Thomas Newman
“Justice delayed is justice denied.” That’s one of the lines the Ministry of Justice (MOJ) has taken in its review of the jury trial election threshold and other rules for defendants who elect trial by jury in criminal cases.
In keeping with its theme of haste, the MOJ’s online survey on the issue will close on 31 October. I encourage readers to push back against the MOJ’s proposals by completing the survey at https://consultations.justice.govt.nz/policy/improving-timeliness-of-jury-trials/consultation/subpage.2024-07-19.9987852608/
I also explain why.
General acceptance?
The option of a jury trial is available to every person charged with an offence carrying a maximum penalty of two years’ imprisonment. The MOJ is proposing to raise that threshold to three, five or even seven years’ imprisonment.
It says, “as jury trials require significant input from the public in deciding cases of criminal offending, it is generally accepted that they should be used in cases where the offending is serious enough to warrant the extra time and resource jury trials need.”
I question whether there is any such “general acceptance”.
The MOJ’s concern is that the current threshold permits people to elect trial by jury where the charges aren’t serious enough to justify the time and expense.
This sort of thinking represents another step in a dangerous shift in attitude: that administrative efficiency is more important than defendants’ trial rights. Whatever happened to Blackstone’s Ratio – the idea that “[i]t is better that ten guilty persons escape than one innocent suffers”?
The rights to a jury trial and a fair and public hearing by an independent and impartial court are fundamental rights included in ss 24 and 25 of the New Zealand Bill of Rights Act 1990 (NZBORA).
After the erosion of trial rights in recent years, including the scrapping of deposition hearings and intrusions into the right to silence, the MOJ’s proposals will water down defendant rights even further with little – if any – benefit in reduced time and costs.
Juries important
Why are jury trials important? The MOJ recognises several functions and benefits of juries, including that they:
- bring collective wisdom to the assessment of evidence to make findings of fact;
- act as a check against the power of judges and prosecutors and protect citizens who risk being deprived of their liberty;
- increase perceived legitimacy and public confidence in the justice system by involving ordinary, everyday people in what is otherwise a system of experts and authority figures; and
- allow for moral common sense in cases where a person might be factually guilty but deserves for moral reasons to be acquitted. Not guilty verdicts in these circumstances are referred to by Clark Neilly from the Cato Institute as “conscientious acquittals”.
Some defendants (and some cases) are simply more likely to get a fair go in front of 12 members of the public than in front of a judge alone. Ordinary people, who may have similar life experiences and perspectives to a defendant, will understand and take seriously a defence that a judge, who has spent years on the bench, simply won’t.
Additionally, defendants are often advised that where the core issues will be credibility—that is, whose version of events is going to be believed?—they are better to elect trial by jury, whether that’s because juries take more convincing before they believe a complainant’s story or the Crown’s theory of the case, or because they’re just more sensitive to doubt and less willing to convict.
In short, jury trials act as a check against state authority and have advantages for innocent defendants which can increase their odds of being found not guilty.
These benefits are easy to dismiss when we imagine that cruel, cynical criminals are exploiting these advantages to get off without punishment. But it’s important to remember that the reason for fair trial rights and standards of criminal procedure is, again, to protect the innocent.
The proposed thresholds
When NZBORA was first enacted, the threshold included offences punishable by three months’ imprisonment. The current threshold for election was increased to two years’ imprisonment after a legislative amendment in 2013.
Offences with maximum penalties of two years’ imprisonment include many under the Crimes Act 1961, such as assault on a person in a family relationship, assault on a child, unlawfully taking a motor vehicle and rioting. If the threshold for election is raised to three years (as the MOJ, at a minimum, suggests), these offences will become “non-electable”.
Even more offences would become non-electable if the threshold were increased to offences punishable by five- or seven-years’ imprisonment.
With a threshold of five years, offences such as assault with intent to injure or making an intimate visual recording, which are punishable by three years’ imprisonment, would become non-electable.
If the threshold were increased to seven years, offences such as being an accessory to a crime after the fact or accessing a computer system for a dishonest purpose, which are punishable by five years’ imprisonment, would become non-electable. Trials for such charges can be laden with credibility issues suitable for jurors to assess.
The problem
As it stands, there are already many offences where a person is deprived of the right to a jury trial where the right could be desirable. It’s hardly a good answer to someone facing a conviction for an offence that “it’s not that serious” and would be punished only with the likes of community work.
