-
Q+A: They can choose to, they can choose to remove that.
-
Jan Logie: They can challenge it, but the process of doing that they
often find infantilising... (3.45)
-
Q+A: OK.
-
Jan Logie: and difficult, but let's get back to the core of what you're
asking. You're saying that ....
-
Q+A: No, no, no. I want to ask about the proposed changes. Sorry. I
know we're on time and I've got to get to these two points that I know
some in the legal fraternity take umbrage with.
-
Jan Logie: OK, let's (inaudible). (4:00)
-
Q+A: Complainants, under the law changes, could give evidence and be
cross-examined by defence lawyers before
a trial.
-
Jan Logie: Yep.
-
Q+A: How would that reduce the trauma of the experience?
-
Jan Logie: So, the -- and I need to say that we would not be the first
country to do this. The UK does this at the moment. This was first brought
in....
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Q+A: In special circumstances.
-
Jan Logie: No, the defence lawyers have been misrepresenting this.
So, in the UK it is for child witnesses and vulnerable witnesses and the
definition of "vulnerable witness" in the UK includes every
victim of sexual violence. (4:33)
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Q+A: OK. So how would it reduce the trauma?
-
Jan Logie: So, this has been brought in to other jurisdictions. They've
tested that it doesn't have an impact on the right to a fair trial and
they've found that it does not. The benefits of it are that it reduces
the time that the complainant has to hold the details of those incredibly
traumatic events and, when they're giving their evidence, if they are
triggered, retraumatised, feeling that stress.... At the moment, in the
court, the judge has to assess, will giving this person a break influence
the jury's perception?
-
Q+A: OK.
-
Jan Logie: Leaning towards them and there can be, at times, we've heard,
a reluctance to give them a break.
-
Q+A: OK.
-
Jan Logie: And they break down. In a pre-record, they can have that
break, that can be edited out and it will not influence the jury, so...
-
Q+A: So what happens...
-
Jan Logie: It's for the benefit of the defendant and
the complainant.
-
Q+A: So, if this law passes through, someone gives evidence about a
traumatic experience well in advance of the trial, what happens if, when
that evidence is played in the trial, the jury has a question for that
person?
-
Jan Logie: So, in, at the moment....
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Q+A: That person's recalled to court.
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Jan Logie: There is a recall provision within this legislation and
when the... (5:50)
-
Q+A: So that means you go to court twice instead!
-
Jan Logie: The great thing is, we get to call on overseas examples
of having done this to test how big an issue that likely is, and so the
2018 review of the experience in New South Wales found that this is an
area of concern, that in over 200 cases they had one
recall. OK? So that may....
-
Q+A: But it happens. I've been to trials.... But there is a possibility
that victims, instead of going to court once, go twice.
-
Jan Logie: Yes.
-
Q+A: Let me ask you another side of it.
-
Jan Logie: No, I just want to push back on this a little bit.
-
Q+A: That's a possibility. There's a provision of that in the law.
-
Jan Logie: There's a possibility that we are aware of, and the overseas
evidence says that the counsel organise their case better, and that there
are far less likely chances of interruption and they are able to request
to be rescheduled if they don't have their evidence.
-
Q+A: So section 23 of the Bill of Rights codifies a defendant's right
to silence. Now, this applies to all criminal cases at the moment.
-
Jan Logie: That's right.
-
Q+A: So it means that the defence doesn't have to show any of its cards,
it doesn't have to disclose any of its case until the prosecution has
done so. Just let me finish. So, if you are requiring a defence team to
cross-examine someone months -- maybe even a year -- before a trial, how
are you not requiring a defence to sacrifice its right to silence? (7:10)
-
Jan Logie: So, I'm coming back to two things here. So, one, the, that
argument played in 1999 and the Law Commission, when they considered these
reforms, um... suggested that we should not have pre-record and then they
reconsidered, they heard the defence parties' concerns about this and
they heard the other arguments and they looked at overseas evidence and
they recommended that we make this change. The right to silence is fundamentally
about the right not to incriminate yourself. That actually presenting
a case and putting a case.... What we want in our courts is a testing
of the evidence. (7:56) That is not a right
to take the prosecution by surprise and rely on that to win the case.
-
Q+A: The way our ... the way our defence system is set up, the defence
has every right to keep all of its cards and its defence close until the
prosecution has presented its case. (8:14) The
reason for that is that things are often disclosed incredibly late throughout
the trial process. If you are requiring a defence lawyer to cross-examine
a complainant or a witness a year in advance of the trial, I don't understand
how that doesn't show the prosecution exactly the kind of strategy that
the defence intends to use. (8:32)
-
Jan Logie: They get to respond appropriately to that and we are testing
the evidence.
-
Q+A: But they're giving that up.
-
Jan Logie: We are testing the evidence...
-
Q+A: But they're giving that up. (8:40)
-
Jan Logie: In our court, which is the fundamental point of justice.
And again, this has been done overseas, tested, found not to undermine
the right to a fair trial, has been considereed by the Law Commission,
has been given two Bill of Rights vets.
-
Q+A: Did everyone in the Law Commission agree? Did everyone in the
Law Commission agree?
-
Jan Logie: We have had a clear recommendation from the Law Commission.
-
Q+A: OK, my point is that it's contentious, right? (9:02)
-
Jan Logie: Well, it is overseas experience. As a country we are so
very far behind every single other jurisdiction.
-
Q+A: I know that there are leading barristers....
