Inquiry into trial process recommended

THE government should undertake an inquiry into whether the present adversarial trial process should be modified or replaced with some alternative model, either for sex offences or for some wider class of offences, the Law Commission is recommending.

And no change should be made at present to the provisions of the Evidence Act 2006 bearing on disclosure to the court of previous convictions or other evidence relating to the propensity or veracity of a defendant in criminal proceedings.

These two recommendations are made in the commission’s report Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character, which was tabled in Parliament on 12 June and which is available at www.lawcom.govt.nz/ProjectReport.aspx?ProjectID=136.

"The law has changed since the trials that gave rise to this reference," Law Commission President Sir Geoffrey Palmer said the day the report was tabled.

"In particular, the Court of Appeal held that the Evidence Act 2006 that came into force on 1 August 2007 changed the law relating to the admissibility of previous convictions and similar offending.

"The issue in this reference was how previous convictions or misconduct which point to propensity to offend are balanced against the prejudicial effect when a jury knows of such prior behaviour."

The report, Sir Geoffrey said, had been difficult and demanding. The subject was one upon which opinions differed markedly.

"The commission takes the view that the law prior to the commencement of the new Evidence Act was too restrictive but now the Court of Appeal has held that a different approach is to be taken.

"The commission believes that we need to wait and see how that approach works out in cases."

The commission is recommending it should continue to monitor and further assess the operation and impact of the Evidence Act 2006 relating to previous convictions, propensity and veracity. The commission will report back to the government by 28 February 2010.

"In the course of our investigations, we uncovered some disturbing features of the trial process as it applies to sexual offences, "Sir Geoffrey said.

"We formed the view that the government should undertake an inquiry into whether the present adversarial trial process should be modified or replaced by some alternative model, either for sex offences or for some other wider class of offences.

"The Task Force on Sexual Violence which is presently sitting should be asked to define the issues and possible options that could be considered by that inquiry.

"We do not express any view about what the outcome of the inquiry should be but we are troubled about the manner in which these cases are currently dealt with," Sir Geoffrey said.

The report noted that the commission would be happy to assist in that enquiry if required to do so.

In order to ensure that the report reflected the manner in which trials were actually conducted, the Law Commission asked Justice McGechan QC, a retired High Court judge, to lead this project on its behalf. Most of the work in this report is his, but the commission took responsibility for it all. The commission, wanted to thank Justice McGechan for the hard work he had done. He "made an excellent contribution to our deliberations," Sir Geoffrey said.