Two years ago, when New Zealand experienced its first case of covid-19 and was plunged into a nationwide lockdown, the courts were forced to reassess the way they operated.
It was no small task. “Many of the courts’ operating systems would have been familiar to a lawyer in the 19th century,” says Chief Justice Helen Winkelmann. “This was the result of a lack of investment in the courts which stretches back over decades.” There were paper files, there was no electronic payments system and audio-visual links were limited.
In a word, the Chief Justice says, they were ‘Dickensian’. But, when the pandemic hit, the courts had to move quickly to remote hearings for much of their business.
“What were initially short-term fixes have become part of our standard operating model for the pandemic. We now conduct a significant portion of our hearings remotely, payment can be made electronically, which is just as well as cheques have effectively been abolished, and parties now file their papers electronically.”
Nevertheless, the challenges of dealing with the delays and complexities of covid-19 were exacerbated by the lack of an effective digital operating model, Chief Justice Winkelmann says.
“This makes efficient management of the courts’ workload difficult, is a constraint upon innovation and creates a risk of critical events and deadlines being missed for those who are involved in the proceedings. Innovation in technology to support a digitally based operating model is a high priority.”
While she says the courts have increased the extent to which they can operate remotely, their systems are still paper-based.
“Our registries are stuffed full of paper files. By a digital operating model, I mean that we don’t have digitally stored and managed files. We don’t have a digital case flow system. This is an investment the courts badly need. A digital case flow system will not only support remote operation but it will also enable us to manage our existing workload with more flexibility and efficiency and convenience for those who use the court system.”
Chief Justice Winkelmann’s comments come at the release of her first-ever annual report, covering the period 1 January 2020 to 31 December 2021.
It’s the first of what she intends to be regular reports to the public and the legal profession and the inaugural report covers a wide range of topics ranging from the diversity of the judiciary and the rules of conduct for judges to the problems with legal aid.
“It gives an account of the challenges the courts have faced recently and those we anticipate in the future,” she says, and it’s being released in the interests of transparency. “Courts are, after all, a public institution but I also think it’s important for people to see what goes on within the judiciary that we do together with the Ministry of Justice to try to ensure that our courts meet the needs of our society and that they’re resilient in the face of disruption and change. The courts are part of the bedrock on which we build a civil society, so they have to be resilient.”
The annual report details how covid-19 exacerbated the delays and inefficiencies already present in the court system. Lockdown rules meant jury and judge-alone trials were suspended in the criminal jurisdiction for much of the pandemic though systems were gradually put in place to allow the courts to do most of their usual work in this latest wave of the pandemic.
Not all hearings can be held remotely – in general, if the defendant needs to be present the hearing must be in-person – but much of the procedural work is now being disposed of via AVL. Most recently, RAT tests have been introduced for all participants in jury trials and to enable the unvaccinated (who cannot be banned from court hearings they are compelled to attend) to attend court.
Most potential jurors, however, are fully vaccinated. According to Chief High Court Judge Susan Thomas – who, with Chief District Court Judge Heemi Taumaunu and the Chief Justice fronted the media at last Friday’s release of the annual report – of the 753 jurors who turned up the week previously, only 12 were unvaccinated.
The Chief Justice acknowledges all this change has been disruptive.
“When we change the system, we were asking all the people who use the courts to change the way they work – the legal profession, the police, media, corrections – all these other agencies whose work impinges on the courts,” the Chief Justice said. “I am grateful to all, and profoundly grateful to the people of New Zealand who continue to turn up for jury service so that jury trials can continue.”
Speaking to the annual report, Justice Thomas noted that the pandemic had highlighted the importance and breadth of the High Court’s work in both its criminal and civil jurisdictions.
On the civil side, there have been multiple judicial review applications and other pandemic-related decisions affecting many people and, in the criminal jurisdiction, “media scrutiny of pandemic-related delays indicates the importance to New Zealanders of timely access to criminal justice”.
Defendants awaiting trial who were remanded in custody – a high percentage of those appearing in the High Court – were affected by the suspension of jury trials in March 2020. And while they resumed in August that year, Auckland was plunged back into lockdown in August 2021. At that point, Justice Thomas said, the High Court had almost cleared its backlog of criminal jury trials and for the first six months of 2021, the High Court at Auckland ran up to six jury trials a week. “We are very conscious of the impact of any delay on defendants who are in custody, on victims, whānau and community,” she said.
“From the end of February 2020, before the arrival of covid, to the end of January this year, the average time from first appearance to trial date has increased by four and a half months. Over the same period, the number of criminal trials in the High Court on hand has increased by 39.”
The arrival of Omicron has again placed restrictions on jury trials. The court has been forced to vacate several very long hearings and some with multiple defendants because of the high risk of not being able to complete the trials because of illness.
During covid, the High Court has made ‘great use’ of remote technology, Justice Thomas said. “Even before the pandemic, the court was using remote technology for some criminal justice procedural work. This has been extended further during the pandemic and it enabled us to keep trial files progressing – for example, by hearing pre-trial matters remotely.”
Civil cases were less easy to conduct remotely “as they often feature voluminous documents and complex issues”. But more were being done via AVL, including pandemic-related judicial review applications. The first proceeding, challenging the legality of the lockdown (Borrowdale), was brought in June 2020 and heard remotely.
The High Court has since heard and decided under urgency cases about the legality of vaccine mandates for certain jobs, Whānau Ora’s request for data in relation to Māori vaccination rates, a challenge to the government’s MIQ requirements (Bolton) and a decision late last year to stop processing visa applications for Afghan nationals after the Taliban takeover.
All this demonstrates the High Court’s critical constitutional role in reviewing the actions of public and private administrative bodies, including the executive branch of government, Justice Thomas said, to determine whether they acted within the powers given to them by law.
The country’s busiest court – the District Court – has been hit hardest by covid delays.
Chief District Court Judge Taumaunu says the court had no option but to reduce operations and workforce capacity. Normally it would dispose of about 200,000 cases and one million court events a year. “But under previous alert levels, when only priority proceedings could go ahead, an unprecedented number of hearings were adjourned or rescheduled,” he said. About 128,000 court events were affected which had a huge impact on court users.
“We know that when cases are delayed, people’s lives are put on hold. This has very real human consequences and the longer it goes on, the worse it gets.”
But while the disruption continues, the adjournments and rescheduling of cases is significantly lower than during previous restrictions, Chief Judge Taumaunu says. “It’s about 100 a day compared with 600-700 per day during the previous alert-level settings.”
But Omicron is now affecting jury trials and he expects there will be more pressure on court capacity. About 30 District Court judges are conducting court business remotely and Chief Judge Taumaunu says this resilience-building will enable the court to continue with priority hearings when the full force of Omicron hits. The government’s decision to appoint more judges has been helpful, and the District Court is also heavily reliant on acting judges to supplement the permanent judicial workforce. It might consider more use of community magistrates and justices of the peace.
But it’s not all a tale of doom and gloom. Chief Justice Winkelmann says the pandemic has shown that people can do things differently.
“It showed us that things we thought were absolutely unchangeable in the system – that were absolutely concreted into the system – can change if all the participants work together. The difficulty we have is that it’s such a complex system. Times of great stress and challenge are good times to change complex systems so although the pandemic has been difficult for the courts, it has also created those opportunities to think about and do things differently.”