Contents

Chapter 6
The fact-finder in sexual violence cases

What should be done at this stage?

6.50In light of the conclusion that more analysis is required of the alternatives to the jury model in sexual violence cases, we consider what should be done at this stage to address the problems outlined.

6.51In Chapters 4 and 5 we make recommendations seeking to minimise the harm problem through increasing access to alternative modes of giving evidence and improving court facilities.

6.52Some changes are also required to target the decision-making problem while more long-term alternatives to the jury model are assessed. We look at the range of current tools to minimise illegitimate reasoning by jurors and make suggestions for how they might be put to use as effectively as possible.

Guidance to jurors from the judge in the form of judicial directions

6.53Judicial directions are directions given by a judge to the jury that provide guidance on how it should approach evidence that has been put before it at trial. They provide juries, who are not specialists on evidence law, with information about the limitations and risks that attach to certain forms of evidence.468 Such directions are intended to reduce the risk of illegitimate reasoning by juries, by encouraging them to focus on the probative value of evidence (being the value of the evidence in determining whether the offence occurred) and not to be influenced by assumptions, prejudices or misunderstandings that the evidence could otherwise give rise to.469
6.54Judicial directions may be particularly important in sexual violence cases to counteract stereotyped thinking or misconceptions about violence which individual jurors may bring with them into trial. Hence in the literature they are often discussed in terms of their potential as a form of juror education; that is, a way of informing jurors about the stereotypes or misconceptions about sexual violence that they should avoid when making their decision.470 Guidance must always be tailored to suit the factual issues – giving jurors a number of “conventional” or generic directions without noting the relationship to the facts is not helpful and should be avoided.
6.55The effectiveness of judicial directions has been questioned, with research suggesting that jurors may not follow directions or will not necessarily understand them.471 Despite that, if judicial directions remain part of our law, they should be as effective as possible.

Judicial directions on sexual violence under the Evidence Act 2006

6.56At present, the only judicial direction in the Evidence Act 2006 that pertains specifically to misconceptions in sex offence cases is section 127, which provides for a direction on delayed complaints or failures to complain. It first appeared in the legislation in 1985. In its current form it provides as follows:

127 Delayed complaints or failure to complain in sexual cases

(1) Subsection (2) applies if, in a sexual case tried before a jury, evidence is given or a question is asked or a comment is made that tends to suggest that the person against whom the offence is alleged to have been committed either delayed making or failed to make a complaint in respect of the offence.

(2) If this subsection applies, the Judge may tell the jury that there can be good reasons for the victim of an offence of that kind to delay making or fail to make a complaint in respect of the offence.

6.57Parliamentary debate at the time that the direction was first introduced noted that “it is well recognised that, for reasons such as shame and shock, rape victims do not immediately tell another person about the offence”.472 Also, the period following an incident of sexual violence is for many victims a period of “acute psychological distress”473 and a person’s priorities are likely to be their health and social needs rather than reporting the incident to Police.
6.58In DH v R474 the Supreme Court briefly raised the question of whether other areas (such as retractions of a complaint, normalisation of complainant response, or complainant demeanour) would be amenable to being the subject of judicial directions to be included in the Evidence Act 2006.475 We note that quite specific provisions are included in the Evidence Regulations 2007 in terms of directions that judges can give to juries in any trial involving a witness aged less than six years. The judge may direct the jury, among other things, that young children may not report memories in the same manner or to the same extent as an adult would, but this does not mean they are any less reliable than an adult witness.476

6.59We would not, however, recommend that new judicial directions pertaining to sexual violence be included in the Evidence Act 2006 without research into the prevailing misconceptions that affect jurors in sexual violence cases and how those misconceptions are most effectively targeted via judicial direction. It may be that the research confirms that judicial directions are not necessarily desirable in all circumstances, in which case little would be gained by adding new directions to the Act. Also, any directions included in the Act would be unable to be readily updated in light of subsequent knowledge about the effect of rape myths on juror decision-making, which is always evolving.

