This report presents the findings of a qualitative study that collected data from a wide range of stakeholders involved in the Sexual Violence Court Pilot, and relevant quantitative data provided by the Ministry of Justice.

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 Acknowledgements

Disclaimer

Table of Contents

Glossary

Category 3 crimes (offences) are:

• punishable by imprisonment for life or by imprisonment for 2 years or more, except those offences listed in Schedule 1 to the Act (category 4 offences);
• heard by Judge-alone trial in a District Court unless the defendant elects a jury trial;
• able to be transferred to the High Court if a Protocol order is made, in which case the type of trial will be either a Judge-alone trial or a jury trial in the High Court (depending on whether the defendant had elected a jury trial or not).
• in some instances, despite a defendant electing a jury trial, the court may order that the trial be conducted by a judge without a jury: see section 102 or 103 (long and complex cases or juror intimidation).

Note on Terminology

^{1 Orth (2002). Secondary Victimisation of Crime Victims by Criminal Proceedings. Social Justice Research. Volume 15, Issue 4. Pp 313- 325}

Note on Verbatim Comments

1  Executive Summary

1.1 Background, Objectives and Method

Background

^{2 Ministry of Justice (2019). New Zealand Crime and Victims Survey, Cycle 1 2018. Ministry of Justice, Wellington.}

^{3 Kingi, v. and J. Jordan (2009). Responding to Sexual Violence: Pathways to Recovery. Ministry of Women’s Affairs | Minitatanga Mō Ngā Wāhine. Wellington.}

^{4 Law Commission Te Aka Matua O Te Ture (2015). The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes. Wellington.}

^{5 The District Courts of New Zealand, (2017) Preliminary Evaluation: Sexual Violence Pilot Courts. Ministry of Justice, Wellington}

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1.2   Overview of Findings

Best Practice Guidelines and Pilot Processes

Overview of Pilot Impacts

^{6 http://www.districtcourts.govt.nz/assets/Uploads/Publications/Best-Practice-Guidelines.pdf}(external link)

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Timeframes in the Pilot

^{7 The analysis compares cases in the Auckland and Whangarei courts that match the criteria for entry to the pilot (Category 3 sexual violence cases that had a not guilty plea and elected trial by jury), from two years pre-pilot, with cases from the first two years of the pilot (1 December 2016 to 30 November 2018)}.

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Pilot Versus Status Quo

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2 Background, Objectives and Method

2.1 Background

The 2015 Law Commission report, The Justice Response to Victims of Sexual Violence,⁸ considered whether the processes for justice in cases of sexual violence required changing to improve fairness, effectiveness, efficiency, and how complainants experienced the court system. The report found that the criminal justice system often failed to respond appropriately to victims of sexual violence and poses a risk of secondary victimisation⁹, which may contribute to the low rates of reporting of sexual violence to the New Zealand Police. Fear and distrust of the legal system is another reason that victims often do not report incidents of sexual violence perpetrated against them¹⁰.

The average time from filing of charges to case disposal¹¹ for jury trials of sexual offences in District Courts for 2014/15 was 480 days¹² and delays and adjournments in trials were common. Lengthy timeframes to get to trial has been identified as a major contributing factor to the secondary victimisation that complainant- witnesses in sexual violence cases often experience as there is a need to retain memories in detail in order to give accurate evidence in court.¹³ In addition, complainants feel unable to ‘move on’ in their lives until the justice process has concluded.

Context

District Courts have many stakeholders, processes and interactions that impact on the data that can be obtained about specific projects such as the SVCP. All District Courts operate within unique community characteristics and may adapt in various ways to the needs of those communities.

^{8 Law Commission Te Aka Matua O Te Ture (2015). The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes. Wellington.}

^{9 Orth, U. (2002). Secondary Victimization of Crime Victims by Criminal Proceedings. Social Justice Research. Vol. 15, No. 4.}

^{10 Kingi, v. and J. Jordan (2009). Responding to Sexual Violence: Pathways to Recovery. Ministry of Women’s Affairs | Minitatanga Mō Ngā Wāhine. Wellington.}

^{11 Case disposal occurs when the proceeding of a case is concluded; this can occur through a conviction, acquittal, discharge or withdrawal of a case.}

^{12 Law Commission Te Aka Matua O Te Ture (2015), p 42.}

^{13 Gravitas Research and Strategy (2018). Improving the Justice Response to Victims of Sexual Violence: Victims’ Experiences. Ministry of Justice: Wellington.}

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The Auckland District Court serves the central Auckland community¹⁴, is situated in the Auckland Central Business District and, as a region has the highest population density (24.9 people per hectare¹⁵), is growing faster than the New Zealand average and is the most ethnically diverse region (39% were born overseas)¹⁶ in the country. It receives SVCP cases from the Waitakere and North Shore District Courts and provides other specialist courts, namely the Family Violence Court, Court of New Beginnings, Alcohol and Other Drug Treatment Court, Youth Court, Rangitahi Court and Pasifika Court as well as the SVCP. For two years pre- pilot at the Auckland District Court, 141 sexual violence Category 3 cases went to trial, compared with 91 cases in the first two years of the SVCP.

The Whangarei District Court serves the greater Whangarei district, which has had a steadily increasing population over the last 20 years, with a rapid increase in the last five years. The Whangarei District Court is a provincial court, with large rural areas but with more professionals than other occupations.¹⁷ It receives SVCP cases from the District Courts in Dargaville, Kaikohe, and Kaitaia and provides a Youth Court weekly. For the two years pre-pilot at the Whangarei District Court, 33 sexual violence Category 3 cases went to trial, compared with 19 cases in the first two years of the SVCP.

Response

The Law Commission Report made wide-ranging and comprehensive recommendations that could improve the way that the justice system responds to victims of sexual violence. These recommendations included the establishment of a specialist court for sexual violence to be implemented first as a pilot, with the objective of minimising the risk of secondary victimisation of complainants.¹⁸

In response to the Law Commission’s recommendation, the Ministry of Justice (the Ministry), with the support of the Chief District Court Judge, implemented the judicial initiative of the Sexual Violence Court Pilot (SVCP) in the Auckland and Whangarei District Courts in December 2016. Initially due to run until the end April 2019, the Governance Board has subsequently agreed to continue the pilot until such time as a decision is made about its future. The primary objective of the SVCP is to trial improved case and jury trial management, within existing legislation.

^{14 The areas served by the Auckland District Court are bounded generally by: Waitemata Harbour in the north; Avondale in the west; Onehunga in the south and Glendowie in the east (Ministry of Justice, Regional Service Delivery, Operations Support).}

^{15 Fredrickson, C. (2014) Measuring Auckland’s Population Density. Research, Investigations and Monitoring Unit, Auckland Council.}

^{16 Auckland Tourism, Events and Economic Development (2017) Auckland Growth Monitor , aucklandnz.com/auckland- index;http://archive.stats.govt.nz/Census/2013-census/profile-and-summary-reports/quickstats-about-a-(external link) place.aspx?request_value=13170&tabname=Culturaldiversity(external link)}

^{17 Whangarei District Council community profile. https://profile.idnz.co.nz/whangarei(external link)}

^{18 Law Commission Te Aka Matua O Te Ture (2015), p 12.}

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The pilot’s governance board has developed Best Practice Guidelines¹⁹ for this purpose (see Appendix A), which are intended to reduce pre-trial delay and ensure flexible, workable trial arrangements.

The SVCP operates specialist lists so that all serious (Category 3) sexual violence case proceedings, where the defendant has pleaded not guilty and elected a trial by jury, are dealt with in designated courtrooms and with cases being more closely managed by designated court registry staff.

2.2       Evaluation Purpose

A preliminary evaluation conducted by the District Courts of New Zealand in 2017²⁰ showed positive early results from the pilot in terms of timeliness of cases through the court system. As the pilot now draws toward a conclusion, a comprehensive evaluation of the pilot has been conducted by the Ministry, with the qualitative component of this evaluation conducted independently by Gravitas Research and Strategy.

The objectives of the evaluation were to:

• Assess the extent to which the changes that have been implemented achieve the outcomes intended.
• Identify any unintended consequences of the pilot on the timeliness and processes of non-pilot cases.
• Identify the changes to standard court process, procedure, resource, and infrastructure that have been implemented through the Pilot to improve case management and, as a result, timeliness.
• Identify any challenges, requirements, and opportunities for potential wider roll-out of a Sexual Violence Court.

2.3       Evaluation Method

Data was collected via in-depth face-to-face interviews (n=41) and two focus groups (n=18 participants), across the two pilot sites, conducted by members of Gravitas’ executive research team²¹. Participants identified by the Ministry as suitable for this evaluation comprised pilot stakeholders (judiciary and other professionals involved in delivery) and complainants who had experienced one of the pilot courts as witnesses. Not all participants identified as suitable for interview were available.

Contact details for all participants except complainants were provided by the pilot project manager. Complainants were approached in the first instance by sexual violence victim advisors (SVVAs) and then, with complainants’ permission, contact details were passed on the evaluation team. Informed consent was gained from all participants prior to interview.

^{19 http://www.districtcourts.govt.nz/assets/Uploads/Publications/Best-Practice-Guidelines.pdf(external link)}

^{20 The District Courts of New Zealand. (2017) Preliminary Evaluation: Sexual Violence Pilot Courts}

^{21 Gravitas Research and Strategy are an independent research consultancy with extensive experience conducting qualitative research on sensitive subject matter and with vulnerable participants. All interviews were conducted by skilled qualitative researchers.}

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This included providing information regarding the purpose of the evaluation, how data would be used, who it would be shared with, and how confidentiality would be maintained.

Table 1: Evaluation Participants

Interviews were structured around topic guides (see Appendices B and D) to ensure that data collected would address the evaluation objectives and to maintain consistency across interviews. The main topics covered were:

• Case and trial management.
• Trial scheduling.
• Resourcing and infrastructure.
• Impact of the pilot on stakeholders and complainant witnesses.
• Impact of the pilot on other cases.
• Operational differences between Auckland and Whangarei.

However, interviewers used a free-flow conversation style so as to capture what was important to individual participants in the context of the sexual violence court pilot. Interviews took between 20 minutes and 1 ½ hours.

Subsequent to the interviews, two focus groups were conducted, one in each of the pilot sites (see appendix C for discussion guide). With the exception of the judiciary and complainants, all those involved in the delivery of the pilot who had participated in an interview were invited– with 9 attendees in Auckland and n=9 attendees in Whangarei. As the focus group question guide shows, the purpose of the groups was to discuss additional aspects of the pilot and to gather more detail on areas that had been raised proactively by participants during interviews.

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With the permission of participants, all interviews and focus groups were audio-recorded and subsequently transcribed to assist in the analysis process. All data was stored securely in accordance with Gravitas’ data management protocols.

Data analysis adopted a thematic approach in which transcripts were reviewed for common themes in the data that addressed the evaluation objectives.

2.4       Quantitative Data from the Ministry

The Ministry collects data on all cases in its Case Management Systems (CMS) database. Relevant data has been extracted from the CMS by the Ministry to help answer some of the evaluation questions. The data extracted includes the number of cases, dates that key events occur in all cases, number of cases disposed in the most common case outcomes and the number of events that occur for each case. Case data for the pilot courts has been collected for two years pre-pilot (1 December 2014 to 30 November 2016) and two years of the pilot (1 December 2016 to 30 November 2018). Differences in these values for these two time periods have been calculated as averages and medians.

Other evaluation data has been collected by the Ministry from the SVVAs at each pilot court. This data comes from their observations of individual victims’ experiences of their jury trial during the pilot (n= 107). The data included whether complainants were met by the Crown, Prosecutor, SVVA or Judge before the trial, if they had education about the court or support at court, if pre-recorded evidence was used and if they had to appear only once. The data has been summarised and where possible, analysed quantitatively. General comments provided by SVVAs have been summarised. Key findings from these two analyses are incorporated into this report where appropriate.

2.5       Research Limitations and Exclusions

Two research limitations/exclusions should be noted:

• The evaluation did not include a review of the case files of complainant witnesses who had experienced the Sexual Violence Court Pilot (or sexual violence cases dealt with outside the pilot to compare and contrast).

• With the exception of one complainant witness who was referred to the evaluation team by an independent victim advocate, all complainant witnesses interviewed for this evaluation were selected, contacted and referred on to the evaluation team by SVVAs involved in the Sexual Violence Court Therefore, complainant witnesses included in the evaluation should not be considered to be a random sample of those who had participated in the pilot.

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3 Preparation for, and Introduction of, the Pilot 

3.1       Context: Child/Vulnerable Witness Protocol in Whangarei

In 2014, Judge Harvey initiated a protocol²² for child and vulnerable witnesses at the Whangarei District Court, which received support from, and was adopted by, other members of the judiciary who sit at Whangarei. While the protocol was intended to be implemented for child and other vulnerable witnesses in any jury trial, most witnesses to whom the protocol was applied appeared as complainant-witnesses in sexual violence cases. The protocol covered a range of aspects of trial management and treatment of young and vulnerable witnesses to minimise the potential negative impact of the justice process on them. The protocol was backed up by extensive research from overseas jurisdictions that showed how more ‘victim-centric’ processes in courts could reduce stress for complainants and, therefore, improve the quality of their evidence.

The protocol includes processes such as complainants viewing their evidential video interview (EVI) prior to the trial; not being brought to court until required to give evidence, with just enough time to settle in; having the waiting/CCTV room more welcoming and ‘child friendly’; implementing frequent breaks during evidence; ensuring evidence does not go beyond 3pm; the judge, prosecutor, and defence briefly meeting the witness before the trial starts; judges not allowing tagged or confusing questions to be asked by defence counsel; and encouraging prosecutors to call counter-intuitive evidence first, thereby educating the jury before they hear the complainant-witness’s evidence.

For many stakeholders in Whangarei, the implementation of the pilot was experienced as an extension of the protocol that had been in place for two years prior and so did not require significant adjustment to either practices or mindset.

^{22 Judge Harvey. Child/Vulnerable Witness Protocol. Whangarei District Court. Unpublished document.}

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3.2       Stakeholders’ Initial Reaction to The Pilot

Upon hearing about the pilot, all stakeholders responded positively. Most were enthusiastic about the proposed changes and the opportunity to try something new that might benefit complainants:

In most cases, there was optimism that the objective of reduced timeframes would be achieved, thereby allowing complainants (and defendants) to move on more quickly with their lives. Some stakeholders reported feeling reassured that the objectives were achievable because of the processes that had been put in place.

Stakeholders who work directly with complainants reported feeling relief that the issues around timeliness and treatment of complainants were being acknowledged and addressed by the Ministry of Justice:    

The only true frustration identified among a small group of stakeholders was that the changes proposed were not more far-reaching. In particular some stakeholders were disappointed that jury trials were being retained (as opposed to sexual violence cases being heard by judges alone).

Pre-Pilot Concerns

Stakeholders generally reported having few concerns on hearing about the pilot and its objectives. Stakeholders working directly with complainants reported having concerns that the pilot would focus solely on streamlining administrative practices (case and trial management) with little or no consideration for the complainant– so there would be no noticeable change for the complainant - or worse, the complainant’s

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experience would be negatively impacted by a lack of flexibility in the process. This group were also wary of the extent to which the pilot could be successful given the (pre-judicial-training) attitudes of some judges towards complainants of sexual violence

Among defence counsel, upon hearing about the pilot, there was concern that the objectives of the pilot would make it harder to defend clients and/or to increase conviction rates. Defence counsel were also concerned that all eligible sexual violence cases would be pushed through a standardised streamlined process, with no consideration given to ‘special cases’ where more time might be required (for example, where defendants have mental health issues which require additional assessments, reports etc.). It is reported anecdotally that some defence lawyers in Whangarei, upon receiving the information about the pilot, decided not to deal with sexual violence cases any longer. It is perceived that this will have made it increasingly difficult for Legal Aid to find providers to assign cases to and may have reduced options for defendants:

Within the judiciary, prior to the commencement of the pilot there was some concern regarding the potential negative impact on non-sexual violence trials, particularly serious cases involving personal violence:

One judge noted that they had had pre-pilot concerns around the potential impact of the guidelines on fair trial processes, in particular regarding the perceived ‘constraints’ on the cross-examination process.

The aspirational goal of the pilot was to achieve a six-month average timeframe from trial callover to the trial²³. Stakeholders noted that, when this goal was announced, they felt it was over-ambitious, particularly because it was such a huge change from the then current two years that many sexual violence trials were taking.

^{23 The District Courts of NZ. Preliminary Evaluation: Sexual Violence Pilot Courts (2107), p12.}

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3.3       Stakeholder Perspectives on Pilot Objectives

Stakeholders identified the objectives of the pilot being twofold - firstly, more timely progression of serious sexual violence cases through the court system:

Secondly, minimising any negative impact of the justice process on complainant-witnesses:

Stakeholders included in the evaluation show strong support for the objectives of the pilot and see many advantages in timelier outcomes and minimising the risk of secondary victimisation for complainants.

In addition, stakeholders perceive that the pilot aim of improved timeliness is of benefit to defendants, particularly those in custody or on bail.

