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August 17, 2009 | by  | in Features |
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Sex trials in the spotlight

Why inquisitorial justice is so hot right now.

Justice Minister Simon Power has asked the Law Commission to consider the introduction of a European-style inquisitorial justice system for sexual offending and child abuse cases. The Law Foundation, one step ahead, has already announced an $85 000 parallel study. Salient feature writer Nina Fowler asked three Victoria academics to explain the difference between the inquisitorial and adversarial justice systems, and why change is being considered.

Both systems of justice go back hundreds of years, says senior lecturer Grant Morris.

“The inquisitorial system was associated with the approach used by the Catholic Church, not always with positive results, while the adversarial system developed from the dispute resolution process used at local moot courts in England.

“In the early modern period, continental Europe moved towards a civil law system and the inquisitorial approach. England kept a common law system and the adversarial approach. There’s nothing to say that civil law has to use an inquisitorial system and common law has to have an adversarial system, but that’s the way history has panned out.”

The adversarial justice system was passed on from England to New Zealand, Australia and the US. In contemporary criminal courts, legal advocates present their cases to an impartial third party, usually a jury. The presiding judge acts as referee and sets the sentence.

In the inquisitorial system, currently used in South Africa and many European countries, the presiding judge controls the investigation. She or he supervises the collection of evidence and questions witnesses. Unlike the adversarial system, the defendant does not have a right to silence. Lawyers have a more limited role and a jury is not used. Instead, the verdict and sentence are voted on by a group of professional magistrates.

The relative merits of both systems are hotly contested. Opponents of the inquisitorial system argue that the state may be biased against the defendant, and that trial by a jury of one’s peers is a fundamental right. Supporters argue that the inquisitorial system is quicker and less expensive, and that a jury can not always be relied on to reach a just verdict.

New Zealand has a notoriously low rate of conviction for sexual offences. Nearly a quarter of the population experience sexual violence at some point in their lives, yet under 10% of sexual offences are reported to police, and an even smaller percentage make it to the courtroom.

A discussion paper published by the Ministry of Justice in mid-2008 acknowledged that the adversarial justice system was not doing sexual abuse victims any favours. Victims told researchers and social workers that they were intimidated by the criminal justice system, and felt as though their behaviour was examined during the trial process rather than the actions of the accused.

The Ministry concluded that social assumptions made by the jury affected conviction rates. Jury members had preconceived ideas about how ‘real’ victims should behave before, during and after an alleged sexual assault. As the Ministry put it, a “vicious cycle” has been created: concerns about fairness stop victims and witnesses from coming forward, and low rates of reporting and conviction breed new concerns about fairness.

Child abuse trials are not doing that well either. Similar concerns have been raised about the fairness of exposing a vulnerable victim to cross-examination in front of a jury, while the accused is allowed the right to silence.

Speed and efficiency are an even more pressing concern. Last Friday, the head of the Wellington police district apologised for ‘unacceptable’ delays in processing over a hundred child abuse cases in the Wairarapa.

In mid June, Justice Minister Simon Power announced that the Law Commission would consider an inquisitorial justice system as an alternative to trial by jury in sexual and child abuse cases.

Just prior to Power’s announcement, the Law Foundation announced that Victorian academics Elisabeth McDonald and Yvette Tinsley, along with Jeremy Finn from Canterbury, would be funded to lead a 21-month study into the various inquisitorial models which might work in NZ. The group hope that recommendations based on their research will be used by the Law Commission and Cabinet to change trial process.

McDonald and Tinsley were not able to give their opinions on the relative merits of the inquisitorial and adversarial approaches, though McDonald predicted that “some versions of inquisitorial process may be easier on the complainant.” Tinsley said she believed the tools and assistance made available to jurors were the key to good jury-decision making, rather than the “‘innate (lack of) ability of jurors.”

Senior lecturer Grant Morris is more open about his preferences. While he thinks some aspects of the inquisitorial system that could work well, Morris opposes “whole-scale” changes for sex and child abuse cases.

“I’m happy to be down on record as someone who wants the jury system to remain,” he said. “Having the judge as the neutral arbitrator, being able to have your advocate take a much active role in gathering facts and presenting your case… I do have faith in the jury system, being judged by your peers, and especially in matters of fact.

“There’s nothing to suggest that judges, although they are trained professionals in matters of law, are necessarily the best people to make judgements in matter of fact. For example, whether someone accused of murder is innocent or guilty of the crime—that’s a matters of fact. Then there’s that whole argument of whether the judiciary is representative of the population.

“[Another] thing the adversarial system does pretty well is protect the rights of the defendant to due process and a fair trial, no matter how unlikeable the defendant is.”

Morris is more concerned about the effect of jury dodgers than the integrity of individual jurors in sexual abuse cases.

“My main worry is that the representative nature of the jury is undermined by the fact that so many people, and particularly certain groups, manage to get out of jury service. It’s too easy, even though efforts have been made to tighten it up, and that raises questions about the effectiveness of the jury system.”

He concedes that a more inquisitorial approach could increase the speed and cost of trials.

“With the Bain trial, you can see the huge cost of the research involved on both sides. If more control is given to the judge, if we apply management theory, there might be efficiencies in the [inquisitorial approach].”

South Africa’s move to a more inquisitorial approach resulted in increased conviction rates for sexual assault. Similar changes have been introduced in Victoria, Australia. Are the NZ Law Foundation and Law Commission enquiries likely to turf up similar recommendations?

Researcher Yvette Tinsley thinks “whole-scale” changes to sex and child abuse trials are unlikely, as a move to a purely inquisitorial system would “undoubtedly be expensive and time-consuming”. She emphasises that a complete move is not the only option available.

“Over recent years, there has been a willingness for countries using both systems to utilise good initiatives—i.e. an adversarially based process could utilise initiatives from an inquisitorial system and vice versa. So, it is not necessarily all or nothing.”

Grant Morris points out that some New Zealand courts already contain aspects of the inquisitorial system.

“The Waitangi Tribunal is easily the best example. Tribunal members, as historical researchers, take an active role in gathering information. The court is supposed to be neutral and objective, and advocates bring evidence, but the court is also able to direct further research.”

Even within regular courts, he adds, judges occasionally take a more investigatory approach. “[Judges] do have some ability to comment and ask questions, it’s not as though they sit back the whole time and just listen.”

He agrees with Tinsley that a hybrid between the adversarial and inquisitorial approaches may be the best option for reform.

“There’s always room for impro­vement, but we’ve got to look at the positives that we have, and not just throw aspects away.”

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Nina Fowler (BA), former Salient feature writer, is excited about Salient '10.

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