 14 March 2015).
403Judicature Modernisation Bill 2013 (178-2), cl 190.
404See for example Family Violence Courts National Operating Guidelines, above n 399.
405Ministerial Advisory Task Team on the Adjudication of Sexual Offence Matters, above n 359, at 17.
406At 18.