Power on Q&A

May 17th, 2009 at 4:16 pm by David Farrar

said some very interesting things on this morning. His whole interview was excellent – other Ministers/MPs should take notes. Extracts:

SIMON: Essentially what I’m interested in is having a broad discussion about three things initially. The first is the way our jury system works. Presently under the bill of rights if you’re charged with an offence that carries a term of imprisonment of three months or more you can elect to go to a jury trial, I’m very keen to see that threshold raised.

GUYON To what?

SIMON Oh well I think three years would be appropriate. You would see a savings on jury trials about a thousand a year along with a couple of other smaller changes we could make in that area.

So someone charged with a crime that has a maximum sentence of between three months and three years, would see their trials be judge only. I’d be interested to see where the line is drawn in other OECD countries. Power mentioned five years is the threshold in Canada.

The crimes that would now be judge only, from a quick skim of the Crimes Act are:

  • Wrongful communication, retention, or copying of official information
  • Unlawful assembly
  • Riot
  • Forcible entry and detainer
  • Contravention of statute
  • False statements or declarations
  • Use of purported affidavit or declaration
  • Failure of duty that permits person in lawful custody to escape
  • Blasphemous libel
  • Distribution or exhibition of indecent matter
  • Indecent act in public place
  • Indecent act with intent to insult or offend
  • Indecent act on a dependent family member under age of 18
  • Indecency with animal
  • Criminal nuisance
  • Misconduct in respect of human remains
  • Infanticide
  • Concealing dead body of child
  • Injuring by unlawful act
  • Aggravated assault
  • Assault with intent to injure
  • Assault on a child, or by a male on a female
  • Common assault
  • Poisoning with intent to cause inconvenience or annoyance
  • Leaving a trap in place
  • Possession of offensive weapons or disabling substances
  • Feigned marriage or feigned civil union
  • Intercepts any private communication by means of an interception device
  • Theft of between $500 and $1000
  • Being disguised or in possession of instrument for burglary

And a few more.

GUYON I’ll come to that in a second, but is part of the factor here that you’re struggling to get jurors to actually sit on those trials?

SIMON No that wasn’t part of the thinking, what was driving the issue was the delays that we’ve been seeing in our justice system, in the District Court for example, on average it takes about 12 months before a trial kicks off, in the High Court it’s about sixteen and a half months over the 2008 year. We have to address this, this is not without controversy I accept that, but the fact is our criminal justice system has not been delivering justice served seen to be done in a timely and helpful fashion. Victims of crime find this process incredibly difficult.

And the delays are especially hard on the victims.

SIMON Well I’ll leave that up to you to decide, but the other two areas that I’m looking particularly closely at is this ability where somebody doesn’t appear at a hearing the only sanction available to the courts in general at the moment is to schedule another hearing. There are some provisions under the Summary Offences Act that allow convictions to be entered for non appearance at trials. I think we need that souped up. I think we need to have a situation where the presumption shifts – if you don’t show up, unless of course the circumstances would be manifestly unjust for good reason – if you’re not showing up to a hearing to have your time in court, the court should be able to enter that conviction. Now that’s different to sentencing where the accused would have to be present.

Power clarified that this does not mean you can be found guilty if you never appear to make a plea. But if you have actually entered a please of guilty, and then don’t turn up – that the court can enter the conviction.

SIMON Yes we are, which leads me neatly into the third issue which is that I think it’s time that the courts were able to hold lawyers, both prosecution and defence to account, for not moving through hearings in a timely and appropriate way. I just think we’re at the point now where the gaming of the system around the criminal justice processes has to be front footed.

GUYON Is that what court lawyers are doing?

SIMON Oh look I believe what we’re seeing is the system being badly incentivised particularly around legal aid, to encourage multiple appearances on issues that should be dealt with in a short and timely way at first appearance.

And again the real losers are the victims.

SIMON Well the courts presently have available to them a mechanism to be able to fine a lawyer for gross negligence in the sense of bringing that case. My view is that should be more readily available to the courts, and if you’re a legal aid lawyer, you should have your eligibility to do legal aid cases tested if you’re not proceeding in a timely way. To simply not be ready, to not be available, and to not show up, are not good reasons. Look when I was admitted to the bar, many years ago in 1994, in my short time as a lawyer I was always told that a lawyer’s first duty, his first obligation is to the court, and we have not seen that in the way that our criminal justice system has operated, it’s time for some change.

That is quite neat. If you drag out trials for years on end on legal aid, then you lose your eligibility. Those accused of crimes have the right to a fair trial. But that is not the right to have the trial delayed for years and years.

LAILA HARRE – Union Leader

Well I think that what we saw today was somebody taking a pretty objective and considered approach to the criminal justice reform, and that’s a good thing because there’s usually far too much emotion vested in this and most of that emotion will be coming from lawyers over the next week, it’s probably a pretty good distraction too from the inevitable continuing fallout of the Rankin debacle I would imagine too.

Some praise from Laila.

PAUL Wow. Exactly so. But of course the notion of juries is a very British thing isn’t it, I mean it’s not written on stone from God that you should have a jury, I mean they operate very well right through Europe with judge panels don’t they?

THERESE ARSENEAU – Political Analyst

Well it goes back to the Magna Carta, so it is quite a rich history of right to be tried by your peers, but we also have a basic right to a quick and speedy trial and in a sense you’ve got two rights perhaps in conflict here, and I agree with Fran that my understanding is that it’s the pre trial battles that eat up so much of the time, so the fact that the Minister is also going to look at what lawyers do before the trial I think is really important too.

And Therese usefully clarifies that it is balancing the rights to a speedy trial, with other rights.

What I like is that Simon has not announced these as firm policy. He has identified three measures he thinks will help victims (and accused) get speedier justice, and said he wants to have discussion about them.

Hopefully Opposition parties won’t rule them out instinctively but look carefully at whether the pros outweigh the cons.

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73 Responses to “Power on Q&A”

  1. sonic (2,818 comments) says:

    A jury trial should be an absolute right, that is such a fundamental principle it is amazing that anyone would propose abolishing it to save money.

    I wonder how David et al would have reacted if Labour minister proposed this?

    [DPF: And in which countries is it an absolute right? Name one?]

