It is my honour to write the Foreword to this book. Elisabeth has been a colleague and friend since we were fellow academics in the Faculty of Law at Victoria University of Wellington. She is a leading scholar on the law of evidence. Her research and publications on how the criminal justice system responds to complaints of sex offending have been prolific and the catalyst for a number of significant reforms, both legislative and non-legislative.

The inadequacies of the criminal justice response to sex offending have been continually in the spotlight for the last 40 years. Repeated reforms appear to have made a difference only at the margins. There are a number of reasons for this.

First, a conviction depends upon proof beyond reasonable doubt. That is a high standard which may be difficult to meet when the decision depends primarily upon the credibility of the complainant and the defendant. Contrary to popular mythology, a complaint of a sex offence is not one that is easily made and hard to disprove. It is precisely the reverse: hard to make and even harder to prove.

Secondly, in an adversary system that relies upon the giving of oral evidence, and the testing of that evidence through vigorous cross-examination, the complainant’s oral evidence is crucial. As many of the examples in this book demonstrate, that can be a bruising and re- victimising process that leaves complainants feeling that they, rather than the defendant, are on trial. And where the result is an acquittal because the decision-maker is left with a reasonable doubt, complainants may understandably conclude that they have been disbelieved.

Thirdly, the difficulties of proof have been exacerbated by the existence of entrenched myths about the nature of sex offending. Again, as the examples in this book show, these myths often lead to irrelevant questioning or cross-examination, or more often an undue focus on peripheral issues.

Finally, despite the progressive introduction of a number of changes to the law of evidence, the influence of these myths has been difficult to shift, especially when the decision-maker is a jury.

An important question, therefore, is whether the jury system is suited to the trial of these sorts of offences. Many have argued that it is not. Whatever views one may have about the jury system in general, there is significant evidence to suggest that it does not function effectively in sex offence trials. If elaborate rules are required to determine what evidence juries can or cannot hear, and detailed instructions are required in an attempt to overcome the likelihood that they will employ fallacious reasoning in reaching their verdict, it is reasonable to suspect that they might not be suitable decision-makers in such

cases. Whether judges sitting alone perform significantly better is therefore a key question explored in this book. It does so by, for the first time, comparing empirical data from actual jury trials and judge-alone trials. It therefore makes an extremely important contribution to this debate, and I commend it to anyone who is interested in law reform in this area.

On a personal note, the nature of trial practice that is compellingly described in this book, and the profound negative impact it self-evidently has on complainants, is depressingly familiar; it is very similar to the stories reported to me when I first conducted research in this area in the early 1980s – research which led to the 1986 rape law reforms. Notwithstanding the vast amount of research that has since been undertaken and the variety of reforms that have been introduced in response, relatively little has changed. I am therefore left wondering whether the confrontational all-or-nothing approach of the adversary criminal justice system is capable of doing justice in these cases; perhaps a fundamental rethink is required.

Warren Young QSO

November 2021

PREFACE AND ACKNOWLEDGEMENTS

This book is the second of three publications which describe what can be observed when the door to the courtroom is metaphorically opened to researchers during adult rape trials. Through the privilege of being granted access to case files, the transcripts and audio of complainant evidence in more than 70 trials over a 10-year period have been examined. This second book focusses on the experience of complainants in eight judge-alone trials, as compared to 30 jury trials in the first book. The majority of the analysis of the adult rape jury trials has previously been published in Rape Myths as Barriers to Fair Trial Process: Comparing adult rape trials with those in the Aotearoa Sexual Violence Court Pilot (Canterbury University Press, Christchurch, 2020). Forthcoming work in 2023, funded by the Michael and Suzanne Borrin Foundation, will analyse 15 jury trials and seven judge-alone trials in order to document the experiences of adult complainants who allege they were raped by their intimate partner.

I began this wider research programme in 2015 with a firm desire to contribute to real change – change to law and practice that would dramatically improve the experience of rape complainants. At this point my goal is more humble, and undoubtedly more realistic, especially as I have stepped away from academia in order to complete this research while also searching for that elusive work–life balance. The contribution I hope this research will make is to provide communities with an informed place from which to imagine change. This is especially so with this second publication, given the constant calls to “ditch jury trials” in rape cases. This aspect of the wider programme therefore provides some exploratory observations about judge-alone adult rape trials, in order to help determine whether the absence of a jury has a positive impact on the experience of complainants.

