The law’s delays are nothing new. Shakespeare had Hamlet refer to them in 1599. Dickens wrote a book – Bleak House – about endless litigation set in the 1830’s. In 1868, British Prime Minister William Ewart Gladstone famously said, “Justice delayed is justice denied.” The phrase has often been repeated, most famously by the Rev. Martin Luther King Jr., who echoed it in his 1963 “Letter from a Birmingham Jail”: “Justice too long delayed is justice denied.”
Recently the Minister of Justice, Paul Goldsmith, expressed concerns about delays in the criminal courts. One solution that he proposed is to reduce the number of jury trials by reducing the type of charges where trial by jury may be elected.
This too is not new. In 1981 the Beattie Royal Commission on the Courts suggested that some jury trial matters should be heard in the newly constituted District Court rather than the High Court.
On 17 June 2024 the Chief District Court Judge, Heemi Taumanu published a concise Judicial Protocol – a four page document – entitled Timely Access to Justice. It addresses the problem of unsatisfactory delays in in criminal, family and civil cases proceeding through the District Court.
In essence the proposal is to use existing procedures and practices and streamline them. No statutory amendments of alterations in rights to trial are necessary and indeed the Protocol makes it clear at the outset that nothing in it is intended to reduce fair trial rights, the right to natural justice, or rights under the New Zealand Bill of Rights Act 1990.
The torment of delayed justice is clearly stated in Judge Taumanu’s first paragraph. He says:
“When people experience delay in cases proceeding through the District Court there is a human toll. For many, their lives will remain on hold until their case is finished. In order to enhance the quality of justice that is currently delivered in the District Court, the Te Ao Mārama best practice framework was published in December 2023. It clearly recognises that timely access to justice is essential for the delivery of quality justice.”
The Protocol is the culmination of many years work to develop a solution that enables improved access to timely justice in the District Court. Covid-19 introduced a clog in the disposal of cases and a significant backlog developed. Processes were put in place to reduce that backlog.
The Protocol is the next step in the effort to provide timely access to justice and is based on the statutory power vested in the Chief District Court Judge to ensure the orderly and efficient conduct of the business of the District Court. Naturally enough this includes addressing the problems of delays and backlogs.
The Criminal Procedure Act 2011 provided a framework for what was hoped to be the timely disposal of cases but it has become clear that a disciplined approach to case management has become necessary. Timely access to justice can only be achieved by a coordinated justice sector-wide effort as long as that approach operates within constitutional boundaries. Judge Taumanu observed that:
“In order to tackle court delays we need coordinated action from across the justice agencies, including Police, Crown Law and Corrections”
The Protocol establishes a timely access to justice standard and category-based timelines and thresholds for criminal cases in the District Court.
The Protocol states:
“The thresholds represent reasonable timeframes for most cases to progress from first appearance to final disposition within each category. They are intended to encourage a concentrated focus on reducing delays in the District Court. They seek to strike a balance between aspirational objectives and operational realities. They reflect the length of time it takes for a criminal case to proceed through each stage, including a not guilty plea through to trial, and for fair trial rights to be upheld.”
It is recognized that not all cases will be disposed of within the timeliness threshold for their category. Because cases may be unique or have special characteristics these will be among the circumstances where timeframes are exceeded. An example may be seen in the Whakaari-White Island case which would have fallen within category 1 but was never expected to be completed in six months. It was a case that had a number of defendants and a number of complexities.
By June 2027 it is expected that 90% of the criminal cases in the District Court will meet the new thresholds. The thresholds are based on the following categories.
Category 1 cases should be disposed of in six months
Category 2 cases should be disposed of in nine months
Category 3 cases (judge alone trials where there has been a not guilty plea) should be disposed of in nine months.
Category 3 cases (jury trial where there has been a not guilty plea) should be disposed of in 15 months.
These thresholds represent reasonable timeframes for most cases to progress from first appearance to final disposition within each category.
For clarity Category 1 and 2 crimes are less serious. The only option is for a judge alone trial. There is no right to a jury. Depending on the nature of the crime the case may be heard by either a justice of the peace, a community magistrate or a judge. Category 3 crimes are more serious and allow for a choice of judge alone or jury trial. Category 4 crimes are dealt with in the High Court before a jury.
The Protocol states that
“They are intended to encourage a concentrated focus on reducing delays in the District Court. They seek to strike a balance between aspirational objectives and operational realities. They reflect the length of time it takes for a criminal case to proceed through each stage, including a not guilty plea through to trial, and for fair trial rights to be upheld.”
The standard of 90% disposals reflects the reality that there will be unique cases or special circumstances where the timeframe will be exceeded.
In setting the 90% standard the Protocol states that
“the District Court and wider justice sector are strongly encouraged to make appropriate improvements to ensure 90% of all District Court criminal cases are heard and determined within the relevant timeframes established by the thresholds.”
It is acknowledged that achieving these goals will not be easy. Challenges and disruptions will arise. One potential disruption will occur in 2026 and 2027 when the digital caseflow management system (Te Au Reka) will be introduced into the District Court.
There are other daily challenges as well that are inherent in the Court system. One of the frequent reasons for delay in my experience was the non-attendance of defendants and the need for an arrest warrant to be issued. Another factor was delay in disclosure by the prosecution. That was a bug-bear under the Criminal Procedure Act framework but certainly the Protocol has a clear expectation that there will be an effort by all stakeholders to comply with the Protocol. That is reflected in the statement for the need for a co-ordinated approach.
The Protocol is not set in stone. It is a “living document” which will be amended from time to time as the need arises and will extend to the District Court family, youth and civil jurisdictions in the future.
To give some understanding of the workloads experienced in the District Court Criminal jurisdiction some numbers appear in the District Court Annual Report for 2023. The new criminal work for the District Court in the 2023 financial year was 105,200 criminal cases. It disposed of the majority of this work but there was an active continuing work load of 37,400 cases. This reflects the fact that 81% of all District Court criminal cases are heard and concluded within the relevant thresholds. The Protocol seeks to raise this to 90%.
The Protocol is expressed in strong language. Expectations are clear. It is obvious that improvements can be achieved within existing frameworks but as the Chief Judge states it will not be easy and will require a concerted effort on the part of lawyers, prosecuting authorities (including the Police), the Corrections Department and not least the Judges who will have to adopt a firm and unwavering approach to the fulfilment of the Protocol thresholds but must do this within the right to a fair trial and the procedural norms that underpin that. It will be difficult, but Judges didn’t sign up for a soft job.
Defence lawyers are experts at manipulation of the requirements of due process and fair trial.
Don't hold your breath for any real improvements under this DC Protocol
Well said. I’m not au fait with what’s being done in the High Court to achieve reasonable timeliness, but some trial dates for very serious offending that I have noticed would suggest that it is in real trouble. Oh to be back in the 1950s when the late Juliet Hume and her friend Pauline Parker were tried for the murder of the latter’s mother. The murder was committed on the 22nd of June 1954 and they were convicted (following a jury trial) on the 28th of August 1954, a Saturday.