    [DPF: And I backed Labour's move to end most deposition hearings, and criticised National for blocking it. I know SOnic that you find it impossible to comprehend how someone can dare criticise their own side in public (you ran months of defence for Labour over not sacking Peters) but I've dozens and dozens of times criticised National when they do things I disagree with. This is not one of them]

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  2. democracymum (648 comments) says:

    One of the best interviews I have ever seen with a Minister
    Excellent and pragmatic suggestions!

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  3. dimmocrazy (286 comments) says:

    And at the same time we see some innovations in civil procedure as well, enhancing the investigative and directive powers of the judges, particularly in the Fam Courts, but also elsewhere, see upcoming new rules regimen in the district courts. Combined with this move in the criminal courts, why don’t we just ditch the whole thing and move to a civil system with a proper constitution, constitutional courts, specialized judges, the whole shebang?
    (Would also solve some large problems we have with separation of powers, oversight, independent prosecution etc etc)
    NB: this may be a lot less daft than it may sound to many, as civil and common law systems are growing towards one another anyway. It would also provide a good incentive to review the entire body of legislation, and it would keep an army of lawyers nice and busy in these times of recession.

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  4. AG (1,827 comments) says:

    DPF:
    “So someone charged with a crime that has a maximum sentence of between three months and three years, would see their trials be jury only.”

    Ummm … no. The trial would be before a JUDGE only – the point is you DON’T get a jury trial (i.e. they would be judge only) for all the crimes you have listed!

    [DPF: I meant judge only - it was a typo]

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  5. PaulP (150 comments) says:

    What AG said!

    And

    DPF:
    “The crimes that would now be jury only, from a quick scim of the Crimes Act are”

    Ah, no – JUDGE only.

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  6. emmess (1,428 comments) says:

    Well judging by Sonic’s comment and the left jumping to the defence of criminals this week that happen to be from “South Auckland”, they’ll be against anything that makes it easier to convict criminals

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  7. tvb (4,430 comments) says:

    He seems obsessed with the summary court system where over 80% of offences involve a plea of guilty. The real problem is the jury trial system and he is looking at lifting the threashold to elect trial to 3 years. I am unsure whether that will achieve much at all. So far as gaming the system that needs a far wider look than focusing on the summary court system. It involves looking at the way the Crown Solicitor operates which are essentially private law firms who have a monopoly crown warrant for that work. There are commercial incentives in dragging things out both for defence and prosecution. For very large expensive trials maybe the Solicitor General needs to take direct control over the prosecution, that would be very simple to implement, though there may need to be some extra resourcing at Crown Law.

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  8. AG (1,827 comments) says:

    emmess,

    No-one is “against anything that makes it easier to convict criminals”. The question is, does a given change ostensibly designed to “make it easier to convict criminals” increase by an unacceptable margin the risk of convicting innocent people? You shouldn’t confuse the two points (i.e. not every person who walks free out of court is a “crim” who has “got away with it”).

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  9. billyborker (1,102 comments) says:

    » Blasphemous libel should be removed as a crimnal offence. If god feels agrieved, let him take it up on his own account.

    » Unlawful assembly Assembly should never be unlawful in a democracy. If citizens cannot lawfully assemble, they cannot lawfully express opposition to the government.

    Further, if Power is serious about improving the jury system it needs to be composed of a broader cross section of the community. At the moment juries are mostly beneficiaries, superannuants and those too stupid to get out of jury service. Far too many peopole are excused because of the risible sum paid to jurors. Imagine being on a lengthy trial (say david Bain) and trying to put food on the table and pay the mortgage on $400 a week.

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  10. backster (2,174 comments) says:

    The Minister put his finger on many of the shortcomings of the Justice system, presented very well, and offered a glimmer of hope for effective reforms, though powerful vested interests and Liabour will fight against them. Another filibuster coming up as they fight to protect their natural constituency.

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  11. dunedinBlogAl (3 comments) says:

    I was on Jury Duty last week. On Monday morning, I waited for two hours before being told the trial was delayed until tomorrow. On Tuesday, the trial started and I was not chosen to be on the jury. On Thursday, I waited for two hours before being told the trial was delayed until the afternoon. In the afternoon I waited for an hour before being told that the trial was canceled for the week. I spent most of my time on Jury Duty waiting for delayed or aborted cases. Surely it is not too much to expect that pre-trial issues are sorted out before the appointed trial start time, and to hold lawyers to account when they are not.

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  12. Redbaiter (13,197 comments) says:

    Deep down among the leftist gene pool, perhaps ready to be born soon as the offspring of some current Labour party mungbean, there lurks a little Hugo Chavez who if he were able, would be rubbing his hands with glee at the thought that these measures might soon become a reality.

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  13. Redbaiter (13,197 comments) says:

    Crooked judges are a cent a dozen.

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  14. Rebel Heart (249 comments) says:

    What I like is that Simon has not announced these as firm policy. He has identified three measures he thinks will help victims (and accused) get speedier justice, and said he wants to have discussion about them.

    Typical of the National party really – I have absolutely no doubt that as soon as John Key is questioned about a tougher stance on crime he’ll suck up to compromising and appeasing those with ignorant sensitivities, as per usual. At least Don Brash had the guts to speak on such issues himself as leader (e.g. on welfare reform, before bitch fucked it up).

    Seriously, Stephen Franks replacing Power’s spot on the list would have actually made a real difference.

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  15. Graeme Edgeler (3,289 comments) says:

    I would assume that infanticide would still be a jury offence. It cannot currently be heard in the district court, and I don’t imagine this would change; indeed, it is generally not charged by itself, but as an alternative to manslaughter.

    Presently under the bill of rights if you’re charged with an offence that carries a term of imprisonment of three months or more you can elect to go to a jury trial, I’m very keen to see that threshold raised.

    Oh well I think three years would be appropriate. You would see a savings on jury trials about a thousand a year along with a couple of other smaller changes we could make in that area.

    I’m not sure whether you’re quoting from a transcript, but the characterisation of the right to a jury trial is inaccurate. It’s not “three months or more” but “more than three months”. If it was changed to “three years or more” a number of the other offences you list (e.g. assault with intent to injure, injuring by unlawful act, indecency with animal) would still have the possibility of a jury trial.