While some of the interactions recounted in this book reveal that lawyers’ or judges’ practices are not what it was hoped they would be, there is no doubt that these professionals are performing a necessary public service that many would shy away from. There is no need, in my view, for criticism of individuals; rather, this is a time to aim for systemic and structural change based on a shared willingness and desire to do things differently and better.

The challenges of this work would have been insurmountable without the support, assistance and encouragement of many. This comparative research would simply not have been possible without the financial support to undertake the jury trial study from the Marsden Fund Council (from Government funding), managed by Royal Society Te Apārangi (2015–2018) and the University of Canterbury | Te Whare Wānanga o Waitaha (2017–2019).

The judge-alone trial aspect of this book was possible only through the foresight and generosity of the New Zealand Law Foundation (2019–2021). I am indebted to Director Lynda Hagen, the Law Foundation Board and the wider administrative team, especially Dianne Gallagher. Significantly, the Law Foundation also understood the importance

of publishing the results of this comparative research in Open Access form, and the Foundation’s innovative grant for this purpose (2020–2021) was kindly supplemented by the University of Canterbury | Te Whare Wānanga o Waitaha School of Law (2020).

The identification of cases and the provision of access to the necessary case file material was made possible through the generous giving of time, patience, support and expertise by: members of the judiciary, including Justice Jan-Marie Doogue (in her previous role as Chief District Court Judge); Justice Geoffrey Venning and his predecessor, (now) Chief Justice Helen Winkelmann (in their previous roles as Chief High Court Judge); Justice David Collins (as Chair of the Judicial Research Committee); Judge Heemi Taumaunu (Chief District Court Judge); Judge Noel Sainsbury (in his previous role as President of the Criminal Bar Association); Judge Barbara Morris, Judge Jane McMeeken, Judge Stephen Harrop, Judge Gerard Lynch, Judge Geoff Rea, Judge Michael Crosbie, Judge Bruce Davidson, Judge John Bergseng, Judge Duncan Harvey, Judge Nevin Dawson, Judge Kevin Glubb and Judge Jane Farish of the District Court.

My thanks also to Crown Solicitors, including Jo Murdoch, Fiona Culliney, Brian Dickey, Fionnghuala Cuncannon and Carissa Cross at Meredith Connell; Natalie Walker at Kayes Fletcher Walker; Steve Manning at Elvidges; Mark O’Donoghue at O’Donoghue Webber; Jacinda Foster, Louella Dunn and Sian Charles at Almao Douch; Mark Zarifeh at Raymond Donnelly; Anna Pollett, Karen Moore and Cassidy Wilson at Pollett Legal; Amanda Gordon at Gordon & Pilditch; Ben Vanderkolk, Deborah Davies and Helen Durham at BVA The Practice; Kate Feltham, Dale La Hood and Vicki Brewer at Luke Cunningham Clere; Mary- Jane Thomas and Tania Culhane at Preston Russell Law; Anne Stevens QC; Charlotte Brook (Crown Law); members of the New Zealand Police, including Sean Sullivan; Ministry of Justice past and present employees, including Nadine Horsburgh, Lolita Lotu-liga, Sheena Menzies, Marcail Brosnan, Lynlee Earles, Angela Lee, Holly Thomson, Eddy Liu, Temira Rissetto, Steven Bishop, Wendy Gray, Christine Hardy, Mike Douglas, Tania Ace, Ron Garrick, Tania Pink, Catherine Duffin, Chris Greaney, Carmina Salud, Brigid Corcoran, Kieron McCarron, Janine McIntosh, Mereana White, Clare Cheesman, and the indispensable Lile Ramsay and her amazing team at the National Transcription Service.

I am also indebted to the many trial judges who granted me permission to access the highly sensitive case material required to undertake these studies. I acknowledge the significant trust placed in me to do well by such decisions.

