Sasha Borissenko: What’s behind the growing court delays?

Photo / Alex Cairns

OPINION:

I don’t know what’s more poetic, the fact my Official Information Act request to the Ministry of Justice took exactly three months (without explanation) or that said request concerned explanation around the significant court delays plaguing the Auckland High Court. But I digress!

Adjournments and retrials or new dates are not uncommon, as there may be late disclosure of relevant information, unavailable expert reports, or the counsel for either party are not ready to proceed. The trial may also be subject to an appeal to the Court of Appeal on pre-trial decisions, delaying the process.

To add insult to injury, with Auckland bearing the brunt of the lockdowns, jury trials in the Auckland High Court were suspended during the nation-wide lockdown in 2020, the Delta lockdown in late 2021, and the Omicron outbreak in early 2022.

Criminal trials

The High Court allocates criminal trial dates on the first date available relative to the location and expected duration of the trial and courtroom availability is limited across the country, senior courts operations and service delivery group manager Andrea King said.

The High Court tries the most serious criminal offences, including murder, manslaughter, manslaughter, attempted murder, and serious sexual, violent, and drug offences.

While the Auckland High Court registry covers the largest population within New Zealand, King said, it has seen a significant increase in category four cases (murder, manslaughter, and attempted murder) over the past five years.

In the month of January 2019, for example, 22 of the total 55 cases were category four cases; 12 of those were murder. During January this year, 52 of the total 65 cases were category four, and 45 of those were murder.

Lengthy trials have been on the rise, resulting in trial delays. In February 2020, four criminal trials required eight sitting weeks each whereas in May 2022, five trials needed eight weeks each, one required 10 weeks, three sat for 12 weeks, and one required 16 weeks - a whopping four months!

Of the criminal cases with scheduled trial dates in the year ending 31 December 2022, there was an average waiting time of 584 days (including weekends and public holidays). A year earlier, there was an average waiting time of 559 days for the 46 cases. This was 568 in 2020, 444 in 2019, 393 in 2018, and 475 in 2017. Waiting time for cases that had a scheduled trial date was defined by the time from entry of trial stage to the future scheduled trial date.

Despite cancelled and rescheduled trials, longer trials, and what I can only imagine was a horrible waiting game for witnesses, victims, defendants, counsel, jurors, court staff, and judges, the court disposed of 56 criminal trials - six more than the incoming 50 for the 12 months ending 31 October 2022.

For context, in the 12 months ending 31 October 2021, 41 criminal trials were disposed of in contrast to the 46 new trials introduced that year. A year earlier, 33 were disposed of and 40 new trials came in.

Waiting times doubled for civil cases

The High Court houses judicial reviews and important civil and commercial decisions, which in some cases may be under urgency. That was the case for Te Whatu Ora Health New Zealand, Te Toka Tumai v C and S, otherwise known as the Baby W case of yesteryear.

In December, Auckland High Court judge Justice Ian Gault ruled in favour of Health New Zealand, which sought guardianship of six-month old Baby W. The baby’s parents refused consent to a transfusion of “vaccinated blood” needed for surgery for a congenital heart defect.

But let’s cut to the chase. In the year ending 31 December 2022 there was an average waiting time of 620 days. A year earlier this was 482 days. The average waiting time in the year ending 2020 was 414, 450 in 2019, 375 in 2018, and 345 in 2017. What this tells you is the average waiting time has almost doubled in the last five years.

King said civil trials can be complex, requiring considerable hearing time and, unlike criminal cases, a judgment is usually written after the hearing has concluded.

For example, this year, Metlifecare Retirement Villages Ltd v James Hardie New Zealand Ltd will start on 8 May 2023 and is scheduled to run for 29 weeks.

The court hearing time required for very long hearings has a flow on impact on the allocation of civil hearing dates, King said.

What’s the answer?

The Labour Government made a $50 million investment as part of the 2020 Covid-19 Response and Recovery Fund.

The High Court was allocated for funding for four acting High Court judges and extra support staff. Budget 2022 provided further funding over two years to address the impacts of Covid-19 restrictions. This included an extension of the Budget 2020 funding for the four acting High Court judges and extra support staff, King said.

The full impact of Covid-19 restrictions on the courts cannot be quantified until all cases that entered the courts during Alert Level restrictions and Covid-19 Protection Framework have been resolved, King said.

“However, the investment noted above will help to relieve some pressure on the court system and ensure that people are getting timely access to justice.” But, one could argue justice delayed is justice denied.

In the meantime, while court staff and judges have been accounted for by the Government, you have to ask whether more should be done for victims, defendants, parties, jurors, and witnesses. The anxiety and mental and emotional turmoil is unfathomable.