Contents

Chapter 5
Court specialisation for sexual violence cases

Options for New Zealand

5.30We examine three overarching forms of court specialisation as options for the New Zealand criminal jurisdiction: a separate court list for sexual violence cases; an entirely separate court; and specialisation of the judges and lawyers who are involved in sexual violence cases.

A separate court list for sexual violence cases

5.31Separate court lists enable particular classes of case to be separately managed and overseen. A longstanding example is the Commercial List in the High Court. It has been joined relatively recently by a separate list for judicial review cases (2013), a special list for cases about leaky buildings (2012), and a separate list in the Christchurch High Court for cases arising from the Christchurch earthquake (2012).377 By way of example, the Christchurch list seeks to “promote expedition, to resolve important cases early, to facilitate settlement, and to ensure that the parties get their respective cases ready for hearing in a timely fashion”.378
5.32In From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand a separate list for sexual violence cases was proposed.379 A separate list could ensure those cases are afforded proper priority, that they are scheduled in courtrooms with appropriate facilities and that they are heard by judges with experience and training.
5.33A separate list for sexual violence cases is in operation in Victoria and has led to positive gains in the disposition of sexual violence cases in that jurisdiction.380
5.34We have considered the option of a separate list for sexual violence cases and how it would fit into imminent changes to New Zealand’s court structure as encompassed in the Judicature Modernisation Bill.381 The Bill is currently in Parliament and reflects recommendations made in the Law Commission’s 2012 review of the Judicature Act.382 The Bill will introduce some structural changes to the court system, including the ability to establish “panels” in the High Court to hear certain kinds of proceedings383 and the consolidation of the District Courts into a single court of various divisions.

5.35At the time of writing the Bill had completed its second reading. With these changes on the horizon, we would be hesitant to recommend establishment of a new list for sexual violence cases which might run counter to policy decisions about the structure of the High Court and the District Courts that have already been made by the Government in this area. It might be better, before implementing a new procedure for sexual violence cases in those courts, to wait until the structural changes have had time to “bed in”.

5.36Another possibility, however, is the establishment of a separate court for sexual violence cases. Introduction of a whole new court could run parallel to the modernisation of the existing courts under the Judicature Modernisation Bill. The court could run on its own rules.

A specialist court for sexual violence casesTop

5.37A specialist court for sexual violence cases could potentially provide the mechanism by which to address a number of the issues faced by complainants in sexual violence cases in New Zealand.

5.38For instance, and purely by way of example, special rules and procedures could apply in the court to expedite the hearing of case, to govern the conduct of cross-examination and who is involved in that cross-examination, and to facilitate the giving of evidence in alternative ways. In terms of its rules and procedures, the court would need to operate in a way that gives effect to defendants’ fair trial rights and maintains the confidence of the public in the criminal justice system to “do justice” both for perpetrators and victims. The court could occupy a separate physical facility, although the resourcing implications of this would require consideration.

5.39We also wish to address at this point the question of where, within the existing court structure, such a court could sit, since sexual violence cases are currently heard in both the District Courts and the High Court. This does not preclude suggesting a separate court, but we are alive to the issue and have considered how best to address the design and institutional location of a special sexual violence court within our existing court structure. We return to this issue below.

5.40In concluding that a specialist court in some form would be beneficial to the handling of sexual violence cases we note that such a court can be established by organisational decisions and practice, without needing new legislation or a separate jurisdiction.384 It can be implemented on a pilot basis if that were considered desirable. Thus, there are numerous options for design, which we consider in more detail below.
5.41Before moving on from the discussion of specialist courts, however, we wish to draw attention to the distinction between specialist courts per se and what have been called “problem-oriented courts”.385

What is a “problem-oriented court”?

5.42The Australian academic Arie Freiberg has written about problem-oriented courts, and has discussed their distinctive features as opposed to specialist courts generally.386 Problem-oriented courts, in essence, adopt a problem-solving approach to offending. This is characterised by:387
5.43As such Freiberg points out that, while a problem-oriented court can be conceived of as a specialised court, not every specialised court is a problem-oriented court.388
5.44The distinction is important for this project because the proposal in our Issues Paper was for a specialist sexual violence court which would be the means to provide treatment and interventions to perpetrators who plead guilty.389 The proposal departed from the problem-oriented court model as described above in some respects (for instance, it did not involve extensive ongoing judicial supervision) but it did share some features of the problem-oriented model. The proposal received significant support from submitters and from consultees who we subsequently talked to in the drafting of this Report. We come back to the possibility of a court of that kind later in this chapter.

Specialisation of judges and counselTop

5.45The third form of specialisation assessed in this chapter is training and/or accreditation of judges and counsel in sexual violence cases.

Judges

5.46New judges receive some initial orientation and training when they take up their role through the Institute of Judicial Studies, which also runs ongoing programmes focused on core judicial skills and knowledge for judges from all courts. The Institute also runs programmes focused on specialist skills and knowledge for judges from individual courts, such as the Family Court, covering developments in the law, jurisprudence, and disciplines associated with the work of specialist benches.

