Currently New Zealand’s Bill of Rights Act 1990 provides that every person charged with an offence carrying a maximum penalty of two years or more has the right to elect a trial by jury.
This right is essential in balancing the immense power of the state against the individual, ensuring that those accused can be judged by their peers rather than solely by a judge. The Government’s proposal to raise this threshold undermines these protections, weakening a key safeguard against injustice.
A combination of factors, including Covid-19 backlogs and long-standing systemic underfunding, has worsened delays in the court system.
However, the primary driver of these delays can be traced back to the Criminal Procedure Act 2011. Before this legislation, defendants were not required to choose between a jury trial and a judge-alone trial until months after their initial charge - after their lawyer had received the necessary evidence (disclosure) from the prosecution.
This allowed for a fully informed decision.
The 2011 changes fast-tracked this process. Now defendants must elect a trial by jury at the same time they enter a plea - often within two weeks of their first court appearance and before seeing the full evidence against them.
They can opt for a judge-alone trial at any time, but once a jury trial is elected, it can only be changed in exceptional circumstances. This pressure forces defendants into decisions without a complete understanding of their case.
Justice Minister Paul Goldsmith has cited the rise in jury trial elections as a factor contributing to court delays. While reducing delays is a noble goal, the proposal to raise the jury trial threshold threatens the fair trial rights of defendants.
Why jury trials matter
Trial by jury is a cornerstone of New Zealand’s legal system, ensuring that the community serves as a check on the arbitrary or oppressive use of state power.
This right has evolved over centuries and is rooted in our legal history. Initially, juries were expected to rubber-stamp guilty verdicts, but over time, they became independent protectors of fairness.
A powerful illustration of this independence is Bushell’s Case in 1670.
William Penn and William Mead, two Quakers, were tried for preaching at an unlawful assembly. Despite biased evidence and a judge determined to secure convictions, the jury refused to find them guilty. The jurors were punished for their verdict, but Edward Bushell, and three other jurors, fought back. The court eventually ruled that jurors had the right to deliver verdicts based on their convictions without fear of punishment, establishing the critical role juries play in protecting against unfair prosecutions.
This principle remains as vital today as it was then.
A former Chief Justice of New Zealand highlighted the constitutional importance of trial by jury, noting that jurors act as a safeguard against the oppressive enforcement of the law.
They bring the perspective of ordinary citizens, standing between the defendant and the state in a way judges - bound to apply the law - cannot always do. This role of jurors ensures that prosecutions are not carried out unfairly or arbitrarily.
Erosion of rights
In 2013, the Government made a significant amendment to the Bill of Rights Act, weakening the right to trial by jury.
Previously, anyone charged with an offence carrying a maximum penalty of more than three months could elect a jury trial. The 2013 amendment raised this threshold to offences carrying a penalty of two years or more, meaning that many defendants now face serious charges without the option of being judged by their peers.
The current proposal to raise the threshold again to three years - or even higher - would further erode the rights of defendants. This change would remove jury trials for a wide range of serious offences, leaving more defendants at the mercy of a single judge rather than a jury of their peers. It also diminishes the community’s role in checking the state’s power in these cases.
Moreover, raising the threshold is unlikely to reduce delays or save resources.
Jury trials are not inherently slower than judge-alone trials. Juries can deliver verdicts quickly - sometimes in a matter of hours. In contrast, judges must write detailed decisions, which often take days, weeks, or even months. The proposal would shift the burden, causing judges to spend more time writing decisions instead of presiding over more trials.
Justice Minister Paul Goldsmith has cited the rise in jury trial elections as a factor contributing to court delays. Photo / Mark Mitchell
A step too far
The Government’s proposal to raise the jury trial threshold is not only unnecessary but dangerous.
The Bill of Rights Act 1990 imposes an obligation to protect fundamental freedoms, including the right to a fair trial. By eroding the right to a jury trial, the Government risks undermining public confidence in the justice system and diminishing crucial safeguards.
The right to a jury trial is not merely about protecting defendants. It is about ensuring that the community plays a role in justice, bringing common sense and everyday experiences to the courtroom. Juries are uniquely positioned to weigh the facts and deliver verdicts that reflect the values of society. This vital role cannot be replaced by judges alone.
The Government’s proposal to raise the jury trial threshold is a direct threat to the fair trial rights enshrined in our legal system. While reducing court delays is a legitimate goal, it should not come at the expense of fundamental protections.
Jury trials have been a cornerstone of justice for centuries, ensuring that the state is held accountable in its prosecutions and that individuals receive a fair trial.
Raising the jury trial threshold will not address the underlying issues causing delays in the courts.
Instead, it will weaken a vital safeguard, placing more power in the hands of the state and leaving defendants with fewer protections.
If the Government is serious about maintaining a fair justice system, it must explore alternative solutions to address court backlogs without compromising the right to a jury trial.
This essential right must be preserved, not sacrificed in the name of expediency.
