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Chief Justice upbeat about strength of legal community, despite ‘resource constraints’ and institutional challenges

5 Jul 2024

| Author: Neil Sands

The courts face a challenge maintaining public confidence in a “post-truth” world of polarised opinion, underlining the need for open justice and transparency to help people understand the decisions that judges make.

That was the key message from Chief Justice Dame Helen Winkelmann at a breakfast in Wellington yesterday, hosted by The Law Association.

The Chief Justice used her speech to outline hurdles facing the courts, stressing that “good lines of communication are never more important than when there are challenges to the system of justice”.

In a wide-ranging address, she discussed problems arising from the “sluggish” movement of cases through the courts, outdated courthouse infrastructure and the under-resourcing of legal aid.

She also acknowledged there would be occasional “flare-ups” between the judicial and executive branches of government.

Some of her strongest remarks were around the need to keep the public informed, a constant theme since she was appointed Chief Justice in 2019, when she said at her swearing in: “If this role is not well understood then society will not value the role of the judiciary.”

“One of the challenges the courts face is operating in a world of highly polarised opinion,” she said yesterday. “Some have called it a ‘post-truth’ world. It’s a world in which institutions, particularly the courts, can’t take for granted that the public will understand or take action to protect the critical constitutional role played by an independent judiciary — or indeed by an independent profession – because the profession must, as part of our constitutional system, be independent.

“So the principle of open justice has consciously operated in the past to maintain public confidence in our judicial system because it lets people see how judges are running the course, and to see them doing so diligently and in accordance with the judicial oath. “Ideally, it allows the public a deeper understanding of the issues and tensions that judges must confront and resolve when making decisions about bail and in sentencing.”

Chief Justice Winkelmann said the role of traditional media was a crucial aspect of this, in “a world dominated by new media and in which the capabilities of artificial intelligence are beginning to be felt.

“In New Zealand, the accredited media are the public’s eyes and ears, and the judiciary is conscious of the need to support them in this role. Because, of course, the media also have got their own challenges in the present environment, not the least of which is significant resource constraint.”

 

‘Massive discounts’

This focus on public understanding of judicial decision-making comes a week after Justice Minister Paul Goldsmith outlined changes to the Sentencing Act that will drastically cut the discounts judges can apply to sentences.

“Our primary purpose is to send a clear message from Parliament that we want to have fewer massive discounts in sentencing so that people face real consequences for their crimes,” Goldsmith said.

The minister denied the changes will restrict judicial discretion. “It’s not a question of trust in the judiciary, it a question of Parliament sending a clear signal about its intentions through the Sentencing Act. That’s quite appropriate for us to do,” he said.

“They can exercise their judgments, but the clear message that we’ve had from the community is that there are concerns around undue leniency for sentencing and we’re seeing, for example, that the imprisonment rate for robbery offence, which has a maximum of 14 years, has dropped from 74% in 2016 down to 58%.

“There are examples throughout the system where there’s been less prison time for the equivalent offences over the last few years and New Zealanders are not happy about that.”

Chief Justice Winkelmann said initiatives taken to improve transparency in the courts include the publication of an annual report and livestreaming of most Supreme Court hearings.

 

Flare-ups

The Chief Justice said respectful relationships between the legislative, executive and judicial branches of government were guided by the principle of “comity” and were important to the functioning of the system.

Referencing a recent speech to The Law Association by Attorney-General Judith Collins KC, with whom she meets regularly to discuss matters of shared interest, Chief Justice Winkelmann said comity helped navigate tensions between the three branches of government.

“It was heartening to hear the importance that the Attorney-General attaches the relationship between these branches of government,” she said.

“I should acknowledge, as some of you are probably running through the headlines in your head at this very moment, that from time to time there may be flare-ups along the lines that delineate the spheres of responsibility between the judicial and executive branches but what is vital is that the importance of these lines is understood and reasserted when it needs to be.”

In her speech, Collins KC warned against the judiciary becoming policised and referenced the Waitangi Tribunal’s recent and “highly unusual” attempt to summons Minister for Children Karen Chhour for cross-examination.

Asked if Collins’ speech signalled there were tensions between the executive and judiciary, Chief Justice Winkelmann said it was part of normal discourse.

“For my part I didn’t see it as surprising. I spoke to the chairs of select committee about the principle of comity the year previously and I didn’t see that as being at all provocative,” she said. “It’s a key organising principle of our constitution. The judiciary often speak about it in their judgments and I welcomed the Attorney-General speaking about it. I suppose it’s a matter of perception.”

 

Justice delayed

Chief Justice Winkelmann said criminal cases in the District Court still face backlogs arising from the covid-19 pandemic, exacerbated by a range of other factors.

“Late pleas, high rates of jury election, difficulty with police disclosure, difficulty for counsel gaining access to their clients in custody and significant delays in obtaining health reports, all play a part in slowing the system,” she said.

As a result, defendants are increasingly held in custody for prolonged periods. “Recent statistics showed that one in five defendants was released on the day of their sentence. I think we can all infer that a fair portion of those will have served more time than was required by the sentence.”

Under-resourcing of courthouse infrastructure and the legal aid system present further challenges to delivering timely justice.

“The High Court in Whangārei has only one courtroom available to it, which is extraordinary because that’s quite a busy jurisdiction,” she said. “This means that a murder trial in Whangārei may have to wait many months or years longer to go to trial than elsewhere. The same sort of issues arise in Rotorua and Tauranga.”

 

Digitised courts

Chief Justice Winkelmann said the basic operating system of the courts remained paper-based, adding that “a sluggish system creates more delays as people begin to factor the delay into their own strategies and thinking. People expect delay, so they’re late.” She provided an update on the strategy to digitise New Zealand’s courts and tribunals, including the Te Au Reka digital caseflow system.

The new digital system will be introduced into the Family Court in 2025–2026, then the District Court criminal and civil jurisdictions, and finally the senior courts and Environment Court and Disputes Tribunal in 2027–2028.

“It’s going to enable people to digitally commence proceedings, file documents and give participants real-time access to the state of proceedings … for the courts, it will remove the burden, risk and delays associated with a paper-based system,” she said.

The Chief Justice also revealed that plans had been submitted to the government to strengthen the role of the Disputes Tribunal by increasing its jurisdictional limit, and establish a Principal Civil Judge, with part-time civil judicial officers, to increase the District Court’s capacity to deliver civil justice.

Another innovation includes consultation on reinstating a Commercial List in the Auckland region, to prevent large-scale commercial civil litigation clogging up the High Court. A commercial list, run by the late Justice Sir Ian Barker, ran successfully in Auckland during the 1980s and 1990s.

Despite the challenges, Chief Justice Winkelmann said there were many positives in the judicial system, praising the mutual respect between judges and the legal profession while describing New Zealand’s lawyers as “among the best educated in the word”.

“Working together, the bench and the profession have come through some tough times in the recent past and we’ve actually completed some significant projects,” she said.

“That shows the strength of our legal community and it’s something of which we can all be proud.” ■

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