Sexual crime law change mooted

ANDREA VANCE
Last updated 11:02 02/07/2014

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The Government hopes to make it easier for sexual assault victims to give evidence, by changing defendants' right to silence.

Prime Minister John Key, Justice Minister Judith Collins and Police Minister Anne Tolley will unveil a package of measures this morning to tackle high rates of sexual violence.

Collins has revealed that Justice Ministry officials were also examining a controversial British law that allows judges to direct juries that they may draw an "adverse inference" if an accused decides not to give evidence.

"You can't actually compel someone to give evidence ... in the UK they changed the law some time ago," she said.

"If a defendant doesn't give evidence in their own defence a jury can draw an inference as to why they might not be giving evidence.

"That would be a major change in New Zealand, so it's not the sort of thing we'd do lightly. It doesn't remove a person's ability to give evidence."

Collins has pledged to make sexual and family violence a priority this year. Figures show more than 90 per cent of victims are unwilling to report incidents of sexual violation.

Sexual violence is the fifth-most common offence but the least-reported to police.

The conviction rate is also lower than for other crimes. Between 2004 and 2006 it was 46 per cent, compared with 70 per cent for total crime.

Collins has rejected recent calls for a reverse of the burden of proof in rape cases.

"I cannot countenance having a situation where a defendant has to prove their innocence - that is totally unacceptable to me," she said.

In England and Wales the "adverse inferences regime" was introduced with the Criminal Justice and Public Order Act 1994. The legislation was hugely contentious because of the change to the right to silence.

The judge can direct an inference can be drawn if the accused fails to mention during initial questioning a fact that is later relied upon at trial, or refuses to give evidence at trial or to answer any question.

New Zealand's Evidence Act prevents the prosecution inviting an adverse inference from the decision to not give evidence. However, common law provides that a judge or jury can draw whatever inference seems appropriate from the accused's silence. 

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