May 13, 2022 7:00am by David Farrar

Are defendant rights being eroded?

Emma Priest writes:

I was a senior Crown prosecutor for 11 years, prosecuting many sexual trials before I became a defence lawyer. Although my view on the criminal justice system as it applies to sex trials will be unpopular with some, I feel it is my duty to correct some misconceptions.
Rape is a devastating crime for the victim. A false conviction for rape, however, is a devastating injustice for an innocent defendant.
A conviction for sexual offending means years in jail, often followed by no employment, travel, and very real restrictions for the rest of one’s life. The stakes are enormous and the jury has to get it right. Measures to depart from traditional jury trials for defendants may be attractive but that does not make them just or desirable.

There is a reason we require conviction beyond reasonable doubt. Moses ben Maimon in the 1100s said “it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.” and this principle remains with us today.

It has been law for a long time that New Zealand lawyers cannot cross-examine complainants about their sexual history or reputation unless a judge decides it is relevant and a miscarriage of justice would result without it. It is unfair to suggest that slut-shaming is a hallmark of cross-examination. Complainants now have the protection of automatic name suppression, support people in court, and often appear via CCTV. Judges intervene where lawyers (infrequently) get close to the line.
It is important to distinguish between bullying and testing the evidence where the allegations are denied.

The term “bullying” has become as misused as “unsafe”. Vigorous cross-examination is not bullying.

Sometimes the complaint arises years or decades later. People make complaints to the police about a party that happened 20 years earlier. Think back to a party in your 20s, when maybe you met someone and had a sexual encounter. You were both a bit drunk and you thought they were “into you”. The police contact you now, 10 or 20 years later, tell you she didn’t want sex that night and that you are to be charged with rape. There is no statute of limitation in New Zealand and you can be prosecuted 10 years later – or 30 or 40.

I do wonder if there should be a statute of limitation on certain crimes in New Zealand. How do you defend yourself when your memories of 30 years ago about a specific event will be very poor. Having said, that you don’t want people to get a free pass because of time, especially if they were in a position of authority over the complainant – such as a parent or teacher.

We must push against a criminal justice system that starts with the presumption that complainants are telling the truth. Yes, I accept many are telling the truth, but there is much greyness. A complainant can honestly have not consented but, in that same encounter, a defendant can honestly believe there was consent. Both are right. This doesn’t take away from the complainant’s negative experience, but also it doesn’t mean the defendant is guilty of rape.

I think it is fine to start with a presumption of truth, but it shouldn’t end there.