Abstract
A significant proportion of jury trials relate to offending that occurred many years, sometimes decades, prior to a defendant being charged, with attendant, and sometimes substantial, delay. Such cases are routine as there is no limitation period in New Zealand for any offence under the Crimes Act 1961 punishable by more than three years’ imprisonment. While the alleged offending in cases involving significant delay is invariably sexual, the qualifying factor is the maximum penalty for the offence, not the type of offence or time period since its alleged commission.
Many criminal trials are therefore based on evidence gathered decades after an allegation, with delay often limiting the ability of both prosecution and defence to gather or identify forensic and electronic evidence. Proof of historical offending may rely solely on the uncorroborated evidence of a complainant and focus on the reliability of witness memory.
The difficulties inherent in cases involving significant or pre-charge delay (PCD) were considered by the Supreme Court in CT v R [2014] SC 155, a case that involved allegations of sexual abuse dating from up to 44 years prior to trial. The Court noted that such cases pose “significant problems for the courts” and give rise to particular forensic problems, including: “the reliability or the accuracy of the complainant’s recollections ... so many years after the events” alleged; the difficulty confronting a fact-finder “when assessing the veracity and reliability of a person” many years after the alleged events; and defence difficulties in “having to go well back in time to recall, check and verify the accuracy of events” and obtain any evidence which might put in question the prosecution evidence.
Central to these trial issues are rights contained in the Zealand Bill of Rights Act 1990 (NZBORA), including the minimum standards of criminal procedure and justice such as the right to: present a proper defence; a fair trial; and to a trial without undue delay. These rights, in the context of “fairness in criminal justice,” were addressed separately in a series of lectures by the former Chief Justice, Dame Sian Elias. Such rights must be balanced against the rights of victims to make complaints and understandable reasons for delay.
The Supreme Court in CT v R [2014] NZSC 155 noted that, whatever the length/cause of delay, “... the central question is whether a fair trial can still take place in the particular circumstances.” This approach requires judges to determine stay applications “... on the basis that an evaluative assessment is required of the facts of the case at hand without any presupposition as to what the result should be.” This view is consistent with Elias CJ’s views of fairness, including a purpose to “minimise error in proof of guilt” and invites the research question of whether the treatment of PCD by the criminal law is sound, fair, and consistent with the ends of justice? My research includes examining:
• the causes and effects of delay;
• how courts respond to delay;
• how delay and loss of evidence impacts trial fairness; and
• the treatment of delay at the point of evidential assessment, inviting consideration of how credibility and reliability is assessed, particularly where reliability is memory-based, delayed and uncorroborated.
The research occurs against imperatives of trial fairness to all participants, and minimising error in proof of guilt. The research question is framed by the thesis: Delay is a barrier to fairness in criminal justice.