Jury trials

December 22nd, 2009 at 3:00 pm by David Farrar

The Government has done something novel as part of a consultation. It has actually released a draft bill for purposes of consultation. This allows people to give feedback on precise details. The bill is based on the criminal procedure simplification project, so will be controversial within the legal profession.

The bill divides offences up into five categories of seriousness. They are:

  1. punishable by fine only
  2. punishable by a maximum term of imprisonment not exceeding 3 years
  3. an offence punishable by a maximum term of imprisonment of more than 3 years that is not a category 4 or 5 offence
  4. an offence listed in Schedule 1 of the bill (rape, wounding, kidnapping, arson etc)
  5. an offence listed in Schedule 2 of the bill (murder, treason, MP corruption, slave dealing etc)

It is proposed that the first two categories be dealt with by way of judge only trial. No Right Turn is hotly against this, and says it is a breach of the Magna Carta.  He concedes that minor offences do not currently have a right for jury trial, but says a punishment of three years is not minor.

The current law does not allow for charges where the maximum term is less than three months, so in effect the proposed change is to move the threshold from less than three months maximum, to a three year maximum.

I blogged back in May on this, and listed the offences I could find that would then be tried by a Judge only. They include indecent acts in public (two year max), aggravated assault (three years max), assault with intent to injure (three years max), assault on a child or female (two years max), and theft of less than $1,000 (1 year max).

I am comfortable with the threshold lifting from less than three months, but am not sure if three years is about right or too far. So I did some research.

First of all I thought, what do people actually charged with these offences end up serving. It is almost impossible to ever get the maximum sentence.

The percentage of convictions for an offence listed above, that even got a custodial sentence was very low – ranging from 3% for minor assaults to 15% for male assaults female. This is from Stats NZ 2008 stats.

Then we go to the Ministry of Justice conviction and sentencing report for 2006. Of the 15% who get a custodial sentence for male assaults female, the average prison term is six months. With parole it means out in three months. So 85% get no prison term, and 15% serve an average three months in jail (and these are probably people who have dozens of offences chalked up by then). Is that serious enough to need a jury trial, considering the delays that mean for the victim?

A minor assault has an average prison term of just 1.9 months, so on average out in 30 days.

For theft, only 6% of convictions get a custodial sentence, and the average sentence is 5.6 months so out in 90 days.

Only 2% of cannabis use convictions are custodial, and the average sentence is 0.9 of a month.

Now I have not checked every single offence with a maximum penalty of three years or less, so I am open to persuasion that a threshold of two years or even one year could be more appropriate, but for the most common offences, the resulting penalties are overwhelmingly non-custodial.

The Minister estimates this change would reduce the number of jury trials by around 1,000 a year. It would be useful to have that broken down by type of offence, so one could see what different it would make to have the threshold at say two years instead of three.

Finally, I was interested in what other OECD type countries do – where do they draw the line?

  • France – jury trials reserved for most severe crimes only
  • US – Supreme Court has interpreted the constitutional right to trial bu jury as only applying to offences with a maximum sentence of six months or more
  • Australia and UK – no threshold as far as I can tell
  • Austria – serious criminal cases only
  • Belgium – grave crimes only
  • Canada – only for crimes with a maximum sentence of five years or more
  • Germany – no juries, but lay judges alongside professional judges
  • Greece – a panel of three judges and four lay jurors
  • Italy – only for serious crimes like murder, and a panel of 2 judges and 6 laymen
  • Japan – From May 2009 jury trials resume but only for severe crimes
  • Singapore – death penalty cases only
  • Israel – no juries (as British did not trust the locals)

I find it interesting the countries with a jury made up of judges and lay people. Do teh Judges dominate the lay members of the jury?

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19 Responses to “Jury trials”

  1. East Wellington Superhero (1,151 comments) says:

    If find it interesting that for all the bitching and moaning people have about injustice in the USA and criticism of America’s failure to sign up to certain Human Rights accords, they seem to be the only nation that protects the right to a jury of peers.