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  16. F E Smith (3,305 comments) says:

    I will never support taking the right to a jury trial away from a defendant for any offence that carries more than a year’s imprisonment. Many of our judges are so pro-Crown (notwithstading some dodgy bail decisions from time to time) that the there will be many more miscarriages of justice as a result.

    “Power clarified that this does not mean you can be found guilty if you never appear to make a plea. But if you have actually entered a please of guilty, and then don’t turn up – that the court can enter the conviction.”

    Actually, you can be tried in your absence and convictions can be entered even if you don’t turn up. It is just extremely rare. I have seen it done where a defendant in a large trial (11 defendants) didn’t turn up and the judge allowed the charges against him to proceed in his absence. But what it actually shows is ignorance of the normal practice in Court- convictions are almost always entered upon a guilty plea. Section 13 of the Bail Act then applies. If person is bailed pending sentence and doesn’t show the conviction is already there. Just not the sentence, at least until they are caught.

    “If you drag out trials for years on end on legal aid, then you lose your eligibility”

    This again shows a total ignorance of the justice system and also of legal aid. It is shocking just how little Power seems to know of exactly what goes on in this area. Legal aid is crap. We get reduced hourly rates and a limited number of hours granted for preparation. The actual preparation we do almost always exceeds those guidelines, but we have to go cap in hand to the LSA for more time, which we may or may not get. If we don’t get an extension we have to do the work anyway, just we do it for free.

    Don’t tell me that legal aid lawyers are making cases drag on to abuse the system. If I get 5 hours preparation time for a burglary jury trial (which is the guideline amount. For judge alone the guideline amount is 3 hours) then it is 5 hours whether the case takes 6 months or whether it takes 3 years. If a trial falls over for some reason then maybe, just maybe, I will get some more time to review the file it is to be heard again, but not always. We defence lawyers don’t like delay. The longer a case is delayed the longer it is before I get paid. I am never happier than when a client pleads guilty, because then I can get paid sooner. That said, if a client of mine pleaded guilty to something tomorrow then they could not be sentenced for 6 weeks in summary jurisdiction and almost 3 months in trial jurisdiction. That ain’t my fault and it isn’t because I am delaying anything.

    “in my short time as a lawyer”

    Which says a lot.

    ” I was always told that a lawyer’s first duty, his first obligation is to the court, and we have not seen that in the way that our criminal justice system has operated, it’s time for some change.”

    It is, but that doesn’t mean at the expense of our client. We have a dual responsibility that often come into conflict. Nobody seems to have bothered to clearly resolve the problem. That said, I have sat in Court and been criticised by judges (on more than one occaision) for not pleading my client guilty (get that, apparently I am responsible for how they plead. rubbish, the defendant has the right to choose how they plead, my job is to advise them.) only for the clients to be acquitted (one at trial and the others at judge alone fixture.) In fact, I was criticised by a judge once for my client not pleading guilty when the Police were trying to withdraw the charge!!!

    “To simply not be ready, to not be available, and to not show up, are not good reasons”

    For the most part, defence lawyer’s are ready and show up when trials are called. We get hammered by judges if we don’t. In fact, I cannot remember the last time I heard of this happening, except due to illness, in my area.

    Availability is another thing altogether. The Crown in my area complains often that we don’t have enough jury trial lawyers. We are so short of jury lawyers that if you go through the list of upcoming trials you will see it is always the same 15 or 20 people doing all of them. Now, those lawyers also have a summary (judge alone) practice as well, which must accommodate the jury trial roster (with no synchronisation between the two). Some also have a family court practice and a civil litigation practice, so their dairies fill up fast. That restricts availability.

    Simon Power going on TV and accusing lawyers of delaying justice and ripping off the system says to me that he has been got to by the Justice Department. That Deparment views defence lawyers as being an impediment to the course of justice. Go and look at their reports and you will see that they do not have an interest in justice at all, just in the disposition of cases.

    We as a society need defence lawyers if we are not to become a police state. Nobody else will stand up for the innocent. And don’t tell me cops don’t charge innocent people, because all of you know that isn’t true. They do it all the time, and a number of them go to prison. Just look at the success that the Criminal Case Review Commission is having in the UK to see that. It is no different here.

    Right now defence lawyers are a shrinking part of the legal profession. Many of you will like that, until the time comes for you to defend a case and you can’t find one to do it. Even worse if you want to get legal aid for it. When criminal legal aid lawyers make up less than 10% of the profession, and regularly active legal aid lawyers make up only 30% of that (so, 3% of the profession) then the defence bar is in trouble. Already the Crown produces many of those who choose to go to the defence bar, because firms no longer want to deal with anything but the easiest of cases. In my area, we have lawyers driving for up to 5 hours to get to Courts to do duty solicitor work because the neighbouring region doesn’t have enough defence lawyers willing to do duty solicitor work.

    It is easy to blame the defence bar because we represent people accused of being criminals. I accept that we will always be criticised for that. (Of course, you watch how quickly the police come and see us when they get in trouble. It is good that at least one sector of the justice system recognises our value when they need it) But to blame us for the problems in the justice system is like blaming the Air Force for the country not having a strike wing. They didn’t choose it, the Government did.

    Fix the system, please. I think it is appalling. But beating up on one part of it will get you nowhere.

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  17. F E Smith (3,305 comments) says:

    Just to clarify:

    “If you drag out trials for years on end on legal aid, then you lose your eligibility”

    Dates for trials are set by the Court in consultation with the Crown. The defence lawyer and defendant get very little say on it. Often we don’t even get asked if a date is suitable, we either accept it or pass the case to someone else. The Defendant having the lawyer they want represent them is only one factor in date setting, if it gets considered at all.

    Pre-trial arguments are scheduled to fit in before the trial date. The Court of Appeal has restricted interlocutory appeals to accommodate the disposal of cases.

    The process, up and down the country, is entirely dependant on Court availability and dates suitable to them. For the most part, any accommodation of the defence bar is minor. It is extremely difficult to delay a proceeding unless the Crown wants it to be delayed. Then, of course, nothing is a problem.

    But it ain’t us doing the delaying.

    EDIT: “If you drag out trials for years on end on legal aid, then you lose your eligibility”

    So it is ok if you do it on your own money, then?

