Major criminal justice reforms unveiled
The Government aims to overhaul and streamline the criminal justice system through an ambitious package of reforms unveiled just before Christmas by the Criminal Simplification project, a Law Commission and Ministry of Justice joint venture.
The reforms are contained in a draft Criminal Procedure Bill scheduled to be introduced into Parliament by the end of the year. The bill will repeal the Criminal Proceedings Act 1957 and consolidate other legislative provisions for criminal proceedings.
Specific reform proposals include: substantially changing how offences are categorised, requiring defendants to particularise their defence pre-trial and raising the threshold for electing trial by jury to offences punishable by more than three years’ imprisonment (the threshold is currently three months’ imprisonment).
The reform package is the culmination of a two-year pro-ject looking at ways to shorten court waiting times, reduce the number of court sitting days and generally increase efficiencies in the criminal justice system.
It builds on 14 consultative documents released by the project over the last two years and now available on the Ministry of Justice’s website at www.justice.govt.nz/policy-and-consultation/crime/criminal-procedure-simplification-project
The NZLS has to date made a series of submissions on the project’s previous consultative documents and will also make submissions on the bill.
The proposals follow hard on the heels of Auditor-General Lyn Provost’s review of the Ministry of Justice’s management of court workloads and Dame Margaret Bazley’s review of the legal aid system.
The Auditor-General’s review noted that the number of criminal summary cases – which form the bulk of the courts’ workload – has increased 29% since 2005 and is forecast to continue to increase. Her conclusion is that the courts "are likely to remain under pressure for the foreseeable future" but there are no easy answers to improving the efficiency of the court system.
The project team proposes making the criminal justice system more efficient by giving it a drastic overhaul.
Problems with the current system
The discussion document, Reforming Criminal Procedure, and bill plan accompanying the draft bill highlight a range of problems and inefficiencies in the current criminal justice system, including:
- repeated adjournments of cases;
- unnecessary court appearances to deal with matters that should have been addressed by prosecution and defence out of court;
- late guilty pleas resulting in inefficient use of court and judge time;
- trials failing to proceed on their scheduled date;
- inadequate incentives and sanctions to ensure that prosecution and defence progress the case as they should;
- a court system where relatively minor cases may be tried by jury;
- barriers to using modern technologies and an excess-ively paper-based process; and
- an excessively complex and outdated legislative framework.
As an indication of the scale of these problems, the project authors estimate that 10% of summary court appearances occurring after the first four weeks of a matter being before the court may be unnecessary, as may be 15 of pre-committal and 10% of post-committal appearances.
"This translates into approximately 14,900 unnecessary court appearances per year, which results in costs (financial and emotional) to victims, witnesses and defendants, as well as costs to Police, Corrections, the courts, legal aid and other justice sector agencies," they comment.
Proposed reforms include:
- reclassifying offences into five categories;
- a guilty plea being entered as soon as practicable when an offender intends to plead guilty;
- court hearings to be held only when a judicial decision or other judicial intervention is required;
- requiring all pre-trial matters to be dealt with adequately before a trial commences;
- better information to be exchanged between parties with out-of-court discussions becoming the standard (and expected) way to progress a case;
- putting in place incentives and sanctions to promote compliance with procedures by all parties, including both defence and prosecution counsel;
- reserving jury trials for only the most serious cases by raising the threshold to offences punishable by more than three years’ imprisonment from the current three-month threshold; and
- making greater use of technology and "e-courts", such as defendants using video links for routine court appearances.
With the average District Court jury trial costing court administration around $20,000 and taking around 12 months to complete compared with $2,000 and six months for a judge-alone summary defended case, significant cost savings could be achieved where cases can be dealt with through the latter procedure. The authors estimate that, based on current volumes, their proposals could achieve annual savings of approximately 1,200 jury trial days.
Implementation
A two-fold approach to drafting the required new legislation is proposed.
Matters that are "fundamental to criminal procedure" or are "high-level procedural requirements" would be included in primary legislation, while "lower-level" matters such as detailed court procedures or the nature and timing of case management discussions would be included in secondary legislation (regulations).
Some of the proposals are likely to prove controversial.
For example, Part 3 of the draft bill entitled, "Procedure Before Trial", would require a defendant to particularise his or her defence pre-trial. Under s31, the defendant would have to give notice of (a) "any particular elements of the offence that the defendant contends cannot be proved", and (b) "any particular defence, justification, exception, exemption, proviso or excuse on which the defendant intends to rely". The leave of the court would be required for a defendant to give an s31 notice out of time.
The bill also proposes serious consequences for failing to comply with s31 – as detailed in s88: Inference from failure to notify adequately issues in dispute.
"If [during the trial] the court is satisfied that the defendant failed to notify adequately the issues in dispute before the trial, the court may, without notice to the parties and of its own motion or at the request of the prosecutor, draw any inference about the guilt of the defendant that appears to the court to be proper in the circumstances."
Other reform proposals will be discussed in a further consultation paper to be released in early February.
The deadline for lodging submissions on Reforming Criminal Procedure and the draft Criminal Procedure Bill with the Ministry of Justice or Law Commission is 1 March.
LawTalk 743, 1 February 2010