Sexual Violence Court Pilot – aiming to reduce trial delay

On 1 December 2016, the Auckland and Whangarei District Courts embarked upon a Sexual Violence Court Pilot (Pilot) implementing new court processes for trials involving sexual offending allegations.

Marie Dyhrberg QC

The Pilot is aimed at reducing delays and improving the court experience for all participants. The Pilot will run for two to two and a half years, during which time data will be collected to provide information for “improved case management, trial management, operational sustainability and external stakeholder sustainability”, as outlined by Chief District Court Judge Doogue.

The qualifying offences include all category 3 sexual violence cases and will apply where the defendant denies the charges and elects trial by jury. Two courts out of the eight jury trial courts in Auckland will be dedicated to Pilot cases.

The Pilot provides for more intensive and proactive pre-trial case management by the specialist judges who have been designated by the Chief District Court Judge and who have been trained in recognising the distinctive workings of sexual violence cases. Their focus will be to proactively identify and instigate procedures for reducing trial delay in these cases. All fixtures will be firm fixtures.

Cases will enter the Pilot at the Case Review Hearing stage and all cases listed will qualify without exception. Counsel can expect a much shorter timeframe for jury trials being set down for hearing. Counsel will be expected to be fully prepared at Case Review Hearings, which will be more comprehensive and will be allocated more time. Accordingly, Case Review Hearings for Pilot cases will likely be scheduled for the afternoon.

Counsel should take note that they will be expected to provide much more information at Case Review Hearings. There will be a requirement to include additional information in the Case Management memorandum (CMM). As well as the matters covered by section 56 of the Criminal Procedure Act 2011 and Rule 4.8 of the Criminal Procedure Rules 2012, the judge will also enquire into and make directions as to:

1. whether the case is, or has been identified as a case falling within the court of trial protocol;

2. whether there are issues of disclosure, including disclosure by a non-party;

3. whether there are issues of joinder of charges and/or defendants under section 138 of the Criminal Procedure Act;

4. alternative ways of giving evidence under sections 102-107 of the Evidence Act 2006;

5. admissibility of evidence including, but not limited to propensity, complaint;

6. the length and content of evidential video interviews and whether they can be truncated or reduced and linked;

7. the need for interpreters;

8. the need for communication assistance under section 80 of the Evidence Act 2006;

9. whether support persons under section 79 of the Evidence Act 2006 will be requested;

10. the likelihood of expert evidence (forensic, counter-intuitive, medical) and the availability of expert reports;

11. likely trial length; and

12. any other likely pre-trial applications.

All judicial directions will be recorded in writing and distributed to both the Crown and defence counsel. These matters will no longer be postponed for consideration until trial callover. Trial callovers will proceed as normal in terms of allocating trial dates, dates for pretrial applications and confirming the trial in all respects is ready to proceed.

What this means for both Crown and defence counsel is that they will need to identify all likely trial issues from the outset of receiving instructions. Counsel will need to interview clients, consider the evidence, identify trial issues and generally start preparation much earlier. Particularly in these cases, defence counsel will need to enforce the strict obligations on police and prosecution to provide timely disclosure, otherwise counsel’s trial preparation could be significantly prejudiced.

Applications for adjournments will rarely be granted, otherwise the whole purpose of the Pilot, i.e. speedier trials, will be thwarted. If counsel encounter issues precluding them from being ready for trial, then immediate memoranda and requests for pre-trial hearings must be sought. The court will have the ability to order costs on any party who is responsible for an adjournment without reasonable excuse.

Trials will proceed as normal, although judges will be vigilant to ensure that there is flexibility in the giving of evidence especially for younger complainants and witnesses. In practical terms, this will involve (depending on the age and capacity of the given complainant or witness) regular breaks, early/late starts and early/late finish times for those witnesses. The judge will be alert to and intervene if the questioning of any witness, particularly the complainant, is not in accordance with section 85 of the Evidence Act 2006. Further, any expert evidence, such as medical or counter-intuitive evidence, will be restricted to actual issues relevant to the trial – “fishing expeditions” will not be tolerated.

The Pilot does not present any law change to the current adversarial system of jury trial. Trials will continue to operate within the existing Bill of Rights principles relating to a fair trial, the presumption of innocence and the right to present a defence and cross-examine witnesses. The Pilot will be no less adversarial nor will it be inquisitorial – these would require fundamental changes to the law.

The goodwill of the Criminal Defence Bar, prosecution agencies and court staff will be vital for the effective operation of the Pilot. Counsel have an overriding obligation to assist the court to provide fair trials for all parties and deliver justice. Court pilot projects are undertaken to investigate whether there are ways to improve court processes while operating within the boundaries of the law. This Pilot is aimed at reducing undesirable delays from when a person is charged to when the case is finally adjudicated, which would be a meaningful benefit to complainants and defendants alike.

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