Law Commission of New Zealand Report on Disclosure of Prior Convictions

The Law Commission of New Zealand today tabled a report in the Parliament in Wellington on the subject of Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character:

"The review flowed from public disquiet expressed in some quarters at the non-disclosure to the jury of previous convictions of two former police officers who were tried and acquitted of sexual offending (...) "

"Although the Commission sees no need for immediate change to this somewhat technical and difficult area of the law of evidence, it has arrived at the view that all is not well with the traditional trial process in New Zealand in relation to sexual offending ... Problems in the system flow from the features of the adversarial system of trial that is, as presently constituted, an essential feature of our system of justice in New Zealand. "

"The Commission’s consultation in the course of this reference sowed the seeds of doubt in our mind regarding the efficacy and fairness of the Westminster style adversarial trial as it applies to unlawful sex cases in New Zealand (...) We are not in a position to make findings about this because it is outside our terms of reference for this inquiry. But we harbour lingering worries. "

"The submission made to us by the Rt Hon E W Thomas, a retired Judge of the Court of Appeal, reinforced our concerns. He told us that the nature and impact of the trial in sexual cases on complainants is a brutalising and distressing experience in which the complainant is effectively put on trial. While we do not adhere to the view urged by some submitters that justice on all sides can be achieved by changing the law of evidence and admitting previous convictions generally in sex cases, we do consider that some further and wider examination of the processes of trial in sexual offending should be undertaken."

The report also examined the practices concerning this question in the United Kingdom, Australia, Canada, the United States, and European "continental" systems.