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  2. berend (1,711 comments) says:

    Can we get the stats for the delay between a trial with jury and without?

    I would hate NZ go the way of professional judges. These people tend to be lefties and pass extremely low sentences. Aided and abetted by politicians of course who completely ignore the wishes of 90% of this country. As you can do as the 90% still votes for the same old tired national and/or socialists.

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  3. Brian Smaller (4,023 comments) says:

    How about this for an idea.

    Breaking and entering/Burglary. First offence: 5 years. Second offence: 10 years. Third offence: Life. I am sick of these scum who have a hundred convictions for burglary getting a few months inside every now and then.

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  4. Pete George (23,602 comments) says:

    Does anyone know if juries are more or less likely to get it right than judges? Do people opt for jury trials because the are likely to be more fair, or is it just easier to get off charges when you are guilty?

    I think if it can be demonstrated that judges are as correct in their decisions as juries can be then a higher threshold makes more sense.

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  5. Will de Cleene (485 comments) says:

    Until we start driving on the right hand side of the road, you can’t head a list of OECD countries with Napoleonic legal institutions as comparisons. There would need to be some quid pro quo on the offences side of things to balance any “efficiencies.” The estimated savings of this loss of citizen’s choice is less than what NZ spends on Waiheke ferry trips for superannuitants.

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  6. Tassman (234 comments) says:

    And now the Education National Report is clarified, it is much easier to know your class and the level you’re on in the hierachy for easy processing. A Socialist regime is fully fletched.

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  7. NOt1tocommentoften (433 comments) says:

    Just to set the record straight before too many off the wall comments start appearing. Juries never set sentences. That is always up to a judge. So don’t start whining that sentences will suddenly start coming down…

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  8. Bob R (1,377 comments) says:

    Good analysis. This is a sensible move if it goes ahead. The pool of competent jurors isn’t that great – I would much prefer Judges being required to actually judge.

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  9. Duxton (654 comments) says:

    “Belgium – grave crimes only”

    What does THAT mean? Is that another way of saying ‘murder’?

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  10. Sean (301 comments) says:

    DPF, there are no jury trials in Singapore, period. Lee Kuan Yew considered them to be a western concept, not needed in Asia. Just like freedom of the press, freedom of expression and so on…

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  11. Sean (301 comments) says:

    In fact, in death penalty cases there is no discretion whatsoever granted to judges. Once convicted, the death penalty automatically follows. There have been no instances of clemency.

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  12. travisb (14 comments) says:

    David,

    Generally speaking, jury trials are rare or non-existant in many civil law jurisdictions. There’s just no tradition of a trier of fact being made up of the accused’s peers, a semi-judicial magistrate is more common in many european countries for instance.

    The comparison is far fairer if made between common law jurisdictions, which do indeed have a long tradition of juries: England, Australia, Canada, US and NZ.

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

    Anything more than 6 months I’d have a problem with (although even that should involve an amendment to the Bill of Rights Act) … but I can see a way forward. DPF points out that while maximum sentences can be high, actual sentences often aren’t. If the prosecution advises at the beginning that they won’t seek a custodial sentence (or won’t seek a custodial sentence of longer than 3 months/6 months) and the judge agrees that one won’t be imposed, then it would be acceptable to remove the option of seeking a jury trial from the defendant. This would get you most of the way there – there are many offences where a first or second-time minor offender is at most going to get community service, even though they could technically get much more. It would be of benefit to all concerned to have it confirmed that prison was off the table from the beginning in such cases.

    As an aside, I can see the likes of Family First being up in arms about this. The right to a jury trial is the last bulwark against the full criminalisation of smacking. It might be illegal now, but if the police were ever to charge someone over a minor occasion of smacking, the “criminal” could ask for a jury trial and (probably) get an acquittal. The very existence of the jury option means the police are less likely to ever decide to start consistently prosecuting minor instances of smacking. Take that away, and you may also take the protection away.

