Recently, the Law Commission has undertaken a second review of the law governing evidence in New Zealand cases, the Evidence Act 2006. The Law Commission’s report considered a range of issues with the Evidence Act and makes 27 recommendations for reform. These include reforms designed to improve the court process for victims of sexual and family violence, while at the same time ensuring defendants’ rights to a fair trial are preserved.

Evidence of sexual experienceIn its report the Law Commission considered section 44 of the Evidence Act 2006 under which evidence of a complainant’s sexual experience with any person other than the defendant is inadmissible, except with permission of the judge. The judge must not grant permission unless the proposed evidence satisfies the heightened relevance threshold in section 44(3): the evidence must be of such direct relevance that it would be contrary to the interests of justice to exclude it. Section 44(2) imposes a complete ban on admitting evidence relating to the complainant’s reputation in sexual matters.The purpose of section 44 is to protect complainants from unnecessarily intrusive and embarrassing questioning about their sexual history as such questioning can make complainants feel they are on trial rather than the defendant.Five issues were identified with the operation of section 44.

• There is uncertainty about the admissibility of sexual disposition evidence.
• Section 44 does not control the admissibility of evidence about the complainant’s sexual experience with the defendant.
• The Supreme Court’s guidance in Best v R regarding the admissibility of previous false or allegedly false complaints of sexual offending is arguably too complicated.
• Section 44 does not apply in civil proceedings.
• Section 44A does not require an application under section 44(1) (to offer evidence or ask a question about the complainant’s sexual experience) to specify the grounds relied on for admission of the evidence.

The Law Commission has recommended

• Section 44 should be amended to clarify that:
• sexual disposition evidence is only admissible with the judge’s permission if it is of such direct relevance that it would be contrary to the interests of justice to exclude it; and
• evidence of a complainant’s reputation for having a particular sexual disposition is inadmissible.
• There should be an exception for evidence of the fact the complainant was in a sexual relationship with the defendant: this evidence should continue to be admissible subject to sections 7 and 8.
• Section 44 should be amended so that it applies in civil (as well as criminal) proceedings.
• Section 44A should be amended to require an application under section 44(1) (to offer evidence or ask any question about the sexual experience of the complainant) to include the reasons why the proposed evidence is of such direct relevance that it would be contrary to the interests of justice to exclude it.

Pre-recorded evidenceGiving evidence in a sexual or family violence context can be particularly stressful and difficult for the complainants.This is because the defendant is often known to the complainant, there is a power imbalance between the defendant and the complainant, the violence usually occurs in private and is difficult to corroborate, complainants are at risk of being re-traumatised by the criminal justice process, complainants are likely to require enhanced services and support during the criminal justice process and complainants may be persuaded or pressured to recant their statement to the police.To improve this difficult process for complainants the Law Commission considered whether the Act could better facilitate the use of pre-recorded evidence in relation to family violence complaints, other witnesses in sexual and family violence cases and/or vulnerable witnesses generally.The Law Commission’s report referred to a 2015 report The Justice Response to Victims of Sexual Violence in which the Commission had concluded that complaints would greatly benefit from the use of pre-recorded evidence because it would

• Ameliorate some of the anxiety complaints experience while waiting for trial.
• Protect the complainant’s evidence from deterioration by the passage of time.
• Potentially reduce the risk of a mistrial by allowing the judge to control questioning more robustly in the knowledge that interventions can be edited out.
• Enable the complainants to take breaks more easily when giving evidence.

Ultimately the Commission has recommended

• Family violence complainants should be entitled to give their evidence-in-chief by a video record made before the hearing (regardless of when the video was recorded) unless a judge makes an order to the contrary.
• Family violence complainants should be entitled to give their cross-examination pre-recorded made in a hearing prior to a trial, unless a judge makes an order to the contrary.
• Prosecutors in family violence cases should be required to make reasonable efforts to ensure family violence complainants are informed about the various ways of giving evidence and ascertain the complainant’s views on their preferred mode of evidence.

Myths and misconceptions in sexual and family violence casesThe report expressed concern that research has shown jurors may believe myths and misconceptions about sexual and family violence, which can affect how they consider the evidence.Some common misconceptions include

• That a genuine victim will put up a fight or scream or cry for help.
• A victim of sexual assault will suffer external and internal injuries.
• Inconsistencies or omissions in evidence represent evidence of fabrication since truthful people remember all the details.
• A complainant who drinks alcohol or takes drugs is at least partially responsible for the offending.
• A complainant who dresses ‘provocatively’ or acts ‘flirtatiously’ is at least partially responsible for the offending.
• Continued association with the defendant means the sexual assault did not occur.
• Family violence comprises a series of discrete incidents of physical violence.
• A victim’s fear of future violence is irrational or unreasonable.
• A victim can avoid future violence by simply leaving the relationship.
• If a victim was violent as well, their fear was not real.

To combat these issues the Law Commission has recommended

• In family violence cases, counsel should consider whether a written statement for the jury addressing myths and misconceptions about family violence can be jointly agreed between the parties. In appropriate cases, a joint statement should be admitted by consent under section 9.
• The Act should be amended to expressly provide that a judge may give a direction to address any juror misconceptions about sexual or family violence
• Sample judicial directions should be developed to address myths and misconceptions that jurors may hold in sexual and family violence cases. As a starting point, directions should be developed to address the following myths and misconceptions:

1. A complainant who dresses ‘provocatively’ or acts ‘flirtatiously’ is at least partially responsible for the offending.
2. A complainant who drinks alcohol or takes drugs is at least partially responsible for the offending.
3. “Real rape” is committed by strangers and/or sexual violence by a partner or acquaintance is less serious.
4. It is not rape unless the offender uses force and/or the complainant suffers physical injuries.
5. A victim of family violence can avoid future violence by leaving the relationship.

The sample directions should be contained in a publicly accessible jury trials bench book. Sufficient funding should be provided to the Institute of Judicial Studies to enable the directions to be developed and maintained.The Law Commission’s recommendationsIn summary the Law Commission’s recommendations include:

• In sexual cases, there should be tighter controls on admitting evidence of the complainant’s previous sexual experience with the defendant and evidence of the complainant’s sexual disposition.
• In family violence cases, complainants should be entitled to record their evidence (including evidence-in-chief and cross-examination) in advance of the trial and have the video played at the hearing.
• Prosecutors should make reasonable efforts to ensure family violence complainants are informed about the various ways of giving evidence and ascertain the complainant’s views on their preferred mode of evidence.
• Judges should be required to intervene when they consider questioning of a witness is unacceptable.
• Judicial directions should be developed to address myths and misconceptions that jurors might hold about sexual and family violence.

ConclusionThese are all welcome changes to the law. Through educating jurors about sexual and family violence and improving the court process for victims, New Zealand will ultimately have a fairer court system.