Early during the process of case access for the jury trial study, Paulette Benton-Greig was contracted as the senior researcher – a perfect match given her long-standing contributions to the development of policy and practice aimed at supporting victims of sexual violence. Paulette’s work setting up a database and maintaining the security of the case material, developing and applying the coding process, and managing the workarounds in NVivo to make the software fit for purpose provided the essential backbone for all of this programme of research, including the intimate partner violence work that is still in progress. She listened to and annotated all the audio from the 30 cases in the jury trial study, a harrowing task

that she insulated me from – and I remain deeply grateful. Paulette contributed to various aspects of the analytic and written material contained in the comparative parts of this book. In particular, her work as a contributing author on Chapters Two and Four of Rape Myths as Barriers to Fair Trial Process also provided important content for aspects of Chapters Two and Three in this book.

Sandra Dickson has a wealth of experience in the wider sector and lengthy research history in the communities impacted by sexual violence. She was therefore well placed to take over a leadership role following Paulette’s move to academia. Sandra was the primary anonymiser, annotator and coder of the eight judge-alone trials that are analysed in this book, which required her to listen to the complainants’ evidence and to manage the personal impact of that process. I am in awe of her abilities. She also set up and maintained the data files and spreadsheets in meticulous fashion. Sandra’s much welcomed sociological approach and training meant she has been invaluable in further developing the coding methodology that was begun with the jury trial cases. Sandra is grateful that her grounded home life in the Waikato allows her to participate in research into such difficult, complex and challenging areas – and, in particular, that her partner Bex understands the impact of trauma and the need for regular fun and time out over card games, sci-fi and cricket.

I got to know Rachel Souness as our talented and capable researcher, and co-author, on the Law Foundation-funded project From “Real Rape” to Real Justice (2011). Given her sound understanding of the wider criminal justice context, as well as knowledge of the sexual violence area, and her reform-oriented and sharp legal mind, she was an obvious choice to undertake the final pieces of coding and analysis of the closings and summings- up in both the jury and judge-alone trial studies. Rachel also took the lead in scoping and writing up Chapter Nine in Rape Myths as Barriers to Fair Trial Process, aspects of which form the context for Chapters Six and Seven of this work. Rachel is grateful to live in an age where she can work remotely and at times that fit around her family’s needs. She would like to thank Ben for his unflagging dedication to her work and for listening to her vent, her parents and mother-in-law for hours of unpaid childcare and numerous nourishing meals, and her “A team”.

I was enormously privileged to have had two august criminal justice practitioners and researchers as peer reviewers for this book. Their observations, insights and challenges have significantly improved this work, and I hope that I have done justice to the time they spent providing their invaluable comments.

Andrea Ewing, currently with Crown Law, has previously worked as a prosecutor in the offices of the Crown Solicitor in Wellington, in domestic criminal tribunals in Bosnia and Cambodia, and as a defence lawyer in Manukau, Auckland. She has been an adjunct lecturer at Victoria University of Wellington and the University of Auckland, and has published articles in the areas of evidence and criminal law. Andrea is also a talented dancer, explorer, creative writer and mother of a toddler, and I was very fortunate that Andrea is so committed to fulsome engagement with the work of other researchers that she found time

to peer review this book. Her contribution, as for Rape Myths as Barriers to Fair Trial Process, was tireless, focussed and very wise.

Dr Warren Young QSO, most recently General Manager of the Independent Police Conduct Authority, continues to provide policy and law reform advice in the public sector, and was a Law Commissioner from 2004 to 2011, following four years as Deputy Secretary for Justice. He spent 20 years as an academic at Victoria University of Wellington as Director of the Institute of Criminology, a Professor of Law (and colleague of mine) and Assistant Vice- Chancellor (Research). Warren is a prodigious writer in the area of criminal law and criminal justice, and has lead internationally significant research on criminal procedure, juries and rape law reform. Warren was therefore an obvious choice to comment on this work – and I am humbled that he was able to do so among the many other calls on his time. I remain very appreciative of his willingness to write the Foreword. His attention to detail and his ability to critique the work in the context of the larger corpus of international scholarship was truly remarkable and inspirational.

