The Unfairness of the Evidence Act
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Victims of rape or sexual abuse had always been at a disadvantage in the courtroom and recent law changes had turned the
clock back on improvements, says former Court of Appeal judge, Justice Thomas.
Justice Thomas said that the Evidence Act 2006 codified a conservative view of the law of evidence. That was nowhere
more evident than in the legislature’s treatment of sexual cases, he told an Auckland University Students’ Association
event. Justice Thomas said that the relevant provisions were anything but enlightened.
“Complainants, more often than not women, are placed at a real disadvantage. Trends which would appear to have been
moving to redress the balance are arrested.”
Justice Thomas said that women who complained that they had been sexually abused or raped had always been at a
disadvantage in the courtroom and the relatively low conviction rate for such crimes provided evidence of that
disadvantage.
“Myths persist, such as the belief that women are prone to fabricate allegations of rape and that it is the ‘natural
reaction’ of ‘normal’ women to complain promptly. These man-made fables are insufficiently refuted in the courtroom. The
judiciary has generally failed to assimilate the learning of other disciplines in this area of the law.”
Justice Thomas said that the plight of sexual assault victims had been mitigated by a number of legislative provisions
aimed at alleviating the ordeal of the courtroom experience and the prohibition on cross-examination relating to the
complainant’s prior sexual experience without leave.
However, he said the understanding that motivated those reforms was lacking in the new act. Justice Thomas identified
two areas of concern. The first was the restriction on comment on the accused’s silence at trial. The second was the
prohibition against evidence of previous statements by complainants in sexual cases other than in limited circumstances.
“My core criticism is that the act fails to make discrete provision for sexual cases and, in the result, is unfair to
complainants.” Elaborating on his first concern, Justice Thomas said that sections 32 and 33 provided that the
fact-finder was not to be invited to infer guilt from the accused’s silence either before or at trial.
“It is anachronistic to prevent the prosecution commenting on the fact the accused did not give evidence in the context
of what is still an adversarial process. Either the accused’s silence should be open to comment or it should not.”
He described it as “nothing short of a gross injustice” to complainants when the accused did not give evidence and no
adverse inference could be drawn from that silence.
Justice Thomas said that there was a growing consensus that, without overriding basic adversarial structures,
proceedings for sexual offences should be more concerned to arrive at the truth.
He said that it was essentially unfair for the accused to be able to cross-examine the victim and seek to cast doubt on
her credibility and integrity, but for the accused to be able to remain silent without any inference being drawn.
Justice Thomas suggested that, in sexual cases, it should be open to the jury to draw adverse inferences from an accused
failing to give evidence.
In relation to his second concern about the restriction on the admission of previous statements, Justice Thomas said
that section 35(2) made the defence the gatekeeper of the admissibility of the complainant’s prior complaint. The
subsection was, he said, drawn in unnecessarily narrow terms.
An alternative provision was accordingly required to ensure justice in sexual cases. The reality of trials for rape of
sexual abuse was that the defence was almost always challenging the veracity of the complainant.
“It makes little or no sense to restrict her ability to lead evidence of her disclosure to those cases where the defence
chooses to formulate its challenge in a particular manner.”
Justice Thomas went on to say that the authors of the act appeared to have ignored or rejected recent case law such as R
v Baker and R v Bain, in which the Court of Appeal had placed primary reliance on relevance and reliability as the
criteria for the admission of evidence.
Justice Thomas concluded that it was unfortunate that, at a time when the plight of victims in sexual cases had received
wide publicity, Parliament should have enacted a statute which disadvantaged complainants in significant respects.
“Their vital interests have been subjected to the optimistic belief that a general rule will fit all. Sexual cases could
be sensibly and sensitively dealt with in separate provisions that have full regard to the unique features which set
these cases apart.”
He suggested that archaic language, such as the word “complaint,”could be abandoned, and other provisions in the act
relating to sexual cases could be assembled in the same part. Consideration could be given to adding new provisions
appropriate in sexual cases.
“For example, the defence could be required to disclose the grounds of the defence and the names of any proposed
witnesses in order to avoid the complainant being ‘ambushed’.” The circumstances in which an accused’s previous
convictions for sexual offences could be produced in evidence by the prosecution could also be covered. A
straightforward section could clarify that the other provisions of the act apply to sexual cases except where
inconsistent with the provisions of that part.”
Justice Thomas said that section 202 required the act to be reviewed at least once every five years. He said that, for
the most part, reforms that might have been pressed in the courts would now need to be pursued politically.
“It is my hope that the legal profession, prompted, perhaps, by women’s organisations, will take up the challenge and
press for a review of the act and the enactment of discrete provisions which will reflect a more enlightened outlook and
a desire to ensure justice for the victims, as well as the accused, in sexual cases.”
ENDS