A glimpse of the judicial system; First report into NZ's courts

Chief Justice Helen Winkelmann says investment in transitioning the courts from a paper-based to digital operating model is a "high priority". Photo / Supplied

For the first time in more than two decades, the country's chief judge has revealed an insight into the operation of the country's courts.

In her inaugural report, Chief Justice Helen Winkelmann raises concerns about innocent people spending too long behind bars on remand.

The issues are raised in her report for the period from January 1, 2020 to December 31, 2021 as the country dealt with the onset of the Covid-19 pandemic, but before this year's crippling spread of Omicron.

Winkelmann discusses the current challenges facing the courts and how the judiciary is responding to them.

Winkelmann was joined by Chief High Court Justice Susan Thomas and Chief District Court Judge Heemi Taumaunu in a briefing with media this afternoon.

Taumaunu said district courts had managed to deal with the Omicron outbreak well so far this year, with most trials getting underway, however, he said that was unlikely to continue for much longer given the amount of sickness affecting the public and staff.

"While some disruptions continue, the adjournments and rescheduling of cases are significantly lower than during previous restrictions, about 100 per day compared to 600 to 700 per day during the previous alert level sittings."

The number of active criminal cases had fallen by about 5 per cent since January, he said, due to the ability of courts to complete cases at "pre-Delta levels".

Winkelmann said the protests in Wellington, which came to a fiery end on Wednesday, was "very disruptive" to proceedings in the city, effectively shutting down the Court of Appeal while the high court attempted to carry on hearings by moving some to the Supreme Court building.

"We were concerned about [the protests] because the courts are a fundamental part of our constitutional order and the judiciary was very concerned to see them shut down in that way by that protest action."

She said they would get through the backlog caused by the pandemic.

"We do plan to fully recover. The story will be different between different courts. The high court was able to rebound far more quickly than the district court from the lockdown last year ... to some extent we are strapped into this, we don't know where this pandemic is going to take us and have to keep altering our plans."

Clearing the backlog that was bought into the pandemic was fundamental and would require some "new thinking".

The judiciary, wellbeing and a personal survey

The annual report revealed an insight into the men and woman who sit on the bench. A survey involving 258 of 312 judges found the majority were Pākehā, 60 per cent were men, 3.5 per cent identified as gay, lesbian or bisexual, 24 per cent said they practised a religion and 12 per cent had some form of disability.

In terms of wellbeing, the District Court launched a wellbeing framework, Mauri Tū |Judicial Wellness Programme], following the non-suspicious death of Judge Robert Runayne in January 2020. The programme extended confidential health and counselling services and established a pastoral response protocol for judges needing urgent support including critical incident and trauma support.

Court delays and increasingly late guilty pleas

The report found there were "many causes" of court delays during the past two years, one of which was in part because of offenders entering "increasingly late guilty pleas, which disrupt workload planning and are wasteful of judicial resource".

The number of defendants choosing jury trials had also increased - one reason was because that was "more favourable for defendants".

Most civil court work had not been affected by Covid, while "almost all" of the Court of Appeal hearings had been carried out via video links along with other higher courts.

While it had been "extremely disruptive", the pandemic had taught the courts new ways of delivering justice remotely, which had led to efficiency and improved access to justice.

Remand prisoners

While the number of remand prisoners dropped 20 per cent from about 3600 in 2019 to just over 2900 in 2021, the wait time for those behind bars had increased.

Chief High Court judge Justice Susan Thomas. Photo / Pool

That was "problematic", Winkelmann wrote as some remand prisoners will not be convicted at trial and therefore innocent people were spending time in prison, while many would not end up receiving a non-custodial sentence.

Over-representation of Māori

Winkelmann says Māori are "grossly overrepresented at every stage of the criminal justice system".

Over the last century, the percentage of the Māori prison population had grown from less than 5 per cent in 1921 to more than 50 per cent in 2021.

There was no equivalent data over such a long period, but contemporary data in 2021 showed Māori were 50 per cent of those prosecuted for imprisonable offences, 52 per cent of those convicted and sentenced for imprisonable offences and 64 per cent of those sentenced to imprisonment.

Complex and intersecting issues contributed to that over-representation, she said, including colonisation and intergenerational trauma.

"The answers do not lie solely within the court system ... nevertheless, the court system ... must therefore play its part in addressing it."

High rates of recidivism

Recidivism was a pressing issue for the courts and society, Winkelmann says.

"Within two years of their release, approximately 40 per cent of those released from prison are re-imprisoned.

"These people also form part of the approximately 60 per cent of former prisoners who are re-sentenced to a Corrections-based sentence."

Research here and overseas showed an increased likelihood of imprisonment for the children of offenders.

Legal aid

Winkelmann stated there was a "pressing need" for investment in the legal aid system as it hadn't been reviewed since 2008, while the amount paid to lawyers was last addressed in 2016.

Chief District Court Judge Heemi Taumaunu. Photo / Mark Mitchell

"These thresholds, as well as the rates paid to legal aid providers, have not kept up with cost and wage inflation."

Civil court

There are "substantial changes" underway in the civil justice framework and four key proposals listed, some of which will require legislative change.

Those proposals were; to expand the role of the Disputes Tribunal including covering claims up to $50,000, creating a Principal Civil List Judge, introducing part-time deputy judges and recorders into the district court, and a new framework that simplified case management and the hearing of civil disputes in the High Court.

Family court

There were a "number" of judicial initiatives being undertaken in the Family Court to improve the court experience in the hope that "those who have been subjected to family violence feel both physically and psychologically safe".

Youth Court

The number of youth offenders have dramatically dropped since its inception in 1989, from around 10,000, to 978 of 10 to 16-year-olds for the year ending June 2021.

Principal Youth Court Judge John Walker, right, together with Court of Appeal Justice Stephen Kos, left, and Judge Jonathan Krebs, centre. Photo / Paul Taylor

The rate of Youth Court appearances had reduced by 68 per cent over the past 10 years to 2021, while the proportion of young people offending declined by 64 per cent.

A Young Adult List Court, for those aged 18 to 25, was set up in the Porirua District Court in early 2020 and officially launched on July 31, 2020.

Coroner's Court

The Coroner's Court still faces resourcing issues because of struggles to fill vacancies caused by retirements and the appointment of coroners to other benches.

Chief Coroner Deborah Marshall identified proposals to address workload issues in a paper in May 2021 to help reduce waiting times for hearings and decisions.

Eight relief coroners were appointed in March 2020 but, by August of that year, six other coroners retired or moved into new jobs.

Māori Land Court

Significant amendments were made to the court's jurisdictional legislation in February 2021, including the ability to hear family protection and testamentary promises claims and allowing certain simple and uncontested matters to be determined by court registrars.

Chief Coroner Judge Deborah Marshall. Photo / Alan Gibson

Te Puni Kōkiri [Ministry of Māori Development] will this year consider further reforms.

The use of remote technology wherever possible would also be a focus.

Environment Court

There has been no backlog during Covid, however, there have been delays for prosecution work that is heard by a jury.

Court of Appeal

The court lost seven sitting days in 2020 because of Covid-19, but none in 2021.

That incurred both positive and negatives.

One of the negatives "has been diminished public participation because access to observe remote hearings requires an application for a link, however, such requests are readily granted".

On the other hand, in a future, post-Covid environment, remote technology would be more readily used especially for short hearings otherwise requiring lengthy travel
arrangements.

Employment Court

The court worked to get cases through in a timely way, however, few Covid-19 related cases made their way to the court because of a lack of judicial guidance from the Employment Court, and the Court of Appeal, on important issues relating to employer/employee obligations during the pandemic.