Peer review, commentary and feedback were generously provided by other people both before and during the writing up stage. My particular thanks and appreciation to: Associate Professor Scott Optican; Emeritus Professor Jeremy Finn; Rachel Souness; and Judge Barbara Morris.

I also acknowledge the significant input of those with other essential expertise and resources: cheerful life-saving IT support at any hour to any of the research team was provided by Albert Yee; prompt and insightful research assistance by specialist librarian Theresa Buller and the generous, talented and tenacious Amy Oliver; thoughtful, meticulous and supportive editing by Kevin Leary; careful and timely proofreading by Lisette du Plessis; calming oversight, splendid organisation and enormous faith in me by Catherine Montgomery and Katrina McCallum at Canterbury University Press; and beautifully detailed and empathetic design work (yet again) by Robyn Greathead of Treehouse, Sydney – a shame that the closing of our respective borders meant refining this publication totally at a distance. Missing you enormously.

Finally, my continuing and forever gratitude to those in my life who provide me with the essential practical and emotional scaffolding that enables me to work in this challenging area, especially to the actual constructor of my home office, creator of my view of the eastern hills and timely purchaser of my favourite pick-me-up: WR Johnson.

Elisabeth McDonald

23 October 2021

Happy birthday to two of the wahine toa in my family Daisy “Coco” Roberts and Bethany Walters

IN THE ABSENCE OF A JURY: EXAMINING JUDGE-ALONE RAPE TRIALS

AUTHOR AND LEAD RESEARCHER

Elisabeth McDonald MNZM, BA LLB (Well), LLM (Mich)

Elisabeth is an independent legal researcher and Adjunct Professor of Law at the University of Canterbury. She has taught and published in the areas of sexual and family violence, law and sexuality, criminal law and the law of evidence for over 30 years, as an academic and as the Policy Manager for the evidence law reference at the New Zealand Law Commission. Elisabeth is the author of a number of evidence law textbooks and online legal resources, including Rape Myths as Barriers to Fair Trial Process (2020), and is co-editor of From “Real Rape” to Real Justice (2011) and Feminist Judgments Aotearoa: Te Rino, the Two-Stranded Rope (2017).

RESEARCHERS

Paulette Benton-Greig BA LLB (Otago), MA (Hons) (Auck)

Paulette is a socio-legal academic researching and teaching in areas where gender, sexuality and the law intersect including criminal law and justice, the law of evidence, sexual offences and gendered violence, and gender and sexuality in digital cultures. Paulette worked in social services provision and policy, mainly in the area of violence against women and children. Her roles included: manager at Auckland Sexual Abuse HELP, a board member of a sexual violence restorative justice organisation, contributing to the Taskforce for Action on Sexual Violence and as a senior advocate at the Domestic Violence Centre (now Shine).

Sandra Dickson BA (OU), BSc, MNZS (Well)

Sandra has been working in gendered violence prevention and intervention responses for nearly three decades, including holding national Tauiwi roles in both the family and sexual violence sectors in Aotearoa New Zealand. Sandra moved into the public service to develop responses to the “Roastbusters” sexual violence events in 2013. Over the last 20 years, she has led research into trafficking into the sex industry in London; sexual violence primary prevention; media reporting of sexual violence; partner and sexual violence in Rainbow communities; attitudes towards gender roles and diversity; and Rainbow young people’s experiences of healthy relationships and consent education in Aotearoa New Zealand.

Rachel Souness BA LLB (Hons) (Otago)

Rachel has a broad background in legal roles, including reform-orientated research work in both civil and criminal contexts. Rachel worked as a researcher on the Law Foundation- funded project undertaken by Jeremy Finn, Elisabeth McDonald and Yvette Tinsley, which culminated in the publication of From “Real Rape” to Real Justice (2011). She has worked in both courts and tribunals, and has volunteered as a community panel member for restorative justice. Most recently, she has spent the majority of her time outside the paid workforce, caring for the next generation of feminists.

