Sunday, March 04, 2007

Some Legal Issues

I believe that in the vast majority of cases juries shouldn't know about criminal convictions. For the past year I have been unable to make an argument about what I think was unjust about the decision to treat the three recent cop rape trials seperately. Now the suppression orders are lifted I can begin to talk about what I think was wrong

I disagree with the comments from the defendents' supporters (now there's a surprise) that the jury knew of the convictions, and that made the verdict more sure. The point is the jury were specifically told to ignore any other knowledge they had of the case, and they did. The fact that three women told of very similar experiences when these men raped them was judged to be irrelevant by our justice system (with one exception). Similarly there has been a lot of talk on the jury deciding the case on the evidence put in front of them. Which is exactly the issue which is being disputed, what evidence should be put in front of the jury.

There are some issues that were specific to this case, that I want to discuss first.

When someone has been convicted of an offence, like Brad Shipton and Bob Schollum have, their lawyers are curtailed in the defences they can use. While the jury won't know about the offence the defendant's lawyer is not allowed to stand up in front of the jury and say 'my client is a fine upstanding member of society who would never hurt a fly.' I also believe that if the defendent takes the stand the crown can cross-examine them about their criminal history, which is why Brad Shipton and Bob Schollum did not take the stand.

In this case obviously Clint Rickards had a much wider range of defences than Brad Shipton or Bob Schollum did. But because they were all being tried together Brad Shipton and Bob Schollum were in a very practical sense covered by the defence of Clint Rickards.* This meant that collectively the defence could have it both ways. Clint Rickards supposedly clean record could be touted, but Bob Schollum and Brad Shipton's records could not. Now I'm not advocating that this be changed, or even that they should have been tried seperately (although I suspect if they had have been Bob Schollum and Brad Shipton would be more likely to be convicted). But just pointing out some of the effects of the status quo.

What I am advocating should be changed is what happened during the trial last year, where Louise Nicholas's past was discussed extensively, and the defendents pasts were inadmissable. The most vile example of that, which simply shouldn't have been evidence, was the statement that she wore the white dress that those three men raped her in again. It should not be admissable to suggest that rape survivors should behave in a certain way, and use as evidence the fact that the woman did not conform to these stereotypes.

Likewise, it seems manifestly unjust that the fact that Louise Nicholas was the complainant in a previous trial that did not result in a conviction was considered evidence, while the fact that the complainants were in jail was not.

But the main issue this brings up is the question of whether or not previous behaviour by the accused could be evidence. Usually, as I understand it, there has to be something distinctively similar about the crimes, before prior convictions can be entered into evidence. In the Mt Maunganui case Brad Shipton and Bob Schollum were convicted of all charges except those relating to rape by a baton (I believe this is because there was some confusion about the sort of baton that was used). I suspect that if they had been convicted then the baton use would have been a clear enough pattern that their convictions may have been admissable (are there any legal experts in the house to give me an opinion).

To me it's not so much the conviction that is relevant, but the testimony. Three women independantly gave statements that they had been raped with objects by these men. They hadn't met each other, didn't know each other. I believe that the independance of these stories makes it more likely that the complainants are telling the truth and the defendents are lying when it's a he said she said situation about whether or not the sex was consensual.

That is why I see rape trials as different from other trials, because the discussion is not whether a certain individual did the crime, but whether what happened was a crime, and the only witnesses are ususally the defendent and the complainant.

If the defence is not that the sexual contact was consensual or didn't happen (if instead they are running a defence of mistaken identity, for example), then I think entering evidence of other offending or accusations would be unjust.

In short, I don't think the fact that you are a rapist makes you any more likely to have committed a particular rape (which after all could have been committed by any number of rapists), but I do think it's more likely that sex that you claim was consensual was actually not consensual.

In the trial in which Louise Nicholas was the complainant, the woman in the current case was a witness and told of her experience. In theory I would be fine with this approach, where it's not the convictions that are emphasised, but the statements of the women of similar experiences (as statements convictions could be prejudicial).The problem is that in this case that would have meant that all three women would have to be cross-examined 10 times (four lawyers for four defendents in one trial, and three lawyers for three defendents in the other two). Given the abusive nature of the cross-examination, that seems too much to ask of these women.

In the end I don't know if this current system can be fixed for women. I don't know if it's worth trying to change. Louise Nicholas wanted an inquiry into police conduct, not a trial - and an inquiry would probably have delived more justice. Perhaps what we need is an alternative to a court process. Women could choose not to go to court, but could instead tell of their experiences in a different sort of justice system. One that couldn't mete out punishment to the men involved, but would listen to what women had to say.

* I know it doesn't work like that legally, and I'm sure the jury covered each defendant seperately, but the fact that Clint Rickards could take the stand would have made a difference.

** I've got a question for all you legal people out there. Is there anything to stop the crown introducing expert testimony about memory. In the latest case the defence suggested that the fact that the complainant was vague or innaccurate about details made her testimony less credible. This seems to go against any understanding of how memory, particularly memory of traumatic events. I believe Louise Nicholas summmed this up when she said she remember the details of her assault vividly, but couldn't tell you what she had for lunch that day. Could the crown have introduced witnesses that pointed out that the memory patterns this woman had were completely consistent with a traumatic event?


  1. Anonymous10:16 pm

    I am fascinated by the hatred exhibited towards Louise Nicholas and Brad Shipton's other victims by his brother Greg Shipton. Greg Shipton was the crony of the Kaitaia Police rapist in 1988 while he was "working" as a police officer in the town. His relentless hatred towards the victim of the rape that occurred there in the Police Station is in line with his hateful description on Louise as a 'maggot lying bitch'. Does he hate all rape victims, or just those raped by his brother or colloeagues?

  2. Anonymous10:05 am

    Maia, the whole issue of this kind of expert evidence is difficult, and was the subject of a lot of attention in the Christchurch Civic Creche case. Use of expert evidence has been less popular among lawyers and judges over the past few years i understand, because of various difficulties, possibly including competing theories around stuff like memory.

    However the new Evidence Act 2006 says this:

    Admissibility of expert opinion evidence

    (1)An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.

    (2)An opinion by an expert is not inadmissible simply because it is about—

    (a)an ultimate issue to be determined in a proceeding; or

    (b)a matter of common knowledge.

    I think (but am not certain because I am not sure of the commencement date of the new act) that it was the old law that applied in these cases, and it also did allow expert evidence, although as I've said it tended to be avoided.

    Your point around the admissibility of 'propensity' evidence ie. similar circumstances, is an interesting one. It may be that judges need some clearer direction around when this kind of evidence should be admitted.

    I have posted on the new Evidence Act as it applies to both propensity evidence and on the way it tighten up on the use of evidence of the sexual experience of complainants at under "the laws of evidence".

  3. Anonymous10:17 am

    Thanks for the thoughtful comments.

    I do not agree that it is not worth trying to reform the system, not just for rape victims, but for all of us.

    In fact what we have is an adversarial legal system, not a justice system at all. The role of the judge, lawyers and court officials is not to arrive at the truth or a settlement, but to ensure the legal process is followed.

    We need legal safeguards. Safeguards that make it hard to convict rapists, unfortuneatly. But we are all at risk from the state (more than we are already) in addition to the risk form rapists and thugs generally, without those safeguards.

    But we also, and primarily, need justice. Even if Shopten and Shcoullum still got off, the process could have been more just for the victim/accuser.