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
- 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
- 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.