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3.4       Training and Ongoing Support Early in the Pilot

Judicial Training

All judges designated to preside over pilot cases have undergone specialised training on how sexual violence cases are dealt with in the justice system, which included content drawing on research into how complainants experience the process. For some judges, despite having presided over sexual violence cases for many years, this was their first insight into the perspectives of complainants. Judicial evaluation participants considered the judicial training to be very intensive and effective. Strengths of the training cited by judicial stakeholders included that it was interactive, complainant-focused, had a theoretical base, and that material presented was often new to judges – “a true learning experience.”

Stakeholders in various roles within the pilot agreed that this judicial training has been a critical element of the pilot. Through the judicial training, judges have become more aware of the impacts of the justice system on sexual violence complainants and consequently have genuinely embraced the pilot guidelines.

Counsel Training

Early in the pilot, Whangarei court held an education workshop, involving judges, Crown prosecutors and defence lawyers for them to be informed of the scope and purpose of the pilot, and what that meant for how witnesses could be questioned. The workshop included sessions by a communications expert, covering appropriate ways to question child and other vulnerable witnesses, including a video that supported and demonstrated the material covered.

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It is unclear whether a similar workshop or training session was held in Auckland for counsel, however there was no mention made of this by any stakeholders.

Training of Court Staff

No specific sexual violence training was provided for court staff working within the pilot. Training in terms of operation and delivery of the pilot was conducted ‘on the job’ and via internal meetings.

Stakeholder Meetings

Stakeholder meetings provide an opportunity for pilot participants to share ideas about what is and isn’t working well and what changes could be made to help the pilot run more smoothly and create more positive impacts. All stakeholders who had attended these meetings viewed them positively and essential to the effective operation of the pilot. It was also noted that the meetings helped build rapport between the stakeholders at the start of the pilot.

When interviewed in the early part of 2019, stakeholders in both Auckland and Whangarei expressed disappointment that commitment to the meetings seemed to have waned significantly. Stakeholder meetings had been held frequently at the start of the pilot and were well-attended; by early 2019, meetings were held infrequently, and attendance was low.

Governance Board

The Governance Board for the pilot consists of the Chief District Court Judge and three other members of the judiciary, with other stakeholders invited to attend monthly meetings (including the pilot project manager and the judicial resource manager). Progress updates are provided to the Board via monthly quantitative reports and a short report from the pilot project manager.

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Stakeholders who are aware of the Board consider their expertise (legal expertise in particular) invaluable and they act as an important ‘sounding board’ regarding questions, concerns and suggestions for new ideas that have arisen over the course of the pilot.

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4 Case Management

* ‘Case management’ encompasses all of the activities and processes that are required to take place from the point that the case enters the pilot (not guilty plea and defendant elects a trial by jury), right through to case disposal and sentencing, where this occurs.

This section covers all aspects of the pilot related to pre-trial processes and events – from entry of a case into the pilot and assignment of staff and judicial resource, through the case review hearing, trial scheduling, trial callover and any other pre-trial activities deemed necessary. It loosely addresses Guidelines 4 to 19 (although it should be noted that it was not the purpose of the evaluation to evaluate each guideline individually so not every guideline is specifically addressed here.)

4.1  Designated Judges

Guideline 6: Only judges designated for the purpose may preside over a case in the Pilot. The Chief District Court Judge will designate judges from time-to-time based on experience and training.

Once the file has gone through case review, it is physically assigned to a designated pilot court judge who ideally will preside over callovers and the trial itself. This enables the judge to familiarise themselves with the case typically months in advance of the trial – as opposed to sometimes only days or even a few hours before the trial for non-pilot cases:

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In contrast, in non-pilot cases, the timing of files being provided to judges is a common cause for delays in trials going ahead as scheduled.

Only judges who have attended the judicial training on sexual violence and have been designated by the Chief District Court Judge have presided over cases in the pilot. There are three judges who hear pilot cases in Whangarei and 13 in Auckland. Each jurisdiction also has a designated pilot liaison judge who has administrative responsibilities around the scheduling and conduct of pilot trials. Whilst Judge Harvey has remained the liaison judge in Whangarei from the start of the pilot, Auckland has had three different liaison judges (Judges Kiernan, Collins and Paul).

Stakeholders are supportive of the guideline that only judges who have completed the judicial training may preside over pilot cases. Given that they have been educated on how the justice process may impact on complainants in these cases, they are therefore more likely to be aware of and alert to factors that may cause secondary victimisation for complainants.

However, in both Auckland and Whangarei it was highlighted that judicial resource is a key limiting factor in being able to achieve and maintain reduced timeframes to trial. Considerable concern was expressed by stakeholders about designated judges leaving the pilot for various reasons and not being replaced. It was felt that the continued success of the pilot model would be at risk if there were a reduction in jury warranted judges, particularly those designated to hear pilot cases.

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 It is also noted that the pilot is susceptible to delays that can occur because of the requirement that only designated judges can sit on pilot cases. If a trial runs over the scheduled time, there is generally no other designated judge available to pick up new cases due to start:

4.2  Case Manager Role

The management of cases through the court process within the pilot is more time-focused and proactive than the management of other jury cases, including pre-pilot sexual violence cases. This is primarily due to the appointment of dedicated sexual violence case managers (two in Auckland and one in Whangarei) who manage sexual violence case files from election of trial by jury (the point that the case comes into the pilot) to the end of the life of the file. The pilot case managers were appointed from within existing court registry staff (although one additional full time equivalent (FTE) roles were resourced for the court registry in Auckland and one additional FTE role was resourced for the court registry in Whangarei).

In Auckland, the two case managers work exclusively on sexual violence cases. In Whangarei, due to a lower volume of cases, the pilot case manager also works on non-pilot jury trial cases. While it varies slightly over time, more than 50 per cent of the Whangarei pilot case manager’s time is allocated to pilot cases.

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Responsibilities of pilot case managers are the same for both locations, and include:

• Making up and updating the judge’s file as required.
• Liaison with complainants regarding bail variations (via the SVVA).
• Liaison with jury trial schedulers.
• Liason with parties regarding availability for hearings and trials.
• Arranging dates for specific events (callovers, pre-trial hearings).
• Facilitating witness arrangements (travel, accommodation, mode of evidence)
• Liaison with Officer in Charge, Crown Solicitor, and Defence Counsel.
• Accepting documents and uploading them to the file.
• Processing pre-trial applications.

This role is viewed unanimously by stakeholders as critical to the success of the pilot.

Case managers are the point of contact for communications from all parties to the case. They adopt a proactive approach in order to avoid any administrative issues arising that may otherwise cause delays to trials.

Case managers liaise closely with judges on case files and judges report that their roles are well supported by the case managers. Other court staff, such as SVVAs, also utilise case managers as the ‘central hub’ for all information and communication regarding a particular case:

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Numerous stakeholders highlighted that the competence of the case managers is critical to the pilot achieving its intended outcomes. Key qualities of the current pilot case managers that contribute to the success of the pilot include:

• Strong understanding of the criminal justice system, including the jury trialprocess.
• Extensive experience within the Ministry of Justice. Case managers have built up an extensive knowledge of court processes generally and sexual violence cases specifically. This allows them to be proactive in dealing with files.
• Well-organised, with high attention to detail.
• High energy – “but also cool, calm and collected under pressure.”
• Strong liaison skills – being able and willing to proactively and articulately engage with judiciary, counsel and other stakeholders as required.
• A genuine desire to have a positive impact on the timely progression of cases and the experience for complainants.

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Both defence and Crown have found that having a dedicated case manager overseeing the progression of cases through the system has been of benefit to them, in that they have a single point of contact. Often, case managers are able to resolve queries or issues raised by counsel. However, should counsel need anything raised with the case judge, they are able to effectively liaise via email through the case manager.

Both defence and Crown counsel also appreciate within the pilot, that case managers pro-actively request things from them that need to be filed or responded to.

Case Manager Caseloads

The pilot case managers are perceived by stakeholders as highly competent and are able to manage their relatively heavy workloads. In Auckland, case files within the pilot are split alphabetically between the two case managers, with each having up to n=70 current cases at any time over the past five months, which has fluctuated to some degree over the pilot (caseloads at the start of the pilot were notably smaller). Caseloads of much more than this – or caseloads being managed by less competent/less motivated case managers - could compromise the level of proactive case management that could be given to each file.

In Whangarei, the caseload has remained at around n=30 over the past year or so and does not constitute a full workload on its own. The case manager also manages the files for other jury trials. There is no evidence to suggest that this impacts on the efficiency of case management.

As noted above, the current pilot case managers are all experienced court staff who have a comprehensive understanding of court processes, strong interpersonal skills and are confident dealing with the range of stakeholders including the judiciary. Stakeholders working with the current case managers felt that less experienced staff members– particularly anyone new to the justice sector – would most likely struggle in the role and there is a real risk that outcomes would not be achieved. These stakeholders commented that careful selection of staff for the case manager roles will be essential to the success of a national roll-out of the pilot.

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4.3  Case Review Hearing

Guideline 7:  All cases in the Pilot must be dealt with by a judge at case review stage.

Guideline 8:      All defendants must be present at the case review hearing unless attendance has been specifically excused, in advance, by the judge.

For jury trial cases outside the pilot, case review hearings are relatively perfunctory, and as one stakeholder noted “of little value”. Cases are often still within the jurisdiction of the police at case review (rather than the Crown) and there is usually no progression of the case in between the case review and trial callover, which may be up to three months.

In contrast, case review hearings within the pilot are guided by the best practice guidelines and are significantly more robust. They tend to be longer and more comprehensive, with judges ensuring that all relevant aspects of the case are covered as per the guidelines. Quantitative data provided by the Ministry of Justice shows that pilot timeframes are longer at case review but more useful, with greater benefits overall .

All case review hearings within the pilot are heard by one of the designated pilot judges (usually the pilot liaison judge), although not necessarily the judge who will preside over the trial unless it is a particularly complicated case, for example with multiple complainants.

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Critical in reducing the need for adjournments is the discussion of important aspects of the trial at case review hearing, as required by Section 12 in the guidelines. These include the need for interpreters or communication assistance, as well as mode of evidence, use of evidential video interview, support person for the complainant, and any pre-trial applications likely, including around admissibility of evidence. These are issues that, pre-pilot, may not have been addressed until the trial callover some months later – or in some cases, just before the trial was about to get underway, often resulting in delays to trial commencement.

Guideline 9: Both Crown and defence must engage in case management discussion and jointly complete the case management memorandum (CMM) as directly by s.55 Act.

Case management memoranda are required to be filed for all category 2, 3 and 4 criminal cases, in which a defendant has entered a not guilty plea. However, within the pilot in Auckland, a more detailed joint case management memorandum, based on the guidelines, has been developed, which Crown and defence counsel complete and file jointly a week before the case review hearing. This is viewed by parties as a positive initiative that encourages them to engage in dialogue about the case early on so that issues can be identified, and all parties made aware of these as early as possible. In Whangarei the practice is for separate filing of case management memorandum by parties, and for judges to go through a checklist of items based on the guidelines during the hearing. However, the Crown and judiciary in Whangarei would like to see a joint memorandum implemented and there are plans to progress this.

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Counsel that work in both the Auckland and Whangarei courts sing the praises of the use of the joint Memorandum, noting that potential trial issues can be identified and resolved in a timelier way.

Both Crown and defence come to case review with an understanding that they need to be prepared to discuss all pertinent aspects of the case that might impact on the trial proceeding smoothly.

The best practice guidelines include that the judge enquires into, and makes direction as appropriate, in regards to a range of aspects of evidence, including evidence admissibility and likely pre-trial applications. This helps to ensure that delays and adjournments are minimised. (Note: Aspects of giving evidence that were found to have impacted pilot outcomes - such as modes of evidence and support are discussed in the following section.)

Closer case management ensures that any potential issues that could risk delays or adjournments are identified early, with pre-trial dates set as necessary to resolve these issues before the trial.

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Some stakeholders reported hoping that there would be more opportunity for robust discussion around case resolution as part of pilot case review hearings – that there would be more judiciary-led discussion of the strengths and weaknesses of the case and hopefully an early resolution. However, it was noted that this does not seem to have happened to date.

In Whangarei, some court staff will sit in on the case review hearing. Staff find this beneficial, noting that it assists in building their knowledge of the case. Judges in Whangarei typically ask the scheduler to attend the case review hearings so dates for the next steps in the process can be confirmed immediately.

Defence Perspective on Case Review

The increased focus on discussion of matters at the case review hearing raises issues for defence counsel in that they typically do not have access to all the evidence by the case review hearing and there is often further disclosure from the Crown after the trial data has been allocated.

In order to avoid potentially unnecessary use of resources, Police commonly do not have EVIs and formal witness statements transcribed until after a defendant has entered a not guilty plea. The timeframe between plea and case review hearing within the pilot (45 working days) means that defence counsel often do not receive formal written statements prior to engaging in the case review hearing – or only shortly before – which can impact on their preparation.

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However, one defence counsel noted that ESR seem very aware of the additional case review hearing requirements and have been providing information back to counsel in a timelier way than pre-pilot. This has been much appreciated by counsel.

There is also a perception among some defence counsel that within the pilot they are being required to commit to trial dates too early.

While one of the aims of the pilot is perceived to be having the same judge following a case right through (to allow them to become more familiar with the case), some defence counsel noted that this often doesn’t happen. Insufficient judicial resource and scheduling difficulties is perceived to account for this.

Most defendants going through the sexual violence courts have their defence funded by the Public Defence Service via the Legal Aid system. Defence counsel note that Legal Aid currently doesn’t recognise the increase in the amount of ‘upfront’ work that defence counsel is now required to do under the pilot. It was reported that the funding for case review hearings ($700) has remained based on the minimal amount of work required pre-pilot – typically the preparation and filing of a two-page memo – rather than the considerable amount of work now required. Some defence stakeholders expressed surprise that Legal Aid had not been better aligned with the pilot.

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Police Resource

Police in Whangarei noted that, at the start of the pilot, they had been under-resourced to meet the transcription demands of the more comprehensive case review hearings. In some cases, transcription requests were being received by police too late to allow time for the transcription to be completed in time to meet the ’20 working days prior to case review’ deadline. A system has now been established so that when the date for the case review hearing is set, the New Zealand Police receive a report from the designated case manager to notify them of the date and transcription requirements. This is then forwarded on to the Officer in Charge, the typists, the criminal justice support unit (and ESR if forensics are required) so everyone is aware of the case review date and what is required to be delivered).

4.4  Trial Scheduling

 Guideline 17.  At the first trial callover, dates will be allocated for any pre-trail application and the trial.

Whangarei has one courtroom dedicated for the scheduling of pilot cases. Auckland started with two dedicated courts, however it became apparent early on that timeframe goals would not be met with this level of resource and the Chief District Court Judge directed that three courts be used for prioritised scheduling of pilot cases. Late in 2018, there were additional courts running pilot trials in order to avoid timeframes being pushed out too far.

Having dedicated courts allows trials to be scheduled as much sooner than previously. (Pre-pilot, sexual violence trials were scheduled into any court in the general mix with other types of trials). In addition, only firm, rather than ‘stand-by’, fixtures are being scheduled for pilot cases.

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Although the guidelines state that dates for pre-trial applications and the trial should be set down at the first trial callover, in practice this is being done at the case review hearing – so effectively much earlier than the guidelines require. In contrast, for jury trials outside of the pilot, a jury trial date will not be set until the first trial callover, or sometimes the second or third callover, depending on when pre-trial issues have been resolved and the case is ready to proceed to trial.

Many stakeholders believe that the change to trial scheduling is perhaps the single most important – and influential – change to the standard trial process

Pilot case managers in both pilot sites have access to the court scheduling calendars and so can propose available dates to counsel prior to the case review hearing. In Auckland, the case managers are also able to schedule trials in. Typically, within the pilot system, trials are being scheduled around six months out from the case review.

Once the firm trial date is set, parties need to work backwards from this date to make sure that everything is ready for the trial to proceed, which requires both Crown and defence counsel to engage earlier on with the case files, which encourages closer case management by parties.

Benefits of Trial Scheduling Process

Both Crown and defence see the benefits in setting firm trial dates only, rather than standby dates (even if they would be earlier) so that there is a high degree of certainty for all involved.

Whilst having a fixed trial date early in the process has benefits for more timely case management, it also provides complainants with a reassurance that actions are being taken (as they may not have been kept as updated by the New Zealand Police as they would have liked²⁴) and that the trial will actually go ahead. Having a fixed trial date early also allows complainants to put plans in place to ensure everything is organised for their time in court – for example, applying for leave from their job, making childcare arrangements, organising for support people to be available, and organising holidays and other major personal activities so they don’t clash with the trial date.

^{24 Gravitas Research and Strategy Limited (2018) Improving the Justice Response to Victims of Sexual Violence. Ministry of Justice: Wellington}

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Stakeholders dealing directly with complainants note that having a fixed trial date early also reduces the amount of contact they need to have with them. This is an important benefit for these stakeholders who typically have large caseloads, but stakeholders also feel that most complainants don’t want to be constantly contacted by court staff, especially when no firm information can be provided. These stakeholders also note that complainants often become concerned where there are lots of appearances by the defendant, especially when court staff can’t tell them what the appearances are for, and fear that the trial may not go ahead. Setting the trial date early provides reassurance.