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  18. SeaJay (20 comments) says:

    Off topic folks but someones bound to take a looksy, the more the better, particularly in the growing sense that the ascendant right wing are starting tosay what they really think, feeling their cajones’ ala’ Melissa Lee and mobile crime. just click on the link
    or copy it into the you know what

    http://conorjoe.wordpress.com/

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  19. alex Masterley (1,517 comments) says:

    FES, well said.
    The net effect of what is suggested by Mr Power means a continued shrinkage of counsel prepared to do legal aid work of any kind.

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  20. sonic (2,818 comments) says:

    I think this is National’s biggest blunder in what has been a blunder filled week, and the minister found it fit to announce it on a TV show?

    (oh and ratbiter, nice of you to agree with me, although you somehow have the National government you support confused with Hugo Chavez)

    [DPF: And in which countries is it an absolute right? Name one?]

    Care to get out your dictionary and look up the word “should”?

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  21. dimmocrazy (286 comments) says:

    FES, you’r on to it in my view. If there is a main problem with the justice system it is that the courts are run by the ministry of justice and that the organizational/managerial quality of that outfit is just appaling. As I have stated in another thread, prosecutions/courts should be a truly independent branch of government with its own administrative system (but obviously better organized than it was with the dept of courts before 2003). We should also look at the appointment process and training of judges if we want to give them additional/extended powers.
    Civil law countries have judge only trials at all levels, but those judges have been trained completely differently, they operate differently, they have fundamentally different appeal systems and so on. You cannot just take bits and pieces from other systems without also looking at the total context in which they operate.

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  22. F E Smith (3,305 comments) says:

    [DPF: And in which countries is it an absolute right? Name one?]

    The United States is the closest you will get to it, which has a guarantee of it in the Constitution (6th Amendment). That says

    “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence”

    That has been interpreted as applying to any crime carrying more than 6 months imprisonment.

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  23. Redbaiter (13,197 comments) says:

    “(oh and ratbiter, nice of you to agree with me, although you somehow have the National government you support confused with Hugo Chavez)”

    No I haven’t. As usual you don’t get the point, which is that these things are fine with a relatively benign government, but open to abuse and a danger if in future that benign government is replaced by an abusive one. (like Hugo Chavez’s)

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  24. bharmer (687 comments) says:

    I am not part of the National Party’s natural constituency, and until now I have not thought much of Powers, but on this at least I think he is right on the nail, and well done him!

    There are far too many arcane steps in getting a case into court for any consideration of the substance of the case. And I approve of the move to eliminate those time wasting tactics by some lawyers.

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  25. bharmer (687 comments) says:

    “And Therese usefully clarifies that it is balancing the rights to a speedy trial, with other rights”
    Another set of rights to be balanced ought to be those of the victim who should be able to get a speedy resolution. Some assault cases took something in the order of two years to come to trial, with the accused out on bail and the victim living in fear until he is locked up.

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  26. F E Smith (3,305 comments) says:

    bharmer: I would be interested to find out what those time wasting tactics are. Could you enlighten us? I think it would add to the debate if we were specific about it rather than simply saying that lawyers have time wasting tactics.

    Also, don’t forget that the right to a speedy trial belongs to the accused person, not to the complainant!

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  27. bharmer (687 comments) says:

    To quote from the interview:
    GUYON How much of the congestion and the delays that we see is down to lawyer behaviour, and are you going to do anything about that?
    SIMON Yes we are, which leads me neatly into the third issue which is that I think it’s time that the courts were able to hold lawyers, both prosecution and defence to account, for not moving through hearings in a timely and appropriate way. I just think we’re at the point now where the gaming of the system around the criminal justice processes has to be front footed.
    GUYON Is that what court lawyers are doing?
    SIMON Oh look I believe what we’re seeing is the system being badly incentivised particularly around legal aid, to encourage multiple appearances on issues that should be dealt with in a short and timely way at first appearance.
    GUYON So lawyers are clipping the ticket, making extra money by creating these delays?
    SIMON Well as you know I’ve asked Dame Margaret Bazley to do an extensive look and review of the legal aid system, and I’m going to be very interested in whether or not that’s the finding of her review. But Guyon this gaming of the criminal justice system has got to stop.

    Whether there are such deliberate delays or not is for someone else to find out, but it’s certainly the impression that the lay observer is left with.

    As to the right to a speedy trial belonging solely to the accused, it was precisely that I was suggesting should change. I certainly don’t think we should slow things down, but to add the rights to speedy resolution to the victim (who is not necessarily a complainant) as well.

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  28. F E Smith (3,305 comments) says:

    “SIMON Oh look I believe what we’re seeing is the system being badly incentivised particularly around legal aid, to encourage multiple appearances on issues that should be dealt with in a short and timely way at first appearance.”

    Is that it?

    The man hasn’t a clue. I suppose that is admitted when he says “I’m going to be very interested in whether or not that’s the finding of her review”

    For the record, the following are Court ordered appearances in the criminal process in most areas:

    Summary Jurisdiction:

    First Call; Status Hearing; Fixture; Sentencing (if necessary).

    Trial Jurisdiction:

    First Call; Pre-Depositions Conference; Depositions (soon to be Committal); Pre-Trial Callover; Pre-Trial Arguments (if necessary. no need for accused to appear); Trial; Sentencing (if necessary).

    In my area, we can do three of those steps without having to appear by filing memoranda.

    There is a great deal of ignorance about what actually happens in the Criminal Justice system, and it looks like Simon Power remains one of those who presume that some of the anecdotes (told to him, no doubt, by the Member for Tauranga) must be true because, after all, defence lawyers want to hold up the process to make more money.

    I will repeat it again- if the process is delayed we make LESS money (on a work done basis), not more.

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  29. Former Plod (7 comments) says:

    I think back to the Labour introduced Legal Aid scheme in the 1970’s, and the then fat David Lange, sitting in the back of the No. 1 or 2 Court in Auckland Magistrates Court, taking up two chairs while waiting for his ‘not guilty’ client to appear. Prior to the introduction of this farce, the Police had few not guilty hearings with all those charged, generaly pleading guilty. Not as tends to be the case these days getting off on a technicality.

