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The reform that wasn’t there

Written By: - Date published: 8:05 am, July 24th, 2009 - 36 comments
Categories: law and "order" - Tags:

Justice Minister Simon Power:

I believe we need to have an open debate about the way in which sexual violence cases are conducted.

In this regard, I am currently considering potentially far-reaching reforms, including:…Making evidence about previous sexual relationships between the complainant and any person inadmissible without prior agreement of the judge.


Evidence Act 2006
44 Evidence of sexual experience of complainants in sexual cases

  • (1) In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.

What’s the next great reform? ‘Power sez robbing people to be illegal’

In the words of a lawyer, Gary Gottlieb, interviewed on RNZ: “where did he get his law degree?”

[Bad look for the Herald too, twice in a week running a politicans’ story straight without checking the facts first]

36 comments on “The reform that wasn’t there ”

  1. Sting 1

    Simon says lets all sing the Kleptocracy song – government of the thieves, by the thieves, for the thieves. He stole my right in a democracy . Hey Simon says lawyers know best. What a fuckwit he is. I detest politicians, they make my blood heat up to 216 C. Anybody got a brain cell in the Beehive. What a sick sad joke.

  2. Justin 2

    I think the point here is, Simon Power is making substantive progressive changes to the Justice system, to make it fairer – which the previous Government had nine years to make.

    e.g. removing the obnoxious and often homophobic provocation defence, putting onus on defendent in rape cases.

    These changes should applauded, and are a demonstration that Power is taking these issues seriously.

    Progressive change in the justice system should be applauded whatever party it comes from.

    Labour Justice spokeswoman Lianne Dalziel on Radio NZ this morning indicated full support for these moves. How about an giving the Government some credit here?

    • Maynard J 2.1

      If what Gottlieb said was true, should we applaud Power for grandstanding and trying to score points for trumpeting non-existant changes to the system?

      Should we applaud him for making a knee-jerk reaction to criticism of knee-jerk reactions? Elias’ speech was a good example of real progressive reform. Hurried removal of the provocation defence, without spending much, if any, time looking at the implications of it – I am wary, and hope they know what they are doing.

      • Tigger 2.1.1

        Labour was pushing provocation long before National ever crept into government. If Power is so altruistic why not support Labour’s Bill rather than want the ‘glory’ for themselves.

        Maynard – the provocation defence has long been debated and derided. Can you name me any justifcation for it?

        • Maynard J

          Tigger – do you think there could be any forseeable reason where anyone might ever be goaded into killing someone, without the express intent to do so, but which falls short of self-defence?

          I could not say “no” to that definitively – hence being wary of a rushed change to make National look good (and with Labour me-too-ing) when there could be problems down the track.

          Thoise with legal experience have expressed similar views (and, admittedly, have very much influenced my thinking).

      • Rex Widerstrom 2.1.2

        Hurried removal of the provocation defence, without spending much, if any, time looking at the implications of it

        You’re right, Maynard J. And because both Power and Dalziel are determined to continue to engage in a “who’s tougher on crime” pissing contest, such questions will never be seriously posed let alone answered.

        The logical fallacy underlying the argument that “one obviously dangerous nutjob tried to use it (and failed) in a completely unjustified way, ergo every defendant who might use it is a dangerous nutjob who has no justification trotting it out” is obvious.

        But Dalziel’s ill-thought-out bandwagonning ensures that even most left voices are unquestioningly in favour. Far better a win for “our side” than pausing for breath and considering the implications.

    • Lauren 2.2

      It was Leanne Dalziel who submitted a private members bill to remove the provocation defence but it wasn’t added to the ballot while the Weatherston case was before the courts. How bout the government gives some credit where it’s due?

      • jasper 2.2.1


        It was Charles Chauvel’s bill, supported by Dalziel.
        Dalziel didn’t want to put the provocation bill in the ballot while the two cases – Weatherston and the German guy – were before the courts.

        That’s all there is to it.

  3. cha 3

    Dad spotting 101 , always a space before the punctuation .

  4. ghostwhowalks 4

    Hers another reform that wasnt there:

    National blocks move to remove provocation

    The National Party today stopped Labour’s Justice Spokesperson, Lianne Dalziel, from advancing her bill to remove the partial defence of provocation.

    Ms Dalziel was seeking leave to place the bill on Parliament’s order paper for debate, however the move was blocked by National’s Senior Whip Chris Tremain.

  5. Maggie 5

    There is a subtle difference between what Power is saying and the wording of the Evidence Act,

    The Act bars evidence of a sexual relationship between a complainant and any person other than the defendant. Power is talking about barring evidence of a relationship with any other person.