-
Jan Logie: and at the moment we have a one percent conviction rate.
I want you to hold that.
-
Q+A: OK, the one percent conviction rate from where?
-
Jan Logie: An epidemic of sexual violence and a one percent conviction
rate and ....
-
Q+A: I've got to stop you there.
-
Jan Logie: And our provisions allow the judge to disallow pre-record
if they believe it will undermine ...
-
Q+A: I'm sorry, I have to (inaudible) you there. I've looked at the
Ministry of Justice report into the (inaudible) sexual violence. So, a
third of cases that were reported to police...
-
Jan Logie: That's right.
-
Q+A: Resulted in someone being criminally charged.
-
Jan Logie: Thirty-one percent of those. I am quite aware of that.
-
Q+A: Right, thirty-one percent. So, of those, 36 percent resulted in
a conviction. Nine percent -- just nine percent -- of those defendants
were found to be not guilty and twenty percent (inaudible).
-
Jan Logie: So, when we say one percent, we're comparing against the
Crime and Victims survey prevalence data, (10:02)
which is where people describe what they've experienced and it
is assessed according to our law.
-
Q+A: Let me ask you....
-
Jan Logie: And then we know that of those six percent of those people
report to the police.
-
Q+A: OK, but that's survey. Again, I know that it is in everyone's
interest that those people who have been sexually assaulted to get justice.
-
Jan Logie: Absolutely, and let me say that in that survey, it is not
those people saying "I have been sexually assaulted." It is
describing a behaviour that matches our definition of it.
-
Q+A: I have to ask you about the second major gripe that many defence
lawyers have and that means that the defence would have to apply for permission
to run evidence and question a complainant about their previous sexual
history with a defendant. Why do we need that change?
-
Jan Logie: So, they ... this is... well, again, just bring us into
line with the UK, Australia and Canada. They (10:55)
have this, and we're not disallowing any of that evidence. We are requiring
that there is a relevance threshold.
-
Q+A: But, but ....
-
Jan Logie: It's bringing it into line....
-
Q+A: So what's the relevance threshold at the moment for all evidence
in all trials?
-
Jan Logie: So....
-
Q+A: All evidence has to be relevant.
-
Jan Logie: At the moment, let me say, so Professor Elisabeth McDonald's
very recently done research around that, and using audio tapes of what's
happening in our courts and she found evidence of, quite regularly, so
an example of a complainant's having kissed a defendant once before ....
-
Q+A: I'm running out of time, so I just need to say it up to you. No,
OK..
-
Jan Logie: It's used as a definition or evidence of consent. (11:34)
-
Q+A: OK, as you know, ...
-
Jan Logie: I question....
-
Q+A: OK, but if, for example, there is a sexual assault trial, in which
the act of sex is not denied by either party, but the issue of consent
is central, surely that is relevant. The relationship history between
the complainant and the defendant is relevant.
-
Jan Logie: Yeah!
-
Q+A: At the moment, under our current legal threshold, (12:00)
all evidence presented by both the prosecution and defence has
to be relevant. This is essential, this is the pivot of our....
-
Jan Logie: No. This is, I mean ... I would argue that, at the moment,
our Evidence Act, relevance, is out of step with our criminal.... that
at the moment consent in our law cannot be assumed, given in general,
or for the future, but the way that it is being argued in the court and
the evidence that is being introduced is exactly at odds with the criminal
definition of consent and the other critical point is here....
-
Q+A: To that point -- it has to be relevant.
-
Jan Logie: Yes, this is what we're ensuring. So the defence will have
to apply to prove that the evidence is relevant before it's admitted.
In the UK, where this happens at the moment, so the twenty-five percent,
I think, of cases the defence applied for that evidence to be introduced
and 87% of those times the judge said, OK, yes, this is
relevant.
-
Q+A: I know, I just have to note that....
-
Jan Logie: And allowed it to be introduced. We're not getting rid of
it, but it has to be.... When we ....
-
Q+A: Hang on, hang on a second. (13:07)
Because we're almost out of time. I know, we could go all day. But it
was just ... it's a really interesting subject and a complex subject....
-
Jan Logie: It is.
-
Q+A: And I'm glad that we can give it this time and attention. I know
that many of the defence lawyers who oppose your legislation and there
are some significant names there -- the Criminal Bar Association, which
includes prosecutors, the New Zealand Bar Association, the Defence Lawyers'
Association, the Criminal Committee of the Auckland District Law Society.
They have some issues with the international examples that you quote as
part of this. I'm just acknowledging that. I know we have to move on.
-
Jan Logie: But I would also say that some of the examples of their
responses to that have been wrong.
-
Q+A: OK.
-
Jan Logie: And we do need to say that, of the 81 submissions, ten opposed.
-
Q+A: But we shouldn't. I mean... So how many submissions were opposed
to assisted dying?
-
Jan Logie: And also to say that the Law Commission considered all of
those perspectives and ...
-
Q+A: All Right.
-
Jan Logie: Overseas evidence and they recommended this. We have a really
strong evidence base. To be honest with you, in my history in Parliament,
I have never seen a piece of legislation with such a strong evidence base.
-
Q+A: Is it...?
-
Jan Logie: The concerns about the right to a fair trial -- the judge
holds that role in the court to ensure it and we have built that in every
part of the legislation to maintain that job, of them in the court. We've
not taken it away at all.
-
Q+A: All right. We will follow it this week in the courts no doubt.
Jan Logie, thank you very much for your time.
-
Jan Logie: Thank you.