Consultation underway on raising the bar for jury trials

A government proposal to change the threshold for jury trials risks undermining a fundamental legal right and will do little to clear the backlog of cases choking the court system, critics say.

Justice Minister Paul Goldsmith says the proposals, which are open for consultation, will help reduce delays and provide speedier access to justice.

“One of the biggest drivers of delays in our courts, particularly the District Court, is jury trials,” he says.

Justice Department figures show the number of active jury trial cases in the District Court rose from approximately 1,750 to 3,500 between January 2016 and January this year, while the average time taken to dispose of jury trial cases in the District Court rose from 349 days to 498 between 2018 and 2023.

Goldsmith is considering allowing defendants more time to decide if they want a trial by jury or judge alone. He is also examining whether the threshold when defendants can opt for a jury trial should be raised.

Duncan Webb

Currently, defendants can choose to have a jury trial if they are charged with an offence carrying a maximum sentence of two years or more. The government consultation examines whether this could be raised to three, five or seven years.

Labour Party justice spokesman Duncan Webb says the current threshold of two years is already high compared to other common law jurisdictions and raising it further would make New Zealand an international outlier.

“No one in their right mind would dream of seriously proposing that someone charged with a crime punishable by six years shouldn’t get a jury trial,” he told LawNews.

“That really looks like a straw man to me. So you say you’re going to seven years and everyone says ‘no, you’re crazy’, then five years, and when you end up at three, everyone thinks you’re eminently reasonable.”

Source: Ministry of Justice

While acknowledging the courts backlog is a “massive problem”, Webb says eroding the right to trial by jury is not the solution.

“This whole idea of trial by peers has been with us for a long time for a reason,” he says.

“All of the evidence shows that jury trials not only work, but they are seen as working. The community really endorses the idea that trial by 12 members of the community is a robust and trustworthy way to deliver justice.

“We’ve got to be very cautious if we’re going to start eroding that.”

Webb says making the courts work more efficiently is the key to easing the backlog, citing the digitisation programme Te Au Reka currently underway to replace the paper based-documentation system.

Samira Taghavi

Barrister Samira Taghavi, a member of The Law Association’s Criminal Law committee and The Law Association Council and convenor of its Public & Administrative Law committee, questioned the reasoning behind the proposal.

Taghavi says the threshold was raised from six months to two years in 2009 but the number of cases in the system continues to grow.

“The changes made in 2009 didn’t work as intended and they won’t work now. It simply doesn’t make sense,” she says. “Increasing the threshold further will only result in more judge-alone trials, fewer resolutions, and ultimately more delays.

“It’s a cyclical problem that won’t be solved this way. Instead, they are choosing the wrong method to reduce the backlog. Solutions should focus on appointing more judges, lifting the cap on judicial appointments, improving the disclosure system and hiring better-trained prosecutors.”

Consultation on the proposals closes on October 31. https://consultations.justice.govt.nz/policy/improving-timeliness-of-jury-trials/