NZLS pushes back against pitch to raise threshold of eligibility to elect jury trials

The New Zealand Law Society | Te Kāhui Ture o Aotearoa has pushed back against a proposal to raise the threshold of eligibility to elect a jury trial. 

In a submission to the Ministry of Justice responding to the discussion document Improving Jury Trial Timeliness, the Law Society said that the right to opt for jury instead of judge-alone trials “should not be eroded for efficiency reasons”. At present, a defendant can choose a jury trial for offences with a maximum imprisonment sentence of two years; the discussion document proposed raising the threshold to offences with a maximum imprisonment sentence of either three, five, or seven years. 

“Parliament should be slow to limit the right to jury trial any more than is necessary and appropriate. Efficient disposition of cases is not more important than their just outcome, and processes that serve the larger interests of both justice and public confidence”, the organisation wrote. 

Should changing the threshold be deemed necessary, the Law Society said that the increase should be as low as possible. 

The organisation countered the discussion document’s claims that jury trials required more time and resources, and were a factor in delays. The Law Society said that there was a lack of support for the assertions being presented in the document; moreover, assumptions were being made about the costs associated with jury trials. 

Specifically, the Law Society pointed out that in trial callover hearings, both jury and judge-alone trials faced similar issues at case review hearing, such as planning for AVL links. In challenging the claim that juror involvement was more expensive and resulted in longer trials, the Law Society said that a judge in a judge-alone trial “must write a fully reasoned judgment, which will take longer to complete than most jury retirements”. Judges would even lose the benefit of being able to tackle other judgments or case preparation during jury deliberation. 

The Law Society noted that the discussion document did not look into the reasons why jury trial cases took longer to dispose of, or why there was a considerable uptick in the number of active jury trial cases. The organisation warned that decision-makers did not have the information needed to determine whether threshold changes were necessary, or if they would be effective.  

Thus, the Law Society called for more data or analysis to identify the cause of the increase in jury trial election, as well as for the sufficient accounting of other contributing factors to delays in trial resolution, such as COVID-19. 

Overall, the organisation stressed its belief that the criminal justice system’s backlog could be handled in ways other than restricting the right to fair trial. 

“In the Law Society’s view, the discussion document approaches the issue from the wrong end. The proposed intervention would affect a fundamental right and pillar of our justice system and should be the last thing to reach for, once other causes and alternative approaches have been far more fully explored”, the organisation said. 

The Law Society’s submission was put together with help from its criminal law and human rights and privacy committees.