    With Judes alone sitting on the bench for the prescribed offences, it will bring a degree of balance back to the process, with the aspect of emotion and bias generally being removed from the decision making process, once we have rid the existing bench of the left leaning, and therefore sympathitec judiciary.

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  30. getstaffed (9,186 comments) says:

    F E Smith – The right to a speedy trial may well belong to accused person. Similarly there exists an opportunity for a lawyer, feasting on legal aid to delay proceedings for their own benefit. I know this happens. The number of lawyers to took seven figure legal aid fees in 2009 exceeds the fingers of one hand, but does not require counting of toes.

    On a slightly different point, but one related to procedural efficiency, I also know of a copper who’s beat was disrupted 28 times – yes 28! – to attend various court formalities in respect of one case (incl pre-trial stuff, postponed sittings etc) before he got to give evidence. By my own calculations, if we could halve the amount of time coppers spent attending to court formalities (most of it wasted, inefficient time) it would equate to an additional 130 coppers working at the front line of crime in NZ

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  31. democracymum (648 comments) says:

    The jury system is flawed.
    How many women with small children, ie average NZ mums can sit on a jury when they need to pick up children from kindy, school etc. Both times I have been called for jury service, I found out about a week later I was pregnant, I was beginning to think the Justice department, knew more than I did! Obviously I could not attend as pregnant women often need to use the toilet more often than most, and I was worried I would miss some important information. I therefore had to decline.

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  32. sonic (2,818 comments) says:

    Imagine if we abolished trials al together? Think of the money we would save if we just convicted everyone the police charged, no more money wasted on those lefty defence lawyers either!

    It’s a win-win if we abolish those pesky “formalities” like being innocent until proved guilty. I

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  33. RKBee (1,344 comments) says:

    Great to see the Minister talk in such a constructive way… lets hope he backs it with action… Politicians have away of watering down good ideas into a wet bus ticket… Like they have always down over the years with crime and criminals.

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  34. sonic (2,818 comments) says:

    And we all know that the police would never charge anyone who was not a criminal eh RKBee?

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  35. F E Smith (3,305 comments) says:

    “Similarly there exists an opportunity for a lawyer, feasting on legal aid to delay proceedings for their own benefit. I know this happens. The number of lawyers to took seven figure legal aid fees in 2009 exceeds the fingers of one hand, but does not require counting of toes. ”

    Actually, I think you will find the providers who get over seven figures are firms and not individuals, mostly involved in Civil or Treaty work. Greg King is, I think, an exception to that, but his billing always includes junior counsel and the like, as well as the experts he calls in his cases. In fact, it is entirely misleading to assume that the figures paid out by the LSA are the income of the lawyer, as they do not include all of our expenses nor of the employees that work on the case (if authorised). Plus they include GST.

    We are not ‘feasting on legal aid to delay for our own benefit’. See the comments I made earlier as to why we don’t.

    Some cases will always have more court time than others. With regards your policeman mate, it may well be that there were so many appearances (although I struggle with 28 ‘disruptions’ unless he was actually working in CIB, in which case he was working on an operation rather than a summary case) because he or someone in prosecutions/Crown was not doing his/their job properly. I very much doubt he was set to give evidence on 28 separate occasions in one case. In fact, I am almost certain he would not have been required to be on standby to give evidence on 28 occasions.

    Without more detail your example doesn’t tell me much at all.

    Former Plod: there is still a 90% guilty plea rate overall. But there are a lot more people here now than in the 1970’s. Plus I am told by my more senior colleagues that the Police are charging more often now than they did in the 70’s and prior. Defendants generally don’t get legal aid unless they are at risk of going to prison (at least that is the criteria) so most cases in the summary jurisdiction are not delayed due to legal aid.

    I have said this previously, but a mate of mine does auditing of files for the LSA. I have been told by him that as far as he is concerned the LSA gets very good service from its providers.

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  36. F E Smith (3,305 comments) says:

    Sonic: what about right wing defence lawyers? Are we ok?

    getstaffed: “if we could halve the amount of time coppers spent attending to court formalities (most of it wasted, inefficient time)”

    rubbish. most cops only come to Court for fixture. very little else.

    “it would equate to an additional 130 coppers working at the front line of crime in NZ”

    well, considering there are roughly 10,000 cops in NZ, that isn’t a great improvement, is it?

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  37. sonic (2,818 comments) says:

    FE, I would not be at all concerned with the politics of any lawyer, I’m interested in defending the right to trial by your peers, which I would hope is a matter above merely partisan politics.

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  38. F E Smith (3,305 comments) says:

    sonic, couldn’t agree more.

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  39. sonic (2,818 comments) says:

    Al list of Jury rights in various countries is here

    http://en.wikipedia.org/wiki/Jury_trial

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  40. Paul Smith (1 comment) says:

    The endemic delays in the criminal justice system are a serious concern. But it should not be forgotten that even a conviction which carries a maximum penalty of three months has very serious consequences, especially for the wrongfully accused. The jury system has flaws – we see trials delayed all the time because of problems with jurors – but the jury system serves to protect individual citizens against the massive power of the State. Address the flaws. Don’t just get rid of it in respect of ‘minor’ offences.

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  41. sonic (2,818 comments) says:

    Well said FE, I am reminded of this quote from A Man for All Seasons

    “William Roper: So, now you give the Devil the benefit of law!
    Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
    William Roper: Yes, I’d cut down every law in England to do that!
    Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake! ”

    (http://www.imdb.com/title/tt0060665/quotes)

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  42. getstaffed (9,186 comments) says:

    We are not ‘feasting on legal aid to delay for our own benefit’. See the comments I made earlier as to why we don’t.

    I didn’t imply that you were so feasting, only that it does occur. I suspect those most guilty of this activity are also the most capable of their own defence… after all that’s their job!

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  43. paradigm (452 comments) says:

    billyborker you do realise what unlawful assembly is right? Usually it refers to a riot (or similar situation), which are generally frowned upon even in a democracy. It does not stop people from having a chance to speak or protest, it merely requires them to do a bit of paper work beforehand if they intend to protest loudly or mass a large number of people. Without unlawful assembly laws it would probably also be a bit more difficult for the police to justify dispersing drunk teenage partygoesrs.

