THE VER­DICT

Sunday Star-Times - - Focus -

10 guilty peo­ple go free than one in­no­cent per­son is found guilty.’’

Re­cent par­lia­men­tary alumni Chris Fin­layson was At­tor­ney-Gen­eral when the for­mer Na­tional Gov­ern­ment set up the Sex­ual Vi­o­lence Pi­lot Court in 2016. Fin­layson says he’s wor­ried by the very low num­ber of vic­tims will­ing to come for­ward and re­port, and in favour of find­ing bet­ter paths to jus­tice, such as marae hear­ings.

But he also re­fuses to sup­port a change in the bur­den of proof.

‘‘It’s one of those iron-clad pro­vi­sions of crim­i­nal law, and I wouldn’t tin­ker with it at all.’’

THE JURY DE­LIB­ER­A­TIONS

Ju­ror A quickly re­alised she was the only one who be­lieved the young woman had been as­saulted. ‘‘One of the men said he ac­tu­ally be­lieved her too, but there was no ev­i­dence. I said, ‘what about her tes­ti­mony’? ‘That’s not ev­i­dence’, he said.’’

She asked her fel­low ju­rors what ev­i­dence they’d need, to believe the young woman’s story.

‘‘They said, four things. She had to have screamed at the time. She had to have re­ported im­me­di­ately to po­lice. They wanted phys­i­cal ev­i­dence, blood on her un­der­wear; and they wanted a wit­ness, right there.’’

A ju­ror in a dif­fer­ent case, ‘‘Ju­ror B’’, also has grave con­cerns about a jury’s abil­ity to de­liver real jus­tice. The rape trial she served on, in Welling­ton in 2017, ended with a con­vic­tion but the ju­rors strug­gled to un­der­stand their role.

Ju­ror B says the phys­i­cal marks left on the woman, and a string of text mes­sages ad­mit­ted as ev­i­dence were com­pelling, but many on the jury seemed hung up over whether she had screamed or fought her at­tacker.

Ju­ror A was in­fu­ri­ated by the bias shown in her jury room.

‘‘One man said, ‘What I want to know is, was she a vir­gin?’ The older woman was say­ing ‘You know in my day they would call her a ‘‘trol­lop’’ and say she was teas­ing’.’’

Ju­ror A says she still shakes with anger when she thinks about the lack of in­ter­est her fel­low ju­rors dis­played – ‘‘they were just in­ter­ested in con­firm­ing their own views, and get­ting out of there’’.

The ac­cused was ac­quit­ted on all counts. It’s not so much the re­sult that haunts her, J says, it’s the court process, which heaps one layer of suf­fer­ing and vic­tim­i­sa­tion on top of an­other. Even know­ing why the jury reached its ver­dicts would have helped, but in­stead she will live with ques­tions for­ever. There was no de­brief; ‘‘the po­lice, the Crown, they didn’t care any more’’.

The ver­dict for the broader crim­i­nal jus­tice sys­tem in cases of sex­ual vi­o­lence – for most of our ex­perts at least – is ‘‘guilty’’, with some caveats.

THE SEN­TENC­ING

Not ev­ery­one is sug­gest­ing the cur­rent sys­tem be sent down for life with no pa­role. But most we spoke to think ur­gent change is needed. So what would a new fron­tier for sex crime jus­tice look like?

Pi­hama takes the hard­est line: she wants to see marae jus­tice as the pre­ferred op­tion for Ma¯ ori.

McPhillips sus­pects rad­i­cal change will be hard to come by, but the Sex­ual Vi­o­lence Pi­lot Courts is bet­ter than noth­ing.

Joy­child’s vi­sion for the crim­i­nal courts is likely to be con­tro­ver­sial: ‘‘I would have two judges. I’d al­low the vic­tim to have their own lawyer.’’

Lit­tle says he’s com­mit­ted to spend­ing his per­sonal po­lit­i­cal cap­i­tal to make change – ‘‘I’ve told the Prime Min­is­ter I’m happy to take that fight on’’ – but re­form­ing the ad­ver­sar­ial sys­tem is a ‘‘huge leap’’ that would take a long time.

Com­plainant J wants bet­ter in­for­ma­tion and sup­port for vic­tims, both pre-and-post ver­dict.

‘‘I would pre­fer no jury – these peo­ple are not qual­i­fied to make de­ci­sions like this, es­pe­cially in cases of sex­ual as­sault. Giv­ing vic­tims a re­port ex­plain­ing the ra­tio­nale as to why they didn’t believe them would also be great.’’

She sug­gests an op­tion for a ‘‘not proven’’ ver­dict would be an im­prove­ment for vic­tims over the sta­tus quo, with guilty, or not guilty as the only al­ter­na­tives.

‘‘Say­ing he’s not guilty, means he got away with it com­pletely. I’m dev­as­tated. For it to come to this, it’s like – what do I do now?’’

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