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

Sunday Star-Times - - News -


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.’’


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’.’’


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.’’

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