Reforming the Rules of Evidence in Cases of Sexual Offending: Thoughts from Aotearoa/New Zealand
| Author | Elisabeth McDonald,Yvette Tinsley |
| Published date | 01 October 2011 |
| Date | 01 October 2011 |
| DOI | 10.1350/ijep.2011.15.4.385 |
| Subject Matter | Article |
REFORMING THE RULES OF EVIDENCE IN CASES OF SEXUAL OFFENDING
Reforming the rules of
evidence in cases of
sexual offending:
thoughts from
Aotearoa/New Zealand
By Elisabeth McDonald*and
Associate Professor, Faculty of Law, Victoria University of
Wellington
Yvette Tinsley**
Reader, Faculty of Law, Victoria University of Wellington
Abstract Due to a number of high-profile cases of historical sexual offending by
police officers making the headlines in 2006, reforming trial process and the
admissibility rules in such cases is back on the political agenda in New Zealand.
Public concern has resulted in the initiation and funding of a number of
research projects aimed at reform. As members of one of those project teams,
the authors discuss in this article some of the most contested rules of evidence
in cases of sexual offending and possible changes to those rules, comparing the
New Zealand provisions to those in other jurisdictions.
Keywords Evidence Act 2006 (NZ); Sexual offending; Trial process reform
doi:10.1350/ijep.2011.15.4.385
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2011) 15 E&P 311–337 311
* Email: Elisabeth.McDonald@vuw.ac.nz.
** Email: Yvette.Tinsley@vuw.ac.nz.
Trial process in cases of sexual offending: back on the law reform agenda
or more than 35 years those working in the New Zealand criminal justice
system, as in other jurisdictions, have been concerned about the
experience of women victims of sexual violence who testify in court as
complainants.1Seventeen years ago, Thomas J had this to say:2
The extreme distress of a complainant giving evidence in a rape case
and reliving the trauma of the ordeal in the witness box, can be seen
in the Courtroom at any time. It is not an uncommon occurrence, and
it is done in the name of justice. But there can be no justice in a
practice which brutalises the victim of a crime in a way which is
repugnant to all civilised persons.
His Honour was writing more than 10 years after the publication of a report that
resulted in a number of significant changes to the trial process and to the rules of
evidence in cases of sexual offending.3Many of these changes impacted signifi-
cantly, and positively, on the experience of complainants in sexual cases. Others
have been less successful in their implementation. Although many people
continued to express concern about the low reporting and conviction rates in
sexual cases, it was not until a high-profile case in 2006 that the public became
engaged and two successive governments were compelled to act.
In the Bay of Plenty in New Zealand in the mid-1980s a number of young women
claimed they were gang-raped by three police officers. Although complaints were
made at the time, no action was taken until a journalist highlighted the issue in
2004. In March 2006, the three men were acquitted of raping one of the women.4
Public concern about the case initially centred on the fact that the jury was not
told that two of the accused had been convicted of raping another of the young
women.
312 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
REFORMING THE RULES OF EVIDENCE IN CASES OF SEXUAL OFFENDING
F
1 See, e.g., A. Lloyd, Rape: An Examination of the Crime in New Zealand: Its Social and Emotional Consequences
(Wilson and Horton: Auckland, 1976). For academic commentary preceding the 1985 reforms, see
M. Wilson, ‘Sexual Violence—A Feminist Perspective’ in Papers Presented at Seminar: Sexual Violence: A
Case for Law Reform (Legal Research Foundation: Auckland, 1982) 14.
2 E. W. Thomas, ‘Was Eve Merely Framed; or Was She Forsaken?’ [1994] NZLJ 368 at 372. See also
J. McEwan, ‘Documentary Hearsay—Refuge for the Vulnerable Witness?’ [1989] Crim LR 629 at 642.
3 W. Young, Rape Study: A Discussion of Law and Practice, vol. 1 (Department of Justice: Wellington,
1983). For a discussion of the consequential reforms, see G. Orchard, ‘Sexual Violation: The Rape
Law Reform Legislation’ (1986) 12 NZ Universities LR 97.
4 Louise Nicholas, the woman in question, chose to be named. See L. Nicholas and P. Kitchin, Louise
Nicholas: My Story (Random House: Auckland, 2007).
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