14 Feb 2012

Commission proposes radical changes to trials

4:59 pm on 14 February 2012

Radical changes to the way criminal trials are conducted, particularly those involving sexual offences, are being considered by the Law Commission.

Among its suggestions are that semi-professional jurors help judges make decisions and that a special sexual violence court be introduced.

The Law Commission is suggesting a range of changes to criminal trials - a form of justice it says some people find alienating and disempowering.

It has been looking for ideas in Germany, Austria, Denmark and the Netherlands, and says aspects of their legal systems might work well in New Zealand.

The commission says New Zealand's adversarial model, where criminal lawyers deconstruct each other's case, is viewed as aggressive and traumatising for witnesses.

A consultant for the commission, Warren Young, says there is no suggestion of judge-alone trials in every case but rather a mix between judge and jury, as is done in Europe.

Mr Young says one of the difficulties with the jury system is the complex evidence rules based on the idea jurors are not competent to weigh up evidence properly.

Victims' advocate supports

Rape Prevention Education executive director Kim McGregor says that criticism is shared by some rape victims who have given evidence in court.

"To destroy their credibility, defence lawyers call them sluts and slags, say that they're lying and it's all about knocking over the witness.

"That's not a fair process. We would like a process where both parties are heard with respect and have a chance to say what happened to them."

To address the problem, the Law Commission suggests giving judges greater inquisitorial powers, allowing them to call and question witnesses before allowing questions from lawyers.

But Criminal Bar Association vice-president John Anderson is against such a change.

"You still need people to ask difficult questions. There are still going to be cases where false accusations or incorrect accusations and difficult questions have to be put. It makes little difference whether a judge puts the difficult questions or a defence lawyer.

The commission also suggests that 12-person juries could be replaced by a panel of one judge and two semi-professional jurors. It says jurors could receive legal training and be employed on fixed-term contracts.

Law Society president Jonathan Temm says there is no harm in exploring the idea.

"It's perfectly reasonable and practical, and indeed it's prudent to look at other methods of trying to resolve outcomes.

"The proposal by the commission that judges be more inquisitorial, be more involved in the process - either sitting alone or with two professional jurors - is something that's worth considering."

The convener of the society's criminal law sub-committee, Jonathan Krebs, told Radio New Zealand's Morning Report programme on Tuesday the court would deal with a complaint after a guilty plea, rather than determine guilt.

Sexual violence court suggested

The commission also wants a fresh look at how the courts handle sexual offences - an area of crime where only 42% of prosecutions lead to a conviction.

It is proposing the creation of a specialist sexual violence court, where offenders would be transferred upon entering a guilty plea.

The court would facilitate a process of restorative justice and would compel the offender to seek treatment. Once that was completed, the offender would receive a reduced sentence.

An associate professor of law at Victoria University, Elisabeth McDonald, says the system would satisfy some victims.

"One of the things that the victim might not want to happen is that the person goes to prison. They just want acknowledgement, they want maybe an apology and a sense that it's not going to happen again to somebody else."

But John Anderson from the Criminal Bar Association is not convinced.

"It sounds suspiciously to me like a way of cooking the books in order, if you like, to get greater number of convictions without there being any safeguards to ensure that people aren't wrongly convicted."

The Law Commission says it still needs to firm up its proposals and has published its ideas as a way of promoting public debate and feedback.

It is seeking public submissions until 27 April.

Minister 'would consider'

Justice Minister Judith Collins says she will consider changes to the criminal justice system if the changes will improve it.

However, she's sounding a note of caution, saying reform should only be introduced when it is necessary.

Ms Collins describes the ideas as interesting, but says the system only has so much capacity to implement ongoing and significant change.