Chapter 3
The existing court process for sexual violence cases

Pre-trial matters

Election by a defendant for trial by jury

3.22The category of an offence determines whether it must be, or is entitled to be, tried by jury. The applicable procedure for trial of category 1 and 2 offences is trial by judge-alone.151 The provision in the New Zealand Bill of Rights Act 1990 (NZBORA 1990) that guarantees a right to be tried by a jury applies only where a person is accused of an offence with a penalty of two years or more imprisonment.152 By contrast, the procedure for a defendant charged with a category 4 offence is always trial by jury,153 unless a judge is satisfied that there is a risk of juror intimidation, in which case, the judge can make an order for trial by judge-alone.154
3.23Category 3 offences are tried by judge-alone unless the defendant elects to be tried by jury.155 Thus, section 50 of the CPA 2011 provides that every defendant charged with a category 3 offence may elect to be tried by jury.
3.24Most sexual violence offences fall under category 3, and according to figures from the Ministry of Justice, most defendants charged with offences of sexual violence elect to be tried by jury. In 293 of the sexual violence trials heard in the District Courts in 2014/15, the defendant had the right to elect trial by jury, and in 222 of those trials, the defendant did so (expressed as a percentage, in 76 per cent of cases).156 This aligns with figures from 2009 to 2014 that show that between 75 and 80 per cent of defendants in the District Courts elected trial by jury (and for the same time period, for cases in the High Court, all but one defendant elected trial by jury).157

Transfer of the case to Crown prosecutorTop

3.25Under the CPA 2011, a specified class of criminal proceedings are identified as “Crown prosecutions” and must be conducted by a Crown prosecutor (a Crown solicitor or lawyer or any other lawyer employed or instructed by the Solicitor-General to conduct a Crown prosecution).158 Crown prosecutions include proceedings for all category 4 offences, all category 3 schedule offences and all other category 3 offences if the defendant elects trial by jury.159
3.26The time at which a Crown prosecutor will take over the prosecution of one of these cases depends on the offence, but for most offences involving sexual violence, it will be after the defendant has entered a plea.160 At the time of transfer, the Crown prosecutor is expected to review the charges laid to ensure that they are founded on the available evidence and reasonably reflect the criminality disclosed.161

3.27Once the case has been transferred, the Crown prosecutor becomes responsible for completing all necessary remaining pre-trial procedures and taking the case through to trial.

Decisions about admissibility of evidence sought to be adduced at trialTop

3.28Under New Zealand’s adversarial system of criminal justice, parties present evidence to a fact-finder, which is either a judge (if the judge is sitting alone) or jury (if the judge is sitting with a jury). The fact-finder must make a decision on the case after applying the relevant law to the facts. The fact-finder must first decide what the facts are, which is done by assessing the evidence offered by the parties.

3.29The Evidence Act 2006 governs what evidence may and may not be offered by the parties when seeking to establish the facts at trial. The rules in the Act may operate to prevent evidence being presented to the fact-finder, or may restrict how the fact-finder may use a particular item of evidence. As such, the Act reflects certain policy positions about what information should and should not be relevant and available to a fact-finder when they are determining the facts in a particular case. It also reflects the rights recognised in NZBORA 1990. Evidence that is deemed unfairly prejudicial and that may undermine the protections traditionally provided by the criminal justice system is not admissible.

3.30A court is sometimes required to make determinations about what evidence can and cannot be offered at trial. If either party wishes to adduce particular evidence and believes the admissibility of that evidence may be challenged, they may apply to the court for an order that the evidence is admissible.162
3.31The procedure for these pre-trial admissibility determinations differs as between a trial by jury and a trial by judge-alone. If the trial is to be by judge-alone, the court is not required to hear a pre-trial admissibility application, but may do so.163 But if the trial is by jury the court must hear the pre-trial admissibility application and must give each party an opportunity to be heard.164 In a jury trial the prosecutor or defendant may also seek to adduce evidence during trial, regardless of whether pre-trial admissibility hearings were conducted.165 In such cases, the court may need to adjourn the trial while it determines the admissibility of evidence sought to be adduced.166

3.32In both judge-alone and jury trials the defendant and prosecutor may, with the court’s leave, appeal pre-trial admissibility decisions (see “Appeal of pre-trial decisions”, below).

Setting a date for trialTop

3.33A trial date is set down once a case is ready to proceed. In a jury trial, the trial date is provisionally set at the time of the trial callover hearing, which is when prosecution and defence counsel appear before the court to identify and deal with any matters that must be dealt with for the trial to proceed.167 In a judge-alone trial the trial date is set at what is called the “case review” hearing.168
3.34Priority is afforded to certain kinds of cases when a court is setting its roster for hearings. Under the District Courts’ rostering protocol, the trial of a case involving sexual violence must be given priority ahead of other kinds of hearings.169 Priority for sexual violence cases will be balanced against the need to afford priority in other areas. Hearings for cases that are on a special list or hearings for sentencing of an offender are given highest priority.
3.35The High Court currently identifies cases involving complainants under the age of 16 at the time the offending was committed and cases involving young defendants as having priority.170
151Criminal Procedure Act 2011, ss 71(2) and 72(2).
152New Zealand Bill of Rights Act 1990, s 24(e).
153Criminal Procedure Act 2011, s 74(2).
154Section 103. The court must be satisfied that there are reasonable grounds to believe that there has been, is, or will be intimidation of one or more jurors or potential jurors, and that the effects of such intimidation can only be avoided by making an order for a trial without a jury.
155Criminal Procedure Act 2011, s 73(2). If the charge is to be heard together with a charge that must be tried before a jury, all the charges will be tried by jury: Criminal Procedure Act 2011, s 139(1)(a).
156Figures provided by the Ministry of Justice (4 November 2015).
157The table shows the figures of where defendants elected trial by jury in each court. The figures may include some category 2 offences, in which the defendant is not entitled to elect trial by jury, and need to be interpreted to account for that.

  2009 2010 2011 2012 2013 2014
District Courts 80% 80% 78% 75% 78% 80%
High Court 100% 100% 100% 100% 100% 94%
158Criminal Procedure Act 2011, s 5.
159Criminal Procedure Act 2011, ss 5 and 187; Crown Prosecution Regulations 2013, reg 4.
160Crown Prosecution Regulations 2013, reg 5.
161Crown Law, above n 137, at [9.3].
162Criminal Procedure Act 2011, ss 78(2) and 101(2).
163Criminal Procedure Act 2011, s 78(4). Among the grounds on which the court may grant a hearing are that: it is convenient to deal with evidential matters pre-trial; the complainant or witness is particularly vulnerable and resolving admissibility is in the interests of justice; or the trial is to be in a District Court and the evidence has been obtained by way of a High Court order or warrant.
164Criminal Procedure Act 2011, s 101.
165Criminal Procedure Act 2011, s 101.
166A trial court may, however, allow a trial to commence or continue, if that is in the interests of justice, even if an application for leave to appeal a pre-trial decision has been made but is outstanding or leave has been granted but the substantive appeal is outstanding: Criminal Procedure Act 2011, s 222.
167Section 97.
168Section 57.
169Chief District Court Judge Doogue Rostering Protocol for District Courts of New Zealand (Ministry of Justice, 2014) at 4.
170Letter from Geoffrey Venning (Chief High Court Judge) to Grant Hammond (President of the Law Commission) regarding Alternative Trial Practices (20 October 2015).