Contents

Chapter 6
The fact-finder in sexual violence cases

The rules of evidence in sexual violence cases

6.75As has been touched on in this chapter, our criminal justice system contains detailed rules of evidence governing what may and may not be put before a jury, on the basis that certain evidence is so prejudicial that a jury would be unable to separate its probative value from its prejudicial effect. Many of these rules could be simplified or removed if juries in sexual violence cases were replaced by an expert decision-maker who was able to assess all the evidence without being exposed to prejudicial effect. However, because we do not propose changing the fact-finding model in sexual violence trials, at this stage the rules of evidence in sexual violence cases will continue to be necessary.

6.76The Evidence Act 2006 contains the rules about evidence in criminal trials and includes some that are specific to sexual violence cases (such as section 44, which requires an application to be made before evidence can be put before the court of a complainant’s sexual history with any person other than the defendant). A number of the rules in the Evidence Act were put forward in 2011 as having a problematic effect in sexual violence cases.485
6.77The Evidence Amendment Bill 2015 will amend section 44 so that applications under that section can only be made if certain legislative requirements are complied with as early as practicable before trial.486 The purpose of that amendment is to prevent complainants being “ambushed” with a question about their sexual history with a person other than the complainant. However, many other rules in the Evidence Act 2006 remain potentially problematic. The rules as to what evidence can and cannot be admitted in a sexual violence case are fundamental to the trial itself and to the complainant’s experience of it, and we have reached the view that the rules as currently framed need review.
6.78On this point, we also note the potential impact of recent comments of the Supreme Court judges in CT v the Queen.487 The Court was considering how evidence of conduct alleged to have occurred over 10 years ago should be dealt with in a sexual violence trial, in terms of what the judge should say to a jury about that evidence and its probative value. At issue on appeal was whether the proceedings should have been stayed because of the risk of unfairness caused by delay and if not, whether the summing up given by the trial judge in relation to the delay was adequate to overcome any risk of unfairness arising from the effect of the delay on the reliability of the evidence.
6.79Section 122(2)(e) of the Evidence Act 2006 provides that a judge must consider giving a warning about the reliability of evidence about the conduct of a defendant alleged to have occurred over 10 years ago. The judge may warn the jury of the need for caution in deciding whether to accept the evidence, and the weight to be given to the evidence.488 Section 122(2)(e) is not confined to trials involving historical sexual abuse, but it commonly arises in that context. A warning given under section 122 need not follow any particular form of words; the judge has the discretion to tailor the direction to the case in question.489
6.80The Supreme Court spent some time discussing the policy behind section 122(2)(e).490 Previously, the Court of Appeal has taken an approach which suggests that section 122(2)(e) targets reliability concerns arising from the complainant’s memory. In such cases the jury may be warned of the effect of the passing of time on the reliability of the complainant’s evidence. This can explain why the Court of Appeal has previously said that a section 122(2)(e) warning is not necessary in cases where the defence case is that the complainant is lying, because lapse of time is irrelevant to fabrication.491
6.81Elias CJ and McGrath and William Young JJ took the view, however, that section 122(2)(e) is intended to address the concern that a lengthy lapse of time between the conduct at issue and the evidence at trial may raise issues of reliability that bear on the fairness of the trial.492 They did not think that a section 122 direction was limited to cases where the evidence itself may be unreliable because of the passing of time.493 Other concerns may also be relevant, such as the fact that delay has made it more difficult for the defendant to check or answer the allegations.494 As such, Elias CJ and McGrath and William Young JJ considered that a judge may conclude that evidence may be unreliable for the purposes of section 122(2)(e) for reasons other than the effect of delay on the memory of the complainant – such as, in the case in question, the ability of the defendant to check and challenge the evidence of the complainant.495
6.82Glazebrook and Arnold JJ did not agree with that interpretation of section 122(2)(e) and in their decision said that such an interpretation suggests that “evidence could be considered possibly unreliable under section 122(2)(e) solely because of delay-related prejudice and even where there is nothing about the particular circumstances that would suggest that the evidence may be unreliable”.496 They considered that this amounted to suggesting that it is dangerous to convict without corroboration in cases where the offending occurred more than 10 years previously.497

6.83Depending, therefore, on courts’ subsequent interpretation and application of section 122(2)(e), it may be argued that the decision in CT v the Queen will make it more difficult for sexual violence cases from over 10 years or more before to succeed in the absence of corroborating evidence.