AUTHOR AND RESEARCH TEAM | XIv

IN THE ABSENCE OF A JURY: EXAMINING JUDGE-ALONE RAPE TRIALS

NOTE TO THE READER | Xv

NOTE TO THE READER

In order to open the courtroom door on rape trials, we have not edited the words actually used,

nor failed to record what we heard.

Even for long-term researchers, this was unexpectedly tough going.

CHAPTER ONE

CHANGING THE DECISION-MAKER IN ADULT RAPE CASES: IMPLICATIONS FOR COMPLAINANT EXPERIENCE

[T]he framework of the jury system and the requirements it imposes are the cause of most of the damage done to complainants in the current trial process. The jury is the source of “the essence of the trial problem and poor complainant experience”.1

The reform debate

Calls for changes to the trial process in rape cases, including removing the jury as fact-finder, have been consistent over time and across jurisdictions.2 Reform advocates have focussed on the high rates of attrition (across rates of reporting, prosecuting and conviction), as well as on the harmful trial experiences recounted by complainants.3 Increasing numbers of those working within the criminal justice system – police officers, lawyers, forensic experts and judges – are publicly supporting even radical changes, including providing alternatives to

New Zealand Law Commission The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes (NZLC R136, 2015) <www.lawcom.govt.nz> at [6.30] (quoting a letter to the Law Commission regarding alternative trial processes).
See New Zealand Law Commission Juries in Criminal Trials: Part One (NZLC PP32, 1998) <www.lawcom.govt.nz> at [194]; “‘Support building’ for proposal to ditch jury trials in rape cases” The Times (online ed, 19 September 2018) <www.thetimes.co.uk>; Dominic Willmott and others “Jury Decision-making in Rape Trials: An Attitude Problem?” in David A Crighton and Graham J Towl (eds) Forensic Psychology (3rd ed, Wiley-Blackwell, 2021) 94; Jennifer Temkin and Barbara Krahé About Sexual Assault and the Justice Gap: A Question of Attitude

(Hart Publishing, Oxford, 2008) at 177; Elisabeth McDonald and Yvette Tinsley (eds) From ‘Real Rape’ to Real Justice: Prosecuting Rape in New Zealand (Victoria University Press, Wellington, 2011) at Recommendation 7.1; Isla Callander “The Jury is an Inappropriate Decision-making Body in Rape Trials in Scotland: Not

Guilty, Not Proven, Guilty?” (LLM thesis, University of Glasgow, 2013) <theses.gla.ac.uk>; Wendy Larcome “Rethinking Rape Law Reform: Challenges and Possibilities” in Ron Levy and others (eds) New Directions for Law in Australia: Essays in Contemporary Law Reform (ANU Press, Canberra, 2017) 143; Chief Victims Advisor to Government Strengthening the Criminal Justice System for Victims: Survey Report (August 2019)

<chiefvictimsadvisor.justice.govt.nz> at 14 (quoting a contributor: “Sexual assault crimes need to be heard only in front of a judge. No jury! Unconscious biases do not make court a safe place for victims”); Shehab Khan “Scrap juries in rape trials to stop falling conviction rates, Labour MP says” The Independent (online ed, 22 November 2018) <www.independent.co.uk>; and Rape & Domestic Violence Services Australia “Submission

to the NSW Law Reform Commission review of consent in relation to sexual offences” (29 June 2018)

<www.rape-dvservices.org.au> at 33.

See further Chapter Two at 43.

the prosecution of rape cases and non-adversarial trial processes.4 Such conversations are currently occurring in Aotearoa New Zealand in a context of many judicially-led therapeutic court initiatives, including the recently launched Te Ao Mārama.5

Possible reforms within the existing adversarial trial process in adult rape cases were proposed at the conclusion of a related piece of research published in 2020 – Rape Myths as Barriers to Fair Trial Process.6 A number of the recommendations, and the underlying case analysis, influenced the final drafting of the Sexual Violence Legislation Bill 2019 (NZ), the Solicitor-General’s Guidelines for Prosecuting Sexual Violence and appellate decisions on rules of evidence and procedure.7 The 40 adult rape cases considered in that publication were all jury trials, in which the issue was consent. This comparative piece of work examines whether complainant experience is different, and to what extent, when the fact-finder in such cases is the trial judge.

