Fear of jailing the innocent: Waitangi Tribunal claim hovers over bill to overhaul rape trials

Reforming how rape trials are run will pass into law this week despite objections from some lawyers and likely action in the Waitangi Tribunal claiming it will lead to innocent Māori being jailed.

The Sexual Violence Legislation Bill was announced at the end of 2019 as long overdueto transform what complainants describe as a traumatising and unfair court process that deters people from laying complaints in the first place.

According to Government figures, an estimated one in four women and one in seven people experience sexual violence in their lifetime. Of those reported to police, only a third go to court and only one in 10 end in a conviction.

But the bill has divided the legal fraternity, with some applauding it as fixing a system that unfairly favoured the accused while others – including the Bar Association, Criminal Bar Association and Auckland District Law Society – saying it will trample over fair trial rights.

The bill was meant to have been passed into law in 2020 but was stymied by New Zealand First. Justice Minister Kris Faafoi was then meant to have it passed by the middle of this year, but it has been pushed back until now; the third reading is set down for today.

It has the support of all parties in Parliament, despite concerns raised by the National Party along the lines of those outlined by defence lawyers in particular.

“We share the concerns and we’ll be certainly watching, but all the assurances from the Government and many advisors are that the worst fears won’t be realised,” National’s justice spokesman Paul Goldsmith told the Herald.

Those provisions are about the admissibility of evidence about the sexual history between the accused and the complainant, and around a complainant being entitled to have evidence pre-recorded before the court trial.

The former won’t be allowed unless a judge believes that excluding it would be contrary to the interests of justice. Critics say would lead to relevant matters, such as the sexual habits of a couple, being ruled out, while supporters say what might be construed as consent on one occasion shouldn’t necessarily translate to consent on future occasions.

Critics also object to more use of pre-recorded evidence, saying it would unfairly disadvantage the defence team because they would have to reveal their hand for the pre-recording, rather than at the trial.

Supporters say this risk would be mitigated by the judge, who ultimately and rightfully decides if it would make the trial unfair.

There are other non-contentious aspects of the bill, for example to ensure complainants and the accused don’t run into each other in the courthouse when the trial is on, and making it easier to read out victim impact statements.

With the passage of the bill into law assured, the Sir Peter Williams QC Penal Reform League now plans to submit a Waitangi Tribunal claim.

Co-chair Lady Heeni Philips-Williams challenged Labour’s Māori MPs and ministers to stand against the bill.

“They want to distance themselves when they should be looking at the issues carefully, because their constituents are Māori. They’re not willing to do anything. Well, this is so important that we have to do something about it – if it means taking it to the tribunal, we will.”

She said the bill will put more innocent Māori behind bars, though this was based more on Māori bearing a disproportionate burden from the justice system.

“It is a disgrace that Māori males are over-represented as defendants in New Zealand’s justice system and are also over-represented in the cohort that cannot fund private lawyers, experts and investigators,” Philips-Williams said in a letter to Māori Development Minister Willie Jackson.

“That latter inequality contributes to a likelihood of conviction on a sexual violation charge that is already (on a three-year average) some 14 per cent greater than for European defendants on the same charge. This bill will only worsen that inequality.”

At best, given the Waitangi Tribunal has limited powers, a successful claim would be noticed by the Government and taken into account for any future changes.

A spokesman for Jackson said the minister declined to comment, deferring to Justice Minister Kris Faafoi.

In a statement, Faafoi said the bill would improve the bill was meant to reduce the trauma of the court process for complainant6s rather than convict more people – though the Ministry of Justice estimated it would likely lead to an extra eight to 20 prison sentences a year.

“Māori are also disproportionately victims of sexual violence and are estimated to report it even less frequently than New Zealand’s already very low rates of reported sexual violence,” he said.

“The Government appreciates that the bill’s changes will involve shifts in the way defence lawyers need to approach their advocacy, but we believe that such shifts are necessary to reduce the harm the system inflicts on those who are seeking justice.

“We are confident that judges will still be able to preserve the fairness of a trial.”

It follows an announcement last week on the Government’s national strategy to eliminate family violence and sexual violence.

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