Chapter 6
The fact-finder in sexual violence cases

Alternatives to jury as fact-finder in sexual violence cases

6.34We have considered two principal alternatives to trial by a jury of 12 laypeople. The first is to require that all sexual violence cases be heard by a judge sitting alone in the role of fact-finder. The judge could be specially trained and educated. The second alternative is for the role of fact-finder in sexual violence cases to be filled by a small group of “assessors” (two or three) who would be required to come to the trial with prior knowledge and understanding of sexual violence, either by virtue of their work history and experience in the area, or by having been trained and educated specifically for the purpose of sitting on sexual violence cases.

Trial by judge-alone

6.35Under this model, the right to elect trial by jury would be removed for all sexual violence cases and all trials would be tried by judge-alone. Trials by judge-alone are already an established part of the criminal justice system, so there is an established body of rules for how these trials should be conducted and what special requirements apply to them (such as the requirement to provide reasons for the verdict). This proposal would therefore be relatively easy to implement.

6.36It would also lead to cost and resource savings, because it would obviate the need for the complex evidential rules that are required to insulate juries from certain evidence. Trial by judge-alone tends to be faster and therefore potentially less trying for complainants (and a speedy trial also has advantages for defendants).

6.37Importantly, judges are not normally experts in sexual violence and as such are no less susceptible to inaccurate social world knowledge about sexual violence than are jurors. Training and education would be required, but it would likely be more practical to train and educate a limited pool of judges than to do so afresh for each new jury that is empanelled on a sexual violence case. Also, that training and education can be ongoing, whereas it cannot for jurors, who complete their jury duties once the trial is over.462
6.38To our knowledge there is no empirical research that directly compares the two fact-finding models.463 One would want to be sure that the judges who act as fact-finders (which might need to be a large proportion of judges, certainly in the District Courts at least) were properly educated about the best ways to interact with complainants to avoid re-traumatisation. That would need to be a key part of the proposal. One would expect, however, that the “theatre” of the trial would be minimised or eliminated if counsel knew that they were presenting the case to a fact-finder who was educated about the statistics of sexual violence and who could in principle be relied upon to make their decision uninfluenced by prejudices or misconceptions.

6.39Against this is that the removal of juries from sexual violence trials means the loss of the functions outlined above, at least in the area of sexual violence – the expression of democratic involvement; the safeguard against arbitrary or oppressive government by acting as a check on potential abuses of power; and the promotion of public confidence in the system.

Trial by a judge sitting with assessorsTop

6.40The second alternative is to confer the role of fact-finder on a smaller group or people (referred to as “assessors”) who would sit as fact-finders with some prior knowledge and understanding of sexual violence.

6.41The Issues Paper for this project looked at features of a number of inquisitorial criminal justice systems including those that rely on lay assessors to hear criminal cases.464 In Germany, the Landgericht (High Court) hears more serious sexual violence cases in front of a judge and two lay assessors. Lay assessors in that system are different from both jurors and judges in our system. They rarely ask questions of a witness, and if they wish to do so, some presiding judges will expect that the questions are directed to the witness through them.465 However, judges and lawyers agree that the lay assessors play a significant role in decision-making and are not unduly dominated by the professional judges. They are regarded as being particularly useful in determining factual issues that depend upon assessments of credibility. Lay assessors have the same voting power and there must be a two-thirds majority decision for both conviction and sentence. It is common for lay assessors to be selected by a committee upon application for five-year terms and to sit about 10 times a year.
6.42An assessor system is also used in Samoa. Under section 87 of their Criminal Procedure Act 1972, the Supreme Court (which is the trial court) sits with assessors on the trial of any person for an offence punishable by death or imprisonment for more than five years. The Registrar of the Supreme Court compiles and keeps a list of assessors who “are qualified to be assessors…by reason of their character, education, ability and reputation”.466

6.43If lay assessors were to be used in New Zealand the first question is what their role would be. They might advise the judge without voting on a case, or they might have independent voting power, as is the case for assessors in Germany. That would then influence who could be employed in that role.

6.44One submitter suggested that jurors could be drawn from a panel of people selected for their special experience in or knowledge of the particular matters to be featured at trial. Another option is that the assessors could be laypeople who have gone through training and education to sit on sexual violence cases and do so as “professional jurors”. Since they would not be full-time jurors, but would sit on a rotational basis, they would need to be available as and when required, so would need some flexibility in their other employment.

6.45A third option would be to introduce a system utilising the services of Justices of the Peace (JPs). There is a cohort of JPs in New Zealand who have judicial training and who deal with adjournments, bail applications, and minor offences so they already have some introduction to the judicial role and required neutrality. They would, however, need additional training and education to deal with sexual violence cases specifically. Consideration might also need to be given to whether the current cohort of JPs is sufficiently representative of a wide range of ethnicities, of social demographics, and of all genders.

6.46In favour of the lay assessor model is that the training and expertise brought to bear by these individuals would better equip them to set aside common misconceptions about sexual violence and to deal with the full evidence and its weight. An element of the collective decision-making model of the jury would be retained, in a way that would not be present in the judge-alone model. The trial process would be simplified given most of the substantial and complex array of evidence rules that currently dictate what can be presented to the jury could be removed.


6.47In an earlier Report on juries in 2001, the Law Commission ultimately decided that juries should continue to be used in trials where the matters alleged are the most serious, and offences involving sexual violence fall into this category. The “powerful community interest” in having cases of this kind decided by the community prevailed, even though it might be difficult for complainants.467

6.48Having looked at the matter again, in the specific context of a review which examines the criminal justice response to sexual violence, and in light of subsequent research, we think that there is a case for conferring the decision-making function in sexual violence cases on some entity other than the jury. We note the possible gains that may come from removal of the jury. As noted by the reference group with which we corresponded during the writing of this Report (see paragraph 1.60), the need to insulate the jury from certain evidence is removed and weight of evidence, rather than admissibility, becomes more central. The need for directions from the judge is diminished. There is likely to be reduction in time to trial and length of trial.

6.49The design of an alternative, however, needs to be carefully considered, and it would need to be justified as a reasonable limit on the right to jury trial in the NZBORA 1990. At this stage we make no recommendation to change the fact-finder in sexual violence cases, but we recommend that future consideration be given to this issue as part of the evaluation of a new specialist court (see Chapter 5). Ideally, that would be grounded in reliable data as to the levels of accuracy achieved in decision-making by different kinds of fact-finding bodies.

462Jeremy Finn “Decision-making and decision makers in sexual offence trials: Options for specialist Sexual Offence Courts, Tribunals of Fact and Giving of Reasons” (2011) 17 Cant LR 96 at 111.
463In 1998 the Law Commission said suggested that “little is known empirically about the effect the jury’s presence has on complainants in sexual cases” but there is “impressionistic evidence to suggest that complainants view the jury’s presence as a factor contributing to their trauma”: Law Commission, above n 431, at [197].
464Law Commission, above n 433, at appendix 1.
465At 63.
466Criminal Procedure Act 1972 (Samoa), s 92.
467Law Commission Juries in Criminal Trials, above n 432, at [127].