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Defence lawyers concerned bill to protect victims of sexual assault could lead to unfair trials

The Defence Lawyers Association is calling for major changes to the Government's Sexual Violence Legislation Bill, with one defence lawyer saying the proposed legislation shows we "don't trust judges".

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Elizabeth Hall says the bill stops relevant evidence being admissible and that pre-recording cross examination is misguided. Source: Breakfast

In response to a strong sense that aspects of the court process re-victimised complainants of sexual assault, the Government introduced the Sexual Violence Legislation Bill, which would see the trial made easier for victims, including in the way they give evidence.

The bill, put forward last year by Green MP and under-secretary to the Minister of Justice Jan Logie, passed its first reading in Parliament unanimously. It's since been through select committee and is now having its second reading.

However, concerns have been raised by defence lawyers that the bill undermines a defendant's ability to get a fair trial.

Defence lawyer Elizabath Hall told TVNZ1's Breakfast this morning her concerns with the bill were that it stops relevant evidence being admissible and that pre-recording cross-examination is misguided.

"First concern, which is probably the easiest to understand, is the concept that the norm would be pre-recording cross-examination of complainants' evidence," she said.

"Currently under New Zealand law, it is possible to pre-record a complainant's evidence entirely, but it's used sparingly because of the very real dangers that it carries to fair trial rights.

"The biggest risk is between the time of pre-recording the cross-examination and the actual trial there will be more information that comes to light that's available that couldn't be put to the complainant, which will mean the complainant has to be re-interviewed, which will undermine the entire purpose of doing it in the first place."

Breakfast host John Campbell raised examples of "quite shocking" stories from court, including a complainant's floral bra being shown as evidence in whether it implied some form of consent.

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Kirsten Lummis talks through a recent case where a photo of a woman’s bra was held up in court by a defence lawyer. Source: Breakfast

"Is this bill a response to this? Doesn't this bill give the judge the right to say to the defence lawyer, 'Stop there'?" Campbell asked.

"The judge already has that right," Ms Hall responded. "Section 85 of the Evidence Act already says that a judge may stop that type of questioning.

"The judge already has the discretion to stop unfair questions. What this bill is saying is you can't trust judges to do that - they must do it."

Ms Hall said there has been arguments from law experts that judges' discretion is appropriate.

"What this bill is doing is actually saying we don't trust our judges, and I think that the judges should be very upset."

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The proposed law change would make the trial easier for victims of sexual crimes, including in the way they give evidence. Source: Breakfast

Later on Breakfast, Ms Logie said that while she acknowledges the concerns, she's committed to the bill as it stands and is "hopeful" it'll pass.

Ms Logie said what she's heard so far was a concern about process, so it is too early to make any changes to the bill as it stands.

"This has been deeply considered and works effectively overseas with no negative impact on a right to fair trial. Why would I concede those points so easily when that is the evidence base, when we've been hearing from victims and survivors and their families for decades that they will not use our justice system again because it is so traumatising.

"I'm still really hopeful that we're going to maintain the support [from MPs on the bill] because this is a culmination of almost decades of work. It's one of the pieces of legislation that has got the most evidence behind it of any that I have seen.

"We've had recent research that is domestic as well as seeing international research - looking at the impacts of these changes and how deeply flawed our current system is - all backing this up, so I'm still hopeful."

Ms Logie said the Law Commission looked at the impact of the justice system on victims of sexual assault and found it was so traumatic it was a disincentive to report any future crime.

She said the bill "enables them [complainants] to give the evidence and not be in front of a theatre of people".

"The key point is that it removes the audience so that you're not exposed to a whole group of strangers when you are re-telling incredibly painful and intimate details that none of us want to have on show."