Henry Laubscher
Concerns are regularly raised about the time it takes for a matter to get to trial.
The phrase “justice delayed, is justice denied” is used to justify why judge-alone trials should be preferred to jury trials and why access to the latter should be curtailed. The issue is more complex than this. While this phrase may be attractive from the perspective of complainants, viewed from an accused’s position, accelerated justice is more often than not detrimental to their fair trial rights.
In practice, there is little difference between the time it takes to go from arrest and first appearance to a judge-alone trial compared to a jury trial, and scheduling multi-day judge-alone trials has become a nightmare.
The real cause of delay generally remains the lack of judges and suitably equipped courtrooms.
Further compounding delays are the chronic overbooking of trial dates (it is not uncommon for trial dates to be scheduled two or more times before they can actually be heard) and the late resolution of matters after trial dates have been scheduled (often resulting from clarity following late disclosure).
A major contributor to the latter problem is the practice of charging defendants before the completion of the police investigation, especially when the police seek restrictive bail conditions. The seven-day limitation contained in s 21B of the Bail Act is a major contributor to this practice.
The main differences
The decision-makers
The most obvious distinction between a judge-alone trial and a trial by jury is the identity of the trier(s) of fact. In the former, the judge determines the facts and decides to convict or acquit. In the latter, those decisions are made by 12 independent members of the public.
The decision by a jury is required, subject to a single exception, to be the unanimous view of all 12 jurors and not by a mere majority. This provides for a large degree of confidence in guilty verdicts by a jury.
Addressing the decision-maker
A further, but no less important, historical distinction which is unfortunately less often discussed, relates to the right to address the decision-maker(s) on the evidence at the conclusion of the trial.
In a judge-alone trial, the defendant’s lawyer is not entitled to address the judge on the evidence unless the court otherwise directs. Conversely, at the end of a jury trial, the defendant’s lawyer is entitled to make a closing address to the jury and in doing so deal with the evidence in detail.
The restriction first appeared in legislation when the Justices of the Peace Act 47 of 1866 was enacted. This Act provided for the jurisdiction of Justices of the Peace to hear criminal matters. While both the defendant and the informant were entitled to have witnesses examined and cross-examined by a lawyer on his or her behalf, neither was entitled to “make any observations in reply on the evidence”.
The Justices of the Peace were not legally trained individuals. Their jurisdiction was restricted to matters of relatively minor importance and they were not required to deal with questions of law.
The wording of this restriction was retained in s 67(5) of the Justices of the Peace Act of 1882 through to s 72(5) of the Justices of the Peace Act 1927. The 1927 Act also provided in s 124(1) that a defendant charged with an offence punishable by more than three months’ imprisonment may elect trial by jury.
The Justices of the Peace Act 1927 was repealed by the Summary Proceedings Act 1957, but this restrictive provision (now worded as “neither party may sum up or address the Court upon the evidence given by either party”) was retained in s 67(7) subject to a slight relaxation that the court could “otherwise direct”.
A defendant, however, still had no right to do so. Under s 66 of this Act, a defendant’s right to elect trial by jury where an offence was punishable by more than three months’ imprisonment was preserved.
In s 105(4) of the Criminal Procedure Act 2011 the restriction on submissions on the facts and an address on the evidence were maintained. In s 50 of the Act the right to elect to be tried by a jury was retained for category 3 offences. A category 3 offence is defined in s 4(k) as an offence punishable by a term of imprisonment of two years or more (other than category 4 offences).
Current restriction
Some judges are more relaxed than others about making the required direction about submissions at the end of a judge-alone trial. It is impossible to predict what the judge of the day is going to direct on this issue. This uncertainty is one of the factors that make an election for trial by jury an attractive proposition.
Things have developed significantly over the past 160 years. District Court judges are legally trained and required to have been a barrister or solicitor of the High Court of New Zealand for at least seven years and be of good character to apply for that position. There is no requirement relating to the area of law in which they had to practice.
It is an open question as to whether submissions on the evidence and a debate between counsel and the bench would be helpful to judges. I would suggest it is likely to be of assistance to judges to have their prima facie impressions tested and alert them of an approach that might not have been all that apparent.
Generally, permitting submissions would not only assist judges and enhance the standard of judicial decisions but also increase public confidence in the judicial process. From practical experience it may be prudent to consider tempering such a right by some time restriction.
Conclusion
The time has arrived for Parliament to consider removing this historical restriction from the statute books.
In the meantime, seen from the perspective of defendants who are exposed to the possibility of a lengthy sentence of imprisonment, a process where their lawyer has the right to address the trier of facts on the evidence at the conclusion of the trial remains to have obvious appeal.
It remains the duty of counsel to fully explain to their clients all the differences between the two trial processes, including this one, and their importance.
Henry (Lapa) Laubscher is an Auckland barrister
0 Comments