The desirability of changing the fact-finder in rape cases is not a new conversation. Victims and survivors of sexual violence, their supporters, law reformers, researchers and academics from many disciplines have advocated for the removal of the jury from rape trials for many years.8 Some claim it is indeed the panacea to all that is unacceptably brutal in the current

The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes (NZLC R136, 2015) <www.lawcom.govt.nz> at Part C.
See Chief District Court Judge Heemi Taumaunu “Transformative Te Ao Mārama model announced for District Court” (press release, 11 November 2020) <www.districtcourts.govt.nz>; “Te Ao Mārama coming into the light” (2021) 946 LawTalk 6 <www.lawsociety.org.nz>; and Vella v Police [2021] NZHC 1518 at [3] and [17]–[18]. See

also District Court of New Zealand “Court of Special Circumstances” <www.districtcourts.govt.nz>; Marty Sharpe “A quiet revolution in teen justice: Can marae justice turn wayward teens around?” The Dominion Post (Wellington, 14 August 2010) at B1; and Youth Court of New Zealand “Rangatahi Courts & Pasifika Courts”

<youthcourt.govt.nz>.

Elisabeth McDonald Rape Myths as Barriers to Fair Trial Process: Comparing adult rape trials with those in the Aotearoa Sexual Violence Court Pilot (Canterbury University Press, Christchurch, 2020) <http://dx.doi. org/10.18124/1xqx-hy30> [McDonald Rape Myths as Barriers to Fair Trial Process].
See McDonald Rape Myths as Barriers to Fair Trial Process <http://dx.doi.org/10.18124/1xqx-hy30> at 80; Crown Law Solicitor-General’s Guidelines for Prosecuting Sexual Violence (1 July 2019) <www.crownlaw.govt.nz>; and Ministry of Justice Departmental Report for the Justice Committee: Sexual Violence Legislation Bill (March 2020)

<www.parliament.nz>. Submissions based on the trial process research resulted in nine changes to the Bill as drafted (see Departmental Report at [69], [109], [152], [162] and [168], [253], [271], [302]–[305], [317] and [386]). The Ministry of Justice also noted the significance of the research for further policy development (at [140], [350] and [387]). For appellate discussion, see Creighton v R [2020] NZCA 193 at [29], n 3; Crump v R

[2020] NZCA 287, (2020) 29 CRNZ 402 at [37], n 19; Sinclair v R [2020] NZCA 608 at [15], n 6; H (CA715/2020)

v R [2021] NZCA 400 at [51], n 11; Williams v R [2021] NZCA 535 at [65], n 21; Galovale v R [2021] NZCA 453 at

[31], n 33.

See for example New Zealand Law Commission Juries in Criminal Trials: Part One (NZLC PP32, 1998)

<www.lawcom.govt.nz> at [194].

trial process,9 given that the jury is “the cause of most of the damage done”.10 In 2011 in Aotearoa New Zealand, consideration of the desirability of replacing the jury with a judge sitting alone, or accompanied by lay jurors, was undertaken as part of a research project that looked to the inquisitorial model for possible alternatives.11 The Law Commission, while proposing an investigative role for judges in a 2012 Issues Paper,12 which received “very strong support” from submitters,13 eventually in 2015, as a reconstituted group of law reformers, agreed with the arguments in favour of an alternative fact-finder (“some entity other than the jury”),14 but did not recommend a change at that time, given the emphasis on developing a specialist court:15

The 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 [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 recommend that future consideration be given to this issue as part of the evaluation of a new specialist

court ... 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.

January 2019) Stuff

<www.stuff.co.nz>; Alison Mau “Justice on trial: Juries obsess on whether victim is a virgin and the length of her skirt” (13 January 2019) Stuff <www.stuff.co.nz>; Julie Bindel “Juries have no place in rape trials. They simply can’t be trusted” The Guardian (online ed, 21 November 2018) <www.theguardian.com>; and Hannah Lee “Nicholas wants judges only to hear rape trials” (17 September 2014) Stuff <www.stuff.co.nz>.

