9If a victim of sexual violence reports a complaint to Police and criminal charges result, the victim will often be required to appear as a witness on behalf of the prosecution. Because they are usually the only witness to the acts in question, their evidence forms an important part of the prosecution’s case. As such, the experience of a victim of sexual violence at trial is shaped not only by the fact that they are the victim of the acts alleged and the complainant at trial; it is also shaped by the fact that they are the sole witness to the incident and will need to give evidence in court.
10In Part B we describe those features of the trial process that shape and affect the experience of complainants and that we understand to present particular hurdles and difficulties.
11The time between filing of charge and trial: once charges have been filed, the period of waiting for the case to be set down for trial and waiting for the trial itself may impact a complainant’s personal circumstances, given that a high incidence of sexual violence occurs in a family or relationship context. Lengthy waiting periods may also affect a complainant’s psychological recovery. Complainants of sexual violence are required to remember the facts of the offending for recall at trial – and the extent to which they are able to do so may bear on their credibility as a witness.
12The cross-examination of complainants: complainants may be cross-examined on their evidence at length by defence counsel. Cross-examination requires “putting the witness to proof” on matters such as consent or belief in consent, which often involves challenging a complainant’s credibility and reliability as a witness. The experience of giving evidence at trial is sometimes described by complainants as being akin to a second assault.
13Availability of information and support for complainants: throughout the trial process, complainants will be required to interact with a number of different people fulfilling various roles, which may be confusing to someone unfamiliar with the court process. The diffusion between various different people of responsibility for keeping the complainant informed makes it difficult to ensure complainants are receiving adequate information and support.
14Court facilities and physical environment: in a criminal case the courtroom is designed to permit a defendant to be put “on trial” in a place that is open to the public in the interests of transparent justice. But the physical design of the courtroom is an extremely poor fit for complainants who must give intimate evidence of an alleged incident of sexual violence. The design of the court building may require complainants, defendants and jurors to occupy shared waiting areas and use the same facilities.
15In Chapter 4 we make a number of targeted recommendations to address these issues. To target the issue of delay, our primary recommendation is that legislation should impose a limit on the time taken for a case involving sexual violence, from when charges are filed to when the trial itself takes place. We recommend that complainants should have greater access to the ability to pre-record all of their evidence before trial and at a point in time that is closer to the alleged incident of sexual violence, including evidence given in cross-examination where appropriate. This may minimise some of the burden of waiting for the trial itself.
16Among other things, we also recommend that the role of the specialist sexual violence advisers be extended so that they can offer support both before and after the court process itself; that the sexual violence sector be funded to create a comprehensive and up-to-date guide for laypeople explaining how sex offences are investigated and prosecuted; and that, wherever possible, complainants in sexual violence cases and their supporters have access to separate entrances at court, separate waiting rooms, and separate refreshment facilities.
17In Part B we also discuss the advantages of court specialisation for sexual violence cases. Court specialisation involves applying a specialist approach to a particular area of law, to be able to better address the complexities or sensitivities that area of law raises. Participants in the court process can refine their skills by accruing specialist expertise. Court cases can be handled more consistently, more efficiently, or more appropriately, depending on the inherent features of those difficult cases and the barriers that they might otherwise encounter in the courts.
18We conclude that court specialisation is appropriate in the area of sexual violence, and in Chapter 5 we discuss what form that could take. Our primary recommendation is for a specialist sexual violence court to be established. In the first instance, we recommend that this be done as a pilot in one or more District Courts throughout New Zealand, with subsequent consideration given to whether it should be legislated as a permanent division of the District Court after two years’ operation. Without suggesting in specific detail how the pilot court should operate, we recommend that its core aims should be to bring specialist judges and counsel together in a venue that enables robust fact-finding without re-traumatising the complainant; and to facilitate a coordinated and integrated approach among the various organisations and people who deal with complainants. We also recommend that every District Court and High Court judge who sits on a sexual violence case should be required to have a designation to do so, which would involve the completion of a special training course.
19In Chapter 6 we consider the question of the fact-finder in sexual violence cases. As for most serious criminal offending, the role of fact-finder in sexual violence cases is currently filled by a jury of 12 laypeople (other than in the small number of sexual violence cases that are tried by judge-alone). The function of the jury is to determine the relevant facts of the case and to apply the law to reach a verdict of guilty or not guilty. In sexual violence cases the function of the jury is sometimes questioned, however, on two main footings. The first is that some doubt the ability of a group of 12 laypersons to make decisions about sexual violence, an area which is often the subject of misunderstandings and misconceptions. The second is that the presence of jurors at a sexual violence trial may cause harm to complainant witnesses who must, among other things, tell their story to 12 strangers and in a forum which is foreign and alienating. However, jurors also fulfil a core and important function in our criminal justice system, and any proposal to limit the right to trial by jury in a specific class of criminal cases needs careful consideration.
20We suggest in Chapter 6 that sexual violence, as a form of criminal offending, may be one that is not well-suited to fact-finding by a jury comprised of 12 laypeople. However, the design of an alternative needs to be carefully considered, and it would need to be justified as a reasonable limit on the right to jury trial in the New Zealand Bill of Rights Act 1990. At this stage we make no recommendation to change the fact-finder in sexual violence cases, but we suggest that the issue could be returned to when considering the future operation of a specialist sexual violence court. We also make some recommendations intended to put juries in a good position to fulfil their decision-making function in sexual violence trials.