The decision not to have sexual violence trials as reserve fixtures (and the reduction in adjournments evident through the pilot) means that complainants only need to physically and mentally prepare for trial once. Whilst this preparation still causes considerable anxiety, those working directly with complainants note that at least this anxiety is now not ‘wasted’.

There is only a small group of counsel in Whangarei who defend serious sexual violence cases (and none do sexual violence cases exclusively), and this has been a limiting factor in being able to schedule trials any earlier for some cases.

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Scheduling of Pilot Trials in 2019

In Auckland some stakeholders felt that the drive to get cases scheduled as early as possible that had been evident in 2018 seemed to have waned in 2019. Stakeholders interviewed in February and March 2019 were surprised that cases were being scheduled for August and beyond when there was only one trial a week happening currently (whereas there was capacity for at least three).

Some stakeholders suggest that the increase in the volumes of cases coming into the pilot may have resulted in timeframes increasing as the court resource available has not been able to keep up with the demand.

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4.5  Trial Callover

 Guideline 14: All cases in the Pilot must be dealt with by a judge at trial callover stage.

All trial callovers within the pilot are dealt with by designated pilot judges. As issues normally discussed at trial callover are now addressed at case review hearing within the pilot, trial callovers are used for judges to ensure that everything that could potentially delay a trial is raised and addressed – “The callover is a bit like a rubber stamp”.

In contrast to cases outside the pilot, trial callovers are presided over by the judge allocated to do the trial and generally have a specific scheduled session rather than being mixed in with callovers for other types of cases.

Pilot judges at the Auckland district court have developed a practice of holding callovers via teleconference, rather than in person. These are typically held early in the morning (before court sits for the day). Counsel dial into a courtroom where all proceedings are recorded by the court taker in the normal way as if the hearing was in-person. Audio-recording is also used to provide an independent record of the proceeding. This is an important tool in minimising delays at trial as all parties have access to an accurate record of what decisions have been made regarding the trial. Tele-conferences are now always facilitated from a courtroom, rather than from the case manager’s desk as they were at the start of the pilot, so that media – and the public - can attend if they wish.

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The use of tele-conferencing is viewed by Auckland stakeholders as an efficient use of time and resources, making the court more accessible (by reducing the need to travel and find parking in central Auckland). Tele-conferencing also has the advantage that judges can conduct callovers from other jurisdictions where they might be sitting. Counsel noted that holding the callover by telephone tends to be less formal which can be helpful in terms of counsel raising issues (however, one defence counsel felt that callovers became a little more formal once that parties became aware that discussions were being held in the courtroom and were being recorded).

Auckland stakeholders report that callover teleconferences have become more proactive and counsel feel that they can request a callover if there are issues to raise that cannot be resolved between parties and that require judicial involvement. This is seen as another way of preparing the case for trial and eliminating the risk of adjournments or last-minute pre-trial applications.

In Whangarei, due to the proximity of counsel to the courthouse, tele-conferencing is perceived as unnecessary. Some counsel working in Whangarei feel that things can be completed more quickly when everyone is in the same room.

Guideline 15: All defendants must be present at the trial callover hearing unless attendance has been specifically excused in advance by the judge.

In Whangarei, judges generally require the defendant to attend the callover (exceptions might include where the defendant has been bailed to another region). As well as ensuring defendants are kept well informed of their case, having the defendant attend is also perceived as a practical way for the court to check that the defendant has not absconded, and defence counsel use the appearance at court as an opportunity to catch up with their client, particularly those that live some distance away.

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In contrast, in Auckland, the defendant is generally excused from attending the callover. Some counsel feel that excusing the defendant from attending allows more candid discussion between parties, which may have an impact on pre-trial resolution rates. However, other defence counsel express a preference for the defendant to be present, noting that the charges against them are significant and they need to be aware of what’s going on - and see that their lawyer is working hard on their behalf.

4.6 Other Pre-Trial Activities

Pre-trial Hearings

Court staff note that, in the original design of the pilot, the plan was for the allocated judge to hear all the pre-trial hearings – and judges included in the evaluation report that this is most ideal (to allow them to develop a thorough knowledge of the file). However, this has proved challenging in reality. A lack of judicial resource impacts on the availability of judges to hear pre-trial applications. For example, a judge may be in the different court or different jurisdiction. Court staff note that, while some judges will do pre-trial hearings over the phone, not all will do this, instead opting to give the pre-trial hearing to another judge (who will provide a written decision for the trial judge) – or delaying the hearing.

It was noted that, within the context of the pilot, there is an increased emphasis on identifying, as early as possible, issues that could potentially cause delays to trial:

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There is a perception that more discussion is taking place between parties, reducing the need for pre-trial hearings. This may be more so in Whangarei where a smaller pool of Crown and defence counsel are well known to each other.

However, some defence counsel felt that the shortened time frames to trial were insufficient to allow for pre-trial applications to be heard. One stakeholder felt that more pre-trial applications were now happening on the morning of the trial, which they considered unsatisfactory.

4.7 Impact of Case Management on Timeframes to Trial

In March 2019, stakeholders in both locations perceived the average time to trial from cases entering the pilot to be around eight months. It was felt this was reasonable. Stakeholders reported being satisfied with the reduction in time to trial that the pilot had achieved and viewed this as a clear indicator of the pilot’s success. The impact of the pilot on timeframes can be seen in the following analysis of cases that went to trial:

• From the time cases enter the pilot to the date the trial starts: in Auckland this time reduced by 30% (110 days on average) to 252 days (8 months) and in Whangarei by 39% (201 days on average), to 312 days (10 months). Prior to the pilot, it took an average of 12 months in Auckland and 17 months in Whangarei.
• From the filing of Case Management Memorandum (CMM) to the trial date - In Auckland the average time taken has decreased by 97 days to 180 days (a 35% decrease), while in Whangarei the average time

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taken has decreased by 183 days to 208 days (a 47% decrease). This was analysed as there is a difference in process of the filing of the CMM between the two Pilot courts.

• From the date cases enter the pilot to disposal – the average number of days has decreased by 27% in Auckland (an average decrease of 114 days) and in Whangarei the decrease is 38% (an average decrease of 229 days).
• This means the average time for trial cases to be disposed from entering the case review stage in the pilot is 308 days (10 months) in Auckland and 368 days (12 months) in Prior to the pilot, the average time for cases that went to trial to be disposed from the comparable point was 422 days (14 months) in Auckland and 597 days (20 months) in Whangarei.

A point to note:

In both pilot sites, there were cases that met the criteria for the pilot from 1 December 2016 that weren’t immediately ready for trial. This resulted in some pre-pilot cases being prioritised to use allocated SV Pilot court sitting days to maximise court utilisation. Some pre-pilot cases represented in this data therefore benefitted from pilot practices and received an earlier trial than what would have otherwise been possible.

Many stakeholders felt that it would be challenging (and perhaps unfair to the defendant) to reduce these timeframes further, particularly given (relatively low – and potentially declining) levels of judicial resourcing, coupled with the high, and increasing numbers of sexual violence cases coming to court.

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Other Factors Impacting on Timeframes to Trial

In addition to enhanced case management and changes to the way that trials are scheduled, other factors that have contributed to reduced time to trial include:

• The provision of additional judicial resource

Prior to the pilot being implemented, timeframes for jury trials in Whangarei were increasing due to a lack of judicial resource. The addition of a fourth jury warranted judge, although not one that presides over SV cases, has meant that timeframes have been able to be reduced within the pilot. Perceptions in Whangarei are that timeframes to trial have approximately been halved within the pilot and that the additional judicial resource has made this possible.

• Buy-in from those involved

One of the key factors for the effective delivery of the pilot has been identified as the ‘buy-in’ from those involved in it and a wide range of stakeholders consider this critical to its successful operation.

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4.8  Impact of Case Management on Trial Delays and Adjournments

Most stakeholders report that the enhanced case management has also reduced delays²⁵ and adjournments²⁶ to trials within the pilot.

Stakeholders report that procedural adjournments are uncommon within the pilot. When adjournments do occur, they tend to be related to new evidence or complainants coming to light shortly before the trial or once it has begun – factors which cannot be anticipated by parties.

It was also noted earlier that there is an expectation within the pilot that parties are prepared for the scheduled trial date, having alerted the case manager and judge early to any potential issues that may impact on the trial going ahead as scheduled. For this reason, judges are less likely to grant adjournments to trials, particularly for ‘last minute’ applications by counsel.

Stakeholders working directly with complainants note that the reduction in delays (and timeframes) has been beneficial for them, allowing them to work proactively with a smaller group of complainants – and therefore spent more time with each:

^{25 A delay occurs when a trial commences on a date later than when it was originally scheduled for}

^{26 Adjournments are postponements called by the presiding judge when they deem matters are not ready to proceed.}

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At a practical level, fewer delays and adjournments is advantageous for SVVAs as less of their time to required to move complainant witnesses around the courthouse.

In contrast however, one defence counsel suggests that, because of the insufficient time defence now have to prepare their case, adjournments may actually increase as things come to light that they overlooked, didn’t have time to consider fully or were not made aware of until the last minute. Identifying that a defendant will need support from a communications assistant is identified as an example.

4.9  Impact of Case Management on Complainants

Long waits to reach trial have been identified as a cause of significant distress for complainants in sexual violence cases as they feel unable to ‘move on’ with their lives until the case has concluded. In addition, last minute delays have a considerable impact on complainants’ emotional and mental wellbeing²⁷. Complainants would generally like cases resolved as quickly as possible.

Overall, timeliness of outcomes for complainants has been improved by reduced timeframes to trial and a perceived increase in rates of guilty pleas²⁸, which has the additional benefit to complainants of not having to give evidence.

Whilst stakeholders viewed the reduction in timeframes as a key success of the pilot, the general feeling among complainants was that the wait times were still too long. Being unfamiliar with the court process, some complainants anticipated that they would get a court date relatively quickly and so the actual timeframe – albeit considerably shorter than prior to the pilot – often came as an unwelcome surprise. The complexities of trial scheduling are little understood by complainants, or at least not of concern to them when faced with waiting for a trial to proceed.

^{27 ibid}

^{28 See Section 6.1}

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It is also important to note that, for complainants, their perceived ‘wait time’ also includes the time taken by the New Zealand Police to investigate their case before a decision is made to press charges – a period of time outside the scope of the pilot.

However, one complainant reported being “both good and bad shocked” that their case came to trial considerably more quickly than the police had suggested it would. When informed that her trial was scheduled for six months’ time rather than a year as she had been initially informed, she was appreciative of the opportunity to “get it over and done with quickly” but also a little unnerved initially about having to recall everything again so soon.

Indeed, some stakeholders who work directly with complainants also noted that, ‘as short as possible’ wait times may not always be beneficial for complainants. For some, a longer time frame is required due to the complexity of the personal issues that need to be addressed (particularly psychological issues) before they feel ready to give evidence. These stakeholders suggested that while reduced time frames has benefits for many complainants, for others, having flexibility in relation to time frames was more important:

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One complainant included in the evaluation felt poorly treated by the justice system because of a delay in the trial proceeding due to the late filing of a Section 44 application, and subsequent appeal, and a further delay in trial date being scheduled to accommodate the defendant’s personal circumstances. This left her feeling that the defendant’s needs took a higher priority to hers.

While complainants were appreciative that their trials had started when they were told they would, most assumed that this was a given; none were aware that there was a possibility that their trial could have been substantially delayed. However, those who work directly with complainants were very aware of the benefits of trials starting on time, in terms of the minimisation of stress and anxiety associated with last-minute delays to trails going ahead.

4.10  Impact of Case Management on Other Participants

Impact on Defendants

In the same way that complainants put their lives ‘on hold’ when awaiting the trial, the same is true of defendants. Whilst defendants were not consulted directly as part of this evaluation, defense counsel noted that the reduced time to trial was welcomed by defendants, particularly those on bail or in custody.

Impact on Defence Counsel

Defence counsel concur with other stakeholders that there are advantages to expediating the justice process for serious sexual violence cases. However, there is a perspective among some defence counsel included in the evaluation that the reduced timeframes to trial may or do compromise their ability to effectively defend their client.

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Counsel who defend serious sexual violence cases are often heavily booked for many months in advance and have highlighted that there may be times that they need to turn down a client for lack of time availability.

The ability for counsel to prepare a defence, including locating and speaking to potential witnesses, and pursuing expert evidence, is limited until full disclosure and formal written statements have been received from the Crown. Some defence counsel have indicated that reduced timeframes to trial could impact on their ability to mount a robust defence and therefore potentially impact on a defendants’ rights to a fair trial. In contrast however, other defence counsel felt that if lawyers were so busy that they felt it was compromising the quality of their work, they needed to review their own workloads and how much work they were taking on.

Stakeholders who work directly with complainants raised concerns that insufficient time to prepare their case could become a reason used by defense to appeal a guilty verdict and forcing a re-trial – risking secondary victimisation of the complainant.

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Impact on Police

Feedback from stakeholders working directly with complainants suggests that, as part of the pilot, victim impact statements have been requested earlier on in the process than previously. These stakeholders note that they have been requested to inform sentence indication hearings, but there is also a sense for a greater administrative requirement – that is, to have everything required included in the complainant’s file as early as possible.

The request to have victim impact statements prepared earlier appears to have put a significant demand on the New Zealand Police, with victim advocates reporting being approached regularly to ask if they offer assistance in preparing these.

I’ve observed that the detectives have been a lot more under the pump to get cases together for the Crown. All of a sudden, I was getting asked to do things that I’d never been asked to do before, administrative things. For example, I do victim impact statements with survivors that I’ve gone to trial with. Then all of a sudden, I was being requested before trials, and for clients I wasn’t even working with. All of a sudden we were being inundated with requests. (Advocate, Auckland)

Impact of Case Management on ESR

ESR (Institute of Environmental Science and Research) provide analysis of samples on behalf of the New Zealand Police, including for DNA and toxicology results, in the same way that they provide this service for non-Pilot SV and other criminal cases. The pilot has had no impact on ESR. At the time of interview, they had received two sets of samples coming through to them for analysis that had been flagged as cases within the pilot. However, they were aware that the actual number is likely to have been much higher, with other samples not having been flagged by the New Zealand Police as ‘SVCP’. ESR process all samples within a standard 45-day turnaround time and would have done so for any SVCP samples, without knowing that they were for pilot cases. This standard 45-day turnaround time appears to have had no impact on timeframes for justice processes within the pilot.

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5 Trial Management

Key Findings

• Support provided to complainant witnesses remains largely unchanged under the pilot, all complainant witnesses being assigned a SVVA after the defendant’s first appearance. Support from independent victim advocates is also accessed by some.
• Pre-trial meetings, reduced wait times at court, feeling supported by the professionals involved, and cross-examination being closely managed means complainants are generally better prepared for attending trials, thereby reducing anxiety around the process.
• Overall, judges are more alert to unacceptable questioning and the impact on complainant-witnesses,and intervene more frequently when necessary; however, this is variable between judges and trials.
• Stakeholders perceive that trial quality has improved, with less adjournments necessary, better quality evidence being heard and fairer trials.
• Technology issues are reported to have led to trial delays.

This section covers all aspects of the pilot related directly to preparing the complainant for trial (in regard to court education, the need for interpreters or communication assistants and giving evidence and conducting the trial itself.

5.1  Preparing Complainant-Witnesses for Trial

Guideline 12. The judge will enquire into, and make such necessary directions as to, support persons under s 79 Evidence Act 2006.

The Role of Sexual Violence Victim Advisers

A Sexual Violence Victim Adviser (SVVA) is assigned to all complainant witnesses in sexual violence cases going through the court system, although this is not a pilot initiative. The SVVA’s first contact with the complainant witness is typically after the defendant’s first appearance and will continue through to case disposal. Previous research²⁹ has identified that complainant witnesses appreciate the availability of SVVAs and report that their assistance helped them to cope with the experience of dealing with the justice system, both in terms of undertaking administrative functions and also in helping to alleviate some of the anxiety and distress associated with having to give evidence as a complainant of sexual violence through the provision of information, guidance and practical support (such as providing escorts through the court building). SVVA roles include:

29 Gravitas Research and Strategy Limited (2018) Improving the Justice Response to Victims of Sexual Violence. Ministry of Justice: Wellington

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• Providing information about the court process, rules and regulations – including delivering court education.
• Providing a ‘touch point’ within the court from first appearance to case disposal – someone the complainant witness can contact to have questions answered or to be kept updated on court proceedings.
• Keeping the complainant safe from the offender whilst in the court building, including meeting the complainant witness on
• Providing a waiting environment – and waiting experience – that is as positive as possible for the complainant witness and their supporters prior to them giving their evidence.
• Keeping the complainant witness as calm as possible whilst in the court
• Being available to talk through the days’ court proceedings.

Stakeholders perceive that the pilot has put considerable pressure on the SVVA role. Prioritising sexual violence cases and having dedicated sexual violence courts means that multiple sexual violence trials run simultaneously in Auckland.

