In a joint statement the Chief Justice and the Chief District Court Judge today outlined a new approach to reducing the large number of outstanding trials created as a result of COVID-19. It comes as courts attempt to reduce high case numbers, with jury trials currently being scheduled in mid-late 2023 in some centres. The full statement is below:
“Jury trials are now proceeding in courts across the country where it is safe to do so. Judges are working closely with the Ministry of Justice to ensure all court participants are kept safe, including through the provision of KN95 masks, greater distancing in courtrooms, daily rapid antigen testing, and increased ventilation of courtrooms where the court estate permits.”
“Nevertheless, the court system is continuing to feel the effects of periods of lockdown and alert level red settings where many hearings were not able to go ahead. The result is that there are still a large number of cases – particularly jury trials – that need to be heard. This is exacerbated by new cases continuing to enter the system at the same rate as usual.”
“Other jurisdictions have altered their judicial approaches in light of the resource implications of COVID-19. For example, the Victorian Court of Appeal stated in Worboyes v R [2021] VSCA 169 at [39]:
38 Further, and significantly, criminal jury trials in times of the pandemic are far more resource-depleting than in times where the threat of serious infection is not present. One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to an extent freed up.
39 For these reasons, we consider that — all other things being equal —a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.
“This is a salutary example of how, even in exceptional times, ordinary sentencing principles can be applied to new situations to guide principled responses for the benefit of all. We have been influenced by this thinking, but have chosen a different sentencing principle to underpin our response: premeditation.”
“It has been a strength of the New Zealand judicial system’s response to the COVID-19 pandemic that it has involved goodwill and effort from a wide range of participants: lawyers, judges, and the Ministry of Justice. However, to date we have neglected to ask those entering the system to play their part as well.”
“Therefore, we are asking today for all persons considering committing a crime to defer doing so until at least 2024. That will ensure that when their case enters the court system it can be dealt with promptly, and will allow us to use the intervening time period to deal with the cases already in the system.”
“While we recognise that certain crimes are spontaneous in nature and will likely not able to be deferred, there is no reason why, for example, most species of fraud could not be put off for a reasonable period of time. It is never appropriate to drink and drive but it’s really really not appropriate over the next year and a bit. We are also asking people currently engaged in any type of conspiracy to check in with your fellow members and come up with a timetable for your offending that respects current court workloads. We consider that, in the circumstances, these are reasonable sacrifices for persons to make, and will bring significant systemic benefits in allowing us to use existing judicial resource to focus on cases already in the system.”
“Should people not heed this request and choose to commit offences in the next 21 months it will be considered as evidence of premeditation in the offending, and treated as an aggravating factor under s 9(1)(i) of the Sentencing Act 2002. We want to reassure New Zealanders that, given this factor applies only at sentencing, there is no risk of this applying to those acquitted of offences. Further, it requires no legislative change and simply represents an extension of well-understood sentencing principles to the challenging situation that COVID-19 presents.”
“This approach will take immediate effect and will operate until around August when the Court of Appeal will probably overrule it.”
Strictly obiter 