Thursday, February 18, 2021

Reversing the onus of proof

The Sexual Violence Legislation Bill continues its way through parliament.  Not everyone is onside with the law changes it seeks.

Noteworthy opinion today from Marie Dyhrberg QC :

... the bill crosses the line between assisting complainants and preventing accused men from effectively defending themselves. 

[The bill] states that consent to sexual intimacy must be given every time, which no-one disputes, but then stretches logic to say the jury cannot hear about intimate encounters the same couple had previously. With a rape allegation, when the sex is not denied, the trial turns on whether the defendant had reasonable grounds for believing the complainant consented. Where a couple are in a relationship, that belief may well depend on what had been usual and acceptable between them before.

If the belief was unreasonable, let the jury decide, which they cannot do if the defendant is banned from telling his side of the story... 

While it is true that some victims do not come forward because they fear the trial process,it is also true that innocent men get accused, sometimes for very vindictive or perverse reasons.

Other areas of the criminal law, like assault and fraud, have victims, including vulnerable ones. But we do not suggest that the conviction rate for these offences be unjustifiably or unlawfully bolstered by preventing accused persons from legitimately defending themselves with relevant evidence.

Defendants from lower income levels of society, and Māori and Pacific Island communities, already bear the brunt of the criminal justice system disproportionately to their numbers. The message that would go out to these defendants is that the system is being changed to make it easier to put innocent men in jail, because they cannot be effectively defended in the usual way.

Last year I blogged about Auckland Barrister Samira Taghavi and her response to the bill:

 "... as a defence lawyer, I feel compelled to explain the very damaging effects to those rights that the Sexual Violence (Legislation) Bill would inflict if enacted.

So what are fair trial rights? There are several, all protected in our Bill of Rights Act, and they include the right to be presumed innocent, the right to run an effective defence and the right to remain silent instead of having to help the prosecution prove your guilt. This bill would seriously violate each."

 The Auckland District Law Society says:

"...the major problem with this approach is this reverses the onus of proof. This attitude reflects a presumption of guilt and that all complainants are telling the truth when they allege sexual assaults. This has a major impact on defendants and the restrictions they face in the current jury trial process and would adversely affect fair trial process rights."

I  gather National and ACT are broadly in support, albeit it fighting a couple of clauses. 

Despite the many misgivings (more can be found at submissions) the bill has the numbers to pass into law.


david said...

Are there some clauses that are appropriate? Otherwise i would want to know why National and Act would support such appalling legislation.

Oi said...

Obviously there will be no need for a judge and jury - Indeed, no need for a trial of any sort. If the accused cannot call evidence to defend himself, we can save money by just arresting him and and delivering him to jail for the statutory 7 years!