Some weeks all trial courts in this courthouse will be sexual violence pilot trials. So you might have five courts going. That’s five complainants or more. That’s a lot of people for the victims’ advisers to take care of. They are running between courts, trying to be present, moving complainants around the building in a safe and careful way. We’re getting our trials on-stream quicker, they are happening, they are not being delayed. We’re getting through them and that’s increasing demand for victim advisers among other things, and I don’t think that’s being reflected in the resourcing. (Judge)

The Role of Victim Advocates

HELP Auckland is an Auckland-based specialist provider of sexual violence support services. The organisation provides a range of services to sexual violence survivors and their whānau including a call-out service to support people through police interviews and forensic medicals, (external link)face-to-face therapy sessions and a 24/7(external link) telephone counselling helpline. In addition, the support service receives funding to (external link)provide in-court support in Auckland, however this service is not available in Whangarei. HELP Auckland’s Justice Services Counsellor assists survivors in understanding the nature of the court process and in developing skills to minimise secondary victimisation through the justice process.

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The services provided by HELP Auckland to complainant witnesses are unchanged under the pilot. These include (but are not limited to):

• Accompanying the complainant witness to view their EVI and/or attend the court education visit – to offer emotional and practical support.
• Work with the complainant witness prior to the trial to develop strategies for remaining calm and focused during the court proceedings, including offering advice and guidance about how to navigate the cross-examination process.
• Advocating for the complainant witness to ensure all modes of evidence are made available and assisting the complainant witness to make an informed choice around how they give their evidence.
• Helping complainant witnesses make informed choices about in-court support – including providing this support themselves if required (so sitting with the complainant witness in the court room or CCTV room whilst evidence is given).
• Advocating for the complainant witness’s safety and privacy while in the court building (which may include physically escorting complainant witnesses to and from the witness waiting area).

• Explaining, and assisting with preparation of, the victim impact statement.
• Being on-hand to answer questions about court procedures (including communicating with other court staff and the Officer in Charge as required).
• Offering emotional support to both the complainant witness and their supporters throughout the trial (and sentencing if required).
• Arranging ongoing counselling or psychotherapy services post-trial if required.

While there may appear to be overlap between the SVVA role and that of victim advocates, both stakeholder groups note that one of the key strengths of the victim advocate role is that it is independent of the Ministry of Justice. This allows victim advocates to actually advocate for complainant witnesses – against Ministry staff if necessary - to ensure that complainant witnesses’ rights are upheld and any trauma caused by the justice process is minimised. SVVAs felt that the pilot (and indeed all sexual violence cases) should be sufficiently funded to allow each complainant witness to be assigned both an SVVA and a victim advocate.

Quantitative data compiled by the Ministry of Justices shows that HELP Auckland provided victim advocacy services in half of the pilot cases observed by SVVAs. Both sexual violence-specific (e.g. Rape Crisis) and general victims’ support groups provided victim advocacy services in 24% of cases in Whangarei and 7% in Auckland.

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In-Court Support

The allowance for in-court support for witnesses in sexual violence cases, and the rules governing this role, have not changed as part of the pilot. Complainant witnesses included in the evaluation were generally aware that they were able to have a support person with them when giving evidence. Some had chosen to do so, nominating a family member (typically an extended rather than immediate family member, often on the advice of the SVVA or victim advocate). Others chose supporters from a support agency that they had established a rapport with. Participants who opted not to have a support person present were often aware of the limitations of the support person’s role (for example, the support person not being able to sit within sight of the complainant witness or not being allowed to offer physical support or comfort) and therefore questioned its value.

One complainant witness reported that she had initially nominated her husband to be her support person but that this had been actively discouraged by the SVVA. She felt frustrated by this, noting that she and her husband had a good understanding of the role (and limitations) of the in-court support person and felt that she should have been trusted to be able to make an informed decision as to who supported her. (In the end, she decided that having no in-court support was a better option than sitting alongside a stranger from Victim Support).

Communication Assistance

Guideline 12.8 At the case review hearing the judge shall enquire into and make appropriate direction as to the need for communication assistance under s 80 of the Evidence Act (2006).

Communication assistance is available to defendants and witnesses, to assist them in understanding the proceedings and in giving evidence. Within the context of the pilot there has been an increased uptake of communication assistance as stakeholders have become more aware both of the existence of the service (some stakeholders report not having been aware of the service pre-pilot) and of the positive impact it can have on quality of evidence and the experience of participants. Possibly because the service was so new to many, almost all stakeholders included in the evaluation (including judicial participants) made some mention of their increased awareness of, and impact of, communication assistance on the pilot, hence the extent of the information provided in this section.

This is in contrast with other forms of support such as SVVAs and victim advocates whose roles and level of involvement have not changed as part of the pilot. Communication assistants were not mentioned by complainant witnesses included in the evaluation as none had accessed this service.

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Communication assistance involves pre-trial assessments for complainants and defendants to report on their individual communication support needs within the context of the court (both in terms of expression and comprehension) and assisting with setting guidelines for how the trial should operate in order to meet the complainant’s and defendant’s communication needs. Communications assistants also work with defendants to help them fully understand the charges and the evidence against them. Some stakeholders believe that this has contributed to an increase in pre-trial guilty pleas.

In addition, communication assistants can provide guidance to counsel on how to phrase questions appropriately for the age and capabilities of the individual complainant or defendant, which further reduces the need for judicial intervention in questioning and elicits better quality evidence.

Communications assistants report that the pilot’s enhanced case management approach has positively impacted on the service’s ability to deliver support. For non-sexual violence trials, the benefits of communications assistants are currently not being fully realised as they are often brought onto a case too late. They note that some non-pilot court staff perceive their role as similar to an interpreter, in that they can just walk in on the first day of the trial and provide ‘communication support.’ However, in reality, support at trial can only be successfully provided if the assistant has a comprehensive understanding of the complainant or defendant’s communication needs – which requires extensive pre-assessment and planning. Ideally communications assistants need to be brought in at least two to three months prior to trial. As part of the pilot, the need for communications assistance is flagged at the case review hearing so the service is notified early, particularly in Auckland.

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Currently, a limitation of the use of communication assistants is their availability as there is a limited pool of people able to carry out this role.

Some defence counsel raised a concern that, when assistants sit alongside complainant witnesses in the CCTV room, they have essentially become another support person or advocate for the complainant-witness. Defence counsel note that it is essential that communication assistants remain independent.

Communication assistants themselves acknowledge that there is potential for the boundaries of the role to be blurred. Communication assistants comment that, while they don’t necessarily need to be legally-trained to successfully carry out their role, legal training around the implications of the decisions that they might make would be welcomed.

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One defence counsel also reported an experience of being told by a communications assistant that they couldn’t ask certain questions in the way they wanted to, but felt they were not offered any advice or support on how to revise the questions. Defence counsel perceive that there is a risk to fair trial if defendants do not receive the same level of communication assistance as complainant witnesses.

Court Education

Guideline 19.1 The Judge will enquire into and make such necessary directions about whether court and witness facilities have been explained to the complainant, and inspection has been arranged. 

Court education visits, facilitated by SVVAs, are not unique to the pilot, being made available to complainants in courts around the country. However, the pilot guidelines state that judges should enquire and make directions as necessary to ensure that it has been made available.

The Ministry’s quantitative data analysis shows that almost all complainants received court education at the pilot courts³⁰. There is no pre-pilot quantitative data on which to make a comparison, however earlier research suggests that participation rates in court education was already high among complainants in SV trials³¹.

Court education generally occurs in the days leading up to the trial. In some instances, it can be arranged to take place at a more convenient court for those who live in locations other than that which the trial will be held in. During the court education, complainants are shown the layout of the courtroom, where each participant will be sitting, the waiting area, and from where they will be giving their evidence – usually the CCTV room. In Whangarei, complainants are also shown the rear entrance to the court where they will enter from. The education tour provides an opportunity for complainants to familiarise themselves with the court and its facilities and to answer any questions relating to court processes.

The court education tour was welcomed and well-received by complainants included in the evaluation, who appreciated being able to get a mental picture of the courtroom prior to trial so they could better prepare themselves. They were also able to get reassurances that they would be physically safe from the defendant during the court process. Overall, the court education helps to alleviate some anxiety associated with the court process.

^{30 Data collected by SVVAs show 95% of complainants in the pilot received court education at the pilot court prior to the trial; others received education at another court or declined education.}

^{31 Gravitas Research and Strategy Limited (2018) Improving the Justice Response to Victims of Sexual Violence. Ministry of Justice: Wellington}

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One defence counsel questioned why court education is not offered to defendants, noting that they are often equally as vulnerable as complainants and often under extreme stress.

Meeting with Prosecution

The Crown Law guidance for prosecutors in relation to victims of crime³² includes that prosecutors should personally meet with a victim³³ of sexual offending to discuss the giving of evidence, the court process and any issues which are likely to arise. Previous research³⁴ found that this meeting (at other courts outside of the pilot) often occurred only days, or sometimes hours, prior to the trial commencing, and that the practice of prosecutors meeting complainants was not consistent.

Although not one of the SVCP guidelines, Crown prosecutors report consistently meeting with complainants in the period leading up to the trial, sometimes more than once. This is confirmed by quantitative analysis. ³⁵ It is common for prosecutors to attend the court when the complainant is being shown the court facilities by the SVVA, as an additional opportunity to build rapport, answer any questions, clarify anything with the complainant that they might need to, and help to put the complainant at ease. Sometimes the Officer in Charge, victim advocate and/or the communications assistant (if involved) will also attend this meeting.

Crown prosecutors view meeting with complainants as not only respectful but also beneficial from an evidence perspective.

^{32 Crown Law. Victims of Crime – Guidance for Prosecutors (2014). 16.3.}

^{33 The term ‘victim’ is used here for consistency with Crown Law.}

^{34 Gravitas Research and Strategy Limited (2018) Improving the Justice Response to Victims of Sexual Violence. Ministry of Justice: Wellington}

^{35 Observations of the trials in the pilot by the SVVAs show that 95% of all complainants had a meeting with the prosecution before the trial.}

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All but one of the complainants included in the evaluation had the opportunity to meet with the prosecutor prior to the day of the trial. They appreciated the opportunity to have processes clarified, ask any questions and were therefore able to feel more at ease on the day of the trial.

Complainants also noted feeling more prepared for what they would experience in court as a result of the meeting with the Crown prosecutor.

The one complainant who had only met with the Crown prosecutor very briefly on the morning of the trial expressed a desire to have met them earlier and also to have had more opportunities to build rapport:

Watching Evidential Video Interviews

Guideline 19.2  The judge will enquire into and make such necessary directions about whether a complainant intends to view his or her evidential video interview before the trial. 

Having child and vulnerable witnesses able to view the recording of their evidential video interview (EVI) prior to the trial (rather than simultaneously with the jury) was part of the protocol in Whangarei, and as such has been a routine practice prior to the pilot. This initiative was implemented in acknowledgment that it may have been up to 18 months since the EVI was conducted and, particularly for young complainants, watching the evidential interview recording can elicit a range of negative emotions and so being cross- examined immediately afterwards is not ideal.

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It was considered less re-traumatising for complainant witnesses to allow them to view their EVI in advance of the trial (usually a week prior) in a more comfortable environment (typically either in the complainants’ area at court or at the Crown prosecutor’s office). Non-simultaneous watching of the EVI means that, rather than having to sit through the entirety of the EVI in one sitting, complainants can take breaks and have time to process it.

Analysis of the SVVA trial observations conducted by the Ministry of Justice shows that in almost all cases within the pilot (unless there is an exceptional and compelling reason to the contrary), the complainant’s evidence is presented to the court by way of pre-recorded EVI. However, some stakeholders note that, in Auckland, at the start of the pilot, this was not done consistently (some prosecutors still preferred to have the complainant watch their video in court (‘as this is how it has always been done’) but by the time of the evaluation in early 2019, pre-viewing of the EVI was common practice.

Complainants welcomed not having to watch the recording of their evidential interview simultaneously with the defendant and jury. It has usually been many months since the recording was made and so being able to process what they had just watched, rather than going straight into giving evidence, was preferable.

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Meeting with the Judge – and Defence Counsel

As practices that began in Whangarei as part of the protocol for child and vulnerable witnesses, judges in Whangarei routinely meet the complainant in the waiting room prior to the trial commencing to introduce themselves. In Auckland this practice is more variable, with judges usually meeting with child witnesses but not always meeting with adults.

Some judges are ensuring that meetings with complainants are audio-recorded by the court-taker for later transcription, to ensure against any suggestion by defence counsel of interference.

Among those judges who do not meet with the complainant prior to the trial, a concern that the meeting may set false expectations for the complainant of their relationship with the judge is cited as the reason.

Comments from both complainants themselves and stakeholders who work directly with them suggest that meeting the judge in person prior to trial makes complainants feel valued in the justice process and mitigates feelings of anxiety or intimidation that might arise for them in such a formal and unfamiliar environment.

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It was also noted that complainants were often more informed – and therefore more empowered – after having met the judge. Information provided by judges included how the complainant should refer to them appropriately and making them aware that they were entitled to ask for a break and how to do this. In addition, those who work directly with complainants feel that the quality of the evidence that they are able to give is enhanced by having met the judge as they tend to be more relaxed.

Two complainants who were not offered the opportunity to meet with the judge prior to the trial (including one in Whangarei) noted that this would have been beneficial to them:

Whilst those working directly with complainants fully support judges meeting with complainants prior to the trial, they note some instances where the timing of these meetings has been arranged at the convenience of the judge rather than the complainant.

Defence counsel may be invited to accompany the judge, and some choose to do so, viewing this as a both a courtesy and a way of presenting as less intimidating to the complainant.

Other defence counsel report not seeing this as necessary or appropriate – but do call for defence to at least be notified as to when and where the visit will take place. (One defence counsel also suggested that the defendant should be present in some way (although not seen by the complainant necessarily) when the visit is done so they are fully informed on what’s happening.

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Those working directly with complainants also reporting having mixed views as to the appropriateness of complainants essentially being forced to meet the defence lawyer during these sessions. Complainants often perceive the defence lawyer as an extension or a key supporter of the defendant and can find it confronting and traumatic to have to meet them face-to-face.

Finally, one defence counsel questioned why judges make pre-trial visits to complainants but not to defendants, stating that all parties should receive the same treatment.

5.2       Complainants Attending Court for Trial

Timing for Giving of Evidence

Long waits at court to give evidence are stressful for complainants. Within the pilot, wait times are being minimised by complainants generally being asked to arrive at court as close as practical to the time that they will be called to give evidence.

In Whangarei, complainants are always asked to attend on the second day of the trial (usually a Tuesday), to be called as the first witness of the day. This practice is more variable in Auckland, but Auckland SVVAs report that they will always advocate for the complainant to be called on Tuesday morning wherever possible.

It was noted that on occasion, this meant that court would finish early on the Monday with unutilised court time during the afternoon. However, there was agreement among stakeholders that being able to avoid the complainant having to wait at court and then potentially give evidence late into the afternoon was preferable (although some defence counsel questioned the cost associated with this unused court time).

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If necessary, Monday afternoon may be used to discuss any last-minute pre-trial issues. Some defence counsel suggest that this time could be used for police to provide evidence or for the appearance of expert witnesses.

However, protocols around arrival times at court are not consistently applied and when complainants are waiting for long periods of time, this is stressful for them. Given the high level of anxiety that many complainants experience while they are waiting, even relatively short time frames can seem long:

One defence counsel felt strongly that the protocols around the timing of giving evidence should apply equally to defendants – for example, that they should be allowed to start their evidence first thing in the morning also.

Entry to Courthouse

As noted in previous research³⁶, concerns around seeing the defendant and/or their supporters in or around court is a cause for increased anxiety associated with the court process. When this can be avoided, complainants are able to remain calmer and more able to focus on their evidence.

^{36 Gravitas Research and Strategy (2018). Improving the Justice Response to Victims of Sexual Violence: Victims’ Experiences. Ministry of Justice: Wellington.}

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Although not set out in the guidelines, the practice in Whangarei is for the SVVA to meet complainants on the day of their evidence at the rear (staff) entrance to the court. There is a huge sense of relief for complainants when they are shown the entrance they will use (this occurs when they attend the court education prior to trial date).

In contrast, while complainants at the Auckland District Court are escorted by SVVAs to the privacy of the complainants’ waiting area, at the request of court security, they are still required to enter the courthouse via the main (public) entrance.

Often complainants are being picked up by a police officer and escorted into the courthouse on the day of their evidence. For complainants, particularly in Auckland where there is no utilisation of the staff entrance for complainants, this can have a positive impact.

Waiting Area

Waiting space for complainants at Auckland District Court is limited with currently only two private rooms in the Victims’ Advisers area available. When there are multiple trials on, considerable ‘juggling’ reportedly takes place. SVVAs note that occasionally complainants will be placed in staff offices to wait. This impacts on productivity as staff can’t do any office-based work whilst complainants are there.

In Whangarei, the waiting area for complainants has been furnished and decorated to provide a more welcoming, warm environment. The newly-renovated space now includes a couch, DVD player, toys, and books. Complainants in Whangarei noted that the space where they wait to give evidence, and from which they give their evidence via CCTV, has been made to feel ‘homely’ and comfortable. From complainant- witness recounts of their experience, it appears that the physical environment has a considerable impact on overall wellbeing of complainants at court.

