District Court of New Zealand

Criminal Procedure (Simplification) Project Testing in Manukau and Tauranga District Courts

Criminal Procedure (Simplification) Project

What is the purpose of the project?

The Ministry of Justice and the Law Commission are introducing changes to the Summary Court Process as part of the Criminal Procedural (Simplification) Project. The project aims to contribute to more effective and efficient summary and indictable court processes, improve the timeliness of criminal cases, and simplify the law of criminal procedure.

The Project depends upon the input and co-operation of a range of stakeholders to ensure it is successful. Input has been sought from the judiciary, and we are working in partnership with stakeholders to ensure processes or legislation developed are transparent and will work for all parties.

The project also consolidates and co-ordinates a range of work that has already been initiated by the Law Commission, the Ministry of Justice, the Court itself, and other stakeholder groups in order to capitalise on synergies and identify the best options for change.

The project expects to create a new Criminal Procedure Act and the testing being launched is progress towards that. We expect a document of proposed changes will be out for public consultation in mid 2009.

Why choose these particular changes to focus the pilot on?

The summary jurisdiction is the jurisdiction with the greatest volume of cases.

Previous case analysis identified that Police disclosure and instructions by the defendant to counsel were contributing to the number of adjournments in the list court stage. Implementing the Guidelines for Disclosure & Instructions should make list court events more meaningful, and allow for informed decisions to be made earlier. It should create less need for cases to be adjourned.

A key aspect of the Guidelines is the proposal for a maximum of two list court appearances.

Earlier and fuller disclosure by Police to duty solicitors and defence counsel will support this. So will prompt LSA assignment of legally aided counsel.

The Differentiated caseflow management process aims to match cases with more appropriate case tracks (simple and extended).

This means that, in general, non-electable cases will proceed directly from the list court to defended hearing, without a status hearing (simple track), while in electable cases the case management memo will be completed by both parties out of court, followed by a status hearing if required (extended track).

The Case Management Memo is part of the extended track of the differentiated caseflow.

The assumption behind the memo is that a status hearing will often not be required. Often, there will be a lot that parties can do to resolve issues between themselves. They may conclude either that the case can be disposed of (by withdrawal of charges, or entry of a guilty plea), or can proceed straight to defended hearing without a status hearing.

These changes as package are intended to support the following objectives:

• Fewer status hearings, in the cases that genuinely require them;

• Status hearings that are focused on the issues;

• Participants who are better prepared for status hearings;

• A reduction in the number of adjournments at both list court and pre-hearing stage.

Work has begun to identify similar improvements for the indictable strand.

Why were these sites chosen?

The test sites were identified in consultation with the District Court judiciary, staff and other agencies. Specifically, we chose Manukau and Tauranga District Courts because:

Manukau District Court is a large busy court – this will enable us to test the effects of the proposed changes on a court that is under pressure in terms of volume of workload. A larger volume of workload also gives us enough data to test the robustness of the proposals.

Tauranga District Court has been shown to be an efficient court in terms of process. It was chosen to ensure that the new processes enhance existing processes that already work well.

The project has worked closely with the other agencies such as the Legal Services Agency, Police and the local courts’ communities to ensure that testing starts on the best footing.

Commonly asked Questions & Answers

1. How can we be assured we can get hold of the Prosecution?

• All contact information is contained in the Disclosure Pack.

• An Appointment Scheduling Document (ASD) process in place to assist with scheduling of times – outlines 2-3 times when the Prosecution are available.

• Police have assigned additional resources to assist over the testing period.

• The testing will be monitored fortnightly through teleconferences and feedback.

• The timeframes set out have taken into account the preparation needed.

2. Won’t the Case Management Memo (CMM) create more work?

• The CMM just documents discussions that are in any event best practice: parties should already be considering these matters, albeit in a less structured way.

• CMM is only proposed for cases on the extended track, which in general will be relatively serious or complex cases.

• In many cases, the CMM is expected to take the place of status hearing. In such cases, it is not an extra work requirement, but instead a substitution of a different method of addressing the issues. Status hearings are only envisaged when judicial input (eg, a sentence indication) is required. If a status hearing proceeds, it ought to be more focused, because parties and the judge will be better prepared.

• Counsel will be paid for completion of the CMM, even if a court appearance is not required. A flat fee is proposed for the whole pre-hearing stage.

3. The case management memo asks defence counsel to state the nature of their case. Is this a mandatory requirement? If so, that would be contrary to principle.

• Sometimes, defence counsel may need to exercise an element of judgment, about whether stating the nature of the defence case would be contrary to the client’s best interests. However, in the vast majority of cases, it should be possible to briefly summarise the defence or issue in dispute (eg, self defence, identity) without prejudice to a client. The expectation is that this will occur, so that pre-hearing discussions about the case are focused, and appropriate time and facilities can be allocated for the defended hearing if it proceeds.

4. Will disclosure be ready in time? And what if counsel are not available to pick up their pack?

• There will be two packs available (Duty Solicitor Pack, and an Initial Disclosure Pack for self-represented defendants and assigned counsel) and these will be available on the day of either the 1^st or 2nd appearance.

• In between hearings the disclosure packs can be obtained at the Police Prosecution Service offices.

5. What if counsel are unable to get instructions from their client?

• Counsel need to ensure that every effort is made to ensure they get instructions from their clients. They will be supported in this by a new practice of ensuring that, at the test sites, defendants in police custody are available at court from 9 am.

• In the event that counsel cannot get instructions, they need to indicate this on the CMM, and the case will go to a status hearing.

What legislation changes does the project expect to make?

Legislative change can only be one lever to achieving improvements to criminal procedure. It is possible to realise improvements by testing operational changes in a shorter timeframe, and this pilot is an important part of the overall project.

We expect that legislative and operational improvements will complement each other for maximum advantage.

Work is continuing to scope and plan the task of replacing the Summary Proceedings Act 1957 with a new comprehensive Criminal Procedure Act. This work is ongoing and will part of our discussion document released in mid-2009.

Every effort will be made to ‘future-proof’ any new legislation in anticipation that societal developments (particularly in the area of communications technology) will not require ongoing changes to that legislation. For example, the project will be developing legislative provisions to enable a wider range of proceedings to be conducted via audio visual links (AVL).

How will you know if the test is successful?

A review process will be undertaken at the three month and six month stages of the pilot.

During the test period, fortnightly stakeholder teleconferences will be held with each site to ensure we receive regular progress updates on the pilot.

What will happen after the six month stage/pilot is finished?

To some extent this will depend on the data coming out of the pilot. However, subject to all parties agreeing, testing could continue beyond the six month point. Decisions about whether to roll out the processes nationally will again depend on how the pilot progresses and all parties being in agreement.

Part of this process is considering what legislation would assist with improving court processes, and what incentives and sanctions could assist with that. Data from the pilot will feed into that piece of work also.

How does this work fit in with the wider work around the Auckland Service Delivery Programme?

This is a Ministry led project to remodel our service delivery in the Auckland region and as they start their process design work we are working closely across project teams to ensure connections are made. This programme of work is also leading the exploration of efiling for the criminal summary jurisdiction and therefore we will need to ensure our design work is future proofed to meet technological changes.