Nearly one-third – 31% – of scheduled judge-alone trials in the District Court were adjourned on the day they were set down for hearing in the year to 30 June 2018, Ministry of Justice information shows.

While there were a relatively high number of adjournments, just 10% of the scheduled trials actually happened as intended. In 54% of the scheduled trials there was no need for one, as a guilty plea was entered, the matter was withdrawn or dismissed without evidence, or there were guilty pleas on amended charges.

Outcomes of first-occurring judge-alone trial event in District Court, year to 30 June 2018

*Not just a guilty plea to all charges.

The data has been generated by the ministry as part of a programme of detailed analysis of components of the justice system. As Secretary for Justice Andrew Bridgman has said: “Data doesn’t create options. Analysis of data can help us to better understand what our options are.” (“The role of data and analytics to assess the court system”, LawTalk919, July 2018).

Ministry of Justice Chief Operating Officer Carl Crafar says the data reinforces the view that court performance is driven by a range of factors.

“It also highlights that there is no one person or entity responsible for court performance,” he says.

“If we are collectively going to get improvements in such a complex system – for example in timeliness – we need to be working together to identify and achieve improvements that we need to strive for. Considering the justice system as a whole, and the wellbeing of the people in the system, this type of data gives us a platform to identify areas we can focus on to make the improvements together.”

The ministry’s intention is to use the detailed analysis to assess opportunities for improvements to the court system which are based on evidence, rather than anecdote. One of its key findings from the judge-alone trial analysis is that 54% of the cases resulted in an outcome on the day of trial which it suggests should have been dealt with at case review.

Experienced criminal defence lawyer Steve Bonnar QC, the convenor of the New Zealand Law Society’s Criminal Law Committee, thinks it is difficult to say whether anyone is necessarily to blame where things do not resolve at the Case Review Hearing (CRH) but later resolve.

“I am sure there will be cases where one side or the other should have identified issues or the prospect for resolution sooner, before the CRH, but the simple fact is that often issues do not become apparent, or evidence is not available, until after the CRH when cases are being prepared for trial. I think that part of that also relates to the ‘front loading’ of timelines under the CPA. Pleas are expected within three weeks of charges being laid and then a CRH may take place within a further three or four weeks of plea.”

New Zealand Bar Association Criminal Committee Chair Jonathan Eaton QC believes the reasons for lack of resolution at case review are fairly settled and longstanding, with one being human nature: “put it off as long as you can”.

“Officers in charge, prosecutors and defence lawyers focus on the case shortly before the judge-alone trial. Resourcing doesn’t encourage or permit early resolution. Police push the boundaries with the charges and only relent at the last minute.”

Mr Eaton also says the case review is treated by everyone as an administrative rather than a judicial process.

NZBA Criminal Committee member Robert Lithgow QC believes the 17% of cases which are withdrawn or dismissed without evidence on the first scheduled day are largely a prosecution failure.

“In some areas it will reflect brinkmanship – hoping for a plea – or a culture of overcharging on the evidence. In other districts it will be a massive under resourcing of the Police Prosecution Service so that the cases are not ready or the witnesses not advised or the file ‘lost’.”

The reasons for adjournment

Over one-fifth of adjournments occur because there is no more time available in the day to commence a scheduled hearing. The Ministry of Justice says this is often caused by intentional over-scheduling. Knowing that a relatively high proportion of trials will not proceed, the people who have the task of scheduling operate an airlines-like approach by “overbooking”. If you know there is a strong likelihood that one out of three trials will not happen and you don’t want to be left with an embarrassing gap from an adjournment, you will overschedule.

“Overbooking is complex, but it institutionalises adjournments as inevitable,” says Mr Lithgow. “The overwhelming reason for adjournment is ‘Unlikely to be reached – time (21%)’. This means twice as many cases could have been heard as are heard. Therefore the correct heading is ‘Overbooking and lack of judicial resources’ – but MoJ don’t want to call it that. ‘Time’ is as it has always been – it is judges and court takers that are in short supply.”

Mr Lithgow says priority cases are easy to announce but they create a distortion in the system “that means the properly justifiable matter of the ordinary complainant and defendant may be adjourned two or three times before being heard or abandoned or a defendant gives up and pleads guilty because they cannot afford the lawyer and the time off work”.

“This is a serious equality and access to justice issue,” he says. “If ‘ordinary, no-tears’ cases are being bumped regularly, they are being told ordinary people’s problems don’t really count because we are busy with really important things.

“The adjournment mentality feeds on itself and bloats out. Time and fixture becomes a ‘maybe’ and delay becomes an available tool. Preparing a case twice, three times, is a massive waste of resources for all participants.

“The key is that judge-alone trials get set down at a time agreed, not imposed, and then they actually happen. Once all parties come to believe cases will actually be heard, evidence called and a decision reached – on the date allocated – that would lead to sharper pre-trial resolution.”

The reasons for an adjournment are usually recorded by the judge involved, the ministry says. The court registrar may fill in a reason when this is not done by the judge. Mr Lithgow is suspicious of how reasons are selected, saying these are one individual’s assessment of the cause of the adjournment with no discussion or consensus sought.

Top ten reasons for adjournment, year to 30 June 2018

*Defence counsel specific reasons

Defence reasons for adjournment

The most commonly recorded reason for an adjournment granted to the defence is that the defence case is not ready. This is the third-most common of all reasons for adjournments, well ahead of adjournments because the prosecution case is not ready. The opinions of prosecutors could not be obtained for this article, but Robert Lithgow suspects the prosecution figure is “artificially low”.

“This is because they say they are ready but have provided extremely late disclosure and acquiesced to defence application for time to consider it all. The Crown and the Police don’t like being blamed for adjournments as statistics come back to them – but the defence don’t really care who gets the blame as long as the problem can be solved,” he says.

Steve Bonnar says his experience is that the time between the case review and judge-alone trial is not usually a problem in simple cases, as the court workloads mean the trial date is usually a fair way out from the case review.

“However, in complex cases or where expert evidence or reports are required, that can sometimes be an issue for the defence,” he says.

“It needs to be remembered that in such cases, the Police or prosecuting authority may have been investigating and obtaining evidence for months – or even more than a year – before charges are laid, but the defence may be expected to be ready for a trial within a much shorter time frame.”

Top ten defence counsel specific reasons for adjournment, year to 30 June 2018

Chief District Court Judge Jan-Marie Doogue says ensuring all the complex components required for a matter to proceed to trial in a timely fashion is one of the biggest challenges facing the administration of justice.

“The rate of pre-trial adjournments has been stubbornly high for a long time and the adjournment rate in judge-alone trials is disappointing, despite judges’ best endeavours,” she says.

“Judges are often guided by counsel, and can only progress matters based on the information provided and degree of preparation. The timeframes for preparing case review memoranda are statutory and all parties have an obligation to meet them.”

Judge Doogue says there are still too many cases where counsel – and it could be defence or prosecution or both – are not prepared, or file documents out of time.

“This creates pinch-points in the process, of which adjournments are a consequence. I hope to work collaboratively, in coming months with all those who play a part in case management, to explore ways of advancing pre-trial matters more productively, as intended by legislation.”