New Zealand Law Commission The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes (NZLC R136, 2015) <www.lawcom.govt.nz> at [6.30].
Elisabeth McDonald and Yvette Tinsley (eds) From ‘Real Rape’ to Real Justice: Prosecuting Rape in New Zealand

(Victoria University Press, Wellington, 2011).

New Zealand Law Commission Alternative Pre-Trial and Trial Processes: Possible Reforms (NZLC IP30, 2012)

<www.lawcom.govt.nz>.

New Zealand Law Commission Alternative Pre-Trial and Trial Processes: Summary of Submissions to Consultation

(December 2012) <www.lawcom.govt.nz> at [14].

New Zealand Law Commission The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes (NZLC R136, 2015) <www.lawcom.govt.nz> at [6.48].
At [6.49]; and see Recommendation 21. When previously considering whether allegations of sexual offending should not be tried in front of a jury, the Law Commission said that use of alternative ways of giving evidence should be explored “before consideration is given to depriving defendants of the right to trial by jury in cases involving sexual offending”: New Zealand Law Commission Juries in Criminal Trials: Part One (NZLC PP32, 1998) <www.lawcom.govt.nz> at [22]. See also New Zealand Law Commission Juries in Criminal Trials (NZLC R69, 2001) <www.lawcom.govt.nz> at [127]. The availability of alternative ways of giving evidence to adult complainants was included in the Evidence Act 2006 (NZ), which came into force on 1 August 2007.

A judicially-led specialist court initiative, the Sexual Violence Court,16 was piloted in Auckland and Whāngārei from December 2016 for three years and evaluated by both independent and Government-funded researchers.17 However, only jury trials were heard in the pilot courts. While the judges participated in targeted development programmes, the Sexual Violence Court Pilot (which still continues with its practices encouraged across the country)18 operated more as a separate list court,19 with the benefits arising from fast-tracking, designated senior judges, firm commitment to the case management process under the Criminal Procedure Act 2011 (NZ), well-funded complainant support, modern courtrooms and buy-in from most participating lawyers. As the research which focussed on questioning practices in the Sexual Violence Court Pilot demonstrates,20 the impact of cross-examination was (understandably) largely unchanged and so the experience of the complainants as witnesses has varied little, although complainants in the pilot courts certainly appreciated the increased prosecutorial and judicial interaction and support.21

www.lawsociety.org.nz>; Chief District Court Judge Jan-Marie Doogue “District Courts to Pilot Sexual Violence Court” (press release, 20 October 2016) <www.districtcourts.govt.nz>; and Sexual Violence Court Pilot – Frequently Asked Questions (2016) <www.districtcourts.govt.nz>.
See McDonald Rape Myths as Barriers to Fair Trial Process <http://dx.doi.org/10.18124/1xqx-hy30> Sue Allison and Tania Boyer Evaluation of the Sexual Violence Court Pilot (report by Gravitas Research and Strategy Ltd for the Ministry of Justice, June 2019) <www.districtcourts.govt.nz>; Isabel Randell and others Young Witnesses in New Zealand’s Sexual Violence Pilot Courts (New Zealand Law Foundation, May 2020) <www.nzlii.org>; and Isabel Randell and others “The experiences of young witnesses and caregivers in Aotearoa New Zealand’s Sexual Violence Pilot Courts” (2021) Psychiatry, Psychology and Law <www.tandfonline.com>.
Gill Bonnett “Sexual violence courts to be permanent after pilot’s success” (14 August 2019) Radio New Zealand <www.rnz.co.nz>; and Acting Chief District Court Judge John Walker “Sexual Violence Court Pilot: Evaluation confirms model reduces trial lead-up times and trauma” (press release, 14 August 2019)

<www.districtcourts.govt.nz>.

Cases that involved particular serious charges of sexual and related offending (such as kidnapping) were heard in the Sexual Violence Court Pilot, through a case management process overseen by the court registry. While rostering supports allow these cases to be heard more quickly, no special rules of evidence and procedure applied. “The primary objective of the [Sexual Violence Court Pilot] is to trial improved case and jury trial management, within existing legislation”: Sue Allison and Tania Boyer Evaluation of the Sexual Violence Court Pilot (report by Gravitas Research and Strategy Ltd for the Ministry of Justice, June 2019)

<www.districtcourts.govt.nz> at 6.

