The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation which advocates to promote human rights and maintain civil liberties.
Introduction
The NZ Council for Civil Liberties is both disturbed and disappointed by the existence of the Improving Jury Trial Timeliness consultation document, the main thrust of which is to reduce access to jury trials by raising the qualifying threshold.
Importance of jury trials
The right of a jury trial is a key part of the New Zealand justice system. Jurors act as a safeguard against the oppressive enforcement of the law by the state.
The jury trial process ensures that justice is both done and perceived to be done, lending public legitimacy to a process that is largely controlled by the state.
Jury trials under threat
The access to a jury trial in New Zealand was already severely curtailed in 2013 when the threshold was increased from three months to two years. That we’re seeing further attempts to reduce access just eleven years later is very concerning.
We oppose this process of steadily extinguishing the right to trial by jury through making it harder and harder to access.
We note that the right to a jury trial is regarded as so important that the specific threshold is included in the Bill of Rights Act. This gives us an indication of the importance of this right.
The fact that this specific inclusion makes the limit harder to change is a benefit and not a negative of this arrangement. Indeed, the realisation that this money-saving proposal would involve changing the Bill of Rights Act should have given pause to the people proposing it.
We oppose removing the specific threshold from the Bill of Rights Act. Indeed, if s24(e) is to be amended, the Council recommends that the duration be reduced, with our preference being the 3 months which was the standard prior to 2011.
Jury trials and serious crimes
The consultation document gives examples of crimes that seem relatively minor and suggests that this is proof that the current two year threshold is too low.
We do not question the claim that not all crimes with a two year or more jail sentence are serious crimes, but we have no doubt that two years in jail is a serious punishment.
We note that the threshold for activation of the Sentencing (Reinstating Three Strikes) Amendment Bill is a sentence of two years. If both changes are implemented it would appear that someone could be convicted of a crime serious enough to count as a strike, without the benefit of trial by jury. This is both unjust and an example of incoherent law making.
If we are seeing jury trials being triggered for minor crimes, the problem is that the sentences are inappropriately long. Rather than changing the rules for juries this consultation should recommend reducing maximum sentences for minor crimes.
Putting our money where our needs are
It is plain to us that this proposal is motivated purely by the desire to save money. The arguments and discussion in the consultation document, while ostensibly about improving the delivery of justice, are obviously in service to this end.
The Council notes the Chief Justice’s recommendations in their 2023 Memorandum to the incoming Attorney General. In sections 40-46, the Chief Justice called for an increase of High Court judges of more than 25%. In section 50 the Chief Justice appears to recommend an increase of district court judges by 40 from 180 to 220.1
Sections 33-35 of the Chief Justice’s memorandum further identify that there are other funding gaps, namely crumbling buildings, which are negatively affecting judicial timeliness.
The Ministry can not pretend to be unaware of the Chief Justice’s recommendations, and we struggle to believe that the Ministry would dispute their effectiveness toward improving jury timeliness. Indeed timeliness is one of two reasons identified by the Chief Justice, the other being judicial wellbeing.
Finally, the Council notes that the Justice system is not suffering from under funding. Police are receiving a steady stream of significant budget increases, including over $650 million in new funding in this years budget alone. Failing to adequately fund the courts is a political choice, not a fiscal imperative.
Jury trial election
The other proposal in the consultation document is to change the time frame allowed for the election of a jury trial. We understand that this is returning to a similar system before the Criminal Procedure Act of 2011.
We support this change as it seems to benefit both the administration of the justice system and the rights of the accused to a jury trial.
Conclusion
We do support improving the speed and efficiency of our justice system, and agree that “justice delayed is justice denied”.
However, there are many other ways to improve timeliness that don’t involve us giving up our rights.
The court system needs more resources if we aim to uphold human rights. The Council strongly recommends that this consultation recommend funding the Chief Justice’s 2023 recommendations in order to improve timeliness. Simply put, we can’t live in a rights-respecting democratic society unless we are willing to pay the price of living in a rights-respecting democratic society.
We oppose changing the jury trial threshold and recommend that this proposal be advanced no further. We do support changing the jury election timeframe.
With the entirety of sections 48 and 49 redacted, the exact meaning of the table in section 50 is open to various interpretations. ↩︎