Guidance in non-statutory form

6.60However, there is good reason to provide more comprehensive guidance to judges on how and when it might be appropriate to address the jury on certain counter-intuitive matters in sexual violence trials. Judges must be well-informed and educated about when it is appropriate to make such directions and how they should be framed.

6.61We draw attention to Chapter 17 of the Crown Court Bench Book issued by the Judicial Studies Board of England and Wales, which contains a number of model directions dealing with matters such as “avoiding judgements based on stereotypes” and “effect of trauma on demeanour in evidence”. We recommend that judges who sit on sexual violence cases should have access to detailed and up-to-date guidance on the instances in which guiding judicial directions to the jury may be appropriate in sexual violence cases and examples of how those directions should be framed.

6.62This is supported by comments of the reference group (see paragraph 1.60), who said:477

Framing directions if the jury is retained are critical but need consistency. There should be an agreed direction used in every case because our experience is that there is a great unevenness in judicial trial directions. Not just as to what is said; but sometimes nothing at all is deployed.

6.63We strongly recommend increased judicial guidance on these issues.

A note on the judicial direction in section 122(2)(e) and the effect of CT v the Queen

6.64We note the effect of the Supreme Court decision in CT v the Queen478 and the different interpretations of the direction in section 122(2)(e) of the Evidence Act 2006. Further research should be done on the interpretation and potential amendment of that provision (see “The rules of evidence in sexual violence cases”, below).

Expert evidenceTop

6.65The giving of expert psychological evidence under section 25 of the Evidence Act 2006 is another way of countering illegitimate reasoning. In 2015 in DH v R,479 the Supreme Court confirmed the legitimacy of using expert opinion evidence (among other things) to counter fact-finders’ erroneous beliefs or assumptions in sexual violence cases. It noted that the evidence presented should be confined to what is substantially helpful; that there should be a focus on the live issues at trial; that it should not be unduly lengthy or repetitive, and that it should be “expressed in terms that address assumptions and intuitive beliefs that may be held by jurors and may arise in the context of the trial”.480
6.66In 2003 the Court of Appeal in R v B, referring to expert evidence, said:481

We of course accept that expert evidence concerning, for example, battered wife syndrome or [Post Traumatic Stress Disorder] may be admissible in the context of the trial of sexual abuse allegations, where such syndrome or disorder may be directly relevant to the conduct of a complainant at the time of the allegations. That a complainant remained in an abusive relationship is the obvious example where expert opinion evidence may be of assistance to a jury.

6.67We understand that there are currently variations in practice in the giving of counter-intuitive evidence throughout the country, which may be due in part to the availability of experts who are willing to give that counter-intuitive evidence. At present, as far as we are aware, this type of evidence has only been used in cases where the complainant is a child, or was a child at the time of the alleged offending.

6.68The sexual violence support sector noted there is a shortage of people who are able and willing to give counterintuitive evidence. It is a big time commitment as the experts need to prepare at length. We were also told that consideration needs to be given to the effectiveness of counter-intuitive evidence, including how barriers to understanding counter-intuitive evidence within the jury might be overcome.

6.69We do not think the giving of expert psychological evidence in person in court, as a means of addressing misconceptions in sexual violence cases, should be ruled out. Its use should be assessed on a case-by-case basis according to whether there is someone who is well-placed to do it and whether the prosecution thinks it is required. We make no recommendations to change the status quo in terms of the use of expert counter-intuitive evidence, but its use should be addressed in the prosecutorial guidance recommended in Chapter 5. In addition, a government-level initiative to undertake an expert evidence programme including resourcing, monitoring and staffing is worthy of consideration.

