Rape trial aborted as judge goes on holiday

Judge Philippa Cunningham (left), and Louise Nicholas, survivor advocate for Rape Prevention Education. Photos / Paul Estcourt, Brett Phibbs

A rape complainant will be forced to give evidence twice after the trial of her alleged attacker was aborted because the judge went on an overseas holiday.

The 50-year-old woman took the witness stand in the Auckland District Court on Monday for what was originally set down as a four-day trial.

She was part-way through giving evidence when the trial was aborted as it became clear the case would not finish before Judge Philippa Cunningham flew to Australia yesterday for a pre-booked holiday.

Judge Cunningham raised the possibility of the jury trial continuing under a different judge on the Tuesday afternoon. That option was opposed by the defence lawyer, who was unavailable if the case went over into a second week, so the trial was aborted.

It is understood that a court scheduling error was to blame as Judge Cunningham should not have been allocated a four-day trial when she was due to go overseas the day after it had been expected to finish.

The complainant - who allegedly suffered multiple rapes, assaults and sexual violation at the hands of her husband in late 2007 - will now have to wait until July to give evidence again.

Louise Nicholas, who works as a survivor advocate for Rape Prevention Education, said the complainant would be "beside herself" at the thought of giving evidence a second time.

"She's already been on the stand and reliving the trauma that she's been through. Now she has to come back and do it again," said Mrs Nicholas. "It's just unbelievable."

Mrs Nicholas spent three and half days giving evidence as a complainant about sexual abuse allegedly committed by three policemen, who were later acquitted.

It was revealed later that two of the accused, Brad Shipton and Bob Schollum, were already in jail, having been convicted in 2005 of the pack rape of another woman in Mt Maunganui in 1989.

Mrs Nicholas said the judge should never have been allocated a four-day trial if she was due to go overseas the following day.

"Trials often run over time. The courage it's taken for that woman to go through this process is huge," said Mrs Nicholas. "To have the case and her life delayed for another few months is absolutely abhorrent. This is so typical of our justice system."

She noted that the delay would waste jurors' and police time and cost thousands of taxpayer dollars in court costs and legal fees for the Crown and defence lawyers.

Chief District Court Judge Russell Johnson said he was concerned the trial was aborted because it couldn't conclude within the scheduled period. In a statement to the Weekend Herald, he said he will make inquiries to see if the delay could have been avoided.

Detective Sergeant Andy King, who heads the Auckland police adult sex assault squad, was reluctant to comment.

But he said the delay was difficult for the complainant, as she would have to go through the "trauma" of giving evidence again. He also said the delay was difficult for the accused, as his life was in limbo until the trial was over.

Defence barrister Mark Ryan and Crown prosecutor Emma Finlayson-Davis declined to comment.

The case is similar to when Justice Judith Potter aborted a trial because it went on longer than expected.

The attempted murder trial in March 2008 was set down for just five days in the High Court at Auckland but extended well into a second week.

Justice Potter was forced to abort the case as she was due at a conference in Panama, followed by a six-week tour around South America.

At the time, Justice Minister Simon Power was the Opposition law and order spokesman and said: "If these matters are accurate, it does not reflect well on the judiciary as a whole.

"One would think a trial could be completed without interruption."