Little AndrewSEXUAL VIOLENCE LEGISLATION BILLFirst ReadingHon ANDREW LITTLE (Minister of Justice): I move That the Sexual Violence Legislation Bill be now read a first time. I nominate the Justice Committee to consider this bill.Sexual violence affects many New Zealanders many more than the number of convictions that are secured each year. There are many reasons why victims of sexual violence may not report the offending that has been done to them to the police or wish to continue with the prosecution process and there are many reasons why sexual offenders may not be convicted. This Government is committed to addressing the drivers of sexual violence in Aotearoa and the harm it causes and we are committed to improving the way our system works in pursuit of these aims and in response to sexual harm. This bill is one part of our commitment. We know that the current court process makes finding justice for victims of sexual violence particularly difficult. Trials are set up to ensure defendants receive a fair trial—that's the right thing to do—and do so in accordance with fundamental principles and protections to ensure the integrity of each court outcome and the system as a whole. We still live by the principle of innocent until proven guilty. The State is put to proof; that is fundamental. That must always be the case but we can and must make some changes to ensure the trial process does not unduly re-traumatise sexual violence complainants. That is what this bill does. The changes will help complainants to feel supported and safe in court. The changes recognise the need to re-empower complainants by expanding the options for how they participate in some of the most daunting aspects of a trial. They will protect complainants from being subjected to inappropriate distressing and irrelevant questions. This legislation will reduce the trauma sexual violence victims can face in court while still ensuring the fairness and robustness of the trial.Today I'd like to address a few of its key amendments. The first of the changes I'd like to highlight entitles complainants to give their evidence in alternative ways. Alternative ways include using an audiovisual link or CCTV to stream their evidence from outside the courtroom using a one-way screen in court to obscure the witness's view of the defendant or recording the evidence prior to the trial. Some of these things have already been experimented with in the sexual violence pilot courts that have been operating in Whangarei and Auckland in the last couple of years. Giving evidence from the witness box will be a stressful experience for any witness in any case. We know that sexual violence complainants generally find it the single most difficult thing about the trial. They are asked to recall minute and exceptionally sensitive details about the assault they experienced often a considerable amount of time after it occurred. This evidence is given in an alien environment and in front of the jury the public and the defendant. Most sexual cases will turn on the complainants' evidence which only adds to the pressure. While there are some provisions for witnesses' evidence to be given in alternative ways the prosecutor must apply to the judge in each case for permission to do so. In practice recording evidence and playing it back at the trial only occurs for evidence-in-chief so the complainant will still have to attend trial and be cross-examined in the open court by defence counsel. This legislation will mean that prosecutors will simply notify the court and the defence which way the complainant will give their evidence. The defence will still have the right to object to the way that has been elected in which case the judge will determine what method is to be used. The bill includes a specific procedural framework for when pre-recorded cross-examination is elected to ensure it operates as intended. The bill makes the fairness of the trial the overriding consideration. If the use of pre-recording will create a real risk to a fair trial a different method of giving evidence will need to be used. This also means that the policy of allowing pre-recording is not routinely frustrated by reference to its inherent features. We know for instance that recording a complainant's evidence before the trial will mean the defence lawyer will have to disclose some of their strategy and won't be able to tailor their cross-examination to a jury's reaction. The legislation prescribes that these factors cannot be presumed to create a risk to the fairness of the trial. It must be clearly shown in the circumstances of the case.Pre-recorded cross-examination has been progressively implemented across similar jurisdictions to ours over the last 25 years. While our system has its own structures and processes that will need to be carefully managed as we implement this new process I'm confident that we can make it work here too. I encourage experts and stakeholders to consider the bill and to participate in the select committee process to help us ensure that we get it right. As well as how complainants give evidence we need to ensure that what they are required to give evidence about does not unduly traumatise or re-victimise victims. Section 44 of the Evidence Act prescribes strict rules around evidence of a complainant's sexual experience with people other than the defendant. That kind of evidence can be led only if it's so relevant that excluding it would be contrary to the interests of justice and permission to do so must be sought from the judge before trial. The bill would clarify that these rules apply equally to the evidence of a complainant's sexual disposition—that is evidence about alleged preferences or predilections where they may not involve experience as such. The bill will also extend those rules to evidence of sexual experience with the defendant. This change will ensure the relevance of questioning about quite intimate facts is actively considered in every case. It may also help to reinforce the fact that consent cannot be inferred from previous sexual activity; both parties need to consent every time. The bill maintains the ordinary admissibility rules for evidence about the mere existence of a previous relationship with the defendant as opposed to the details of that relationship. This will help to ensure that there are no holes in the narrative of the case and that decision makers' reasoning is based on a contextualised understanding of the facts. The bill will also apply these rules as well as section 44's complete bar on evidence of a complainant's sexual reputation to civil cases as well as criminal ones because we know that sometimes these issues are relevant in the Family Court for example. As the Law Commission noted in its 2019 review of the Evidence Act the same dynamics and potential for undue harm exist in court cases involving allegations of sexual violence no matter what the jurisdiction. In progressing the Law Commission's recommendation to apply section 44 of the Evidence Act to civil cases we've made a small modification to preserve legitimate avenues of litigation in defence and civil cases. As well as protecting the complainant from unfair questioning the complete bar on evidence of a complainant's sexual reputation recognises that there is no way that that subject will ever be truly relevant to the question of whether sexual offending has occurred. In the civil jurisdiction there is a much wider range of questions that may be before the court. We need to ensure that procedural changes in one area of the law do not alter substantive law in other areas or foreclose the right to access the courts to resolve disputes. While it is likely to be extremely—and thankfully—rare we cannot rule out the possibility that a person's sexual reputation may become the very subject of civil litigation. In these cases only the high admissibility threshold and prior permission rules from section 44 will apply rather than a complete ban. The bill is explicit that sexual reputation evidence can never be used to prove the accuracy of that reputation or to infer consent or a reasonable belief in consent. I note that a couple of the bill's amendments apply to all witnesses not just those in sexual violence trials. One example is the entitlement to specialist communication assistance for anyone who needs it for whatever reason to understand questions and to give evidence in court. The language used in court in a court setting can be technical specialised and difficult to understand—and I say that as a lawyer—and so assistance should be available to witnesses and to others for whom the court is an unfamiliar territory. Currently communication assistance is only available to witnesses who meet tight criteria based on English language proficiency or communication disability. So we need to make that change. Another amendment applying beyond sexual violence cases clarifies that victim impact statements can be given in alternative ways too. The Victims' Rights Act currently allows a statement to be given other than by reading it and so we'll allow them to be given by video link if possible. I want to conclude by thanking the Law Commission for their work and on whose work this law change is based but I particularly want to acknowledge my colleague the Parliamentary Under-Secretary to the Minister of Justice Jan Logie who is a great leader in this whole area and who is leading this Government's work in addressing the extraordinary incidence of family and sexual violence in this country as we get to grips with it and really take it seriously put resources behind it but most importantly make important progressive law changes like this as we transform the landscape and start to provide protection for victims and survivors of sexual violence. I commend this bill to the House.