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  44. bharmer (687 comments) says:

    F E Smith (125) Vote: 0 2 Says:
    May 17th, 2009 at 9:12 pm
    “well, considering there are roughly 10,000 cops in NZ, that isn’t a great improvement, is it?”

    According to the commissioner’s last annual report, there are 8,196 police officers … the 10,000 figure includes non-sworn staff. However, your point is a reasonable one.

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  45. Grant Michael McKenna (1,160 comments) says:

    I am an immigrant to New Zealand; my understanding of law is based primarily on my studies of Roman-Dutch law, and I have no intention of practicing law here in New Zealand. I have therefore not attempted to fully acquaint myself with the arcane byways of the law in my new home, so caveat lector :I may well be ignorant of some critical fact which would transform my thinking on this issue.

    Common law has, if I remember my studies of old, four legal principles fundamental to liberty: we have a right to trial by jury; we are innocent until proven guilty by the principle that “ei incumbit probatio qui dicit, non qui negat”; we cannot be imprisoned without charge (“habeas corpus ad subjiciendum”); and we cannot be tried twice for the same offence (“autrefois acquit” or “autrefois convict”; the double jeopardy rule). I can remember being told by my father that it was significant that trial by jury had no legal Latin term, as it was an English remedy to the abuses of the executive alien to the authoritarianism of Rome.

    It is noteworthy, I believe, that Civil Law systems do not have jury trials: the state is restrained in the exercise by a constitution, but as the law is oftentimes administered by bureaucrats in Civil Law countries that restraint is not as effective as it could be. Juries of ordinary people are independent of the crown, and by forcing the crown to justify the use of its powers serve as the best safeguard against onerous laws and malignant practices. Juries are the only way, apart from voting, that subjects can directly participate in the process of government. Juries diffuse power into the community, and serve as a fundamental check on the abuse of both power and process.

    There is no doubt that trial by jury is more expensive than trial by a judge; I am not convinced that it is less efficient, nor that jury trials result in different verdicts to those tried by a judge to a degree that juries may be said to be the better choice for the guilty. I await the review with interest.

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  46. Murray (8,847 comments) says:

    Well label me as jumping to the defence of “crminaals” as well.

    Here’s a concept for you, under our justice system (at the moment) you are inocent untill proven guilty, or the Dompost decides you’re guilty in wich case the trial is just a formality.

    We also have the RIGHT to have a jury of our peers – people like us who have similar experiences to us and are more likely to understand and empathise in judging us than someone for whom the law is an entirely academic concept and gets to rule that one room like its their prive kingdoom.

    One man has decided to remove that hard won right for convienience.

    The answer Simon is no. In fact its HELL NO.

    Some of you may want to piss away your rights because you’re team is in government, but I was against the removal of our rights when Labour tried and I’m sure as hell not going to against when National try it.

    Way past time we got ourselves a constitution.

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  47. F E Smith (3,305 comments) says:

    From Stuff “Mr Power said many lawyers were electing to go to a jury trial for minor offences as a tactic to slow the process.”

    Here he shows that he has been house trained by the Justice Department. This is their view as well, one that I have had put to me a number of times by staff members of that Department. He is wrong. Election of a jury trial by a defendant is a lot less common than election of summary jurisdiction. Most elections of jury trial are made by the police, not the defence. If you want to reduce jury trials, you need to talk to the Commissioner of Police about his organisations charging policies.

    Twice in the last week I have been in Court when a Judge has criticised the Police for laying low level charges indictably.

    Anyway, I see even the usually spineless NZLS has come out against raising the jury trial bar. Pity they couldn’t say something to defend their own members from an attack by the Justice Minister. Oh well, nothing really changes, does it. Good on the former Criminal Bar head Anthony Rogers:

    “Criminal Bar Association president Anthony Rogers told the Herald last night that he believed the minister had been misinformed.

    The overbooking of courts and the slow and inadequate way in which police officers disclosed evidence – including police case notes and witness statements – were more to blame than lawyers for any delays.

    Police “almost routinely ignored” requests for disclosure.”

    And I concur with him one hundred percent. When we send out disclosure requests they list a number of items that MUST be given to us. Often the arrive late, if at all, and then only the bare minimum, rather than what we are actually entitled to. Many times my colleagues and I have turned up at a fixture to ask for an adjournment because full disclosure was only provided the day before, when we were due to have had it months earlier. The Police know that the Courts will not criticise them for it so they can do it contemptuously.

    These days the police are responsible for at least 50% of the delays in summary jurisdiction. At least in trial jurisdiction the Crown is usually more efficient.

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  48. Will de Cleene (485 comments) says:

    Let’s have a look at the four legal principles fundamental to liberty, as per Grant Michael McKenna:
    * a right to trial by jury – endangered by Simon Power’s kite flying, already watered down with majority verdicts.
    * innocent until proven guilty – Criminal Proceeds Act allows confiscation on balance of probabilities, backed by Labour and National.
    * we cannot be imprisoned without charge – habeas corpus still here, but terrorism laws may change that soon.
    * we cannot be tried twice for the same offence – Criminal Procedure Act allows “new and compelling evidence” to re-try old cases.

    By this yardstick of liberty, we are well on the way to becoming a police state.

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  49. GNZ (228 comments) says:

    I expect as I presume does the vast majority of the world, that a tribunal of Judges provides significantly better verdicts than a jury. In particular because you dont have to have nearly so many of those rules dumbing down the evidence because you are scared the jury might be influenced. All you need to do is train your judges.

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  50. F E Smith (3,305 comments) says:

    Not so, GNZ, exactly the same rules apply whether you have judge alone or jury as the finder of fact. In fact, you will actually have more appeals, because the judges need to give their reasoning whereas a jury doesn’t. That leaves the judges decision open to challenge more often, assuming they go to the three year mark.

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  51. alex Masterley (1,517 comments) says:

    FES, you assume that the NZLS had a spine (or indeed leadership) to start with!
    The justice department has a funny view of the world, which is why much of the L&C Act and the practice rules are so intensley disliked by my colleagues up here.
    Another reason why summary jursidiction used to be chosen as opposed to jury was that there was quite a distinction between sentencing options for charges laid and heard summarily and those laid indicatbly and determined by a jury. The sentencing act may have chnaged that but that was the case when I occasionaly appeared in the criminal courts.