McDonald Rape Myths as Barriers to Fair Trial Process <http://dx.doi.org/10.18124/1xqx-hy30> and Isabel Randell and others Young Witnesses in New Zealand’s Sexual Violence Pilot Courts (New Zealand Law Foundation, May 2020) <www.nzlii.org>.
Sue Allison and Tania Boyer Evaluation of the Sexual Violence Court Pilot (report by Gravitas Research and Strategy Ltd for the Ministry of Justice, June 2019) <www.districtcourts.govt.nz> at 54.

Government-led investigations into the possibility of a change to the fact-finder in rape cases, or sexual cases more generally,22 have seemingly currently stalled,23 although such policy development was included in the list of matters on the Ministry of Justice’s long-term work programme in 2019:24

[The Cabinet Social Wellbeing Committee] agreed to a longer-term work programme directed at more transformative options to support sexual violence victims in the criminal justice process, considering:
- 17.1 options for further trial process changes within New Zealand’s criminal justice system and cultural context, drawing on other jurisdictions’ approaches;
- 17.2 the feasibility, risks and impacts of alternative options outside the criminal justice system, including kaupapa Māori models;
- 17.3 the definition of consent in sexual violation cases;
- 17.4 the continuing role of juries as the fact-finder in sexual violence cases;
- 17.5 the possibility of a post-guilty plea sexual violence court.

Anecdotal evidence, and some research, suggests that in judge-alone trials cross- examination is shorter, there is less reliance on the “real rape” schema,25 and the issues at trial are more focussed.26 It is also likely that judge-alone trials involve fewer pre-trial admissibility arguments and appeals, and that the hearings are not as disrupted (for example, by the need for legal argument in the absence of the jury). Research also indicates a difference in verdict choices between judges and juries in the specific context of cases involving allegations of

2006.
Letter from Brendan Gage (General Manager – Criminal Justice Policy) on file with the author (8 July 2021), responding to an Official Information Act 1982 (NZ) request (OIA 89089):

“In 2019, Cabinet considered the policy proposals that have been progressed as part of the Sexual Violence Legislation Bill and agreed to a second phase of longer-term policy work. Part of that work included consideration of the role of juries as fact-finders in sexual violence cases. However, the Minister has not made any decisions on what this work will entail.”

Jan Logie (Parliamentary Under-Secretary to the Minister of Justice (Domestic and Sexual Violence Issues)) Proactive Release – Improving the justice response to victims of sexual violence (2 July 2019) <www.justice.govt.nz> at 60.
See below at 21.
John Jackson and Sean Doran Judge Without Jury: Diplock Trials in the Adversary System (Clarendon Press, Oxford, 1995) at 200.

sexual violence, given the behaviour of the complainant being seen as “contributory fault”.27 Further, the way counsel conducts the case may vary when the judge is the fact-finder, which may impact on trial outcome:28

Stories presented before juries may, for example, seek to present the defendant’s actions in a particularly meritorious or unmeritorious light. Judges, on the other hand, may be more interested in whether the evidence adds up to a plausible and coherent picture of guilt. This raises the question of whether judges

adopt a different approach to fact-finding than juries and whether this has an effect on the trial outcome as well as the trial process.

Given the continued widely held view that replacing the jury with “some other entity” will have the effect of decreasing the negative impact on the complainant as a witness in the trial process (along with other desired effects such as reducing the fact-finder’s reliance on rape myths and misconceptions), it is important that empirical research is available to inform future public debate. This book records the results of such research.29

Sexual cases were sometimes heard by a judge sitting alone (in what was then called “summary proceedings”) prior to the enactment of the Criminal Procedure Act 2011 (which largely took effect on 1 July 2013), given the operation of the now repealed section 316B of the Crimes Act 1961 (NZ). However, the classification process under the 2011 Act has had the effect of increasing the number of sexual cases heard by a judge sitting alone, and has therefore provided the opportunity for this comparative piece of research.

e result is

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