Is the criminal justice system failing victims?

A change to an inquisitorial system for sexual offence trials, with the investigation supervised by a judge rather than the prosecution, is among the ideas to be considered by a new study into improving procedures in sexual offence cases.

Three legal academics have been awarded more than $85,000 by the New Zealand Law Foundation to investigate alternatives to the current pre-trial and trial processes for sexual offence cases.

Professor Jeremy Finn of the University of Canterbury, and Associate Professor Elisabeth McDonald and Dr Yvette Tinsley of Victoria University of Wellington, will spend 21 months investigating whether the current criminal justice system is failing victims.

Professor Finn said the current mode of proceedings in criminal trials for sexual offences was widely perceived to be unfair to complainants and likely to lead to undeserved acquittals of offenders.

“The project will investigate possible options for modification or reform of the current procedures for trial and pre-trial processes for prosecuting sexual offenders, including possible alternatives to adversary criminal trials,” said Professor Finn.

Possible options include changes to the existing law, particularly in regard to the onus of proof where consent is an issue; the creation of specialist tribunals or courts to hear sexual offence cases; and the adoption of some form of inquisitorial procedure.

Inquisitorial procedures could see the investigation supervised by a judge rather than the prosecution, and the trial judge, rather than the parties, would determine what witnesses were called and how they were questioned.

“The adoption of inquisitorial procedures would be a very major change, but in the light of overseas experience suggesting inquisitorial procedures may better safeguard the interests of victims and witnesses, the option should be investigated and evaluated,” Professor Finn said.

The researchers will collect and evaluate data and opinion on the current law, investigate inquisitorial procedures and then provide feedback for discussion and formulation of policy advice.

“The research is intended to stimulate debate within the community over the need for reform of the law, to indicate the possible options for change, and to provide a principled and objective evaluation of the merits and disadvantages of each option,” said Professor Finn.

“It will help to shape the form of any proposals for law reform in this area.”

The support from the New Zealand Law Foundation will make it possible to employ an experienced researcher who will work under the joint supervision of the three legal academics.

Professor Finn said the size and scope of the project was only possible because of co-operation between the universities’ law schools, which allowed the researchers to combine their different skills and expertise.

The Director of the New Zealand Law Foundation, Lynda Hagen, said the foundation was keen to support cross-university co-operation on research projects, and was pleased to be able to fund this important research that would evaluate current procedures, stimulate public debate and recommend possible improvements.

Note to Editors

Jeremy Finn is a Professor of Law at the University of Canterbury where he has taught since 1978. He was admitted as Barrister and Solicitor of the High Court of New Zealand in 1979 and currently holds a practising certificate as a Barrister. Professor Finn has researched and written extensively on aspects of criminal procedure and is a contributing editor for the principal practitioner text on criminal law and procedure, B Robertson (ed) Adams on Criminal Law.

Elisabeth McDonald is Associate Professor in the Faculty of Law at Victoria University of Wellington where she currently teaches criminal law, the law of evidence, law and sexuality and feminist legal theory. She has been researching in the area of sexual offences, both substance and procedure, since 1993 when she was awarded, together with Dr Jan Jordon, a FoRST grant to investigate the experience of women rape complainants. Since then she has authored more than 15 articles and chapters focussing on the rules of evidence and procedure in sexual offence trials, as well as being a contributing author to The Evidence Act 2006: Act and Analysis. She is particularly interested in whether the application of legal rules reinforces particular views of female sexuality, as well as whether public perceptions about rape trial process impact on reporting and attrition rates.

Yvette Tinsley is a Senior Lecturer in the Faculty of Law, Victoria University of Wellington, where she has been since 1996. Her teaching and research interests lie in the fields of criminal law and justice, evidence, and law and science. She has been working in New Zealand since 1996, before which she carried out a number of empirical projects in the UK. In New Zealand she has conducted research on eyewitness evidence, sentencing, community policing and was a primary researcher, together with Dr Warren Young and Neil Cameron, in research on jury decision-making (a multi-agency funded project). She is a co-author of The Evidence Act 2006: Act and Analysis and has worked with groups including the Law Commission, the Ministry of Justice and New Zealand Police. She has particular interest in the effect of pre-trial processes and prosecutorial decision-making on the outcomes of sexual offending complaints.

ENDS

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