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Careful Approach Required To Amending Sexual Violence Legislation

The New Zealand Bar Association has urged Parliament to balance carefully the need to reform legislation in respect of sexual violence with the need to ensure that only the guilty are convicted.

The Association told the Justice Select Committee that some of the proposed reforms in the Sexual Violence Bill will endanger the fair trial rights of New Zealanders and that there is existing legislation that could be used to ensure that complainants/victims are protected from unnecessary trauma.

The Bar Association, whose members include both prosecutors and defence lawyers, says that many involved in the criminal justice process agree that more can be done to improve sexual violence trials. This would benefit not only complainants, but also defendants, witnesses and their families.

Association Vice-President and leading criminal lawyer, Jonathan Eaton QC, says that reforms should recognise the protection of society as a whole. This means that all evidence that is relevant to that offence is put before the court and the jury and is thoroughly and carefully tested. “It is in society’s interest to be absolutely sure that there has been an offence committed and that the person on trial is in fact the one responsible,” says Mr Eaton.

In particular, the Association opposes the proposed clauses that allow prerecording of evidence. “Pre-recording is one dimensional. As we know from our experience as television viewers, there is a tendency to believe that what we see on a screen is true. But we also know from our day to day lives, seeing someone live gives us a better all-round understanding of what they are saying. We can see how they react and observe their dynamics when questioned. This is important evidence that should not be kept from juries and judges.”

The Association also notes that it is concerned that the legislation seeks to initially exclude details of any sexual experience (other than the alleged offending) that the complainant has with the defendant, along with the usual/previous sexual practices/occurrences between the complainant and defendant.

“Common sense tells us that this can be highly relevant to the context of the case, as it can help to answer the question of whether the defendant had a belief in consent and whether that belief was reasonable,” says Mr Eaton. “It is a judgement call as to whether this evidence is relevant, and our judges are highly experienced in making these calls. The current provisions of the Evidence Act 2006 offer more than enough protection in these circumstances.” Mr Eaton says. "We need to trust our judges to make the right decision.

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