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Complainants in Auckland also noted that the waiting room met their needs and expectations, with access to appropriate facilities.

However, one complainant noted that, when she arrived at Whangarei court on the day she was due to give her evidence, she wasn’t invited into the room immediately on arrival as she anticipated she would have been; rather she was made to wait in the public meeting area until just before she was due to give evidence. Whilst the public meeting area was quiet on the day of the trial and she was accompanied by the Officer in Charge, she expressed concern at potentially having the defendants’ supporters waiting alongside her.

Whilst complainants were appreciative of having ‘safe spaces’ within the court, experiences of being traumatised by coming into contact with the defendant, particularly at break times, were still reported.

5.3      Complainants’ Evidence

Guideline 12.4 At the case review hearing the judge shall enquire into and make appropriate directions as to alternative ways of giving evidence.

Mode of Evidence

Judges can accept an application that a witness may give evidence in an alternative way: either from within the courtroom but unable to see the defendant (i.e. use of a screen), from an appropriate place outside the courtroom, or by way of a pre-recorded video.³⁷ Within the pilot, judges enquire and make appropriate directions at case review on the mode of evidence for complainants.

^{37 NZ Government, Evidence Act (2006), Section 105}

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It appears that there is an assumption by parties and judiciary that all complainants in SV trials will be questioned either via CCTV (most commonly, especially in Whangarei) or, in Auckland, with a screen in place. Trials within the pilot at Whangarei have also had complainants appear via AVL from other locations. Defence counsel rarely oppose the use of an alternative mode of evidence.

Victim advocates view the fact that mode of evidence is now routinely addressed – and addressed early in the process – very positively. They note that, prior to the pilot, they spent a lot of time advocating on behalf of complainants regarding applications for CCTV or screens, and meeting with the Crown to discuss safety and wellbeing issues. Under the pilot, mode of evidence is considered as a matter of course and parties are more open to the alternatives, rather than just assuming complainants will appear in person.

Auckland stakeholders who work directly with complainants note that they would like to see the use of CCTV as the ‘default’ mode of evidence for all Auckland sexual violence cases in the same way as it is in Whangarei.

There is a strong preference among complainants to not have to be physically present in the courtroom, but rather to be able to give evidence via CCTV. Although those included in the evaluation did not have a reference point for giving evidence from within a courtroom, there was an assumption that it would be less stressful.

One complainant included in the evaluation was surprised that she was asked to provide a rationale for why she preferred to give evidence via CCTV rather than it being the default.

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However, some complainant witnesses noted that they would like to be given a choice as to their mode of evidence, and of the nine complainant witnesses interviewed for the evaluation, at least four reported not giving evidence via their preferred mode. One complainant-witness had opted to give evidence with a screen between themselves and the defendant, however on the day of the trial a screen had not be made available. She reported being told that there would be a need to move courtrooms in order to have a screen and so opted to give evidence in the ‘normal’ way. Another complainant, who gave evidence from in court with a screen, would have preferred to give it via CCTV:

In addition, the complainant wasn’t aware until the day of evidence that the defendant would be able to see her with the screen in place, which she did not like.

Another had opted to give evidence in person in court (as she felt she would have been too nervous using CCTV) but had not been aware that she could have requested to have a screen between herself and the defendant.

The final complainant interviewed noted that court staff just assumed that she would have wanted to give evidence via CCTV whereas she actually wanted the opportunity to be face-to-face with the defendant.

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CCTV Resources

For the duration of the pilot to date, Whangarei has had only one witness room equipped with CCTV. When there have been simultaneous trials where vulnerable witnesses are giving evidence by this mode, court staff have needed to create a make-shift additional CCTV room. However, the current courthouse facility upgrade has been designed to provide for two CCTV rooms. (Note: Vulnerable witnesses from non-SV trials may also give evidence via CCTV).

Auckland has had three CCTV rooms and when there are multiple pilot trials running simultaneously where complainants are to appear via CCTV, there has needed to be extra equipment outsourced (which stakeholders note is expensive). The lack of CCTV resource is also cited as a reason why adult complainants in Auckland typically appear in court with a screen.

One of the guidelines to be followed for best practice in sexual violence trials states that the testing of electronic equipment e.g. CCTV used for complainant’s evidence, is to be done in court as part of the trial process. In both Auckland and Whangarei, on-going IT issues continue to cause problems, resulting in brief trial delays – either while the technology is being fixed or the trial is moved to a different courtroom (which can be disconcerting for the jury). For example, Auckland’s courtroom 13 is notorious for having issues with the connection between the CCTV room and courtroom (and was witnessed by the evaluation team during observation).

One complainant (who had not met the judge or defence counsel prior to the trial) reported finding using CCTV very confusing as she was unsure of who the different parties in the court actually were/the roles of those who appeared on her screen. She also noted that, at times, the camera did not switch over to whoever was speaking which made proceedings difficult for her to follow:

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Other Technology Issues

In Whangarei there have been issues with the sound quality of EVIs being played when they have been edited (for example to remove inadmissible content). It appears that there is sometimes a compatibility issue between the New Zealand Police’s editing system and the court audio-visual system and in one incident a whole day of trial was lost trying to work out how to get the evidential interview played. In some cases it has been played to the jury on a laptop, which is not ideal.

Whilst not strictly a technology issue, Auckland court staff note that the screens currently available are very cumbersome, heavy and can be difficult to set up. The high turnover of court registry staff means that often court staff don’t know how to operate the screens, with incidents of the screens being set up back-to-front being reported.

Offering Breaks During Evidence

Guideline 21.     The judge is to ensure flexibility for the evidence of the complainant recognising the complainant’s age and capacity, including regular breaks, early/later start and finish times.

The guidelines include that judges are to ensure flexibility for the complainant’s evidence, recognising their age and capacity, including having regular breaks. It appears that judges manage breaks within their courts differently to one another. Some judges reportedly closely watch complainants for signs of fatigue or emotional overload and direct the court to take a break – often these will be ‘mini-breaks’ of 3-4 minutes, with the jury staying seated.

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Other judges will either ask complainants directly whether they need breaks or wait for a complainant to request one.

As a result of their court education visit, and in many cases, having been informed by the judge during a pre- trial meeting, most complainants including in the evaluation were aware that they could request breaks and how they should go requesting one. However, it was noted by some complainants and stakeholders, that often a vulnerable witness will not exercise this right, due to a lack of confidence and/or fear of disrupting proceedings. A complainant in Auckland who reported giving evidence in court for at least three hours recalls being told that she could request breaks when she needed them, however found it uncomfortable to do so.

A complainant who was pregnant at the time of giving evidence also reported being reluctant to ask for a break:

Those working directly with complainants report that pilot judges generally seem better at picking up on a complainant’s heightened anxiety and emotion and seem more open to asking them if they would like to take a break. However, these breaks are often declined – despite complainants needing one (for similar reasons that they don’t initiate a break).

In the Whangarei court, a system had been developed whereby a complainant-witness appearing via CCTV can point to a sign on the table – which the court registry officer can then show to the camera – in order to request a break. This provides a good compromise for requesting breaks without the need for complainants to vocalise the request to the judge, which they may feel nervous doing.

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In addition, judges are now aware of timing around evidence for children and won’t allow evidence to go on after 3pm but will rather call them back the next day if required.

5.4  Counter-Intuitive Evidence

Guideline 24.     The order of prosecution witnesses is a matter for the prosecutor, but judges should ensure that expert evidence (medical, counter-intuitive) is addressed to actual trial issues.

Traditionally, expert evidence has been presented to the court (either by witnesses in person or by way of written statement read to the court) towards the end of the trial. This includes evidence referred to as ‘counter-intuitive’ (that which addresses common ‘rape myths’³⁸). There was a concern among some stakeholders in Whangarei that jury members may have already formed their opinions by the time that they hear this evidence and so it may have little impact. For this reason, prosecutors in Whangarei now commonly present counter-intuitive evidence first in sexual violence trials in anticipation that the jury may pay more attention to it- and ideally use it as a filter through which they interpret the subsequent evidence presented.

In order to ensure that the expert evidence is addressed to actual trial issues, defence in Whangarei are asked to provide to the Crown, prior to the trial, with the areas of the complainant’s evidence that they intend to challenge.

This does not appear to be practice in Auckland. However one stakeholder acknowledged that this would be of benefit and would be supported by at least some judiciary. Crown and defence would need to agree on the scope of and extent of expert counter-intuitive evidence prior to trial, which often occurs already when the evidence comes in as a written statement previously agreed to by both parties.³⁹

^{38 Hill, Holly. Rape Myths and the Use of Expert Psychological Evidence. www.austlii.edu.au/nz/journals/VUWLawRw/2014/23.pdf(external link)}

^{39 NZ Government. Evidence Act (2006). Section 9.}

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Where counter-intuitive evidence has been presented first, this has helped the complainant feel validated.

5.5  Cross-Examination

Guideline 23.     The judge must be alert to and intervene if questioning of any witness, particularly complainants, is unacceptable in terms of s85 Evidence Act 2006.

Previous research⁴⁰ found that being cross-examined by defence lawyers is frequently the most difficult aspect of the justice process for complainants of sexual violence, with many complainants completely unprepared for how traumatic it would be. This aspect of the justice process appears to be a common point of secondary victimisation for many complainants:

Within the pilot, the guidelines include that judges must be alert to, and intervene if necessary, if questioning of any witnesses, particularly complainants, is unacceptable. This includes questions which the judge considers improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.

At least one judge noted that, when made aware of this guideline during the judicial training, they were initially concerned that it may lead to a more ‘sterilised’ approach to questioning complainant witnesses, thereby limiting the defense counsel’s ability to put their case. It was felt that the perceived ‘blunting’ of the way questions could be asked was in conflict with the adversarial nature of the jury trial system.

^{40 Gravitas Research and Strategy Limited (2018) Improving the Justice Response to Victims of Sexual Violence. Ministry of Justice: Wellington}

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However, these perceived concerns proved to be unfounded as the Evidence Act⁴¹ is very clear on the type of questions that are not permitted, and the guideline has been ‘applied generally’ rather than prescriptively (as one judicial stakeholder noted has been the case in the United Kingdom for example).

Some judges will outline their expectations of counsel, in regard to questioning of witnesses, at the outset of the trial:

Stakeholders observed that judges are managing cross-examination of witnesses more closely:

Others highlighted that there has been less judicial management of this aspect of trials than they were expecting, or would like to see:

Judicial Variability

Stakeholder and complainant accounts suggest that there is considerable variability in the types of questioning that judges will allow in cross-examination of complainants, with some being much more aware of, and alert to, questioning that risks secondary victimisation than others.

^{41 NZ Government. Evidence Act (2006). Section 85.}

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Some stakeholders suggest that the variation may be due to some judges being more concerned about appeals and/or some defence lawyers being keener to appeal, on the basis of judicial intervention in cross- examination.

Some defense counsel also felt that judges tend to be more lenient on lawyers they know well (as they may have a greater sense of where particular lines of questioning might be leading).

One defence counsel, based on personal experience, perceived that juries can find the new method of questioning confusing and difficult to follow. They noted one case where they had followed the pilot protocol perfectly, but the jury had communicated with the judge that they felt the defence lawyer was confusing the complainant by asking questions she couldn’t understand.

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One defence counsel perceived that variation in how the cross-examination guidelines are applied can only be eliminated through legislating the cross-examination requirements more explicitly.

Complainants’ Experience

Although being cross-examined may remain the least comfortable aspect of the justice process for complainants, there was an increased sense that lawyers were ‘just doing their jobs’ and fewer remarks (compared with baseline data⁴²) of complainant-witnesses feeling bullied and harassed by defence counsel.

There was also a sense among complainants (and stakeholders who deal directly with complainants) that judges were intervening when question lines became unacceptable. It is reported that complainants felt empowered by the fact that judges were paying attention to them.

^{42 Gravitas Research and Strategy Limited (2018) Improving the Justice Response to Victims of Sexual Violence. Ministry of Justice: Wellington}

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However, there were still reports by complainants of being questioned by defence in a way that they felt was designed to confuse them or “trying to trick your mind”:

5.6       Sentencing

Sentencing was generally not discussed with evaluation stakeholders or complainants because this stage of the process is not covered in the guidelines. However, one stakeholder working directly with complainants spoke about a pilot trial had been held at the Auckland District Court (and included all the trial management initiatives discussed above) but, at the request of the trial judge, sentencing was moved to Waitakere District Court. It was reported that the complainant had found this move extremely traumatising as they were unfamiliar with the court environment at Waitakere (no court education was done prior to sentencing), the small size of the courtroom and design of the seating meant that the complainant would have had to walk past the perpetrator’s supporters to read her Victim Impact Statement, and sentencing was ultimately adjourned as the necessary submissions were not received by the Waitakere court staff in time.

5.7  Impacts of Trial Management on Trial Quality

Most stakeholders perceive that pilot practices are resulting in better quality trials. Parties are more prepared to go ahead with the trial on the scheduled date and there are fewer delays and adjournments due to unresolved issues, and an improved quality of evidence being presented to juries, which many perceive as producing fairer trials.

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It was noted by a stakeholder in Whangarei that, despite complainants not being called to give evidence until the Tuesday, and there being more frequent breaks during evidence, trials are more efficient.

Due to the timing of complainant’s evidence and prior meeting with prosecution and judge, stakeholders noted that complainants appear to be better prepared for giving evidence, hence able to give better quality evidence.

Stakeholders also note that reductions in the time to trial (due to enhanced case management as discussed earlier) also improve the quality of the evidence provided as parties’ ability to recall information about the event is better.

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However, one stakeholder noted that the insufficiency of the CCTV resource in Auckland and the consequent need to move trials around courtrooms (including mid-trial) can be disruptive for all parties – including the complainant who may have had their court education in a different court room – and impacts on the overall quality of the trial.

5.8 Impact on Complainants

Complainants in pilot cases are generally better prepared for what to expect during the trial, which makes the process less daunting. In addition, most complainants included in the evaluation felt that the trials were managed in a way that did not cause them to be retraumatised by the process. These outcomes appear to be due a combination of factors, including having met key participants prior to the trial commencing, not having extensive waits at court to give evidence, feeling well looked-after by the professionals involved, and cross-examination being closely managed by judiciary.

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5.9  Impact on Defence Counsel

Some defence counsel included in the evaluation are supportive of the tighter constraints being implemented by judges for cross-examination of complainants and there is a perception among these that an experienced lawyer should be able to extract evidence in a way that does not aim to confuse or upset the complainant. Some, but not all, defence counsel are now conducting cross-examination in pilot trials in a way that is considered acceptable to judges, thereby minimising the need for intervention:

However, despite most making attempts to conform to the guidelines, some defence counsel report finding the ‘micro-managing’ of the cross-examination process by some judges frustrating, claiming that regular interventions from judges can adversely impact on rapport counsel builds with the witness.

Defence counsel raise concerns around how defendants might be viewed by juries in cases where they perceive there to be too much intervention by a judge in cross-examination of a complainant. Some defence counsel feel that trial management now places too much emphasis on the wellbeing of the complainant, which may inadvertently send signals to the jury supporting the Crown case, thereby impacting on the fairness of trials. It was suggested that greater use of adjournments - so that issues around questioning of witnesses can be discussed with counsel in the absence of the jury - is preferable.

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Defense counsel are also conscious of how juries may perceive a lawyer who is constantly being stopped or corrected by a judge, and also note that constant intervention can result in them losing their train of thought.

Despite the guidelines, there is wide variability in how defence cross-examine complainants. Some Crown prosecutors expressed frustration that particular defense counsel are still unwilling to adapt and have continued to question complainant witnesses in an inappropriate way, sometimes without intervention from the judge.

Some stakeholders have raised concern regarding the level of experience and competence of some defence counsel involved in serious sexual violence trials, noting that this can impact on the way that they conduct their cross-examination of complainants.

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It was suggested that there may need to be further training in this area within the defence bar.

There is also a perception among some defence counsel that some judges appear reluctant to apply the guideline to the cross-examination of defendants.

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6 Impacts of the Sexual Violence Court Pilot

6.1       Impacts of the Pilot on Disposal Outcomes

A higher rate of pre-trial resolution by way of guilty pleas is an unexpected positive outcome of the pilot. Stakeholders attribute this to more comprehensive case management, greater case discussion between parties, trial dates being set earlier, and pre-trial applications determined in advance of the trial date - so defendants know earlier in the process exactly what evidence they are going to face. The work done by communications assistants in helping defendants fully understand the charges and the evidence against them is also believed to have contributed to an increase in pre-trial guilty pleas.

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In the pre-pilot system, the lack of certainty around when a trial will actually take place has allowed defendants to ‘put off the hard decisions’ around how they will plead. However, with trial dates now set early, the reality of having to face a jury may be prompting defendants to request sentence indications and decide to change their plea.

Stakeholders also perceive that, under the pilot, guilty pleas now happen earlier, with fewer coming on the morning of the trial. Stakeholders note that guilty pleas continue to come at the same point in the process – that is, once the defence case has been built – but because this now happens so much earlier in the process, guilty pleas are made earlier also. This has a positive impact on complainant witnesses in these cases in that they don’t have to engage with the court at all (as opposed to guilty pleas on the morning of the trial – by which time the complainant witness will have undertaken court education and may be at the court awaiting the start of the trial).

