Contents

Chapter 5
Court specialisation for sexual violence cases

Specialisation or accreditation of counsel in sexual violence cases

5.85In the Issues Paper for this review, the Law Commission suggested that prosecution and defence counsel should both be required to be “accredited” before they can take on sexual violence cases.417 In other words, training, education and potentially other mandatory requirements would need to be completed before a prosecutor or a defence lawyer could take on a case.
5.86We consider the issue of accreditation for prosecutors and defence counsel separately. We note though that the proposal for prosecutor and defence specialisation in the Issues Paper was supported by a number of submitters including all sexual violence sector agencies who commented on it.418 The New Zealand Law Society supported specialisation (although not in the form proposed in the Issues Paper).419 Subsequently, most lawyers we spoke to were amenable to training and education sessions, if they were properly resourced to complete them. Specialists in the sexual violence field were very supportive of some degree of training and education for counsel, noting that some degree of education and training is a pre-requisite to lawyers fully understanding the nature of secondary victimisation (of complainants of sexual violence offences) and how their conduct can exacerbate or reduce the risk of secondary victimisation.

Accreditation for prosecutors

5.87Our consultation process suggested variations in current prosecution practice across the country which might be brought into line through a requirement for prosecutors to be accredited.

5.88For instance, it seems that different prosecutors hold different views as to how much one may appropriately explain to a complainant about what they can expect to happen at trial. Some may give the complainant an idea of what kinds of questions they will be asked at trial (without telling them how they should answer those questions). Others see that as falling outside the proper role of the prosecutor and at risk of being perceived as “briefing” the complainant on how to give their evidence. “Briefing” a complainant would conflict with the prosecutorial duty to present the prosecution case “fully and fairly and with professional detachment”.420 Striking the right balance is difficult and practice, it seems, varies throughout the country.
5.89Practice may also vary in terms of the seniority and experience of lawyers who prosecute sex offences. In some areas of the country there are de facto specialist prosecutors who handle all of the sexual offence trials in their region and some providers (such as the Auckland branch of Doctors for Sexual Abuse Care) offer training to prosecutors in certain areas of the country.421 One law firm we spoke to said they would not assign an inexperienced prosecutor to a sex offence case. But some in the sector said they had come across relatively junior counsel prosecuting sexual violence cases (although not necessarily rape or sexual violation cases) on their own.

5.90These variations in practice are not beneficial to complainants or to the effective prosecution of sexual violence cases. In our view they justify the introduction of a requirement for prosecutors in sexual violence cases to be accredited (to have completed appropriate training and education on the prosecution of sexual violence cases and to know how to deal with complainants in that process). This will help introduce consistency and may also facilitate the sharing of ideas and good practice approaches between prosecutors.

recommendation

Proposals for defence counselTop

5.91There are arguments in favour of requiring defence counsel to also complete training and education requirements before they can appear in sexual violence cases. Doctors for Sexual Abuse Care submitted, for example, that lawyers who are not familiar or comfortable with the complexities of sex offence trials can present evidence in an inappropriate way, and can be unduly aggressive or oppressive in their manner.422
5.92However, care must be taken with any proposal to require accreditation of defence counsel given the right of defendants to counsel of their choosing.423 One might argue that the right is infringed upon if the defendant is limited to a pool of defence lawyers who have completed the necessary requirements to become accredited to appear in sexual violence cases.

5.93As such, we have considered two possible mechanisms by which defence counsel in sexual violence cases could be encouraged to complete training and education requirements, without making those a necessary precondition to appearing as defence counsel.

5.94The Legal Services (Quality Assurance) Regulations 2011 set out the experience and competence requirements for lawyers appearing in criminal matters on a legal-aid basis.424 The schedule to the Regulations set out experience and competence requirements for criminal matters in a generic way (with approval levels from one to four and the list of requirements that must be met before each approval level can be obtained). The schedule also sets out specific competence requirements before a legal-aid funded lawyer can act in certain other proceedings, including: family law proceedings; mental health proceedings; and refugee proceedings.

5.95The vast majority of lawyers in sexual violence cases will be funded through legal aid. As such, the Regulations could include a requirement to reach a specific level of competency in criminal proceedings that involve sexual violence, and we make a recommendation to this effect.

5.96We also note that, since 2013, all lawyers must complete continuing professional development (CPD) in order to hold a practising certificate.425 Defence counsel who wish to appear in sexual violence cases could be expected to incorporate training or development into their CPD plan and record which is specific to sexual violence cases.

recommendation

417Law Commission, above n 354, proposal 3E.
418Law Commission, above n 347, at 62–63.
419Letter from the New Zealand Law Society to the Law Commission regarding alternative trial processes Issues Paper (3 May 2012).
420Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 13.12.
421Law Commission, above n 347, at [277].
422At [277].
423New Zealand Bill of Rights Act 1990, s 24.
424Legal Services (Quality Assurance) Regulations 2011, schedule “Experience and competence requirements”.
425Lawyers and Conveyancers Act (Lawyers: Ongoing Legal Education—Continuing Professional Development) Rules 2013.