Top judge outlines issues of overloaded Court of Appeal and recommends changes

The president of the Court of Appeal Stephen Kos has recommended possible changes to the justice system to solve issues in the overloaded Court of Appeal. Photo / Sarah Ivey

The president of the Court of Appeal has recommended possible changes to the justice system to solve issues in the overloaded Court of Appeal and High Courts.

More logical allocation of appeals in the courts and resourcing courts to handle additional cases are required to fix issues in the Justice system, president Stephen Kos said.

It comes as Kos identified two key issues in the courts.

"Indeed perhaps two problems: the workload of the Court of Appeal, which cannot be solved by just adding more judges, and the illogicality of the extent to which District Court appeals leapfrog the High Court."

It was widely recognised that the Court of Appeal was overloaded.

"It delivers about 450 criminal judgments annually, a figure that is forecast to increase by some 15 per cent in 2018.

"And it delivers about 200 civil judgments. It does all this with a
complement of 10 permanent Judges plus High Court Judges sitting with it in divisions."

That was equivalent to 12 fulltime employees.

"The Court of Appeal operates at all through a magnificent compromise, depending on collegiality, willingness to work collectively, and through the beneficence of divisional judges drafted in from the High Court."

But there was not yet a consensus as to the solution.

Kos outlined the issues in a speech documenting the origins of appeal rights, the institutions of appeal, and some current controversies playing out in the appellate courts of New Zealand.

"In particular the more limited rights of appeal that exist from discretionary [as opposed to wholly evaluative] decisions at first instance."

The solution would take time to emerge but might include some of the following possible reforms.

First, that all District Court pre-trial appeals go to the High Court only to a single judge.

"Secondly, that all judge-alone conviction appeals in the District Court be heard by a panel of two judges in the High Court, with transfer to the Court of Appeal in the event of disagreement.

"Thirdly, that the Court of Appeal be given the power to refer District Court jury trial conviction appeals to the High Court where no point of general importance arises on the appeal."

Fourthly, that the same principles apply to sentence appeals.

Fifthly, that cautious consideration be given to whether a leave requirement be introduced for civil appeals — as is the case in Victoria.

He said applicants for leave in Victoria, Australia must show the proposed appeal had a real prospect of success

"Criminal appeals in Victoria are also subject to leave, although in New Zealand s 25(h) of the New Zealand Bill of Rights Act 1990 stands in the way of any such reform.

"In any event, I have some doubt the extra step is worth the effort in criminal appeals: the truly hopeless appeal seldom detains the Court unduly and it might as well get on and deal with it in one stage rather than two."

The solution lies in a more logical allocation of appeals, reducing the degree to which appeals from the District Court leapfrog illogically the tier above that court, the High Court, and resourcing that court appropriately to handle the additional work it now would undertake.