Presentation Transcript

1. Reforming criminal pre-trial and trial processesWarren Young
2. Law Commission Terms of Reference Undertake a high-level review of pre-trial and trial processes in criminal cases; Consider whether the adversarial framework should be modified or fundamentally changed to improve the system’s fairness, effectiveness and efficiency; Examine inquisitorial models to consider whether any parts would be suitable for incorporation in New Zealand; Particular emphasis on sex offence cases, but also consider alternative approaches in other cases such as those involving child victims and witnesses and family violence; Also consider the extent to which the system needs to be modified more generally.
3. Issues Paper Published February 2012 Online consultation open to public through Law Commission website February to April 2012 531 submissions Summary of submissions published December 2012 No further analysis or work undertaken
4. Who controls the process before trial Judge rather than parties should do so Judge should see all available evidence before trial in a case dossier. Judge should decide following matters before trial: whether evidence was sufficient to go to trial; which witnesses in case dossier should be called; whether any expert evidence was required, and if so which experts should be called; how evidence was to be given at trial, and extent to which written statements would form evidence; whether to direct further investigation.
5. Pre-trial court appearances Unless hearing required input of accused, issue would be resolved by the judge and counsel without a formal court hearing. Formal court hearings held only: for the entry of a plea after legal representation was arranged; for the purposes of the case review/callover stage, which would occur only if the defendant’s appearance was necessary to resolve the issue at hand; for pre-recording of evidence before trial, if any; for trial; for sentence; For an application that the defendant be remanded in custody.
6. Who controls the trial process Currently prosecutor and defence largely in control of the process – determine issues and evidence that is called. Adversary system allows a confrontational and aggressive testing of the evidence through cross-examination – traumatising and revictimising for complainants.
7. Judge should be in control of process during trial. Parties should have a more limited role. Judge should decide the order in which witnesses give evidence. Judge should question witnesses first. Parties would only ask questions after judge had finished. Evidence should be given in “narrative” form.
8. Who decides the verdict Jurors carry myths and prejudices (e.g. about the nature of sexual offending or family violence). Judicial instructions do not adequately counteract that. In some cases jurors may have difficulty assimilating the evidence. Jury trials may be incompatible with judicial control of the proceedings and questioning of the parties.
9. In some or all cases fact-finder should be either: The judge sitting alone; or The judge and two jurors. Would give written reasons for their decision If jury trials abolished, many rules of evidence could be dispensed with.
10. Evidence by the defendant Currently accused can choose whether or not to have questions put to him or her, and gives evidence, if at all, towards end of case. Result: focus may appear to be on complainant’s actions rather than defendant’s actions. Leads to perception by complainants that they, rather than the accused, are on trial.
11. Defendant should give evidence first, unless judge decides otherwise. Defendant should be subject to questions by judge, but would not be obliged to respond to questions.
12. Alternative process: problem Criminal justice system takes an “all or nothing” approach. Few mechanisms other than prosecution. Does not deal well with sexual offending.
13. Alternative process: possible reform Alternative process outside criminal justice system. Victim would opt in. Assessment by specialist providers. Process would be tailored to nature of case. Agreed outcomes. Protocols for referral back to criminal justice system. If accused participates fully, referral back to criminal justice system would be precluded.
14. Child protection orders: problem Current Family Court processes are not effective in ensuring the safety of children in sexual abuse cases. Can only act if application is made to FC. Focus is on risk posed by alleged abuser to particular child rather than children more broadly. Perception FC places too much weight on outcome of criminal proceedings (acquittals).
15. Child protection orders: possible reform Where criminal case involved child complainants, trial court would be required to make referral to Family Court, regardless of outcome of case. Risk assessment carried out either by criminal court or by Family Court. If determined on balance of probabilities that defendant had offended and victim or other children were still at risk, court could make child protection orders re accused. Civil order, time-limited, subject to appeal and review.
16. Nature of submissions to Law Commission Alternative process for sexual offence cases outside criminal justice system received strong support So too did child protection orders and requirement for written reasons More fundamental reforms to criminal justice system received mixed support (but perhaps more support than anticipated)
17. Where to from here? Indication from Minister of Justice that she does not wish to progress reforms Law Commission project on hold – no analysis of submissions or final report Real obstacles to getting wholesale change to the system But lesser reforms mere tinkering Changes for sex offence cases alone? Focus on getting alternative system in place?