5.47There are at present no judges formally specialising in sexual violence cases, nor is there any requirement for judges to undertake specialist education on how to deal with matters arising in sexual violence cases, although it might be covered in continuing legal education.

5.48The proposal in the Issues Paper was for specialist judges who would complete a special education programme relating to sexual violence. That proposal was supported by the New Zealand Law Society, all of the sexual violence sector agencies who commented on it, some other organisations, and a number of individuals.390
5.49Auckland Sexual Abuse HELP supported judicial specialisation, on the grounds that the process of a trial will be more effective with judges who enable complainants to feel comfortable to share their stories, feel respected, listened to, and included in the process. It could also avoid insensitive or inappropriate remarks being made by judges which can be emotionally harmful.391
5.50The Criminal Bar Association did not support the proposal for specialisation of judges as it was framed in the Issues Paper, raising the risk of burnout due to stress from specialisation and the risk of judicial cynicism.392
5.51In subsequent consultation, a proposal for judicial specialisation of some form received support. We received the collated views of over 20 District Court judges who saw training and education as being “of the utmost importance”. They suggested that a number of District Court judges are leaders in these fields with sufficient expertise to contribute to the delivery of those programmes, but emphasised the need for adequate resources.393 It was also strongly supported by the reference group of experts in criminal law and sexual violence that commented on parts of this Report (that group is discussed in paragraph 1.60).

5.52There is a clear case for judicial specialisation of some kind but a need for careful consideration as to how that is best achieved, given the concern frequently raised by submitters of the risk of “judicial burnout”. Below, we set out a proposal for judicial specialisation that takes account of this risk and other relevant considerations (see “Proposal for judicial specialisation”, below).

Counsel

5.53As with judges, at present there is no need for lawyers to have specialist expertise in order to appear in court to prosecute or defend cases involving sexual violence. Generally speaking, any lawyer with a practising certificate may conduct a trial involving sexual violence.

5.54Undesirable outcomes can result from a less experienced or non-specialist prosecutor or defence counsel acting in a sexual violence case. Non-specialist defence counsel are likely to be unaware of the best cross-examination techniques to thoroughly test the evidence, but in a way that is least likely to cause harm or distress to a complainant witness. Specialisation may also be beneficial on the prosecution side; for example, prosecutors in sexual violence cases may need to be particularly alive to the forms of cross-examination that are inappropriate in terms of section 85 of the Evidence Act 2006 in sexual violence cases.

5.55Specialisation of counsel is desirable, either through requiring counsel to become accredited in some fashion, or by encouraging counsel who appear in sexual violence cases to complete special education. But a different approach may be needed for prosecution counsel and for defence counsel, given the need to avoid infringing on the rights of a defendant to consult and instruct a lawyer of their choice under the New Zealand Bill of Rights Act 1990.394 We discuss this further below.
377“High Court lists” Courts of New Zealand <www.courtsofnz.govt.nz>.
378HD Winkelmann, Chief High Court Judge Christchurch Earthquake Litigation List Report (New Zealand High Court, 30 September 2014) at 1.
379Jeremy Finn, Elisabeth McDonald and Yvette Tinsley “Identifying and qualifying the decision-maker: The case for specialisation” in Elisabeth McDonald and Yvette Tinsley (eds) From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (Victoria University Press, Wellington, 2011) 221 at 272.
380Note that the original recommendation of the Victorian Law Reform Commission was for a specialist list only for sexual offences against children and people with a cognitive impairment: see Victorian Law Reform Commission, above n 352, at [3.129].
381Judicature Modernisation Bill 2013 (178-2).
382Law Commission Review of Judicature Act 1908: Towards a New Courts Act (NZLC R126, 2012).
383Judicature Modernisation Bill 2013 (178-2), cl 18(3).
384See for example the Alcohol and Other Drug Treatment Court, which is a pilot court operating in the Auckland and Waitakere District Courts. It is “a specialist District Court and operates under general legislation and judicial discretion”: Report prepared for the Ministry of Justice Formative Evaluation of the Alcohol and Other Drug Treatment Court Pilot (March 2014) at 1.
385Arie Freiberg “Innovations in the Court System” (Australian Institute of Criminology, paper presented to Crime in Australia, Melbourne, 30 November 2004).
386See for example Arie Freiberg (2001) “Problem-oriented Courts: Innovative Solutions to Intractable Problems?” 11 Journal of Judicial Administration at 8–27.
387Freiberg, above n 385, at 2–3.
388Freiberg, above n 385, at 3.
389Law Commission, above n 354, at 44–47.
390At 56-60.
391Law Commission, above n 347, at [246].
392At [242].
393Letter from Jan Doogue (Chief District Court Judge) to Law Commission regarding alternative trial processes practice reference (6 October 2015) at 4.
394New Zealand Bill of Rights Act 1990, s 24(c).