Judge for yourself
Our justice system is on trial. Can ‘12 good men and true’ sit in judgment on sex crime cases when, as we reveal, juries are more likely to obsess with whether the victim is a virgin and over the length of her skirt? Today, our own citizen jury of 12 New
THE POLICE COMPLAINT
Jkept the details of what happened at the sleepover a secret for almost a decade – but after learning that another young girl had been assaulted by the same man, in that same house, she knew she had to act. She almost certainly would not do so again.
‘‘I wish I had just kept it in my head and not gone to the police,’’ the Wellington 23-year-old says.
J’s case went to court in October 2018. The accused, the father of a childhood friend, was charged with sexual assault and unlawful sexual connection. J told the court she was 10 years old when he entered the room where she was sleeping in the middle of the night, pressed his erection against her, and touched her genitals under her pyjamas.
Until she stepped into court, J was feeling pretty good about the process. She had no complaints about her dealings with police – they’d been sensitive and helpful. But once she entered the court system, things were quite different.
Even before the trial began, she was appalled by the advice she was given by the court-appointed victims adviser – make sure you don’t wear too much jewellery because the jury will think you’re promiscuous. Don’t wear make-up, don’t wear a short skirt.
‘‘It threw me into a panic – what do I wear? No make-up at all? Some make-up?
‘‘They were kind and genuine, but it did not prepare me for court. I left more confused than when I arrived.’’
The statistics show traumatic experiences in our courts are the norm for complainants like J, and that’s keeping reporting rates extremely low. Fewer than 10 per cent of victims ever report to police; of those, just 31 per cent get to court, and just 13 per cent of cases result in a conviction. Once you boil the numbers down, that’s one in a hundred assaults.
In 2016 a Law Commission report sparked a two-year trial – a Sexual Violence Pilot Court operating in Auckland and Whangarei – which will deliver its final report around the middle of this year. It aims to create a gentler, less traumatising experience for complaints and to date, has at least managed to cut the time from complaint to trial, in half. But critics of the current system claim the changes are nowhere near broad enough.
Independent volunteer victim advocate Ruth Money was eventually alerted to J’s case, and stepped in to help.
‘‘The behaviour of some players in the courtroom is out of the 1970s,’’ she says. ‘‘Are they actually advocating for you as a person, or are they making sure you’re compliant with the system?’’
She points out J had an agonising three-year wait for her case to come to trial and suggests all complainants should have a ‘‘navigator’’ with them from the time they report to police, to the end of their court process.
The jury in J’s case was not permitted to hear evidence from the other young victim, who had changed her mind about making a formal
complaint. J says she was warned not to even mention this woman’s existence while in the witness box. That made her feel ‘‘like a liar’’.
‘‘The court process is humiliating and I will never get any closure from this. I’m suffering more than I was when I kept the offending to myself.’’
‘‘The way it’s set up now, is so wrong.’’
The courthouse was packed with about 100 potential jurors on the Monday morning ‘‘A’’ reported for jury duty. She’d never been called before, she says, and she felt ‘‘quite excited’’.
Juror A was ushered to a courtroom where a sexual assault trial was due to start, and sat behind a screen along with 50 others.
Juror A watched as younger women, and women who were ‘‘dressed sharply’’ were challenged by the defence; Ma¯ ori men by the prosecution. By the time all her fellow jurors had been chosen, she was starting to worry. ‘‘This wasn’t a jury of peers.’’
They were given two minutes to choose a foreman.
‘‘Of course, this really loud bloke said ‘I’ve got experience of that’, and everyone agreed he could be foreman,’’ Juror A says.
‘‘From that moment on he had a lot of control over the process. He was physically big, imposing, and that could have swayed people. But right from the get-go there was very little conversation. It was me against everyone else.’’
THE PROSECUTION CASE
Frances Joychild, QC, gives a short laugh that’s part rueful, part defiant. ‘‘This is absolute heresy, what I’m saying, for the Criminal Bar – and that’s why nobody’s gone near it’’.
Joychild is acknowledged as one of the most respected players in New Zealand’s legal landscape. She is also searingly, unapologetically scathing about the way the criminal justice system treats victims of sex crime.
Her ideas are radical: she wants juries replaced by expert judges who would do the questioning. Inquisitorial, not adversarial. No more crossexamination.
She agrees this is unlikely to be a popular stance with her peers.
‘‘The Criminal Bar are obsessed with this one way of looking at it. Of course they are, they’ve spent their whole lives trying to get people off sexual violence charges. But what they say does not answer the fact that that there are so many people who do not get justice in this country.’’