In addition, it was noted that increased transparency around what the evidence and arguments actually are before the trial has led to either plea changes or charges begin withdrawn after case management discussions between Crown and defence.

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6.2       Impacts of the Pilot on Cases Outside the Pilot

Impacts on Timeframes

Counter to what stakeholders initially anticipated might occur during the pilot, comments from stakeholders suggest that there has been no significant negative impact on timeframes to trial for cases outside the pilot.

One of the reasons suggested for this is that sexual violence cases are reaching resolution prior to trial more frequently (as discussed above) so non-pilot trials which are now scheduled as stand-by trials are being re- allocated to the court.

Adoption of Pilot Processes Outside the Pilot

Comments made by stakeholders suggest that one of the impacts of the pilot has been that the protocols around more proactive and focused case management are now beginning to be adopted across all cases. In particular, a number of stakeholders talked about the benefits of more thorough case review. This minimises the risk of either party coming to trial with unresolved matters that need to be dealt with.

In addition, the practice of trial callovers by teleconference has been adopted by judges for some cases outside the pilot.

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One stakeholder noted that, prior to the implementation of the pilot, all trials were scheduled at callover stage. Once the benefits of scheduling trial dates at case review hearing within the pilot became apparent, the practice was adopted in Auckland for non-pilot cases.

6.3       Impacts on Those Delivering the Pilot

Increased Job Satisfaction

Despite the high demands of the role, SVCP case managers reported getting greater job satisfaction from being able to proactively manage and be the single point of contact for case files than working as part of a pool of registry staff as they had done pre-pilot. They have more direct liaison with judges and counsel in this role and feel a greater sense of ownership of the files that they manage. They reported a strong sense of satisfaction at being able to have a positive impact on timeliness of disposal for sexual violence cases and, therefore, on the experience of complainants.

Workload Pressures

There are mixed perspectives on whether the case management changes have had a significant impact on overall workloads of stakeholders. Judges generally felt that there is the same amount of work to do, but there is a little more time pressure due to the shorter time frames. Occasionally this results in judges working outside of work hours/taking work home. Having cases allocated to judges earlier allows them more time to familiarise themselves with a case file – but also sets the expectation that they should take time to familiarise themselves more comprehensively with the file then they would have pre-Pilot.

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One judge also feels that shortened time frames has compromised the quality of the expression of their reasoning provided in their pre-trial decision documents.

Counsel’s view on workloads is similar to that of judges, noting that the total workload in preparing a case and taking it to court has not changed notably but that there is now more pressure on the early part of the process, and overall time frames have shortened.

Psychological Impacts

A number of stakeholders noted that the nature of sexual violence cases and the content involved in the evidence given can have a detrimental impact on those involved in trials, particularly as complainants are often young and/or vulnerable. Some pilot judges report that sexual violence trials have comprised up to 90% of their workloads, and concern is also raised about the impact on court registry staff who are listening to often graphic sexual material on a daily basis. As part of the evaluation, stakeholders raised concerns regarding the psychological wellbeing of those administering the pilot and noted the staff ‘burn out’ (and the resulting high staff turnover) could compromise the ongoing success of the model.

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6.4       Impacts – Auckland Versus Whangarei

Whilst the pilot guidelines have been adopted consistently by Auckland and Whangarei courts, the way in which some of these guidelines have been interpreted and operationalised has varied somewhat between sites. Stakeholders note that each court has its own culture and the two locations have different physical characteristics, so it is natural and appropriate for differences to be evident. It was generally felt that the variations in how the pilot has been operationalised don’t compromise the ability to evaluate the success of the pilot principles and guidelines.

Many of the processes within the pilot have been adopted from, or evolved out of, the Child and Vulnerable Witness Protocol that was developed in Whangarei. For this reason, within the pilot period, participants in Whangarei have noticed less difference in the way they manage sexual violence cases than their Auckland District Court counterparts, as in many ways the pilot has been ‘business as usual’ for them.

Whangarei has a smaller and more stable pool of judges who preside over cases within the pilot, all of whom have considerable experience hearing cases under the local protocol and all of whom are personally supportive of the intended outcomes of both the protocol and the pilot. For this reason, it is likely that there is less variability in practices, particularly those experienced by complainants, in Whangarei than there is in Auckland – for example, being met by the judge prior to giving evidence, minimised waiting time while at court, more considered cross-examination.

Table 6.1 compares and contrasts the Pilot processes and practices adopted in each location.

Table 6.1: Pilot Processes and Practices By Site

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7 Moving Forward: Learning from the Sexual Violence Court Pilot

7.1       Stakeholder Perceptions of the Conclusion of the Pilot

The pilot is due to conclude once the Governance Board determines its completion date. However, pilot cases are currently being scheduled under the assumption (by most stakeholders) that current resourcing and practices will continue. Stakeholders are strongly opposed to seeing the practices of the sexual violence court pilot cease at the conclusion of the pilot. There is a general sense – particularly in Whangarei - that, provided the existing resource continues, the current model can and will continue to operate once the pilot officially concludes.

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Stakeholders unanimously agree that a cessation of pilot practices would have a detrimental impact on complainants.

Critical to the ability to continue the practices of the model after the official pilot concludes is being able to retain the dedicated sexual violence case manager role – and in Whangarei, the additional judge. It is generally agreed that, if funding is no longer available for these roles and the current case managers have to go back into the ‘pool’ and the judge is reassigned, the pilot procedures wouldn’t be able to operate – and time frames would return to pre-pilot lengths.

7.2       Enhancing Stakeholder Education and Support

Judicial Training

Judges included in the evaluation are very complimentary about the pre-pilot training they received. Going forward, it was suggested by both the judiciary and stakeholders that work directly with complainants that this training could be enhanced by having complainant witnesses speak to the group about their experience of the justice system (or have victim advisers speak on behalf of complainants).

Stakeholder Education and Training

Stakeholders across all roles involved in the pilot (including those with no direct complainant or defendant contact) feel that more education around sexual violence issues would be beneficial. Many expressed an interest in receiving similar training to the judiciary, both to educate themselves on sexual violence and also so they would be more aware of judges’ levels of knowledge and understanding – “to know what they’ve learned.”

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Case managers feel that having an increased awareness of sexual violence issues would assist them to have a greater appreciation of the judge’s plan with respect to individual cases and may allow them to identify and flag potential issues with the judge.

Those working directly with complainants expressed a strong desire for court security staff to participate in the training too, particularly to make them more aware of complainants’ experiences of encountering the defendant and/or their supporters in and around the courthouse.

With regard to the design and delivery of the training, stakeholders who work directly with complainants (particularly SVVAs and victim advocates) feel that they could make a meaningful contribution, providing greater insight into complainants’ experiences of the justice system, being able to highlight particularly problematic areas and being able to offer pragmatic solutions.

Stakeholders feel that refresher training provided at regular intervals (six or twelve monthly) to all those involved in the implementation of the pilot (and beyond) could guard against focus and enthusiasm being lost over the course of time and knowledge being lost as a result of staff turnover.

Although outside the ambit of either the Ministry or the District Courts, some stakeholders identified the need for there to be education and training available for defence counsel in relation to the questioning of complainants in sexual violence trials. It was noted that most cases defended are funded through legal aid and so there could potentially be some requirement to meet criteria to be allocated sexual violence cases.

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An important aspect of any education for defence counsel would be to present the ways in which the changes to processes within the pilot are of benefit to defendants (i.e. timeliness to trial, communication assistance, and questioning of vulnerable defendants).

The lack of suitable resources available as exemplars for defence counsel around acceptable and appropriate questioning of vulnerable witnesses was raised. In addition, given that complainant evidence is given to a closed court, observing trials is not easy. It is suggested that examples of ‘best practice’ trials could be recorded and made available online for counsel to access for professional development.

Professional Supervision for Staff

Those involved in the delivery of the pilot, including judiciary, Crown and defence counsel, identified that the concentration of focus on sexual violence cases can have a detrimental impact on mental and emotional wellbeing, and consequently can result in high staff turnover (which in turn increases training costs and can negatively impact on the culture of the team delivering the pilot). Stakeholders suggested that professional supervision should be made available to all staff in the pilot, including those who don’t deal directly with complainants and/or defendants.

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Stakeholder Meetings and Cross-Pollination Between Courts

Stakeholders in both Auckland and Whangarei would welcome the opportunity for regular (quarterly is suggested) meetings to discuss issues relating to the implementation of the pilot. It was also suggested that these meetings could be used as an opportunity to provide feedback to stakeholders (particularly court staff, including those who work directly with complainants) on the pilot outcomes and to reinforce the great job they are doing. It was noted that, as well as being useful to identify solutions to enhance the pilot operations, regular meetings would also have an important role in maintaining and building enthusiasm for the success of the pilot and building team culture.

Views were mixed as to whether judges (and Crown and defence) should be included in the stakeholder meetings, some feeling that it is important for judges (and counsel) to know what is going on in term of the operation of the Pilot (“so everyone’s hearing the same messages”), others perceiving that court staff may not be as open or candid in their comments with the judiciary and legal counsels present.

(The impact on court staff of having judiciary and lawyers present at the stakeholder meetings was evident in the focus group process. It was observed in the Whangarei focus group that court staff made only a very small contribution to the discussion until the lawyers left. For the Auckland group, court staff were consulted separately from counsel, resulting in a freer, more open discussion).

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In addition, it was suggested by court staff that occasional delegate meetings involving stakeholders from each of the pilot courts, and any others which may in future adopt the model, would be beneficial.

7.3       Enhancing Complainant Wellbeing

Comparisons with the experiences of justice system reported by complainants in Gravitas’s 2018 report⁴³, show that the changes to case and trial management made under the pilot have had a positive impact on complainants, empowering them and reducing the likelihood of secondary victimisation through the process. Stakeholders working directly with complainants noted a number for further enhancements:

Avoiding Contact Between Complainant Witnesses and Defendants

Ideally complainants giving evidence at the Auckland District Court should be able to enter the court building via a means other than the public entrance, as they are able to do in Whangarei. Those working directly with complainants perceive that the decision to have complainants use the main entrance has been made by security, seemingly for their own convenience. It is suggested that portable wands could be used to security- check complainants using the Federal Street entrance.

Auckland stakeholders would also like to see judges making more informed decisions about where defendants are able to go and with whom during breaks so there is no risk of them being able to intimidate witnesses or their supporters.

^{43 Gravitas Research and Strategy (2018). Improving the Justice Response to Victims of Sexual Violence: Victims' Experiences. Ministry of Justice: Wellington.}

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Complainant Waiting Area and CCTV Room

The Whangarei meeting room, which is also where complainant witnesses give evidence via CCTV, has been recently renovated to make it more user-friendly (through the addition of couches, toys, books, games, videos etc.) It was suggested that the rooms in Auckland could be similarly improved to make them more comfortable for those waiting to give evidence.

Judges Meeting with Complainant Witnesses

Given the positive feedback from complainants and the benefits observed by stakeholders who deal directly with complainants, stakeholders suggested that pre-trial judge-complainant witness meetings should be compulsory for all sexual violence cases. To alleviate judicial concerns around being criticised for getting ‘too familiar’ with complainants, meetings could be audio and/or video recorded.

Appointment of Victim Advocates

Some court staff – including SVVAs – are in favour of complainants being appointed a victims’ advocate as well as continuing to be receive support from the court’s victim adviser. Due to a lack of both advisory and advocacy resource, some feel that the line between ‘advising’ and ‘advocating’ had become blurred (as SVVA and advocates are required to deliver both roles):

Having a pool of Victim Support staff on call for when support people are needed at short notice (for example, when a complainant arrives at court without a support person or a support person chosen by the complainant is deemed unsuitable - such as boyfriends) would be beneficial.

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Communication Assistants

Whilst the pilot has been a catalyst to raising awareness of communications assistants, both stakeholders and the service itself acknowledge that more work needs to increase stakeholder awareness of how the service operates, the extent of the services available and most importantly, when in the justice process the service needs to be engaged with. Stakeholders also need to be made aware that it is not only the complainant witness that may need communications assistance but equally so, the defendant and other witnesses.

Communications assistants suggest that they should be involved in the justice process earlier, ideally at the EVI stage – to work with the New Zealand Police to ensure that complainants are able to communicate their experience as accurately and articulated as possible. It is felt that this might minimise the traumatic experience of the defence picking apart the EVI during cross-examination.

Finally, communications assistants strongly advocate that all children up to the age of 13 or 14 years – including those who do not have special communications needs – should be referred to the service and provided with communications assistance as a matter of course. The service believes that ideally all children should receive communications support to help them deal with the adult setting and complex questions asked using adult language. (However, they also note that the communications assistance service would need to be expanded considerably to ensure there was sufficient resources available to allow this to happen.)

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7.4       Enhancing Modes of Evidence

More Informed Decisions

The use of CCTV and/or screens within the courtroom for complainants to give evidence is not consistent within the pilot. Complainants will be empowered by:

• Having all the mode of evidence options available presented to them in an objective way that is easy for them to understand. This is most sensibly done during the court education visit, allowing complainant witnesses to see (and sit in) the CCTV room, be shown how the screen works, check how far they would be sitting from the defendant in the court room ;
• Allowing them to make the decision as which mode they prefer (without having to justify their reasoning); and
• Ensuring that the equipment required for each mode of evidence is available on time, in good working order and that staff know how to operate it correctly.

Evidence via Audio Visual Link (AVL)

Earlier research⁴⁴ identified that a key stress point for complainants is the risk of encountering the defendant and/or their family/whānau in and around the courthouse and when this occurs it can cause secondary victimisation.

Section 105 of the Evidence Act⁴⁵ allows for a judge to direct that a witness may give evidence and be cross- examined from an appropriate place outside the courtroom, on various grounds including trauma suffered by the witness and their relationship to the defendant. There have been some cases within the pilot in where, due to logistical reasons, complainants have appeared via AVL from another location outside the court. This does not appear to have any negative impact on proceedings.

The Ministry of Justice have a strategic goal⁴⁶ to modernise courts and tribunals, which includes extending the use of remote participation in justice processes. In line with this, there is strong support from stakeholders for greater use of remote AVL appearances for complainants in sexual violence cases. It was noted that as few courts provide for separate entrances for complainants, this would eliminate the logistics of keeping them away from defendants.

^{44 Gravitas Research and Strategy (2018). Improving the Justice Response to Victims of Sexual Violence: Victims’}

^{Experiences. Ministry of Justice: Wellington.}

^{45 NZ Government, Evidence Act (2006), Section 105}

^{46 Ministry of Justice (2018). Statement of Intent: 2017 to 2022.}

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Remote appearances require counsel to have organised in advance any documents, diagrams, maps etc. that they may wish the complainant to refer to during their evidence. This material needs to be provided in a sealed envelope and delivered securely to the court or other location from which the evidence will be given. This is already a requirement under the guidelines.⁴⁷

Complainant-Witness Evidence by Pre-recorded Video Only

In certain cases, particularly those involving young complainant-witnesses and cases that are likely to have a long wait time to trial (for example, complex cases with multiple complainant-witnesses likely to need a two or three week scheduling window), two stakeholders highlighted the benefits of allowing pre-recorded evidence and cross-examination. This would eliminate the need for complainant-witnesses to attend court at all.

^{47 District Court of NZ, Te Kōti ā Rohe o Aotearoa. Sexual Violence Court Pilot: Guidelines for Best Practice. No 22. http://www.districtcourts.govt.nz/assets/Uploads/Publications/Best-Practice-Guidelines.pdf}(external link)

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7.5  Enhancing Case Management

Section 44 Application at Pre-Trial Hearing

Under the pilot, most potential issues that could risk delay or adjournment for trial are being effectively dealt with at case review and, if necessary, resolved at pre-trial hearings. However, it was raised by one stakeholder that there is a tendency among some defence counsel to not identify their intention to apply under Section 44 of the Evidence Act⁴⁸ (to ask complainant-witnesses about previous sexual experience with someone other than the defendant). It was highlighted that this can be traumatising for the complainant- witness when questions they are not expecting are put to them.

It was highlighted that if the Section 44 application was brought within appropriate timeframes before the trial, there could be a pre-trial hearing held on it well in advance, and any necessary further investigation conducted to address the application. The judge would be able to make an informed decision and decide on the parameters of the questioning, if it is to be allowed. In this way, prosecutors could then advise the complainant-witness that questioning on prior sexual activity with particular people would form part of the defence line of questioning. One possible solution to defence not being sure at case review as to their intention to apply under Section 44, would be for this to be enquired into again by the judge at trial callover.

^{48 NZ Government, Evidence Act (2006); Section 44 and 44A}

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Scheduling

It was noted by one stakeholder that courts could give more consideration to the needs of complainants in setting trial dates, rather than focusing purely on scheduling for the earliest possible date - for example, a trial being set down for the day that a complainant was due to start high school and a preference for the trial to be re-scheduled until the school holidays.

Flexibility also needs to be applied in scheduling for trials that require specialist expertise evidence that may require longer lead times.

