Questions and answers

What is Criminal Procedure?

Criminal procedure is the court process for dealing with a person accused of committing an offence. All criminal procedure has three basic stages:

Administration stage: dealing with all initial/administrative matters that occur once a charge is filed but before a plea is entered (eg, disclosure, bail, name suppression, and arrangements for legal representation).

Review stage: reviewing the case after a not-guilty plea has been entered to determine whether it should go to trial and on what basis, including, for example, full disclosure, withdrawal or amendment of charges, and sentence indications.

Trial stage: preparing for trial (includes pre-trial applications such as evidence admissibility) and the substantive trial (including sentencing and appeals).

What are the problems with criminal procedure?

Criticisms of criminal procedure over the past 20 years can be summarised under four broad headings:

Excessive delay: for example, the median time to dispose of a High Court jury trial is around 16 months, an increase of approximately five months in the past five years.

Excessive complexity: for example, the main laws for criminal procedure (Summary Proceedings Act 1957, and Parts 12 and 13 of the Crimes Act 1961) have been amended numerous times over the 50 years, resulting in an ‘impenetrable maze’ for most non-lawyers.

Outdated legislative framework: for example, the current provisions were drafted on the assumption of a paper-based system, creating barriers to the use of modern technology.

Excessive cost: for example, is it estimated that there are approximately 43,000 unnecessary court appearances a year in the criminal jurisdiction, and more than two-thirds of cases that reach a defended hearing fail to proceed on the day.

What will change?

The package of proposed reforms is intended to address current problems in criminal procedure by ensuring that:

Where a defendant intends to plead guilty, the plea is entered as soon as practicable.

Hearings are held only when a judicial decision is required.

Better information is exchanged between parties and out-of-court discussions become the standard (and expected) way for progressing a case.

Incentives and sanctions are in place to promote compliance with procedures by all parties.

All pre-trial matters are adequately dealt with before trial.

Unnecessary adjournments and the number of cases that fail to proceed on the day of trial (or are resolved late in the process) are minimised.

There is proper focus on the issues at trial.

Jury trials are reserved for the most serious cases.

Modern technology is appropriately used.

What will not change?

The Government is committed to preserving these basic principles in the package of reform:

Impartiality: courts must be independent and impartial. The independence of judiciary is a critical element ensuring that justice is delivered fairly and equally through the courts. This constitutional position will not be put at risk by any reform to criminal procedure.

Right to a fair trial: everyone charged with an offence has a right to a fair trial. This is a long-standing principle of law and is protected in the New Zealand Bill of Rights Act 1990.

Fundamental legal principles: decisions of the court must be lawful, and decided on reasoned and justifiable grounds to ensure they are fair and unbiased.

What are the expected benefits?

Shorter Trials: it is estimated, for example, that one of the case management proposals requiring the defence to identify issues in dispute will result in a saving of approximately 450 court days per year, or around 10 per cent of expected total judge-alone and jury time.

Fewer Adjournments: requiring parties to progress case-related discussions outside of formal court events, and limiting hearings to only those occasions where a judicial decision is required, will reduce the number of times parties need to come to court. It is estimated that there will be at least 43,000 fewer court events, a 5 per cent reduction in the total number of court events, based on the current 850,000 District Court criminal court events each year.

Less delay overall: The average time that a criminal case takes will be reduced, as outlined below. Figure 1: Expected reduction in average time to dispose a case Case type: Current* Expected Difference District Court – Summary 26 weeks 20-21 weeks 5-6 weeks

District Court – Jury 52 weeks 39 weeks 13 weeks

High Court – Jury 69 weeks 56 weeks 13 weeks

*2008/09 Financial year

It is also expected that approximately 5-15 per cent of cases that are not now disposed of until trial will be disposed of earlier in the process. Streamlined design of the procedural steps and case management discussions out of court will also reduce the number of court events necessary to progress a case.

Costs and benefits for the Government and the taxpayer:

There is expected to be significant benefits to the taxpayer associated with simplifying and speeding up the criminal justice system. Though there will implementation costs, over a five-year period it is estimated that net benefits pf simplifying and speeding up the criminal justice system will exceed costs by $24.3 million (in net present terms and using a discount rate of 8%), and over a 10-year period, this figure climbs to $80.7 million. Further work to more accurately establish costs and benefits will be done prior to introduction of the legislation.

Greater confidence in our courts and criminal justice system:

All of this will have benefits for:

Victims, who have the right to justice without delay.

Defendants, who have both the right to a fair trial and also to know the outcome of the case against them in a timely manner.

Witnesses, who have to attend court to give evidence.

Taxpayers, who largely bear the cost of the system.

Counsel, who will have reduced waiting times, experience more efficient scheduling of court dates, and who will be able to provide a better service to their clients.

Government justice sector agencies, which will experience greater efficiencies in prisoner transport, security, and court attendance costs.

What legislation is changing?

The Criminal Procedure Reform and Modernisation Bill will repeal most of the Summary Proceedings Act 1957 and consolidate other provisions relating to criminal procedure. The proposals are an integrated package which also incorporates a range of operational improvements, as well as building on links with other significant initiatives across the justice sector aimed at improving criminal processes. These include:

The Ministry of Justice’s Electronic Operating Model Project (implementing electronic filing and management of court information).

The recently enacted Courts (Remote Participation) Act 2010 (allowing greater use of video links in courts to improve efficiency and increase safety and security for court users).

The 2009 legal aid review and consequent implementation of the review’s recommendations.

Police initiatives to improve prosecution processes (eg, ‘Police Alternative Resolutions’ which are expected to either reduce the number of prosecutions or reduce the seriousness of charges brought to court).

The Victims of Crimes initiatives (which provide better practical and emotional support and information for victims of crime and their families).

In addition, the Government’s response to the Law Commission’s report, Suppressing Names and Evidence is included in the package.

What consultation has been undertaken?

The package of proposals incorporates:

Submissions on 16 individual consultation papers released to stakeholders over the period October 2008 – February 2010.

The results of consultation on the Bill Plan and commentary that were released for consultation in December last year.

Continued discussion with the judiciary and other key stakeholder agencies throughout the development of the proposals.

With the cooperation of Police and other court participants, new case management processes have been tested in the summary jurisdiction at Tauranga and Manukau District Courts. An evaluation of these tests was also made available to stakeholders.

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