At the heart of the argument, is trauma. Proponents of change agree the system is out of date for victims of sex crime because it does not understand the trauma they experience. And so, in hundreds of cases, it re-traumatises them.
Joychild says research shows it is unlike any other kind of criminal assault, leaving lifelong injuries, and this has only recently been understood.
Most of the ideas popping up for change are geared to making the victim’s path to justice easier to bear. But Kathryn McPhillips, from Auckland’s sex abuse support service HELP, agrees there would be push-back against a non-adversarial system.
‘‘The barristers don’t get to be orators in the proposed system, they’d just get to ask a few questions at the end. The legal fraternity are so embedded in one way of seeing the world, I think it’s hard for them see that it’s not working.’’
This is especially true for Ma¯ ori, says Kaupapa Ma¯ ori academic Leonie Pihama.
‘‘We’ve had, through the colonial legal system, this punitive and adversarial way of doing things that doesn’t serve the wellbeing of communities. People can be put away, and then they come out and theoretically, you have done your time.
‘‘In the Ma¯ ori world you haven’t done your time. You haven’t resolved anything.’’
Justice Minister Andrew Little says the pushback has already started in conversations he’s had with the Criminal Bar Association. He’s been told, no matter what the crime, the testing of evidence in its current form must remain and defence should not be required to show its tactical hand before the day of the trial.
He circles back to the very low conviction rates in sexual violence cases as the key argument for change. Joychild puts it like this: ‘‘You talk to most lawyers and they’ll say ‘I wouldn’t put my daughter through it. I’d tell her not to complain’.’’
THE CASE FOR THE DEFENCE
Jo Wickliffe is someone you might want in your corner if you’d been accused of a serious crime; commanding, practical and absolutely committed to getting you off those charges. She brooks no suggestion that our justice system is somehow in need of an overhaul.
‘‘If there’s not a guilty verdict, that’s because the Crown didn’t have the evidence,’’ she says. ‘‘The assumption is, that’s a bad thing. But that’s what we have, a system where you try the evidence and it it doesn’t meet the standard of beyond reasonable doubt, that’s it.’’
As a legal aid barrister who works mainly in Northland and Auckland, Wickliffe takes only the gnarliest of cases – level 3 and 4 – that’s drugs, or homicide, or sex. Seventy per cent of her work is in sexual violence defence.
She says there are already protocols introduced through the Sexual Violence Pilot Court programme that mean complainants are treated ‘‘very well, and fairly’’. These include meeting the judge and defence counsel before the trial. Defence counsel have also been encouraged to be less aggressive in cross-examination.
‘‘I would not want to see changes that have the goal of increasing the conviction rate. Are they getting away with it because they are getting a not guilty verdict? Well, that’s why we put it in front of a jury.
‘‘I like jury trials for the very reason that you have 12 people who all bring their collective life experience. Every jury I’ve seen has been really attentive to what the judge has said, and they take their job very seriously.’’
Wickliffe worries that the system will tip too far from what she says is ‘‘the most important right’’ – the right to a fair trial.
Professor David Williams, an expert on colonial legal history and newly-retired from Auckland University, is open to change, including the idea of getting rid of juries in favour of a judge-alone or expert judge and panel.
But Williams agrees with Wickliffe that swapping the burden of proof from ‘‘beyond reasonable doubt’’, to ‘‘on balance of probabilities’’ would be a step too far, citing the Teina Pora case as an example.
‘‘The adage which law students have been taught for many generations is that, it’s better that
Complainant J wishes she had the option of restorative justice: “Just to face him and talk to him about how much it’s affected me, would have helped a lot.”
Ruth Money, below, victim advocate: “I’d love in 10 years’ time to be looking back and saying my God, can you imagine putting people through that, because we’ve now got this new system which is respectful to everyone, fair to everyone, and puts the victims in the centre of it.”
Juror A: “A non-adversarial system would be better. Therapeutic jurisprudence is not about being 100 per cent right or 100 per cent wrong.”
Frances Joychild QC: “We have to get judges with more life experience, we have to get equal numbers of men and women. More needs to be done for representation in the judiciary.”
Andrew Little, Justice Minister, right: ‘‘Instinctively I love the idea of specialist courts where you have judges who spend time training.. to deal with the class of case they deal with.’’
Kathryn McPhillips, HELP, above: ‘‘There should be two trained jurors who do not buy into rape myth. It would be a paid position and they would sit with ticketed judges as an expert panel.’’
Leonie Pihama, kaupapa Ma¯ori academic, left: ‘‘For a lot of Ma¯ ori women it is grounded in historical and colonial trauma. The change you’re talking about is really significant; we have a very flawed justice system from beginning to end.’’