7.6       Enhancing Resourcing

Case Manager Caseload

Ideal case manager caseloads would be highly dependent on the level of experience and capability of the individual case managers. Some stakeholders suggested that a caseload of no more than n=50 per case manager would be manageable; however, the Auckland case managers disagreed, noting that they felt that were competently dealing with a caseload of around 80 complainant witnesses.

IT Equipment

As noted in Section Five, there are ongoing issues with electronic equipment used for presenting evidence to the court in both Auckland and Whangarei. Ensuring that all IT/electronic equipment is working correctly, is compatible with stakeholder system, is upgraded as necessary, and tested regularly to ensure compliance with the guidelines can be expected to eliminate delays and disruption.

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It was also noted that, with the majority of complainants in sexual violence cases giving evidence via CCTV, there is pressure on the existing CCTV resource in Auckland. An additional suite would be advantageous.

7.7       Enhancing Inter-Agency Communication

Wider stakeholder engagement to include all relevant agencies and organisations, for them to understand the differences in case management processes within the pilot (compared to normal jury trial case management) would help to minimise the risk of delays occurring due to lack of effective communication.

ESR

Going forward, it would be helpful for ESR to know which samples are for cases within the pilot as they would like to be able to track when samples are submitted to them, and if necessary, be able to prioritise these if results are required for New Zealand Police and/or Crown to make decisions around how to progress the case.

An enhancement, from the perspective of ESR, would be the routine sharing of information around key dates (for example case review hearing), for pilot cases that involve them conducting analysis, so that they can ensure that they can contribute to key decision points in the process.

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New Zealand Police

Within the pilot, Crown are often requiring the New Zealand Police to provide evidence earlier in the process, which puts pressure on their resources, particularly in terms of transcription of EVIs. More communication and gaining buy-in on the processes and objectives of the pilot would be beneficial.

Digital Communication Platform

It has been noted and observed that effective communication between parties involved in pilot cases is critical to its success. Currently liaison between Crown, defence and judges is facilitated by case managers, usually via email or phone calls. It was suggested by a stakeholder that an online message platform or file sharing service would enhance communication by utilising available technology.

Case managers and SVVAs currently work in two different electronic systems that don’t link. Whilst the current case managers are reported to be very diligent about ensuring any changes made to the files are communicated to all parties involved (generally via email), there is a risk that a change made in the case manager’s system (for example, a revised date) is not manually communicated to the SVVA. This can result in trials being delayed or complainant witnesses being unnecessarily inconvenienced.

7.8  Enhancing Judge-Alone Trials

Many stakeholders are in favour of all sexual violence trials being ‘judge alone’, stating that ‘judge alone’ trials would be quicker/more efficiently-run, more cost effective (as juries are not required) and the quality of the outcome (that is, based on the facts of the case as opposed to the biases and personal beliefs of jurors) and experience of the complainant (and defendant) might be better, especially given the sexual violence training that judges have received as part of the pilot.

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8 Perspectives on National Rollout

Among stakeholders, there is wide support for the pilot model to be extended to other courts around the country.

Stakeholders noted a range of challenges (and in some cases risks) associated with a national roll-out of the pilot, and also made suggestions as to how these challenges could be addressed (and risks minimised).

8.1       Allowing Flexibility – Not A ‘One Size Fits All’ Approach

Courts around New Zealand vary greatly, including in terms of their physical size and configuration, the nature and size of the populations they serve and the culture among the staff who work there. Consequently, the pilot approach needs to have a level of flexibility to allow for the model to be adapted in ways to suit the characteristics of each individual court. (Stakeholders noted that the way that Auckland and Whangarei have successfully adapted the pilot to fit their environment and court culture demonstrates that this approach can work.)

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It was suggested that the Manager for Justice Services for each court where the pilot is to be rolled out would need to be part of the consultation and decision making around the allocation of resource.

It may be logistically easier to roll the pilot out to larger courts, which have more resourcing, first than to smaller courts. However, regardless of whether timeframes can be reduced in smaller jurisdictions, many of the other practices that aim to minimise negative impact on complainants could be implemented consistently across all jury courts.

8.2 Education and Communication

Training

Stakeholders feel that it is strongly advisable that any judge presiding over sexual cases will have undertaken the sexual violence education. In addition, other stakeholders to the pilot would benefit from specific sexual violence training.

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Some stakeholders suggested that judicial training/education could be particularly important in smaller courts/in provincial area where attitudes to sexual violence may be more ‘old fashioned.’

It was also suggested that current designated SVCP judges could provide exemplars of trial management in other jurisdictions:

Communication

Pivotal to rolling the pilot model out to other courts will be ensuring that all stakeholders, including those peripherally affected such as the New Zealand Police and ESR, are fully informed of the purpose, processes, expected outcomes, and how it will affect their roles. It will be important to gain buy-in from all those involved so that they understand the benefits to be gained for all parties.

8.3 Resourcing

Appropriate resourcing will also be critical for a successful rollout of the pilot to other locations. This relates to judicial resource, courtrooms, court registry officers to support expanded capacity for jury trials, SV case managers and also the physical environment for complainant-witnesses, including sufficient CCTV capacity. For example, concern was raised about the impact on the non-sexual violence cases in courthouses with only one jury trial court if sexual violence trials were to be prioritised nationally.

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In addition there needs to be enough defence counsel willing to work on serious sexual violence cases in the localities of courts where the pilot might run.

Judicial Resource

As has been highlighted earlier in the report, presiding over back-to-back pilot trials can take a psychological toll on judges and so consideration needs to be given to the number of judges designated in any jurisdiction that might run prioritised sexual violence trials and to rostering of judges to a mix of trials.

Case Managers

As identified earlier, the utilisation of designated case managers has been a critical factor in the success of the pilot to date. Stakeholders unanimously agree that this success has been derived not only from the role/job description but also from the suitability of the particular people appointed to those roles in terms of their experience, knowledge, interpersonal skills and passion.

Careful selection of case managers in other courts is essential in a roll-out of this Pilot. Key qualities include:

• experience (in the justice sector generally as a minimum, but ideally in ‘normal’ jury trials);
• high level of case management proficiency;
• excellent time management skills and an ability to remain calm under pressure;
• resilience;
• strong communication

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Communication Assistance

Availability of a communications assistant in some cases is critical to ensuring that complainants can effectively engage in the process and do not experience secondary victimisation. They are equally vital in contributing toward a fair trial for defendants. It was noted that the contracted communications assistants in both Whangarei and Auckland are overloaded with work, not only within the pilot but also with other non- SV cases. A roll-out to other courts would need to consider the availability of communications assistants.

Communications assistants, all of whom are qualified and experienced speech language therapists, noted that they need training to inform them about legal processes, and in particular the implications of their work on the legal process. (Communications assistants included in the evaluation noted that while it was important for this training to be provided independently of the providers, providers would be keen to have input into decisions around the content of the training).

Communications assistants also note that an alternative to their current contracting model would be required if the pilot was rolled out nationally. Currently assistants work on contract – so a need for assistance is identified by court staff and providers are approached to see if they have availability and are contracted to provide the service. However, this reactive approach makes identifying staffing requirement almost impossible – and consequently, because providers can’t give potential employees an indication of how much work is coming in, it is proving very difficult to persuade trained speech language therapists to leave their current jobs and to work exclusively as communications assistants.

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8.4       Pilot Versus Status Quo

As discussed in Section Three, all stakeholders included in the evaluation have enthusiastically embraced the pilot and its objectives, and the comments made by stakeholders and the observations by the evaluation team suggest that those involved have been extremely committed to seeing the pilot succeed and the objectives being met. As discussed, stakeholders in Whangarei were particularly motivated by wanting to make a locally-initiated idea (designed by someone they know well and respect) succeed. Whilst stakeholders were very clear that they did not want to see the pilot conclude, the short-term nature of the pilot is also likely to have been a factor in encouraging engagement. There is a risk that, if the guidelines are rolled out nationally and become ‘status quo’, new stakeholders may not have the same commitment to, and be less engaged with, the objectives. Well-designed, motivational training, regular opportunities to re- energise (such as through refresher training and regular stakeholder meetings) and regular communications of performance statistics are a significant part of maintaining momentum when a pilot is rolled out nationally.

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Appendices

• SVCP: Guidelines for Best Practice
• Key Informant Interview Guide
• Key Informant Focus Group Guide
• Complainant Witness Interview Guide

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Appendix A

SEXUAL VIOLENCE COURT PILOT: GUIDELINES FOR BEST PRACTICE

Object

1. The object of these guidelines for best practice (“the Guidelines”) is to improve case and trial management of offences of sexual violence.

2. The guidelines operate completely within existing jury trial practice under the Criminal Procedure Act (“Act”), the Criminal Procedure Rules (“Rules”) and case and trial management techniques.

3. The guidelines are designed to reduce pre-trial delay and to ensure flexible, workable trial arrangements.

Entry of cases into the sexual violence court pilot

4. Charges covered by the sexual violence court pilot (“the Pilot”) are those listed in Appendix (1) where the defendant has pleaded not guilty and elected trial by jury.

5. The case enters the Pilot at the time of a case review

Designated judges

6. Only judges designated for the purpose may preside over a case in the Pilot⁴⁹. The Chief District Court Judge will designate judges from time-to-time based on experience and

The case review hearing

7. All cases in the Pilot must be dealt with by a judge at the case review stage.

8. All defendants must be present at the case review hearing unless attendance has been specifically excused, in advance, by the judge.

9. Both Crown and defence must engage in case management discussions and jointly complete the case management memorandum (CMM) as directed by s 55 Act.
10. The CMM must contain the matters set out in s 56 Act and r 4.8 Rules. It must also contain a summary of facts.

^{49 Any reference to “a judge” or “the judge” in the Guidelines is to a judge designated in accordance with guideline 6. The case review hearing}

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11. Judges must be prepared to engage their power under s 364 Act to make a costs order for procedural failures.

12. At the case review hearing the judge, apart from the matters set out in ss 57 and 58 Act, shall enquire into and make appropriate directions as to:

• whether the case is, or has been identified as, a case falling within the Court of Trial Protocol;

• whether there are issues of disclosure, including disclosure by a non- party;

• whether there are issues of joinder of charges and/or defendants under s 138 Act;

• alternative ways of giving evidence under ss 102 — 107 Evidence Act 2006;

• admissibility of evidence including but not limited to, propensity, complaint;

• the length and content of evidential video interviews, and whether they can be truncated or reduced in length;

• the need for interpreters;

• the need for communication assistance under s 80 Evidence Act 2006;

• support persons under s 79 Evidence Act 2006;

• the likelihood of expert evidence (forensic, counter-intuitive, medical) and the availability of expert reports;

• likely trial length;

• any other likely pre-trial applications.

13. All judicial directions will be recorded in writing and distributed to the Crown and defence.

Trial callover

14. All cases in the Pilot must be dealt with by a judge at trial callover stage.

15. All defendants must be present at the trial callover hearing unless attendance has been specifically excused in advance by the judge.

16. Both Crown and defence must file trial callover memoranda as required by s 87 Act and r 6 Rules. The memoranda must contain the information required by s 88 Act and r 5.8 Rules. In addition, the trial callover memoranda must address the directions given by the judge at the case review hearing.

17. At the first trial callover, dates will be allocated for any pre-trial application and the trial.

18. Further callovers, prior to trial, will be a matter entirely within the discretion of the

19. As well as dealing with the matters set out in paragraph 16, the judge will enquire into, and make such necessary directions about:

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• whether court and witness facilities have been explained to the complainant, and inspection has been arranged;

• whether a complainant intends to view his or her evidential video interview before trial;

• witness

Trial

20. The testing of electronic equipment, g. CCTV used for the complainant’s evidence, is to be done in court as part of the trial process.

21. The judge is to ensure flexibility for the evidence of the complainant recognising the complainant’s age and capacity, including regular breaks, early/later start and finish times.

22. Where the complainant gives evidence from another location any documents, e.g. photographs, sketches, written statement, letters, should be made available in the witness room for use by the complainant prior to the commencing of his/her evidence.

23. The judge must be alert to and intervene if questioning of any witness, particularly complainants, is unacceptable in terms of s 85 Evidence Act 2006.

24. The order of prosecution witnesses is a matter for the prosecutor, but judges should ensure that expert evidence (medical, counter-intuitive) is addressed to actual trial issues.

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Appendix B

Evaluation of the Sexual Violence Court Pilot – Key Informants

Interviewee Question/Topic Guide

 1.       Introduction and Context

• Overview of evaluation project and Gravitas role
• Purpose and aims of discussion; expected duration; roles of participants
• How the information will be used
• Confidentiality and anonymity
• Purpose and permission of audio recorder
• Opportunity for questions
• Reconfirm participant is happy to go ahead with interview. Explain and sign consent form.

2.       Main Discussion

The objective of the Sexual Violence Court Pilot is to improve case management and jury trial management of sexual violence offences, with the aim of establishing best practice for the conduct of sexual violence trials.

As a stakeholder and someone who has been involved with sexual violence cases going through one of the Court Pilot locations, we would like to understand from your perspective how well the Pilot is achieving its aim, what is contributing to this, and what the barriers might be to greater success.

1. Background

(To be asked of all key informants)

• Tell me briefly about your role and how you come into contact with the SV Court Pilot
• Prior to the introduction of the SV Court, what do you feel were the main challenges:
  • For case management and trial management of SV offences?
  • For you in your role in working on SV cases?
• What, if any, involvement did you have in the design of the SV Court Pilot?

• What is your view about the objectives of the Pilot?

Ask the following sections as relevant to the key informant.

2. Case and Trial Management

(To be asked of all key informants)

• In what ways does the management of an SV case in the Pilot differ from management of other jury trials?

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• In practice, in what ways does the management of an SV case in the Pilot differ from management of an SV case outside the Pilot? (if they have knowledge of this)

For each way, ask:

• How/why has this difference come about?
• Was this difference planned (i.e. originated from Best Practice guidelines) or unexpected?
• Do you see this as a positive or negative change? Why? Who benefits/is disadvantaged? Probe to understand impact both inside and outside the SV Court
• What implications has this change had on your role specifically?
• Has this difference gone far enough/is it as different as you expected? If no: Why not? What has been the impact of this?

If not specifically asked above:

Case Review Hearing

(To be asked of project manager, case managers, judges, prosecutor/Crown, defence)

• In what ways are case review hearings different under the Pilot? For each way, ask:
  • How/why has this difference come about?
  • Was this difference planned (i.e. originated from Best Practice guidelines) or unexpected?
  • Do you see this as a positive or negative difference? Why? Who benefits/is disadvantaged?
  • What implications has this change had on your role specifically?
  • What, if any, implications are there for cases outside the Pilot?
• If not mentioned: Some Crown and defence counsel are filing pre-trial applications in the Pilot before the case review. What impact does or would this have?

If not specifically asked above:

Trial Callover

(To be asked of project manager, case managers, judges, prosecutor/Crown, defence)

• In what ways is the trial callover stage different under the Pilot? For each way, ask:
  • How/why has this difference come about?
  • Was this difference planned (i.e. originated from Best Practice guidelines) or unexpected?
  • Do you see this as a positive or negative difference? Why? Who benefits/is disadvantaged?

Probe to understand impact both inside and outside the SV Court Pilot.

• What implications has this change had on your role specifically?
• What, if any, implications are there for cases outside the Pilot?

• If not mentioned: In the Pilot in Auckland, SV callovers are occurring by teleconference. What impact does this have on your role? On timeframes to trial? Are there any negative impacts of this practice?

Case Manager Role

(To be asked of all key informants except perhaps Dept of Corrections, Forensic Service and advocates)

• What do you understand the role of the dedicated SV Case Manager in the Pilot to be?
• What impact has this SV case manager role had on the operation of the Pilot?

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• How effectively have SV Case Managers been able to liaise with judiciary and counsel in order to advance cases through the court process? What had supported this? What, if any, challenges have there been? How could this be improved?
• How would you describe the SV Case Managers caseload throughout the Pilot?
• How could the optimal caseload for SV Case Managers be determined?
• In what ways, if any, could this role be enhanced to further achieve the objectives of the Pilot? What would be the impact of this for you in your role? For other participants? For the Ministry generally?

Adjournments, Delays and Length of Trials

(To be asked of project manager, case managers, jury scheduler, judges, prosecution/Crown, defence)

• What changes to processes and practices as part of the SV Court Pilot have had an impact on adjournments?
• What, if any, changes have there been in reasons for adjournment in the Pilot? Why?
• What has been the impact of these changes?
• What, if any, impact has the Pilot had on the length of trials? What factors have affected trial length?
• How have judges dealt with any delays/adjournments in trials proceeding? How is this different to what would happen outside the Pilot?
• Going forward, what more could be done to reduce delays and the length of SV trials?

Case and Trial Management - Summary

(To be asked of all key informants)

• If not clear from discussion: Which of these differences that you have identified has been most significant/had the greatest impact on improving SV case and trial management?

• What, if any, differences did you understand (or hope) would happen in terms of case and trial management of an SV case in the Pilot but that haven’t eventuated? For each ask:

• Why hasn’t this difference happened (yet)? What are the barriers?
• How has this affected your role? The experience of complainant witnesses and defendants? The impact and outcomes of the Pilot as a whole?
• Do you think it will happen in time? What interventions are needed for it to happen?

