Editorial: Limiting jury trials may be a step too far

Justice Minister Simon Power. Photo / Sarah Ivey

Anybody who has had to wait for criminal justice in New Zealand will welcome most elements of the bill introduced to Parliament this week by Justice Minister Simon Power.

It takes some practical steps to resolve cases a good deal faster than the year they have been taking in the District Court and the 16 months in the High Court.

In future, defence lawyers will be required to identify issues in dispute before the trial begins, hearings will be able to proceed in the absence of a defendant who has no reasonable excuse for not turning up, and procedural co-operation - or the lack of it - can be considered at the sentencing.

But one element of Mr Power's bill may be a step too far. It would withdraw the right to jury trials for charges that carry less than three years' imprisonment.

At present, anybody charged with an offence punishable with at least three months' jail can choose to be tried by a jury or by a judge alone. To raise the threshold from three months to three years is too drastic.

The right to be judged by fellow citizens rather than an officer of the law is important, particularly when someone's liberty is at stake.

Arguably, the jury option should be available whenever the Crown seeks a prison sentence, which might have the incidental benefit that prosecutors would seek alternatives that reduced this country's costly imprisonment rate.

Jury trials are undoubtedly more time-consuming than those decided by a judge alone. Evidence that one side or the other considers unreliable or unfair has to be heard by the judge in advance of the trial, or during it with the jury excluded.

If ruled admissible, the evidence has to be repeated for the jury. But the added time is probably less than the pre-trial delays tackled by Mr Power's better proposals.

The Law Society's vice-president has criticised the bill's provision for cases to proceed in a defendant's absence, which Attorney-General Chris Finlayson finds in breach of a fundamental right.

But judges can be trusted to allow a case to proceed only when satisfied the accused knows it is on and has no reasonable excuse for not attending. The right to face one's accusers is hardly abridged if one has the opportunity and chooses not to.

The bill would also enable courts to take a plea at an earlier stage, rather than having hearings proceed when the offender intends to plead guilty.

If the person pleads not guilty, a new case-management system will require the parties to meet outside the courtroom, agree on as much as they can, and help the court to bring issues to a head quickly and efficiently. Their co-operation, or lack of it, will be reported in a memorandum to the judge on a date set at the outset for a case review.

The obligation on defence lawyers to identify issues in dispute before the trial has been called an infringement of the right to silence. But if issues are valid and the defence intends to raise them, there is no harm in having to give notice of them.

Issues that arise later in proceedings can be introduced if the judge agrees they are necessary for a fair trial. The bill will allow judges and juries to draw an adverse conclusion from failure to give notice of disputed issues.

It also gives courts the right to indicate a likely sentence at an early stage if the defendant pleads guilty, which already happens in district courts but seldom in the High Court. Notice of both defences and sentences should save a great deal of time for prosecutors and their witnesses and judges and juries.

Trials will be more focused, less complex and more convenient for everyone except the lawyer and client whose only hope is to confuse the jury. With so much time saved, the system surely can afford to retain the right to trial by jury in every case where liberty may be lost.