    [DPF: you should do a submission like that. I would be uncomfortable with someone serving three years in jail without a jury trial, but a sentencing indication of less than x months could allow the more minor offences to be dealt with without a jury trial]

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

    David, how many of those ‘minor’ offences actually went to a jury trial rather than judge alone? My experience is that relatively few people actually elect to have a jury trial, with the majority of jury trials caused by the police electing to charge indictably. Too many charges are laid indictably by the police and a simply change in police best practice relating to charging would have a far greater effect on the jury trial workload than taking that right away from the defendants.

    I am a firm believer that the police should not make submissions on sentence in summary jurisdiction (which is the tradition in NZ) and judges in summary jurisdiction generally hate being told how long a sentence should be by either party, so Graeme’s idea would have to get past the judiciary first. However, Graeme’s reasoning re the jury trial is spot on and is accepted as a the real reason for having the jury trial threshold so low. Juries sometimes act mercifully in their decisions, whereas judges, with an appellate court sitting over them, usually don’t.

    I suppose the other point is that in the inevitable rise in sentences that we will see over time, as the public call for tougher penalties the courts will eventually respond, then people will get towards the maximum, so current sentencing levels are not necessarily a good indicator for what will happen in the future.

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

    And Travisb is correct in his point. A lot of those jurisdictions you point out, David, are civil and not common law jurisdictions. They start from a completely different angle when it comes to the law and I am not sure the reasoning converts to the common law jurisdiction so well.

    Anyway, judges in NZ are overwhelmingly pro-police/crown, notwithstanding public outrage at bail/sentencing from time to time. If you want a good exposition on it from an Australian point of view can I recommend reading “The Conviction of the Innocent” by Chester Porter QC. Most of the points he makes are applicable to NZ as well.

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  16. Robert Black (423 comments) says:

    Jury trials in New Zealand should be banned.

    It is wayy to easy to get an acquittal. Many of my worst serious violence clients walked due to the fact they chose or more often than not were limited to a jury trial.

    Hey jurors in NZ are as thick as pig-shit and just want to get home.

    You watched Twelve Angry Men right?

    OK now apply that to New Zealand jurors and you got TWELVE STUPID PEOPLE AND A FEW MAORI CRIMS thrown in.

    Under the old system of six challenges I always challenged the whities.

    That is a fact.

    I am re-writing The Control Sickness so you can read it there.

    Merry Xmas!

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  17. jackp (668 comments) says:

    Singapore use to have a jury system but it got too expensive and cumbersome. Very similiar to New Zealand’s. I believe there isn’t just one judge, but 5 judges on the more serious crimes. It goes a lot faster. It is very cumbersome in New Zealand and expensive because the crime rate is sky rocketing. I will be interested to hear what the Maori party will have to say.

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  18. Nigel Kearney (1,019 comments) says:

    The jury system is expensive and cumbersome and I don’t know for sure, but I really doubt that jury trials are more likely to produce the correct result.

    However, the most important reason to have juries is as a guard against corruption. It’s much easier for politicians or other unsavoury characters to control a judge than to control ten random members of the public. I’m not suggesting this is the case now, but the jury system is there to guard against it. If I was an opponent of the government in a country like Singapore or Malaysia, I would feel a lot safer if they had not abolished jury trials. For this reason, I don’t think it’s valid to just look at the sentences people have typically served in the past for the crimes which are now proposed to be tried by judge alone. Juries are there to protect against a worst-case scenario.

    Maybe instead, judges should be encouraged to set a lower sentence if the defendant elects a trial by judge alone – similar to what they do for a guilty plea.

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

    Nigel, in fact the opposite of your last sentence is the case. If a defendant elects trial by jury then the penalty goes up.

    But, as I noted in my comment above, it is actually the police who elect the jurisdiction in the vast amount of cases and not the defendant. It is they, and not the defendants, who are sending more cases to jury trials.

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