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  52. F E Smith (3,305 comments) says:

    Yeah, I have pretty much given up on the NZLS doing anything constructive for the law profession at all. Now that power is centralised in Wellington I am assuming that it will only get worse, with brown-nosing being the order of the day on most things.

    I think because we are such a small part of the profession the NZLS views criminal lawyers as being suitable scapegoats to take any criticism, rather than the rest of our (mostly court phobic) brethren.

    You make a good point, one that Power doesn’t seem to realise. It is still the case that electing trial jurisdiction does bring with it the guarantee of a heavier sentence if you are convicted. That serves to prevent most of those in summary jurisdiction electing to go to the ‘big time’.

    It is still the Police who choose trial jurisdiction, probably 95+% of the time from my experience.

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  53. Winston (43 comments) says:

    F E Smith, congratulations on your excellent posts. I too find it deeply disturbing that the Minister is considering further restricting the right to a jury trial. It is no doubt unfortunately the case, as GNZ says, that most people presume that a panel of judges will reach a better result than a jury. However, that is probably only the case because most people have not been on the receiving end of our justice system.

    My own attitude has undergone a complete transformation after my wife was charged with a comparatively minor traffic offence. Despite the fact that the prosecution scenario involved a gross violation of the laws of physics, she was found guilty by a bigoted and prosecutorial judge – as our lawyer pretty much told us she would be as soon as he knew who the judge was. Several things were striking about the whole process – the extraordinary delays by the police in providing any of the information requested, the determination on the part of the police and prosecution to secure a conviction at all costs, and the utter contempt displayed by the judge to any argument produced in favour of the defence. The latter was not just directed at our defence – the case was interrupted numerous times, and in each case the judge sided with the prosecution, in one case regarding it as highly unreasonable that the defence were asking for an adjournment because the police had only provided a requested document the day before, in the form of an illegible fax. Give me a jury over a judge any day of the week.

    We did experience numerous delays in getting to court, none of them the fault of our lawyer. One suggestion I have for speeding up the judicial processes is that judges might reasonably be asked to put in a full working day to justify their large salaries. As things stand, they seem to start at 10am at the earliest, take long breaks for morning tea, lunch, and afternoon tea, and get vaguely panicked if it looks as if there may be a chance that they won’t get out of the door by the stroke of 5pm.

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  54. alex Masterley (1,517 comments) says:

    FES, thanks for confirming my recollection on the distinction between summary and indictable jurisdictions as it relates to sentencing.
    We share the same sentiments about NZLS. All the centralisation of power has done is reduce the services the old system used to provide and increase the cost.

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  55. Ratbiter (1,265 comments) says:

    Having heard a couple of High Court Judges speak, if I were ever in the frame for something then personally I would prefer to be tried by judge only, rather than by a jury of Joe Thicks (sorry, My Peers), regardless of how serious the accusations were!

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  56. Graeme Edgeler (3,289 comments) says:

    It is still the Police who choose trial jurisdiction, probably 95+% of the time from my experience.

    Yes. But choosing to charge a matter indictably does not mean it goes to a jury. Section 361B allows indictable judge-alone trials (as for that matter, do the following sections).

    One might ask the government, why, if it thinks there are too many trials, it is seriously considering a three-strikes law. How will it like the legal aid bill when it realises that a number instances of lower-end serious crimes (indecent assault, assault with intent to rob) will be categorised as PC4 level trials for legal aid purposes (higher paying, and with more senior and again higher-paid – lawyers required) because of the prospect of life sentences?

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  57. F E Smith (3,305 comments) says:

    Ratty: a High Court judge? Absolutely. A District Court judge? Not a chance, give me a jury any day.

    You will find a vastly superior standard of law practised in the High Court, both by judges and counsel.

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  58. F E Smith (3,305 comments) says:

    That is easy, Graeme: David Garrett also wants to abolish the right of persons with multiple convictions to receive legal aid, so those subject to the Three Strikes Rule would be representing themselves anyway. No problem there because the accused aren’t likely to take things to trial if they have to do it themselves!

    I don’t have a philosophical objection to the Three Strikes concept, although I prefer the concept of giving the maximum penalty available without parole on the third strike, rather than life imprisonment. Was that DPF’s idea? I can’t remember.

    Section 361B does allow the option of judge alone on indictable charges but it is relatively rarely used, at least in the area that I practice in. I don’t know if the stats are different in yours.

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  59. Ratbiter (1,265 comments) says:

    “David Garrett also wants to abolish the right of persons with multiple convictions to receive legal aid”

    Really? Scary! So if you’re a known bad egg then it is significantly harder for you to receive the same standard of justice as anyone else. Doesn’t that make a bit of a mockery of the thing about justice being blind?

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  60. alex Masterley (1,517 comments) says:

    Graeme,
    PC4 level for legal aid (which includes GST) is less than half of many auckland suburban practitioners charge out rates. That has brought about the withdrawal from doing legal aid work for many.
    One of the things that causes most concern for judges and counsel is the self represented litigant.
    From the judges perspective that means they bend over backwards to ensure that the litigant gets a fair hearing which has the knock on effect of slowing things down immensely. whereas if counsel are representing the litigant things can move at a fair old clip, sometimes.
    FES, in the main you are right about standards but I’ve seen a few shockers in the High Court both on the bench (thankfully most have retired) and appearing as counsel.

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  61. Graeme Edgeler (3,289 comments) says:

    alex – yes, I’m aware of that. But you would agree that PC4 rates are higher than PC1 or PC2 rates? Some offending that can currently be dealt with as PC1 or PC2 will become PC4 if three strikes passes…

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  62. F E Smith (3,305 comments) says:

    “FES, in the main you are right about standards but I’ve seen a few shockers in the High Court both on the bench (thankfully most have retired) and appearing as counsel.”

    No argument there- some of the stories my more senior colleagues tell me about some old time High Court judges are classic. Sadly, those appalling anecdotes are pretty much daily occurrences for some of our DCJ’s.

    I am amazed at how much Auckland briefs charge (and receive) for their work. It is almost enough to make one move there, although I think the lifestyle where I live is probably better (subjectively speaking). PC4 rates, however are appalling when compared to private charge out rates. Even more so when the Crown receive more per hour for what is a much easier job.