3. Resourcing and Infrastructure

(To be asked of all key informants)

• Do you think the Pilot is sufficiently resourced to achieve its objectives?
  • If not, what additional resourcing would support the Pilot in achieving its objectives?
  • What difference would this make to the operating and outcomes of the Pilot?
• Is there appropriate and sufficient infrastructure in place for the Pilot to achieve its objectives?
  • If not, what additional infrastructure would support the Pilot achieving its objectives?
  • What difference would this make to the operating and outcomes of the Pilot?

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4. Impact on Role of Judges

(To be asked of project manager, case managers, judges)

• What impact has the Pilot had on judges’ time resource?
• In addition to the Best Practice guidelines, what other changes have you adopted to improve case and trial management? For each ask:
  • What has been involved in implementing these changes?
  • How successful have these changes been to date? What has been the impact(s)?

(To be asked of project manager, case managers, judges, SVVAs, prosecution/Crown, defence, advocates)

• The Best Practice guidelines state that only judges designated for the Pilot can preside over Pilot What has been the impact of this? Probe both positive and negative impacts; planned and unexpected impacts.
• What difference has the judicial education on sexual violence made to how SV cases within the Pilot are managed?
• How has the judicial education impacted on how judges deal with complainant-witnesses? With defendants? With other stakeholders?

5. Impact on Role of Prosecution/Crown and Defence

(To be asked of project manager, case managers, prosecution/Crown and defence lawyers)

• What impact has the Pilot had on prosecution/Crown and defence lawyers’ time resource?
• In addition to the Best Practice guidelines, what other changes have you adopted to improve case and trial management? For each ask:
  • What has been involved in implementing these changes?
  • How successful have these changes been to date? What has been the impact(s)?
• If not identified earlier: What have been the challenges for you and your work as a result of the changes to case and trial management? How have you dealt with these challenges?

6. Impact on Role of SVVAs and Victim Advocates

(To be asked of project manager, judge, prosecution/Crown, defence lawyers, SVVAs and victim advocates)

• What impact has the Pilot had on the role/involvement of SVVAs in SV cases? (What do SVVAs do differently as part of the Pilot?
  • What has led to these impacts/changes?
  • Were these impacts/changes planned or unexpected?
  • How do you feel about these changes? Probe to understand benefits/negative impacts and which stakeholders have been affected
  • Ask of project manager and SVVAs only: Has there been sufficient resourcing to adequately address these impacts/changes? What more would be beneficial?
• What, if any, issues are there with balancing SVVAs’ involvement in SV court pilot cases with SV cases

not in the court pilot?

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• What impact has the Pilot had on the role/involvement of victim advocates in SV cases? (What do victim advocates do differently as part of the Pilot?)
  • What has led to these impacts/changes?
  • Were these impacts/changes planned or unexpected?
  • How do you feel about these changes? Probe to understand benefits/negative impacts and which stakeholders have been affected
  • Ask of   victim   advocates   only:       What are the implications for resourcing of these impacts/changes?
• What, if any, issues are there with balancing SVVAs’ involvement in SV court pilot cases with SV cases not in the court pilot?

7. Scheduling

(To be asked of project manager, case managers, jury scheduler, jury service manager)

• What, if any, concerns did you have at the start of the Pilot regarding scheduling of trials? Why?
• Which, if any, of these concerns have eventuated?
• What impact is the Pilot having on the scheduling for SV jury trials?
• What impact is the Pilot having on scheduling for non-SV Pilot trials?
• What are the challenges for prioritised scheduling for SV trials in the Pilot?

8. Data Collection

(To be asked of project manager, case managers)

• How is data is being captured and reported, by whom, how frequently etc. for the Pilot?
• How effective and comprehensive has this data capture been?
  • What have the challenges been?
  • How could data collection be improved?
  • What other kinds of data should be collected, by whom, how frequently etc.? Probe to understand how this additional data would be used/its benefits

9. Impact of Pilot on Other Cases

(To be asked of project manager, case managers, jury scheduler, jury service manager)

• In what ways, if any, has the Pilot impacted on non-SV Pilot cases and jury trials? Probe to identify both positive and negative impacts, planned and unexpected impacts
  • To what extent were these impacts anticipated/expected?
  • How have these impacts been addressed – if at all? Who was involved in this? Was it effective?
  • What more could be/should be done to address these impacts?

10. Differences Between Auckland and Whangarei

(To be asked of those who are aware of both)

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• What are the key differences between how Auckland and Whangarei have implemented the SV Court Pilot?

Ask for each difference:

• How did this difference come about? Was it planned or unintentional?
• How are the impacts different (if at all)? Probe impacts for staff, complainant witnesses, defendants, trials generally, for evaluating Pilot outcomes
• Do you think that one of these ways is ‘better’ than the other? Which? Why? What, if any, barriers or challenges are there to both sites operating in the same way with respect to this?

11. Impact on Complainant Witnesses and Defendants

(To be asked of project manager, judges, SVVAs, prosecution, defence, advocates, Dept of Corrections)

• What have been the key benefits of the SV court pilot for complainant witnesses? For their wider family and supporters? For defendants and their supporters?
• What, if anything, have been the negative impacts of the SV court pilot for complainant witnesses? For their wider family and supporters? For defendants and their supporters?

Probe for each not mentioned above:

• Are complainant witnesses and defendants better prepared for giving evidence in the SV Court Pilot?
  • If yes, what is being done differently, and by whom, to make complainant witnesses and defendants better prepared?
  • If not, what could be done differently to help them be better prepared?
• In what ways, if any, are court education tours being managed differently? (i.e. timing/number of visits/up-take by complainant witnesses/defendants)
• What differences have the changes to case and trial management made to complainant witnesses and defendants?
• In what ways, if any, has the Pilot impacted on complainant witnesses having in-court support people with them while giving evidence?
• Has the Pilot had any effect on the use of communications assistants or interpreters in court?
  • If so, what impact has this had?
• Overall, do you think that the Pilot has reduced the risk of trauma for complainant witnesses and defendants through the court process? What about for their wider family/supporters?
• What more could be done (within existing legislation) to reduce the risk of trauma for sexual violence complainant witnesses and defendants through the court process?

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 3.       Final Thoughts                                                                                                                              

• Thinking about your expectations/hopes when the SV Court Pilot first got underway/when you first became involved, how do you feel the Pilot has gone to date (better/worse than expected? About the same?) Why?
• If you had to identify the most significant change initiated by the Pilot so far, what would it be? Why?
• If the Pilot was to continue operating here in Auckland/Whangarei, what changes and/or new initiatives would you like to see made in the next 12-24 months?
  • Why these?
  • What impact will these changes have – for you in your role, for other staff, for complainant witnesses, for the Ministry generally?
  • What needs to happen to allow these changes to occur?
  • What are the challenges to these changes occurring? Probe potential impact on non-SV cases
• What are your thoughts on the SV Court model being rolled out nationally?
  • What would the challenges be?
  • What changes would need to be made?
  • What do you think the impact would be?

Final participant-initiated comments

Thank and close

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Appendix C

Ministry of Justice - Sexual Violence Court Pilot Focus Group Discussion Guide

 Introduction and Context

• Introduction and purpose of focus group discussion; expected length (90 minutes)
• How the information will be used
• Confidentiality; anonymity of quotes in reporting
• Feel free to share perspectives – views do not have to align with other participants’ views
• One person speaking at a time
• Opportunity for questions
• Consent to record
• Introductions if necessary

Discussion Prompts

1. Perceptions of Success Of Pilot To Date

• What does success mean to you in the context of the Pilot?
• How successful overall has the Pilot been?
• Review key pilot data, particularly around case disposal times (pre-Pilot vs. Pilot) and from SVVA surveys. Get participant thoughts on results and whether results indicate ‘success’. Identify any ‘surprises’ with respect to the data
• What have been the most critical elements to the pilot’s success?
• What, if anything, has hindered the success of the pilot? Probe: What, if anything, has made it challenging to follow the guidelines?
• What, if anything, did you understand/think would happen as part of the Pilot that hasn’t eventuatedor gone far enough?

• What have been the implications for that (i.e. changes not occurring…)?
• What could have been done to support these changes occurring?

• What elements of the Pilot could be applied to other SV prosecutions (such as Judge alone trials)?

2. Perspectives on Rollout of the Pilot

• What are your thoughts about rolling out the SV court model nationally?

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• If, as a team, you were responsible for managing the national roll-out of the pilot, how would you organise it?
  • What would the risks/challenges be?
  • What would you do first?
  • What resources would you request?
  • What changes would you make from what is happening now?
  • What aspects would you definitely keep the same?
• What do you think the impact of having the SV court model operating nationally might be?

3. Completion of the Pilot

• What will happen once the pilot stops at the end of June 2019?
  • What would be lost with the pilot ceasing?
  • Which aspects of practice could feasibly continue post the pilot without any additional resourcing?
  • Which of these do you expect to continue? Why these/why not others?

Any other issues

Thank and close

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Appendix D

Evaluation of the Sexual Violence Court Pilot – Victims

Interviewee Question/Topic Guide

 1.       Introduction and Context

• Overview of evaluation project and Gravitas role
• Purpose and aims of discussion; expected duration; roles of participants
• How the information will be used
• Confidentiality and anonymity
• Participant safety; support services (contact details will be available for Victim Support, HELP Auckland, Rape Crisis, Skylight/NSVSA, Shakti, Toah-NNEST)
• Option to withdraw at any time, not answer particular questions; request a break/a breather etc.
• Purpose and permission of audio recorder
• Opportunity for questions
• Reconfirm participant is happy to go ahead with interview. Consent form explained and signed.

 2.       Main Discussion

• I am wanting to understand your experience, in your own words, of attending court to give evidence as a victim in a sexual violence case. I won’t be asking you about the event or events that led you to make a complaint to the Police. However, you are welcome to refer to these as little or as much as you feel comfortable in talking about the court process and what your experience of that was.

• If you have had more than one experience of being a victim called to give evidence in a sexual violence trial, we would like to hear about any ways that your experience at Auckland/Whangarei District Court in 2017/2018 was different to the other previous experiences.

Please talk me through your experience of the court process from when the defendant elected a trial by jury.

Probes:

Use as necessary on each of the following steps in the court process. Only use specific questions if not covered in participant’s narrative.

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1.             Court Awareness and Communication

• Had you had any prior experience of a court process? If yes, discuss briefly
• Did you receive any information from the Police about the court process? If yes: What information was this? When and how was it provided? What impact did it have on you?
• Did you receive any information from the Sexual Violence Victims Advisor about the court process? If yes: What information was this? When and how was it provided? What impact did it have on you?
• If not mentioned: Did you receive information from the Police or the Victims Advisor about the case review hearing?
• Where else did you get information about the court process? What information was this? When and how was it provided? What impact did it have on you?
• If not mentioned: Did you have contact with a Victims’ Advocate or other specialist support? If yes:
  • Who/which agency(ies)?
  • When did that start?
  • What support did you receive and when?
  • Was this support helpful? Why/why not?

2.             Time Between Election of Jury Trial and Start of the Trial

• Approximately what was the timeframe between the first appearance/election of trial by jury and the scheduled date for trial? How did you feel about this timeframe?
• Had anyone advised you beforehand of what timeframe to expect? If yes:
  • Who had advised you?
  • When did this happen?
  • What timeframe were you told to expect?
  • Did you understand what was being communicated to you?
• What communication did you receive about events between the election of jury trial and the trial? Who communicated with you? When did this happen?
• What impact did the timeframe waiting for trial have on you?
• What, if anything, changed during this period?

• • Were there any delays in the trial going ahead? If yes:
    • How much notice did you get that the trial would be delayed?
    • How do you feel about the reason(s) for the delay?
    • What impact did delay(s) have on you?
    • What difference would it have made to you if the trial had gone ahead as originally scheduled?

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3.             Court Preparation

• • • How prepared did you feel for the court process before it began? What did you think the court process would be like?
    • Did you have a meeting or discussion with the Crown Solicitor or Police Prosecutor before the trial started? If yes: When did you have this meeting? What did they discuss with you? How did you feel about this meeting?
    • Did you have a court education visit prior to the trial?
      • If yes: Who offered this visit? How long before the trial did this happen? How long did the visit take? What did you discuss/what were you shown? How useful was this?
      • If no: Were you offered a pre-trial court visit? If yes: Why did you decline to attend?
    • Were you provided with options about entering and leaving the court building during the trial?
      • If yes, who provided you these options?
      • All: What was your experience of entering and leaving the court building? What impact did this have on you?
    • Were you consulted on bail conditions or any name suppression application?
    • Were you provided with the opportunity to view your evidential video prior to the trial?
      • If yes: Who offered you this choice? Did you choose to view your evidential video? Why/why not? What impact did this have on you?
      • If no: What difference would this have made?

4.             The Trial Itself

General Perceptions

• • • What words would you use to describe your experience giving evidence in court?
    • Describe what happened at court
    • Describe how you were treated at court by…
      • the judge.
      • the prosecutor(s)
      • the defence lawyer(s)
      • the Sexual Violence Victim Advisor
      • other court staff
      • Victim Advocates (e.g. from HELP Auckland, Rape Crisis )

Probe to find out which staff, if anyone, they met with prior to the trial commencing and how they felt about this meeting/what impact it had

Experience Giving Evidence

• • • What was the process used when the charges were read?
    • Was your evidential video interview played to the court?

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If yes: Was it played in full or were just parts played? How did you feel about this? If you had had the choice, would you have liked the full video to be played or just parts? Why?

• • • Were you offered a choice of ways to give evidence (either behind a screen or via CCTV)?
      • If no: If you had been offered a choice of ways to give evidence, what would you have preferred? Why? What difference would it have made?
      • If yes: Who offered you this choice? Did you use one of these ways? Why/why not?
      • If used CCTV: Were there any issues or problems with the use of the CCTV (i.e. not working properly)? If yes: What impact did this have on the trial? On you personally? Were all necessary documents (photographs, sketches, written statements etc.) made available to you in the witness room before you started giving evidence? If no: What impact did this have on the trial? On you personally?
    • If you could have given evidence from another location (not at the courthouse) via CCTV, would you have opted for this? What difference would this have made?

Communication Assistance/Use of Interpreter

• • • Did you require an interpreter and/or communication assistance while giving evidence?
      • If yes: How was this identified by the court – if at all? Was this assistance made available to you? If yes: Who made this assistance happen? How would you describe the effectiveness of the assistance you received? If no: What difference would it have made if this had been made available to you?

Timing Issues

• • • Did you have any difficulties attending court at the times you needed to be there? (e.g. significant dates) If yes:
      • What type of difficulties were they? How significant were they to you?
      • Did you raise this with anyone? If not: Why not?
      • Did anyone ask you about this or offer ways that the court could make it easier for you? (for example, later start or earlier finish times)? If yes: What impact did this have on you? If no: What was the impact of these difficulties not being identified?
    • How long were you in court for? How do you feel about this amount of time?
    • How do you feel about the regular breaks the court has (morning tea, lunch, afternoon tea)?
    • Had anyone talked to you about what you should do if you needed a break while giving your evidence?

If yes:

• • • Who was this?
    • What were you told to do?
    • How comfortable did you feel/would you have felt about proactively asking for a break if you needed one?

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• • • Did anyone offer to give you a break while you were giving evidence? If yes: Who offered this? What impact did this have on you?

Experience of Questioning/Cross-Examination

• • • Before the trial, what did you know about being questioned by the prosecution and the defence lawyer? How did you know about this?
    • How well prepared for the trial were the prosecution/Crown? How about the defence team? What was the impact of this?
    • Describe your experience of being questioned by the prosecution or Crown lawyers. Describe your experience of being questioned by the defence lawyer(s). How did you feel? Probe to understand any differences in experience between questioning from prosecution/Crown versus defence lawyers
    • While you were being questioned by the lawyers, what did the judge do? Did the judge intervene in the questioning in any way? If yes, how? What was the impact of this on you?
    • What, if anything, do you think the judge should have done differently while you were being questioned? What difference would this have made?

Provision of Support

• • • What was discussed with you regarding having a support person with you at the trial? By who?
    • Did you have a support person/people at trial?
      • If yes: Who was this? Why this person? What type of support did they provide? Probe to identify whether provided in-court support. What impact did this support have on you?
      • If no: Were you aware that you could have a support person or persons near you while giving evidence? What difference would this have made if you had had a support person near you?

Pre-Sentencing and Sentencing

If guilty verdict:

• • • How did you feel about the timeframe from guilty verdict to sentencing?
    • Were there any delays to the scheduled date for sentencing? If yes: Were you made aware of the delay and the reasons for delay? What impact did the delay have on you?
    • How did you feel about the pre-sentencing and sentencing process? Did you feel safe during this part of the court process?
    • Did you have the same judge at the sentencing as you had at the trial? What impact did this have?
    • Did you prepare a Victim Impact Statement? Why/why not? Was it read in court? Who read it out? Did this effectively represent the impacts that you experienced? Did you have the chance to review it beforehand?

 3.       In Conclusion

• • • Given the experience you have had, what do you think are the most important things that need to be changed to improve the experience for victims giving evidence in sexual violence court trials?

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Final participant-initiated comments

Check participant is OK. Suggest making contact with support services if appropriate

Thank and close

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