6.84This would be an undesirable outcome of CT v the Queen and would run counter to the now widely held accepted legislative position that a jury should not be warned about the danger of convicting in a sexual violence case in the absence of corroborating evidence. The Evidence Act 2006 reversed the previous situation to make it clear that a judge is not required to give a direction to the jury that it may be dangerous or unsafe to convict a defendant in the absence of corroboration in a sexual violence case.498
6.85At least six appeal cases involving sexual violence have since referenced the discussions of the Supreme Court on this point in CT v the Queen.499 A review of the rules of evidence could include an examination of section 122(2)(e) and whether its intended purpose and effect needs to be clarified by legislative amendment.

Conclusion and recommendation

6.86It has not, in this review, been possible to separate the substantive matters of evidence that are raised by the rules in the Evidence Act 2006, from the matters of criminal procedure that we are focusing on. This is a fine line and we do not suggest that there are no issues with the rules of evidence in sex offence trials. Rather, we recommend that consideration be given to future review of the laws of evidence in sexual violence cases.

6.87The Law Commission would be well-placed to undertake such a review. The Commission is closely associated with the Evidence Act 2006, having a long history with the laws of evidence and the Act itself having been the result of a Law Commission review.500 The Commission is also tasked with reviewing the Evidence Act for operational purposes at successive five-yearly intervals.501 A review of the rules of evidence in sexual violence cases could be referred to the Commission to coincide with the commencement of its next operational review of the Evidence Act (which is likely to be in 2016).

6.88Undertaking a review of the substantive rules is a significant task, however, and if such a reference were made, consideration would need to be given to the timeframe for completing the project. We suggest that the Commission could draw on a team of willing experts to advise it on these matters.

Recommendation

485McDonald and Tinsley “Evidence issues” in McDonald and Tinsley (eds) above n 445, at 279.
486Evidence Amendment Bill 2015 (27-1), cl 16: A party who proposes to offer evidence about the sexual experience of a complainant must provide every other party with a written notice stating the party’s intention to offer the evidence; the name of the person who will give the evidence; and the subject matter and scope of the evidence, and a party who proposes to ask any question about the sexual experience of a complainant must provide every other party with a written notice stating the party’s intention to ask the question; and the name of the person who will be asked the question; and the question; and the scope of the questioning sought to flow from the initial question.
487CT v the Queen [2014] NZSC 155.
488Evidence Act 2006, s 122(1).
489Evidence Act 2006, s 122(4); CT v the Queen [2014] NZSC 155 at [41].
490CT v the Queen [2014] NZSC 155 at [40]–[49] (Elias CJ, McGrath and William Young JJ) and [61]–[72] (Glazebrook and Arnold JJ).
491S (CA514/08) v R [2009] NZCA 622 at [63]–[65]. Another case to the same effect is N (CA298/2012) v R [2013] NZCA 17 at [24]–[26].
492CT v the Queen [2014] NZSC 155 at [43].
493At [48].
494At [46].
495At [49].
496At [70].
497At [71].
498Evidence Act 2006, s 121.
499R v J W G [2015] NZHC 1418; Oquist v R [2015] NZCA 310; R v Tranter [2015] NZHC 2038; L v R [2015] NZSC 53; R v P [2015] NZCA 346​; and Bruce v R [2015] NZCA 332.
500See Law Commission Evidence (NZLC, R55, 1999).
501The most recent review was completed in 2013: Law Commission, above n 468.