Alternative models for processing and trying criminal cases

This project arose from the Commission’s recommendation in their Report, Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character (R103, 2008). The Commission recommended that Government should undertake an inquiry into whether the present adversarial trial process should be modified or replaced with an alternative model, with particular reference to cases involving sexual violence.

In 2012, the Commission completed a preliminary review of the use of alternative pre-trial and trial processes for criminal offending, with a specific focus on sex offences. The Commission published Issues Paper 30 and received a large number of submissions from the public. The project was then put on hold by the Minister Responsible for the Law Commission at the time. 

In late 2014, the project was reactivated on request of the current Minister of Justice. The terms of reference for the project have not changed.

The Commission undertakes a high-level review of pre-trial and trial processes in criminal cases. In particular, it considers whether the adversary framework within which those processes operate should be modified or fundamentally changed in order to improve the system’s fairness, effectiveness and efficiency.

The Commission includes within its review an examination of inquisitorial models and considers whether all or any part of such models would be suitable for incorporation into the New Zealand system.

The Commission puts particular emphasis upon the extent to which a new framework and/or new processes should be developed to deal with sex offence cases. However, it also considers the desirability of alternative approaches in other categories of cases, such as those involving child victims, child witnesses and family violence, and considers the extent to which the system needs to be modified more generally.

Alternative pre-trial and trial processes: Possible reforms (NZLC IP30, 2012)

The Commission's Issues Paper, Alternative pre-trial and trial processes: Possible reforms (NZLC IP30, 2012).  

The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes (NZLC R136, 2015)

In its Report The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes (NZLC R136, 2015), the Law Commission completes a review of trial processes in sexual violence cases and makes recommendations for change. It considers whether a non-criminal process is a viable alternative way of dealing with certain incidents of sexual violence, where that is desired by the victim, and puts forward a proposal to give effect to such an alternative. It also suggests that victims should have wraparound support throughout their time in the justice system and proposes the creation of a commission against sexual violence which would be responsible for leading and coordinating the provision of support to victims of sexual violence.

The Law Commission made a total of 82 recommendations across three distinct areas. Those recommendations include the following:

Trial process and the courts

• There should be a limit on the amount of time it takes for criminal proceedings involving sexual violence to get to trial.
• Less traumatic methods of giving evidence at trial should be made available to complainants of sexual violence.
• All judges who sit on sexual violence trials should receive special training.
• A specialist sexual violence court should be piloted and future consideration should be given to whether proceedings in that court should or should not be heard in front of a jury.

Alternative process

• Government should put in place a legal and policy framework to give effect to an alternative process that could operate entirely separately of criminal trial.
• The process would provide for a victim to complete a programme that addresses the harm caused by the sexual violence and that facilitates discussion with and reparation by the perpetrator, if appropriate.
• It would be run by accredited, expert providers.
• There would be some flexibility as to how the process is run by each provider but nationwide standards would ensure the safety of participants and cases could be rejected if the provider assessed them as unsuitable based on public safety risk or risk to the victim.
• If this process was successfully completed by a perpetrator, the incident of sexual violence could not form the basis of a subsequent criminal prosecution.

Support for victims

• Government should develop training and education programmes for all those who interact with sexual violence victims in a professional capacity and should also consider a national accreditation programme.
• A sexual violence commission should be established to coordinate support services for victims and to promote communication and consultation across the sector, and between government-based and community-based support providers.
• The commission should also be responsible for carrying out research, delivering training and education programmes, and accrediting and monitoring the providers of the alternative process.

CORRECTION (13 January 2015):

The Law Commission wishes to correct the following inadvertent errors which it made in this Report:

• The Static-99 (referred to in paragraph 8.16) is a Canadian tool, not a United States tool.
• The sex offender risk assessment tools referred to in paragraph 8.17 were not designed for men who predominantly or exclusively commit acts of sexual violence against children. They were intended for and are used with those who commit acts of sexual violence against both adults and children, but the samples of men that were used to develop the tools were predominantly made up of men who had committed acts of sexual violence against children.
• The comment in footnote 566 that these tools “will not be appropriate” for perpetrators of sexual violence against adults should instead state that the tools may perform less well with perpetrators of sexual violence against adults, given the sample of men drawn on to develop the tools, but that more research would be necessary to establish whether that is the case.

The Law Commission is wholly responsible for the errors in question and we apologise for any inconvenience caused by them. They do not affect or change the Law Commission’s recommendations. 

Summary of the response

1. The Government accepted the Law Commission’s position that reform would improve the justice response for victims of sexual violence.
2. The Government recognised the need for legislative and operational change. The Government noted that the proposals of the Law Commission (including the establishment of a specialist sexual violence court and adoption of an alternative process to obtain resolution and justice for victims who do not want to access the criminal justice system) have significant implications for the courts, the judiciary and law practitioners. The Government indicated it would work through these proposals to identify an achievable and effective programme of change.
3. The Government agreed with the Law Commission that social support for victims of sexual violence can be improved both within and outside the court process. Work on this is being progressed as part of the programme of the Ministerial Group on Family Violence and Sexual Violence.

Some operational recommendations have been implemented, such as a sexual violence pilot court being trialled, information being produced for victims to assist in navigating the court process and courts working on separate court entrances/facilities for victims. The recommendations for legislative amendments were substantially implemented by the Sexual Violence Legislation Act 2021, which largely covers recommendations in Part B of the report.

Parts C and D of the report have not been implemented. These recommended an alternative out of court process for sexual violence cases and the establishment of a sexual violence commission, respectively. The former is an ongoing work programme, but decisions to implement have not been made. The latter has received no response to date.