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  63. MyNameIsJack (2,415 comments) says:

    F E Smith (134) Vote: 0 0 Says:

    May 18th, 2009 at 1:10 pm

    I don’t have a philosophical objection to the Three Strikes concept,

    I do. Why should law be set based on the rules of baseball? Why not 4 points for a try, 6 balls in an over or 15 points in tennis as the basis for setting laws?

    What IS it that some people find so hypnotising about the number 3?

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  64. alex Masterley (1,517 comments) says:

    FES, I think as time has passed the standards of the DC bench has improved and will continue to improve, although there are the odd execeptions i can think of that squeak through.
    Graeme, i take your point regarding the difference between the remuneration rates, but even so PC4 rates are not flash. Also if three strike comes through where are all the counsel at PC4 level going to magically appear from to do the work?

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  65. Graeme Edgeler (3,289 comments) says:

    Also if three strike comes through where are all the counsel at PC4 level going to magically appear from to do the work?

    Damn straight.

    Although, because there will be more PC4 trials, including – for example – some summary jurisdiction indecent assaults heard by judge alone, it will be a hell of lot easier to qualify as PC4.

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  66. F E Smith (3,305 comments) says:

    true, but at the rate we are not replacing ourselves we won’t have anybody to do it by then because we simply won’t have sufficient criminal lawyers.

    Legal Aid provider numbers are basically standing still, while the numbers in the profession are increasing. Whereas right now we have 8% of the profession doing at least one legal aid case a year, soon that will lessen but lawyer numbers will increase, so a net loss in percentage terms. What is really worrying is that only 10% (i.e. about 100) of criminal legal aid providers have less than 4 years experience, while 20% (or about 200) have between 4 and 9 years experience. I can tell you that in my area, the number of new providers coming onto the legal aid programme can generally be counted on one hand. Even worse, most of them don’t progress past PC1.

    Civil Litigation is starting to look very tempting…

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  67. alex Masterley (1,517 comments) says:

    FES

    The issue you identify regarding regeneration is well made. Leaving aside Mr Power’s comments for the moment the only way that you are going to atract new blood is increasing the LA rates. The NZLS achieved that last year to a lesser extent but not by enough. The static provider numbers was part of the submission to Justice if I remember correctly.

    The cynic in me would say that economic conditions will force a number of practitioners to move into criminal work to help pay the bills, but they won’t have their hearts in it and will disappear back to more remunerative work once (or if) things improve.

    You are right about civil litigation to a certain extent and it’s now a bigger chunk of my practice now but mostly its about leaky homes these days which is mind numbingly dull.

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  68. F E Smith (3,305 comments) says:

    Alex: It is that dullness that is the problem with civil as well. I enjoy being a criminal lawyer because it is ‘real’ law that tests and challenges the practitioner.

    The difficulty with legal aid is that to earn a similar living to that of my civil/commercial colleagues I have to be overloaded with cases. That is not a good thing as it can lead to problems if I don’t manage to keep on top of it. It is not uncommon for me to have 3 or 4 appearances in a day, going up to a record (for me) of 8 separate appearances in 1 1/2 hours (not counting duty solicitor work) on one particular day last year. That was the day I looked at my diary and saw that I was completely booked for the next 6 months (on that note, I did a pre-trial appearance for a friend last year as he was out of town. His memorandum noted that he was unavailable until March this year as his diary was full. That was in August 2008!). I know that for some of my colleagues that is pretty normal, especially as they do family work whereas I refuse to practice in that area.

    Ideally we would earn more money for the work we do and we can carry a lesser workload, which is better for all parties (client, practitioner and Court) but I don’t see that happening. Some of my colleagues are doing over 200 cases a year. That is 4 cases per week, which is amazing when they have a mixed practice.

    I note that a number of my more ‘high flying’ colleagues are now refusing to do any summary legal aid work at all, and are picking and choosing their bigger cases as the see fit. Not really within the rules, but I would still love to be at that stage!

    But we are running short of defence lawyers. Junior defence lawyers are becoming increasingly rare in my area and we just don’t have the firms willing to carry them through. One mate of mine did the sums on how much he could earn as a PC1 and applied to the Crown for a job! The Crown in our area now has more junior criminal lawyers than the defence bar!

    As you will have found out, the advocacy skills you learn as a criminal brief hold up very well in civil court, so I think that is where I will be headed in the not too distant future.

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  69. alex Masterley (1,517 comments) says:

    FES
    The top criminal guys up here pick and chose and are still busy. P trials pay very well and for some strange reason many of the clients do not rely on Legal Aid.
    The main drawback with civil work you may find is that there are next to no trials now as most things are done on the papers something which tends to disipate forensic skills. Most claims come to an end in some form of grubby settlement as everyone is terrified of the costs of trial and the possibility of the judge getting it wrong.
    Oh and if we find it dull from time to time, out yourself in the seat of the judge. Some of the things they do are mind numbingly boring, and there would be an element of sameness in many of the criminal matters they deal with on a daily basis.

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  70. GNZ (228 comments) says:

    FES,
    exactly the same?
    but as I said you can train the judges – you don’t have to treat them like normal untrained members of the public. For example I understand lie detector tests (amongst other things) are not used becaue they are considered ‘overestimated’ by the public – but if you taught all the judges about lie detecting that should ceae to be an issue (something you could not possibly do with a jury). Then trials should in an instant become considerably more accurate.

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  71. getstaffed (9,186 comments) says:

    What IS it that some people find so hypnotising about the number 3?

    MNIJ – The number 3 was immortalised in the expression “Three more years”… a taunt that you socialists will be hearing quite often I should think.

    Winston – Welcome to the circus. Interesting to hear your thoughts about judge vs jury trials. My limited experience of court-room activity was from serving on a jury where I became aghast as the lack of basic comprehension skills of the other jurors. Of the 12, only three of us, by my reckoning, could gasp the relatively simple case. Five of them repeatedly confused the claimant and defendant throughout our deliberations. That episode made me terrified of the remote prospect of ever being assesses by a jury of my peers… for peers they were not!

    FES – Thanks for your comments above. Well considered and educational.

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