If the person is innocent, it shouldn’t matter how serious the charge is.
A person engaging in a public protest charged with summary offences such as disorderly behaviour or offensive behaviour may have a defence based on their rights to freedom of expression and freedom of peaceful assembly, protected by ss 14 and 16 of NZBORA. This person has no option to elect trial by jury, even if this would be the best option for him or her.
If the threshold increases to three, five or seven years, much more serious offences will become non-electable.
Someone accused of a family violence offence by a vindictive partner or ex-partner would no longer be able to tell his or her story to 12 ordinary people, who may have their own lived experiences and insights into the toxic dynamics of dysfunctional relationships.
A parent or caregiver who uses even modest force to physically correct a seriously misbehaving child could no longer appeal to the moral common sense of a jury full of parents who understand the challenges.
What of self defence? The legal requirements for self defence are that the force used be only for defensive purposes and be no more than was reasonable in the circumstances as the defendant believed them to be.
A defendant who punches an attacker once or twice more than strictly necessary is legally guilty of assault by using “excessive force”. But, on a moral level, should he be convicted? A jury is much more likely to acquit based on moral common sense than a judge who’s trained to apply the law in a detached, analytical way.
Despite the duty to consider all the evidence with an open mind, a judge who has sat on the bench for 10, 20 or 30 years has “seen it all before” and “heard it all before” and can be numb to a defendant’s story in a way that a jury, full of people who’ve likely never been in court before, are not.
There’s a good case to be made that the threshold should revert to where it was before 2013, because the seriousness of the offence is beside the point. It’s a grave thing to wrongfully convict someone, even for a minor offence. But the current proposals would remove the checks and protections afforded by jury trials, even for defendants who stand to spend years in prison.
Improving efficiency
The MOJ is looking to reduce cost and improve efficiency. I suggest trading off fundamental rights for the sake of efficiency is the wrong kind of tradeoff to be making.
The MOJ’s data show the number of defendants electing trial by jury has increased from one in four in June 2018 to one in three in 2023, increasing the number of active jury trial cases from roughly 2,000 to around 3,400 and the length of cases from an average of 349 days to 498 days (a 43% increase in length.)
As pointed out by The Law Association’s Vice President, Julie-Anne Kincade KC, in conversation with Mike Hosking on 19 October 2024, what seems to have been missed is that this blowout took place during the covid-19 years, which had an enormous impact on the progression of cases through the courts.
But would the proposal increase efficiency and reduce costs? I don’t think so. Not all the backlog in the courts and delays in proceedings are due to defendants electing trial by jury. In fact, I would say it’s a very minor factor, among many.
Much court time is wasted through:
- high rates of non-attendance by defendants, resulting in warrants for arrest being issued;
- defendants failing to take required steps, such as completing rehabilitative programs like alcohol and drug courses and anger management or driving courses in advance of sentencing, resulting in adjournments;
- issues with AVL (audio-visual link) hearings, resulting in failed hearings where defendants or other participants cannot be, or are not, present. This includes both technology failures and, sometimes, failures of the relevant prison to bring the prisoner to the AVL booth;
- reports not being completed on time, such as Adult EM Bail Suitability Reports and Provision of Advice to Courts reports prepared by Corrections for bail and sentencing hearing, resulting in hearings being adjourned;
- failures of the parties, both defence and prosecution, to file submissions on time, for example for pre-trial hearings on the admissibility of evidence or for sentencing;
- parties not being prepared for trials to proceed at the first call, whether judge-alone trial (JAT) or for jury trial; and
- prosecutors and police failing to make timely disclosure to the defence. This is an enormous contributor to delay, exacerbated by judges habitually allowing these failures largely to go unpunished.
That last problem plays into another created by MOJ itself, being the absence of the right (for the past several years) to “elect-up” to a jury trial from a judge-alone trial at any point during the process.
In the absence of this option, defendants are practically compelled to elect trial by jury at the front end of their cases to preserve their position when they don’t know the full strength of the case against them.
The MOJ is now considering amendment of this rule to allow election up until a case review hearing and readers are encouraged to support them, at least in this proposal.
Readers may also consider expressing support for a full reversal of the “time-limited window”. Permitting “election up” to jury trial throughout judge-alone proceedings, right up to the morning of a judge-alone trial, would allow defendants, for instance, to correct their course in response to the late disclosure of evidence.
There are many factors across the whole criminal justice system, not just in the jury trial jurisdiction, which take up judicial resources and add to the time for cases to progress to trial.