Section 9 statementsTop

6.70Section 9 of the Evidence Act 2006 enables parties to agree to the admission of evidence in any way or form. The Court of Appeal has suggested that admission of an agreed statement by consent under section 9 of the Evidence Act 2006 could obviate the need for evidence to be given by an expert. Evidence that would otherwise be given by the expert appearing in person at trial could instead be admitted in written form by the consent of both parties.482

6.71The cases in which an admission of evidence under section 9 is possible will, however, be small because it requires the consent of the defence. Where defendants do not understand the nature of the expert evidence (and may also be under misconceptions about sexual violence) they are unlikely to agree to a section 9 statement. Nonetheless, we recommend that parties should be encouraged to agree on the content of any expert evidence to be presented at trial, and should wherever possible admit it under section 9 by way of a written statement.

Pre-trial education for jurorsTop

6.72Another option is to seek to educate jurors after they have been empanelled through the provision of information packs covering the difficult features that sometimes arise in sexual violence cases and what is or is not relevant to the fact-finding exercise. In a survey conducted by the Ministry of Women’s Affairs, those surveyed called for “jurors [to] be educated on the nature of sexual violation, either by being given information before evidence is presented … [or] through a public education campaign”.483
6.73We make no recommendation on this. It may be that training and education, in order for juror education to be truly effective, needs to be given on an ongoing basis and that the people making the decisions need to build up some familiarity with the area. It has been noted that any information “given without context before trial would need to be very carefully framed” so as to avoid possibly reinforcing false information or causing jurors to become biased against the defendant before the trial has begun.484

Conclusion and the need for future analysis of the alternativesTop

6.74There is a strong basis for arguing that sexual violence, as a form of criminal offending, is not amenable to fact-finding by 12 lay jurors. There are alternatives, but they need further analysis before they can be implemented. In the interim, the recommendations made in this chapter and in Chapters 4 and 5 should be implemented as a means to address the harm problem and the decision-making problem which are both caused and exacerbated by the presence of the jury in sexual violence trials. In addition, analysis of complete alternatives to the current jury model, and testing of those alternatives if appropriate, should take place during evaluation of the specialist court proposed in Chapter 5.

Recommendations

468Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013) at [11.113].
469The paradigm example is the use of evidence from an eyewitness who says they saw the accused; research has shown that many jurors appear to believe eyewitnesses too readily and have problems distinguishing between accurate and inaccurate eyewitnesses, and that assumptions people make about reliability are not necessarily correct. There is an ability to give judicial directions about identification evidence under section 126 of the Evidence Act 2006: see Law Commission, above n 468, at [11.113].
470See for example Emily Henderson and Duncan Harvey “Myth-busting in sex trials: judicial directions or expert evidence” [2015] Archbold Review 5.
471Finn, McDonald and Tinsley “Identifying and qualifying the decision-maker: The case for specialisation” in McDonald and Tinsley (eds), above n 445, 221 at 237­–239.
472(13 August 1985) 465 NZPD 6269. The predecessor to section 127 was section 23AC of the Evidence Act 1908.
473Ilene Seidman and Susan Vickers “The Second Wave: An Agenda for the Next Thirty Years of Rape Law Reform” (2004) 38 Suffolk UL Rev 467 at 482.
474DH v R [2015] NZSC 35 at [107].
475At [107].
476Evidence Regulations 2007, reg 49.
477Letter from Jonathan Temm and others to Law Commission regarding alternative trial processes (sexual offences trials) (28 October 2015) at 6.
478CT v the Queen [2014] NZSC 155 at [40]–[49] (Elias CJ, McGrath and William Young JJ) (and [61]–[72] (Glazebrook and Arnold JJ).
479DH v R [2015] NZSC 25.
480At [110].
481R v B [2003] 2 NZLR 777 at [28].
482M v R [2011] NZCA 191 at [33].
483Elaine Mossman and others Responding to Sexual Violation: Environmental Scan of New Zealand Agencies (Ministry of Women’s Affairs, Wellington, 2009) at xxi.
484Finn, McDonald and Tinsley “Identifying and qualifying the decision-maker: The case for specialisation” in McDonald and Tinsley (eds), above n 445, 221 at 240.