The Canterbury Criminal Bar Association is calling for the Ministry of Justice to review cases previously heard before Community Magistrates after it emerged they may have been presiding over cases outside their jurisdiction.
Community Magistrates (CMs) are part-time judicial officers who preside over a wide range of “less seriouscases” in the District Court’s criminal jurisdiction. They can deal with offences punishable by a fine of up to $40,000 and may sentence offenders who plead guilty to an offence punishable by up to three months’ imprisonment, according to the Ministry of Justice. There are 17 CMs nationwide.
Canterbury Criminal Bar Association president Nicola Hansen told the Herald that on Tuesday the association became aware the CMs at the Christchurch District Court may have been “routinely allocated matters that are outside their jurisdiction”.
“We are very concerned about this and we are urgently seeking further details as to how long this has been happening, how many defendants might be affected, and what implications this may have for those defendants.”
Among the concerns are fears people may have been sentenced or convicted by CMs for cases that fell outside their jurisdiction.
The association wanted the Ministry of Justice to look at previous cases called before CMs in Christchurch.
A Ministry of Justice spokeswoman said the ministry was aware of a case in the Christchurch District Court where a CM was allocated a case they believed was outside their jurisdiction and therefore declined to hear that case.
Kris Gledhill, law professor at Auckland University of Technology. Photo / Supplied
“On that basis, we are now working to clarify the interpretation of the legislation.”
A piece written by CMs Sally O’Brien and Simon Heal said CMs had operated in North Island courts for almost 20 years. In October 2016, North Island CMs began sitting in Christchurch courts. Late in 2018, Christchurch-based CMs were appointed for the first time.
“Although deciding to grant or decline requests for bail is an important part of CMs’ work, our job doesn’t end there. We accept pleas, sentence offenders on less serious matters and conduct the general business of the District Court as does any other judicial officer, while freeing up judges to deal with more complex matters such as trials.”
CMs regularly sat in courts beyond Christchurch including Greymouth, Ashburton, Timaru, Dunedin, Invercargill and Queenstown.
CMs, unlike judges, did not need to be trained as lawyers.
“Fewer than half of New Zealand’s 18 CMs were lawyers before sitting on the bench. Also, CMs work part-time. This means that the “community” part of a CM’s title is very important.”
AUT law professor Kris Gledhill was concerned about the possibility of CMs sentencing and convicting people outside their jurisdiction.
“Convictions are where people can lose their good name and sentencing is where people might have had coercive state power used against them - even if largely limited to a fine. It’s only a valid exercise of state power if the person acting has jurisdiction.”
Justices of the Peace (JPs) and CMs could sit on various types of cases, but only if there was a statute that expressly allowed it, Gledhill said.
“However there are then exceptions: neither JPs nor Community Magistrates can deal with ‘continuing offences’, which are found in various statutes.
“So the language giving jurisdiction to JPs and Community Magistrates is convoluted, which is where mistakes can be made. Obviously, people who have a finding made against them by a court should only have that happen if the particular judicial officer was entitled to hear their case and so getting things right here is important.”
It was also important from the perspective of the CMs, because while full-time judges have immunity against being sued for steps taken in their role, CMs did not have the same level of protection.
Sam Sherwood is a Christchurch-based reporter who covers crime. He is a senior journalist who joined the Herald in 2022, and has worked as a journalist for 10 years.
