Chapter 3
The existing court process for sexual violence cases

The trial

3.36A criminal trial involves the giving of evidence by the prosecution and defence, a summing up by the judge for the jury (if it is a jury trial), time for juror deliberation, and the delivery of a verdict. It may also include rulings about matters of evidence that were not raised or resolved before trial.

3.37The trial will usually take place in the court where the charges were filed or, if the case is to be heard in the High Court, the High Court that is closest to the District Court where the charges were filed.171 However, the court can, on its own motion or on application of counsel, transfer the proceedings to a different court if required in the interests of justice.172
3.38The length of the trial itself will vary depending on the number and complexity of charges brought and whether it is tried by jury (trials tend to be longer) or by judge-alone. However, according to figures from the Ministry of Justice, in 2014/2015 the average duration of a trial including charges of rape or sexual violation was between three and four days.173

3.39Section 107 of the CPA 2011 prescribes the “conduct of a jury trial”. The prosecutor makes an opening statement indicating to the jury the nature of the offences alleged and the evidence that will be called. The defendant may then make an opening statement which identifies the issue or issues to be tried. Each side then adduces their evidence. When all the evidence has been given, both sides may make a closing address. The judge must then “sum up” the case for the jury. The jury deliberates and delivers its verdict (see “Verdict”, below).

3.40Contemporary practice is for judges to sum up more precisely than previously, and summings up are now tailored to the circumstances of the particular case. Jurors are almost always offered a “question trail” which outlines the key factual issues that must be determined to reach a verdict. The Court of Appeal has said that the provision of written material to assist juries’ deliberations is “contemporary best practice”.174
3.41Section 105 of the CPA 2011 sets out the conduct of a judge-alone trial. The prosecutor usually provides a short outline of the charges faced and the defence provides a short outline of the issue or issues to be tried. The prosecution may then adduce evidence in support of the prosecution case, followed by any evidence the defendant wishes to adduce. After having heard what each party has to say and the evidence adduced by each party, the court must consider the matter and may find the defendant guilty or not guilty.175
3.42Court proceedings are generally open to the public, although a court may make an order under section 197 of the CPA 2011 to exclude the public from proceedings if satisfied that is necessary to avoid one of the risks in section 197(2)(a) of the CPA 2011, and that a suppression order would not be sufficient to avoid that risk.176 An exception may be made for members of the media.177 Under section 199 of the CPA 2011, the court must always be cleared when a complainant is giving evidence in a case of a sexual nature.

The defendant’s rights

3.43The criminal justice process is administered in recognition of the inequality of power between the State and the defendant and the potential gravity of a criminal sanction. The criminal trial is accusatorial: the prosecution must make out its case and the defendant may remain silent. Trial by jury exists for the most serious offences. The fact-finder must be satisfied of guilt beyond reasonable doubt, and the defendant is presumed innocent until guilt is established. These are fundamental legal tenets that are protected under the NZBORA 1990.178
3.44At trial the defendant is usually represented by a lawyer who is tasked with representing the defendant as strenuously as possible.179 A defendant may choose to represent him or herself at trial, but a defendant who does so in a sexual violence case is not entitled to personally cross-examine the complainant.180
171Criminal Procedure Act 2011, ss 35, 71–73.
172Criminal Procedure Act 2011, s 157. The principles governing the decision to transfer proceedings are set out in McNaughton v R [2012] NZCA 16 at [6]. These include that: an accused should usually be tried in the court nearest to the place where the crime was committed; jurors should be drawn from the place in which the crime was committed; and that a change of venue may be required to give effect to the accused’s right to a fair and public hearing under section 25(a) New Zealand Bill of Rights Act 1990.
173Figures from the Ministry of Justice (11 November 2015). This figure includes the days on which the trial hearing proceeded or where guilty pleas or outcomes result on a trial hearing date, and exclude any weekend or week days between trial hearing start date and interim disposal when the trial is not proceeding.
174R v Vaihu [2009] NZCA 111 at [28].
175Criminal Procedure Act 2011, s 106.
176The risks set out in s 197(2)(a) are: undue disruption to the conduct of the proceedings; or prejudicing the security or defence of New Zealand; or a real risk of prejudice to a fair trial; or endangering the safety of any person; or prejudicing the maintenance of the law, including the prevention, investigation and detection of offences.
177Criminal Procedure Act 2011, s 198.
178See, for example, the right to be presumed innocent until proven guilty (s 25(c)); the right to be present at trial and to present a defence (s 25(e)); and the right to remain silent throughout the trial and not to be compelled to give evidence (s 25(d)).
179Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 13.13.
180Evidence Act 2006, s 95(1)(a).