Allegations of Sexual Abuse

False Allegations

Nick Wills

The Dominion
October 2, 1997

Overhaul for bad justice

If New Zealand were to rule off its criminal trial system and start again, chances are it would not opt for the British-style adversarial model we have now. Some disturbing outcomes suggest it is time to seriously consider replacing it with the inquisitorial system used in Europe.

The central question in any trial should be: "What is the truth of the matter?" In theory, this is what the prosecution and defence tease out and what juries decide. But the role of the police in investigating cases, the approach of counsel and the dynamics of the trial procedure can bring forces into play that are decidedly unhelpful. In practice the question all too easily degenerates into: "Who can put on the most persuasive performance for the jury?"

The publication of a book recounting the Crewe murders in 1970 reminds us of what can go wrong when detectives switch their focus from openly investigating possibilities to a determination to find the evidence to nail a suspect -- even planting a cartridge case if necessary, or discarding evidence which does not suit. An inadequate police investigation led to a risible verdict of suicide in the Janine Law murder in 1988: she was later found to have been raped, sodomised and suffocated. Then police decided 12-year-old Agnes Ali'iva'a, whose body was found clad only in a sock and tracksuit pants worn inside out, had drowned in a ditch: a re-evaluation last year concluded she was sexually molested and probably murdered.

A slipshod investigation put Waikato University student Nick Wills through hell in 1995 after he was falsely accused of rape. Creche worker Peter Ellis, found guilty in 1993 of sexually abusing seven children, appealed against his conviction on the ground that key evidence never reached the courtroom. Other trial shortcomings are detailed in a feature on the facing page.

Thankfully, the new Wellington coroner, Gary Evans, is promising to conduct his own detailed investigations where necessary, not just rubber-stamp the findings of others. He likens his role to that of the French magistrates who are examining the death of Princess Diana.

In the French equivalent of the High Court, an accused person faces a bench of three judges and nine lay people. The judges, not the lawyers, drive the process. The court calls its own expert witnesses. Neither the defence nor the prosecution can be ambushed, because if new facts come to light there is time to consider a response.

The defence has full access to prosecution evidence, but in return an accused person is expected to answer questions; silence could count against them. As in New Zealand, the defendant is presumed innocent till proved otherwise, but judgment may be determined by a two-thirds majority of the lay and professional judges. European courts may not generate the drama of British and American courtrooms, but the process focuses everybody's minds on ferreting out the truth. For this, it helps to have the judges actively involved in establishing the facts, rather than largely refereeing as the prosecution and the defence slug it out.