Neil Sands
Courts Minister Nicole McKee has clarified that community magistrates will not have the power to imprison offenders under planned reforms designed to reduce backlogs in the justice system.
Nicole McKee
LawNews reported last week on concerns expressed to Parliament’s Justice Select Committee about the prospect of community magistrates – who are not required to have legal qualifications – locking up people if the Community Magistrates Legislation Amendment Bill passes into law.
But McKee said the fears were unfounded and the sentencing powers of community magistrates would not change under the proposed reform.
“What the bill does is allow community magistrates to preside over judge-alone trials and determine guilt for a limited group of category 2 offences carrying a maximum penalty of three months’ imprisonment,” she said.
“If, after a finding of guilt, a community magistrate considers imprisonment or home detention may be an appropriate sentence, they must transfer the case to a District Court judge. That is an important safeguard.”
McKee said community magistrate would not decide if a defendant should be imprisoned or placed in home detention, just that the judge should consider those options.
“The District Court judge then determines the appropriate sentence independently, applying the Sentencing Act and considering all relevant circumstances. A referral to a judge does not mean imprisonment or home detention will necessarily follow.”
Determining guilt or innocence
The Law Association’s vice-president, Samira Taghavi, said the sentencing issue was not the main concern arising from the bill. She said community magistrates should not have the power to determine guilt or innocence in defended category 2 criminal trials, irrespective of who ultimately imposes sentence.
“It is about the power to conduct the trial, hear and assess the evidence, make credibility findings and ultimately determine guilt or innocence in a category 2 proceeding,” Taghavi said.
“If a community magistrate conducts the defended hearing and finds the defendant guilty, the fact that the matter may then be referred to a District Court judge if imprisonment is considered appropriate does not address our concern. The critical adjudicative decision – the determination of guilt following a defended trial – has already been made by the community magistrate.”
The Law Association’s criminal law and public law committees said in a joint submission that any shortage of judicial officers should be solved by appointing more judges, not lowering the threshold required to deal with contested criminal cases.
They submitted that if the proposal proceeds, community magistrates must meet minimum qualification criteria, including admission as a barrister or solicitor of the High Court, a “substantial period” holding a practising certificate, demonstrated litigation and courtroom experience and familiarity with criminal law, criminal procedure and the Evidence Act 2006.
A regulatory impact statement on the proposal finalised in July last year said community magistrates were often underutilised and expanding their jurisdiction would reduce delays, meaning cases are resolved more quickly.
It acknowledged that there were concerns in the justice sector that community magistrates did not have the appropriate knowledge or skills needed for an expanded jurisdiction but said the appointment of a District Court judge as a Chief Community Magistrate would increase confidence in their decision-making abilities.
The appointment of Chief Community Magistrate was announced in May, with District Court Judge Jonathan Moses taking on the role.
The Justice Ministry website lists 25 community magistrates, not including Moses.
The regulatory impact statement estimated that expanding the remit of community magistrates, along with Moses’ appointment, would add the equivalent of more than five full-time judges to the system.
What a muddled reform, no doubt designed to save on the costs of paying proper judges, resulting in the appointment of fewer District Court Judges.
Magistrates without legal training will struggle to apply the laws of evidence, will have to turn their minds to the legal ingredients of offences and assessments of witnesses, tasks they are neither professionally trained or qualified to undertake to a standard guaranteed by the criminal process protections of the New Zealand Bill of Rights Act 1990.
Moreover, when it comes to a conviction being sent to a Judge for sentencing, the Judge will not have seen and heard the evidence, will not have the full context of the case as it was heard live, and will struggle to make the evaluations necessary to consider such matters as whether or not to imprison, whether or not to discharge without conviction and the respective roles of the witnesses that were before the Court in relation to the offending. Not to say of the complexities that will arise in multi-defendant cases.
Add to the that the inevitable mushrooming of appeals that will follow.
Or is the plan to deny legal aid to such defendants, to enable them to be shovelled through the ‘justice’ system and onto prison at the least cost, personal consequences be damned?
There are better solutions to the resource problem – the government needs to consult those who know one or two things about how the system actually works, or fails to work, when designing such reforms.
The concerns raised about the proposed expansion of community magistrates’ jurisdiction are important. While reducing court backlogs and making justice more accessible are legitimate objectives, efficiency should not come at the expense of the quality and fairness of criminal adjudication. The determination of guilt requires careful assessment of evidence, witness credibility and the legal elements of the offence. If a matter is later referred to a District Court judge only for sentencing, the sentencing judge may not have personally heard the evidence or observed the witnesses. In my view, the Government should therefore carefully consider whether expanding the jurisdiction of community magistrates is the most appropriate solution, or whether increasing the number of appropriately qualified District Court judges would provide a stronger balance between efficiency, judicial capacity and defendants’ rights.