FACT SHEET 4: RESTRICTING AVAILABILITY OF JURY TRIALS

What is the general proposal?

Restrict the availability of jury trials to cases that are sufficiently serious to warrant the cost and time they incur by:

Raising the threshold at which a jury trial can be elected to above three years' imprisonment.

Removing the prosecution’s ability to choose jury trial over a judge-alone trial.

Why change the law?

There is little historical justification for the current jury trial threshold. It was originally set at the current level to equate with the threshold in the United Kingdom. However, the threshold there has since changed. By international standards New Zealand’s threshold is low (see the final section below).

At present, the average jury trial takes around 12 months to complete compared with six months for a judge-alone (summary) trial.

Under section 24(3) of the New Zealand Bill of Rights Act 1990 (NZBORA), a defendant charged with an offence that has a maximum penalty of more than three months' imprisonment has a right to elect jury trial. There are some exceptions to this general rule (eg, common assault and assault against a police office under the Summary Offences Act 1981). Because this threshold is so low it covers a very broad range of minor offences (eg, theft of property valued between $500 and $1,000). This type of offending does not warrant the time and resource that is required for a jury trial.

There is no reason in principle why the prosecution should be able to choose the form of trial. (In 2007, about 52,000 cases fell within the category of cases in which the prosecution could choose the form of trial. The prosecution chose the jury trial process in 3,600 of these cases, or around 7% of the time. Around 1,000 of these cases were committed for trial and about a third of these actually had a jury trial).

A fair trial is just as likely to occur before a judge alone as before a jury. There is currently a low rate of election in low-level cases.

The nature or seriousness of the offence should be reflected in the way the trial is conducted – that is, the more serious the offence and potential penalty, the more appropriate it is for that matter to be considered by a jury.

How?

There will no longer be a category of cases for which the prosecution can choose the form of trial. (Refer Fact Sheet 3: Categorisation of Offences and Case Progression). Section 24(e) of the NZBORA will be amended to raise the threshold at which a defendant can elect jury trial to offences where the maximum penalty is above three years' imprisonment.

Benefits of proposal

These changes are expected to result in 1,000 to 1,400 fewer cases needing to be designated for trial by jury and 300 to 600 fewer cases ( a reduction of 25-45%) that actually proceed to a jury trial (from a base of approximately 1,300 cases disposed at jury trial in 2008).

Though some of the capacity freed as a result of the reduction in jury trials would be taken up by the judge-alone trials required in these cases, it is estimated that the value of savings would still be significant.

Because the jury trial process is longer than the judge-alone process (refer Fact Sheet 3: Categorisation of Offences and Case Progression) the cases no longer subject to this process will be resolved sooner.

International comparisons

In Australia, though there are variations from state to state, the jury threshold typically ranges from one to two years’ imprisonment, but New South Wales has a threshold of five years.

In Canada, the Canadian Charter guarantees the right to a jury trial if the maximum penalty is five years’ imprisonment or more.

In the United Kingdom the right to jury trial is available only for prosecutions for offences tried on indictment.

In the United States the right to a jury trial is restricted to offences that carry a sentence of above six months' imprisonment.

The threshold in the NZBORA goes beyond what is required of New Zealand under its international human rights obligations.

ends

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