Part B: Courts
The court experience of complainants
- R1 Legislation should require that, save in exceptional circumstances, all cases involving sexual violence should be set down for hearing within a specified time of the filing of the charge.
- R2 The Victims’ Rights Act 2002 should include a right for complainants in a case involving sexual violence to have the case disposed of in as speedy a manner as possible, with responsibility for giving effect to the right to lie with the Ministry of Justice.
- R3 The Evidence Act 2006 should provide that an adult complainant in a sexual violence case is entitled to give their evidence in chief in one or more of the alternative ways set out in section 105 or in the ordinary way set out in section 83.
- R4 The legislation should include a requirement that prosecutors consult with complainants on the mode in which they prefer to give evidence.
- R5 The Evidence Act 2006 should include a provision to the effect that complainant witnesses in sexual violence cases may pre-record their cross-examination evidence in a hearing prior to trial, unless a judge makes an order to the contrary.
- R6 Relevant reasons for making a judicial order should include those that pertain to the fair trial rights of defendants and circumstances where it would be impractical or excessively costly to undertake cross-examination in a pre-recorded hearing before trial.
- R7 The Ministry of Justice should be responsible for issuing up-to-date memoranda outlining operational processes to be followed where cross-examination is to be done in a pre-recorded hearing before trial.
- R8 The definition of “communication assistance” in section 4 of the Evidence Act 2006 should be amended to include assistance for witnesses who do not have a communication disability but who may struggle to comprehend questions (for example, because of age).
- R9 The Ministry of Justice should, in collaboration with the Ministry of Social Development, consult on extending the role of the specialist sexual violence victims’ advisers as outlined in paragraphs 4.119 to 4.128 of this Report.
- R10 The Ministry of Justice should fund the sexual violence sector and the legal community, on an ongoing basis, to create a comprehensive and up-to-date guide for laypeople explaining how sex offences are investigated and prosecuted and providing information regarding any alternatives to a criminal trial that may be available.
- R11 The Ministry of Justice should consider funding the development of separate entrances, separate waiting rooms, and separate refreshment facilities in those District Courts where they would be particularly beneficial. Complainants in sexual violence cases, and their supporters, should be entitled to the use of those facilities.
- R12 The Victims’ Rights Act 2002 should include the right of a complainant in a sexual violence case to a separate entrance at court, a separate waiting room, and separate toilet and refreshment facilities wherever reasonably possible.
- R13 Legislation should provide that a judge in a sexual violence case may, either on the application of a party or on his or her own initiative, reconfigure the courtroom in which the case is to be heard to avoid causing unnecessary harm to a complainant witness.
- R14 The Criminal Procedure Act 2011 should require the court to take account of the views of the victim, as ascertained and conveyed by the prosecutor, when considering a change of venue in cases of sexual violence.
- R15 The Victims’ Rights Act 2002 should include the right of victims in a sexual violence case to be informed by the prosecutor of an application to change the court venue and to have their views conveyed to the court.
- R16 The Criminal Procedure Act 2011 should authorise a judge to clear the court at any point in a proceeding involving sexual violence, where he or she is of the view that the order is necessary to avoid causing undue emotional distress to a complainant witness. An order under that provision should be able to be made subject to an exception for members of the media.
- R17 A specialist court for sexual violence should be implemented in New Zealand.
- R18 The specialist court should be implemented first as a pilot in one or more District Courts throughout New Zealand.
- R19 The objectives of the specialist court 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 in sexual violence cases.
- R20 Administrative staff in the court should receive training and education on what constitutes good practice when dealing directly with complainants.
- R21 The pilot court should be evaluated after two years and consideration should be given to whether a sexual violence court should be legislated as a division of the District Court to hear all sexual violence cases across the country and, if so, what rules of evidence should apply in that court and who the fact-finder should be.
- R22 Every District Court and High Court judge who sits on a sexual violence case should be required to have a designation to do so.
- R23 The Institute of Judicial Studies should be funded to develop, in consultation with the judiciary and the sexual violence support sector, specialist training courses for judges on sexual violence cases.
- R24 The Solicitor-General should be resourced to publish specific guidelines for the prosecution of cases involving sexual violence.
- R25 Every prosecutor who appears in a sexual violence case, whether in the High Court or the District Courts, should be required to be accredited (i.e., 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).
- R26 The Legal Services (Quality Assurance) Regulations 2011 should include experience and competence requirements applicable to defence counsel who appear in sexual violence trials on a legal-aid basis.
- R27 The Government should consider the desirability of funding a long-term research project to examine the feasibility and design of a specialist sexual violence court to operate post-guilty plea, in the form proposed in the Law Commission paper Alternative Pre-trial and Trial Processes: Possible Reforms (NZLC IP30, 2012).
The fact-finder in sexual violence cases
- R28 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.
- R29 In court proceedings involving charges of sexual violence, the parties should be encouraged to agree upon expert evidence or a written statement for the jury dealing with myths and misconceptions around sexual violence. Wherever possible a written statement should be admitted by consent as a joint statement under section 9 of the Evidence Act 2006.
- R30 Future consideration could be given to reviewing the substantive rules of evidence in sexual violence cases. Such a review could take place at the same time as the next review required under section 202 of the Evidence Act 2006.