    Does he really intend that where a couple have a relationship, then one accuses the other of rape, that relationship cannot not be revealed in court unless the Judge agrees?

    • snoozer 5.1

      No, read Power’s speech, it’s quoted above for you

      “I am currently considering potentially far-reaching reforms, including: Making evidence about previous sexual relationships between the complainant and any person inadmissible without prior agreement of the judge.”

      • snoozer 5.1.1

        oops, sorry I missed your point earlier. Yeah it looks like his point is to make evidence about the alleged victim and offenders’ previous sexual relations inadmissable.. seems like that could be a step too far, that info is likely to be very relevant to establishing consent

  6. Terry 6

    Ha ha, the Heralds headline just changed from:

    “Rape complainants’ sexual pasts to be kept secret”


    “Lawyers ‘gobsmacked’ minister proposing existing law”

  7. Draco T Bastard 7

    [Bad look for the Herald too, twice in a week running a politicans’ story straight without checking the facts first]

    You’re talking the NZHerald here – facts aren’t their strong point. Hell, you just had to read their justification for PPPs the other day to realise that – they were actually saying that PPPs in the UK and Australia had been a great success rather than the costly ballsup they had been.

  8. J Mex 8

    What a cock up. The crazy thing is that this wasn’t an off the cuff suggestion, but a fully worked up speech given by a worked up Justice Minister.


    Captcha: Encouraging.


    • felix 8.1

      Yep, and according to Key yesterday, Powers’ speech was definitely not just a reaction to recent high-profile court cases either – it’s one he’s been working on for ages and ages and any relevance to recent events is pure coincidence.

      Is it too early for a Tui? It is Friday after all.

  9. randal 9

    the first thing power must do is make a law preventing the press from publishing any details fof a sexual nature.
    law is turning into a salcious circus with everybody “getting off'” on the details and then wanting to ban it all afterwards.
    there seems to be a falilure of ethical and moral standards at the moment that defendants are exploiting for ends of their own.
    as we have just seen in the clayton weatherstone case the people have formed an opinion about his dirty laundry and the judge should either have ruled it inadmissible evidence or held that portion of the case in camera or used it as a reason for insantiy and detention at her majesty;s pleasure.
    too many post modernism relatavist circusses and soft options flying around these days.

  10. Power through the Herald has just launched a broadside at the criticisms. He now says that the reform is not understood. In particular the Herald reports,

    “But this relates to sexual history with people other than the accused. Mr Power said currently the previous sexual relationship between the complainant and the accused does not need the judge’s agreement before being brought up in court.”

    The link is at http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10586341

    He is right but this does not appear to be what he said before.

    The Herald quote from above says “[i]n this regard, I am currently considering potentially far-reaching reforms, including: Making evidence about previous sexual relationships between the complainant and any person inadmissible”

    So what is it? Accused only or any person?

    And is Power responsible for the sloppy language or the Herald?

  11. Ooooooooooooooooh

    I just checked the beehive website and the speech is there. The link is at http://www.beehive.govt.nz/speech/criminal+justice+system+reform+coming

    The speech includes the following gem:

    “In this regard, I am currently considering potentially far-reaching reforms, including:

    Making evidence about previous sexual relationships between the complainant and any person inadmissible without prior agreement of the judge.”

    Either Power did not read the speech or he intends to introduce a reform that has already been passed. Either way he should apologise to all of those he said should “read proposals before criticising”.

    I just read the speech and I still think the criticism is valid.

    • Graeme 11.1

      Either Power did not read the speech or he intends to introduce a reform that has already been passed.

      The reform proposed/floated is:

      Making evidence about previous sexual relationships between the complainant and any person inadmissible without prior agreement of the judge.

      This has not “already passed”. The current law is that:

      evidence about previous sexual relationships between the complainant and any person (except the accused) is inadmissible without prior agreement of the judge.

      • mickysavage 11.1.1

        Agreed Graeme but why didn’t Power say that the proposed reform would be that evidence about previous sexual relationships between the complainant and the accused would be inadmissible without prior agreement of the judge.

        The way that he expressed it was very sloppy. I would expect the senior lawyer in Cabinet to be much better with his language.

        The attack on Gotlieb and others was also not warranted. The problem was Power’s sloppy language, not Gotlieb’s understanding.

        • Graeme

          It was a speech. The headline of the policy (which was very much a sideline in the speech) is “no rape complainant should have to face questions about their sexual history unless it’s really really important.”

          Most people understand what the the word “any” means. If he’d said no rape complainants should have to face question about their previous sexual history with the defendant, some idiot would be asking “what about all those questions about vicitms sexual history with other people? those are even worse”.

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