The insensitivity of the court process towards victims throughout the trial of Grace Millane's murderer has created a lot of discussion. In particular, the conduct of the defence team has been characterised as a form of revictimisation.
I believe it is more complex than that. Yes, there are problemsin how victims of sex crimes are treated in the justice system. Research shows it starts at disclosure and continues throughout. Both the police and judiciary acknowledge this and are making changes, albeit well overdue, to address it. Notably, change in those institutions is governed by their respective statutory responsibilities, and how they behave affects court proceedings.
When it comes to trials like the Millane one, what occurs in the courtroom is linked to an individual's right to justice — both for the victim and defendant. Those rights are enshrined in the Bill of Rights Act and are fundamental to how justice is dispensed.
It underpins everything from what evidence can be used to whether police can torture you on arrest.
Consistent with this are pre-trial arguments. Months before opening statements were presented in the Millane case, Justice Simon Moore approved what evidence the jury would consider following arguments from both the Crown and defence teams. Evidence was included only if deemed directly relevant to the interests of justice, and case arguments.
Justice Simon Moore during the trial. Photo / Michael Craig
Justice Moore's summary to the jury before it retired to deliberate on a verdict assists in understanding admissibility of evidence. "Are you sure, that when he applied pressure to Ms Millane's neck, [the defendant] consciously ran the risk Ms Millane would die as a result of his actions?
"In other words, knowing there was a real risk of death, he nevertheless carried on applying pressure to Ms Millane's neck. If yes, [the defendant] is guilty of murder."
It is not a perfect system. Its determination to adhere to principles of justice and previous case law results in an environment generally ill-suited to victims.
However, the guilty murder verdict shows it can produce an outcome the Millane family agree with. This is not to be confused with the court process working for them.
Its primary concern, as outlined earlier, is to facilitate justice. To achieve that, its focus is on jurors receiving the best information for a fair decision. In that sense, the court speaks directly to the seven women and five men deciding the fate of Grace's killer. While it tries to remain sensitive to victims, it cannot let anything encroach on its duty to justice or case appeals will occur.
In the context of trials like this, where does that then leave the media, as the eyes and ears of the public? How should it report information designed specifically for a jury to the masses?
Grace Millane's parents Dave and Gillian speak to the media at the Auckland High Court after the jury delivered a murder verdict. Photo / Jason Oxenham
The latest Law Commission review of the Evidence Act addresses "myths and misconceptions" jurors may have about sexual violence.
It recommends directions be provided to jurors from judges about incorrect attitudes which impact fair-case outcomes. Included in its list of misconceptions are:
• A complainant who dresses "provocatively" or acts "flirtatiously" is at least partially responsible for the offending.
• A complainant who drinks alcohol or takes drugs is at least partially responsible for the offending.
• "Real rape" is committed by strangers and/or sexual violence by a partner or acquaintance is less serious.
The commission's recognition of these attitudes, which harm women disproportionately, should not be understated. In its March report, it presents a litany of research showing those attitudes are not based on evidence. It then links in how they interfere with justice. "For example, a juror might reason that a complainant must have consented to a sexual act because she did not fight off the defendant."
If the body responsible for law reform is beginning to address the impact of those attitudes in its own sector, should the media not set a stake in the ground too?
As Anna Rawhiti-Connell writes for RNZ, aspects of reporting on the Millane trial raises questions about public interest.
"We were able to watch snippets of the CCTV footage that the jury were being shown and at this point, many questioned why," she asks.
"What is the public good being served here? To show us Grace Millane liked a drink? To show us that by kissing this man, she somehow consented to the violence that would end her life?"
Questioning the inappropriateness of the court process for victims like Grace cannot be done in isolation. While the courtroom is a public space, it serves a wholly separate role to keeping the public informed and holding the powerful to account. The media also speaks directly to people who continue to grapple with "myths and misconceptions" outlined by the Law Commission. Reporting that cuts to the heart of harmful attitudes towards women should be done with that in mind.
NOTE: This column has been changed to reintroduce some paragraphs that were removed during the editing process.
