Chief Justice Dame Helen Winkelmann’s briefing to Attorney-General Judith Collins: Justice affected by mouldy courtrooms, shortage of judges, legal aid issues

The grim state of judicial resources has been laid bare: Courtrooms closing due to black mould or flooding, another “wrapped in plastic” due to weather-tight failures, a plea for more judges to ease the “stress and fatigue”, and legal aid still failing to provide target="_blank">equitable access to justice.

This is all laid bare in a just-released briefing to Attorney-General Judith Collins, written by Chief Justice Dame Helen Winkelmann, which paints a bleak picture of the challenges to properly resource the judiciary.

This has inevitable consequences on the timeliness of justice for all, from victims to offenders to court staff to the communities they serve, including how long it takes for a case to trudge through the court system.

On being appointed to Chief Justice, Winkelmann said access to justice for all was a top priority, but in her November 2023 briefing she said Court of Appeal times “to hearing and judgment have increased to undesirable levels”; the median wait time for civil appeals at the end of last year was 408 days, a 32 per cent increase since 2019.

She also warned how the Government’s search for 6.5 or 7.5 per cent savings across the public sector could put more pressure on a system that is already squeezed, and stated her support for the courts to be exempt due to them being “essential front-line services”.

But the justice sector - which includes the courts - has been included in the Government’s directive to find 6.5 per cent in savings, though which parts will be trimmed are still being determined.

Chief Justice Helen Winkelmann wrote a briefing for briefing for Attorney-General Judith Collins. Photo / Supplied

The major challenges detailed in the briefing include:

• The need for the statutory cap on the number of judges to be reviewed at all levels. The last time the cap on the number of senior court judges was raised was almost 20 years ago, during which time the population increased by 25 per cent, and the matters before those courts have become far more complex. “It is causing worrying levels of judicial stress and fatigue,” Winkelmann said.
• Urgent appointments to the senior courts due to a number of retirements, including half of the judges in the Court of Appeal (Collins has already announced eight court appointments in her short time so far as Attorney-General).
• Limited availability of High Court courtrooms: “A 15-day plus High Court criminal trial cannot be offered a trial date in Whangārei until September 2025 or in Rotorua until October 2025. This is almost 12 months later than dates in the main centres, and is solely as a result of the lack of courtroom availability.”
• District Court backlog, fuelled by four closed Auckland courtrooms for “many months” last year due to flood damage. “In 2015, 26 per cent of all cases in the criminal, family and civil jurisdictions were considered backlogged, compared to 41 per cent of all cases in December 2021 and 37 per cent in December 2022.”
• The New Zealand Coroners Court is “rarely at full-strength” and will see two retirements and the expiry of eight relief warrants in the next three years. “A reduction of that magnitude in the number of coroners will seriously impact the ability of the bench to clear aged files and progress matters entering the jurisdiction in a timely way.”
• Coroners across the country have also had to share chambers due to a lack of “suitable accommodation for coroners”. “Shared accommodation exacerbates the stress of the intense and difficult work of coroners. The distressing content they are required to view and discuss also requires a private space.”
• “Considerable concern” about the sustainability of legal aid across criminal proceedings and Family Court matters. Fewer and fewer lawyers offer legal aid services, and those that do charge what is known as “low bono” rates. “It is time for a review of the fundamentals to refocus on equitable access to justice.”
• “Chronic underfunding.” A 2019 assessment found 43 of 96 sites are rated “fair” to “very poor”, while 12 sites are in “critical condition”. Examples include the flood-hit courtrooms in Auckland, and the black mould that closed a courtroom in Hamilton. There are plans to address 10 of the 12 critical sites, most of which are only partially funded “with some needing substantial further investment”. “If they fail, this would cause serious disruption.”

The plastic-wrapped Papakura District Court building. Photo / Supplied

One of those is the Papakura District Court building, which has been covered in scaffolding and plastic wrap since 2021 to prevent mould growth and water damage. It is still being used, though the Ministry of Justice has purchased a possible replacement building.

This would have been of particular interest to Collins, who is also the MP for Papakura. The Herald has contacted her office for comment.

Work on replacement courthouses in Whanganui and Tauranga is under way, said Justice Ministry deputy secretary corporate and digital services Kelvin Watson, while land for new courthouses has been bought in Rotorua and Waitākere.

Winkelmann said despite the challenges, the “extremely difficult” backlog in the District Court is “tracking down” since May last year due to a number of different measures.

The Law Society has also announced a joint research project with KPMG into the costs of providing legal aid.

Budget 2022 tried to address issues with legal aid, including inadequate pay to incentivise such work. It provided for a 12 per cent increase in hourly rates for legal aid work, but with no change in fixed fees, legal experts predicted this would not move the dial enough.

Attorney-General Judith Collins is also the MP for Papakura, where the District Court had to be wrapped in plastic because it wasn't weather-tight. Photo / Mark Mitchell

Winkelmann suggested monthly meetings with Collins, continuing what she had with previous Attorney-Generals, to discuss appointments, legislation affecting the courts, and “addressing unfair or improper criticism”.

It’s unclear whether this included ministers’ comments on judicial decisions, which are covered in the Cabinet Manual: “Ministers should not express any views that are likely to be publicised if they could be regarded as reflecting adversely on the impartiality, personal views, or ability of any judge.”

Government ministers have raised legal eyebrows with comments on judicial decisions, which started a spiral last year that ultimately cost Labour’s then-minister Stuart Nash his ministerial warrant.

This year NZ First’s Shane Jones has expressed concerns about the ramifications of climate activist Mike Smith winning the right to sue polluters.

And a discharge without conviction for a man who had punched a 71-year-old appeared to prompt NZ First leader and Deputy Prime Minister Winston Peters to say: “The Cabinet Manual means a minister cannot comment on the court sentencing of a man for a blatant assault - no matter how ridiculous and out of touch the sentencing is.”

Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery and is a former deputy political editor.