Contents

Chapter 9
Proposal for reform

Privilege

Privilege for perpetrator – statements made in process

9.147As the law currently stands, anything the perpetrator says during the alternative process could lead to subsequent criminal prosecution of the perpetrator or could be used against him or her in criminal proceedings, thus exposing the perpetrator to the risk of self-incrimination and the possibility of a criminal penalty.652

9.148We recommend that an amendment is made to the Evidence Act 2006 so that there is a privilege for the benefit of any perpetrator for any statements made, information given or communications between the perpetrator and any person involved in the delivery of the alternative process or any person participating in the alternative process.

9.149In order for there to be sufficient incentive for the perpetrator to participate in the alternative process, we consider privilege would attach regardless of whether the alternative process was completed.

9.150In our view, privilege in respect of statements made, information given and communications during the course of the alternative process should only be for the purpose of protecting the perpetrator against prejudice in any subsequent court proceedings in relation to the same incident against the same victim. As noted in the section on confidentiality, whilst there would be confidentiality for any admissions or disclosures during the alternative process regarding the perpetrator having committed other acts of sexual violence (against a person or people other than the victim) they would not be privileged. Therefore, a provider may report the disclosure to Police who could investigate those acts of sexual violence, but those disclosures would not be able to be automatically admitted in court in any subsequent proceedings brought by Police in relation to the other disclosed acts.

Privilege for perpetrator – fact of participation in processTop

9.151As a perpetrator can only participate in the alternative process by accepting the sexual conduct in question occurred, the fact of participation itself could be prejudicial to the perpetrator as it may lead to subsequent criminal prosecution or be used in criminal proceedings.

9.152Therefore in order to encourage participation and to protect a perpetrator against self-incrimination we recommend the privilege noted in the above section should also cover the fact of participation in the alternative process.

9.153As noted in the section above, in order for there to be sufficient incentive for the perpetrator to participate in the alternative process, we consider privilege would attach regardless of whether the alternative process was completed.

ExceptionsTop

Propensity

9.154As noted in the introduction to this section, if a perpetrator committed further acts of sexual violence after participation in or completion of the alternative process, the protection of privilege would not continue. After receiving feedback and submissions on the point, we consider that the fact of participation in the alternative process, statements made during the alternative process, and the record of completion of the alternative process would, in principle, qualify as propensity evidence that could be offered to the court under section 40 of the Evidence Act 2006 in respect of any future prosecution for other sexual violence (not the sexual violence which gave rise to the alternative process). That is, the rules would be the same for these matters as for a criminal conviction or any prior criminal conduct.

9.155Whether or not the matters in question would be admitted as evidence of propensity would be subject to the usual rules and tests concerning admission of propensity evidence under section 43 of the Evidence Act 2006. The likelihood of this evidence being admitted as propensity evidence, based on the current legal test,653 would appear to be low and we would hope that that judges would exercise considerable caution in admitting as propensity evidence things that have arisen in the course of the alternative process, due to the prejudicial effect this could have on a jury sitting as fact-finder (the Evidence Act governs what evidence may and may not be put before a jury, on the basis that some evidence is so prejudicial that a jury would be unable to separate its value as evidence from its prejudicial effect: see Chapter 6).

9.156We acknowledge that this may act as a disincentive to some perpetrators wishing to participate in the alternative process. However as noted earlier, any perpetrator who was anticipating committing a further act of sexual violence at the time of embarking on the alternative process, or who had committed multiple acts of sexual violence, is unlikely to be suitable for the alternative process.

Recommendation

Privilege for victimsTop

9.157In our view statements made by the victim or matters disclosed in the alternative process should not be able to be used to discredit the victim’s witness testimony in any subsequent criminal proceedings brought against the perpetrator (if the alternative process was unsuccessful).654
9.158We considered whether it may be sufficient for the victim’s statements and participation in the alternative process to be confidential. However, due to common misconceptions about sexual violence (see Chapter 1), information that is prejudicial to a victim could end up being admitted in court proceedings.655 Therefore in our view, to satisfactorily protect victims in the alternative process, the Evidence Act 2006 should be amended to afford a privilege to victims in respect of participation in and statements made during the course of the alternative process.

recommendation

652Although section 25(d) of the New Zealand Bill of Rights Act 1990 provides for the right of every person charged with an offence not to be compelled to be a witness or to confess guilt, a perpetrator participating in an alternative justice process has not been charged with an offence, and therefore this protection is not applicable.
653Evidence Act 2006, ss 40–43. See also Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.
654For instance, if the victim expressed feelings of responsibility or self-blame for what had occurred without the protection of privilege, this could be used in subsequent proceedings to undermine that victim’s testimony.
655We consider that there is still a risk that this information could be admitted in evidence despite the fact that the court making a decision under section 69 must have regard to the privacy of victims of sexual offending: Evidence Act 2006, s 69(3)(g).