New Zealand Law Society - Producing fair and lasting outcomes

Producing fair and lasting outcomes

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I refer to the recent article by the Secretary for Justice, “The courts system: the need for a collaborative approach and why it is not about us” (LawTalk 878; 20 November 2015).

This is a thoughtful contribution to the debate on how to improve the justice system, and I agree with the general theme that a number of dependencies (and interdependencies) make up the “whole” of the system and that none of these ought to work in isolation.

The article urged all participants in the justice system to be mindful of the “whole”, and suggested timeliness is one of the significant measures of the system’s health. From any perspective, it is the quality of justice that is the most significant measure. Time to resolution is a contributor to quality, but not the ultimate measure of it.

District Court Judges recognise that while timeliness is not the whole answer, it is nevertheless integral to assessing efficiency of a court system. Defining timeliness needs to be in the context of a range of factors beyond the control of individual participants; these include legitimate delay caused by factors such as primary and secondary legislative processes (such as the Criminal Procedure Act and the recent amendments to the Sentencing Act accentuating restorative justice), available resources of all court related agencies, society’s expectations and government priorities.

As part of our efforts to constantly improve, the District Courts have committed to the International Framework for Court Excellence. The Framework describes timeliness as “a balance between the time required to properly obtain, present and weigh the evidence, law and arguments, and unreasonable delay due to inefficient processes and insufficient resources”. This recognises that complex legal and human problems and disputes require time to manage and resolve. Sometimes, “fast justice” is not possible and simply speeding up processes will not produce fair or lasting outcomes.

This has been recognised in a formal Rostering and Scheduling Protocol negotiated between the District Court judiciary and the Ministry. The Protocol notes that there must be a balance between timeliness and the quality of the justice experience. Many influences are outside the control of those who manage disputes. No one size fits all because different disputes may require different approaches and what happens in one part of the system may influence timeliness in another part.

The District Courts have made significant progress in recent years in completing jury trials or reducing their age, and judges are determined to keep up the momentum and make further inroads into delays and waiting times. We continue to keep close track of jury trial disposition rates in the District Courts, where more than 90% of criminal jury trials disposed of each year in New Zealand are heard.

This data shows that between mid-2013 and 2015:

  • the number of cases over two years old halved to 65, representing 3.6% of cases (similar to the inventory of trials on hand in Australia’s largest trial court, the New South Wales District Court);
  • the average age of jury trials was improved by about 30 days;
  • nearly three-quarters of jury trials were less than a year old.

These gains have been through the combined efforts of all participants in the system and made in the face of significant growth in the seriousness of cases coming before the courts, which in turn has lead to an increase in cases in the system.

Recent Ministry modelling was based on a projected reduction in criminal matters coming before District Courts. Analysis indicates this modelling will need to be reviewed in light of the actual position where cases involving serious offences are on the rise – sharply in some categories.

The scale of achievement of maintaining continual improvement of both rates of disposal and the time it takes to complete cases needs to be considered in the context of these trends in serious cases.

Making further improvements remains a challenge, but judges of the District Courts do not demur from the task while also fulfilling their duty to do right to all people according to the law.

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