Lawyer says he wants ‘awkward’ meetings with sexual violence complainants to stop
A senior criminal lawyer – and a sexual abuse survivor himself – wants judges and lawyers to stop meeting complainants before they give evidence at trial.
Lower Hutt’s Chris Nicholls said he thought it was a step too far in changes to improve trial waiting times and reduce stress on victims.
“As a survivor of childhood sexual abuse, there is no way I would have wanted to meet the defence lawyer,” he says.
The initiative has come out of a pilot of the Sexual Violence Courts operating in the Auckland and Whangarei district courts, and is up to the complainants to accept.
While the pilot was seen as positive by most, during a review the idea of meeting complainants did not have universal approval, with some judges and defence lawyers being hesitant, and some complainants replying that they would not have wanted to.
One judge said: “I think it’s just being too familiar for me personally. This is a contest, and I’ve got to be the referee of it. I’m not their mate, and I’m not the defendant’s mate. If you go and see, particularly a young person, they are going to be anxious. They are going to be looking to you to look after them, but that’s not my role.
“I’m just uncomfortable with the whole idea.”
The meetings also happened in private – out of the public eye of a courtroom.
Nicholls, who has been a defence lawyer for 27 years doing criminal work, said it had an impact on the lawyers involved.
“Being a defence lawyer in a rape trial is emotionally taxing and professionally challenging. I find myself having to psych myself up for it just to be able to function properly. I often worry about it long before the trial. It can and has adversely affected my mental health. The only way I find I can do my job to cross-examine the complainant effectively is if I completely detach and depersonalise myself from the complainant.”
Nicholls said he felt that meeting the complainant would detract from his ability to do his job.
He said it was a rule of thumb for defence lawyers that they should not have anything to do with a complainant in any criminal case at any stage of the criminal process.
He questioned why a defendant did not get equal treatment. “Is a judge going to come down to the cells or into a special room and introduce himself or herself to a defendant at the start of the trial to re-balance?” he said. Nicholls has declined a meeting with the complainant at a recent trial.
He said he had spoken with colleagues who described the process as “awkward” and “artificial”.
He has written to Chief Justice Dame Helen Winkelmann, asking for the meetings to stop.
Nicholls was recently a participant in a research study done by Victoria University as to the effects of experiencing trauma on lawyers practising in criminal law.
A 2015 Law Commission report had recommended a specialist sexual violence court to improve the way the justice system responds to victims of sexual violence.
The pilot ran at two courts from December 2016, and an evaluation found that it considerably reduced the time it took for cases to reach trial.
Complainants felt they did not feel retraumatised by the process, and all district court judges have since received training to adopt the approach taken in the pilot.