Increasing the threshold for electing trial by jury will not touch any of the problems identified above. The judge whose day is wasted because none of the judge-alone trials is ready to proceed is likely to be the same judge who in another week would be presiding over jury trials that do go ahead.
Another fact, which has been little acknowledged, is that it can be quicker to get a jury trial than a judge-alone trial, depending on the courthouse. A lawyer I know was recently asked by a judge whether her client wanted to elect trial by jury because the dates for a judge-alone trial of the same length were so much further out.
The fix
If the MOJ is serious about reducing costs and delays and increasing efficiency in the criminal justice system, it needs to take a “systems approach” to the problem, rather than focusing myopically on a simple but ineffective reform that waters down fundamental rights.
As Kincade KC also pointed out recently in conversation with Mike Hosking, efforts are already being made along these lines with the Criminal Process Improvement Program. This has been running for two years and it’s already said to be having a positive impact.
One simple improvement would be increasing the use and reliability of AVL for defendants in prison. Another would be improving the processes for creating various reports, whether for EM bail or sentencing.
Yet another option is creating specialist traffic courts presided over by District Court judges. I understand this idea has been suggested and possibly even trialed before.
At present, a traffic court of sorts exists for fineable-only offences presided over by Justices of the Peace, who are not experts or legally trained. Their jurisdiction doesn’t extend to the charges of driving with excess breath alcohol, driving while disqualified or careless driving causing injury or death.
Traffic law is a highly specialised area, with detailed technical rules. Creating a specialised court could increase efficiency by developing unique procedures and training specialist judges who aren’t having to brush up on the Land Transport Act before a hearing.
Another idea is for court registrars to take a more proactive role in case management.
Some courts and registrars do a good job of proactively reviewing cases ahead of hearings to see whether all necessary documents have been filed on time. Where they haven’t, the court chases up the parties and, where appropriate, hearings are adjourned early to free up hearing time. But this practice isn’t consistent. Improving consistency could ensure more hearings that can go ahead do so, while others are adjourned early.
Another obvious move is to appoint temporary judges (somewhat like English ‘recorders’) to help with the backlog. That would also enable lawyers to “audition” for full-time positions on the bench, giving them an idea on whether the job suits them.
If the MOJ insists that modifying the jury trial threshold is an important piece of the puzzle, it could consider alternatives. Perhaps some cases, by virtue of their subject-matter, could be deemed within the judge-alone jurisdiction by default (with a jury trial obtainable by application for leave).
Perhaps complex financial crimes, such as money laundering or other document-heavy trials for dishonesty offending could be made judge-alone by default. But the suitability of those relatively rare prosecutions to the judge-alone jurisdiction should not be used to deprive the great mass of defendants of their rights.
The treaty
On page five of the online submission form, as is to be expected of our treaty- obsessed bureaucracy, the MOJ insists that, in making any changes to the law around jury trials, “[it] is important [to]… take account of te Tiriti, and that thought is given to how those changes may affect Māori.”
Perhaps the MOJ is reminding us that Māori defendants were, by Article Three of the treaty, guaranteed the same rights and privileges as other British subjects which would have included (relatively quickly after the signing) the right to trial by jury (and, last century, to sit on any jury).
If this is what is meant, then it is surprising that the MOJ is willing to see any dilution of that right. If that right should be protected for some, it should be protected for all. Feedback on this point can be given in response to question four of the submission form.
Conclusion
Fair trial rights and the right to a jury trial exist as safeguards against wrongful conviction. The seriousness of the charge is entirely beside the point: an innocent person should not be found guilty, even of a minor offence. We should not be amending the NZBORA for mere administrative convenience.
The primary effect of the MOJ’s proposal to change the threshold for electing trial by jury would simply be to shift jury trial statistics over into the judge-alone trial column in the spreadsheet, with “days to disposition” across the court system remaining largely unchanged.
Changing the threshold will deprive defendants of an important check and protection in cases with higher stakes. The proposals will deprive juries of the right to apply their common sense to cases where the legally correct outcome may not be the morally correct outcome.
Additionally, decreasing public participation in the criminal justice system will likely deepen mistrust in the institutions involved and their processes by making them more remote and opaque.
Readers who believe these safeguards are worth keeping should ensure they complete the ministry’s survey.
Tom Newman is an Auckland litigation lawyer and a member of The Law Association’s Public & Administrative Law committee
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