Simon Power needs to do some research

Written By: - Date published: 9:30 am, May 19th, 2009 - 14 comments
Categories: law and "order", police - Tags:

Ignorant

Ignorant

Simon Power talking on Q+A on Sunday showed a abysmal ignorance about how matters operate in his own portfolio. He blamed lawyers and juries for slowing the court system down. My experience in courts says that he is wrong – it is usually the police slowing things down. The lawyers agree here.

He is correct when he says

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.

But I’d point out that it is even harder on the people who are charged with crimes, and who have to keep turning up to court for status hearings where the police say that they’re not ready to proceed, and are kept waiting to get a final hearing. Juries at at the tail end of a large number of status hearings, so removing juries is unlikely to speed the process by more than minutes. If the evidence was presented to the defense lawyers earlier then time taken would be reduced immensely.

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 defense 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.

And

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 … This gaming of the criminal justice system has got to stop.

This is total bollocks. It is a typical case of a politician looking for what they’d like to believe rather than doing the research to find out what is actually going on. In other words political game-playing.

Anyone who has had to sit through criminal status hearings is aware that the problem is almost entirely due to the slowness of the police in finalising their case and producing evidence for the court. It is completely routine for defendants and their lawyers to turn up at court, and have the police or their lawyers say that they are not ready to proceed. Typically this is because they haven’t furnished the defense lawyers with the required evidence, usually because they haven’t got very much and so haven’t finished bulking it up. It is common to have the police proceed with a case until the final date and then simply not proceed at that point through lack of evidence.

If Simon Power wants to have ‘incentivised’ the system, then I’d suggest two things would help considerably in making sure that the police focus more attention on their case for the prosecution.

First: Require that the police to have to get their case checked for strength prior to the first status hearing by lawyers, and rejected if it doesn’t have the legs. In other words, have an actual prosecution office staffed by lawyers to check the police case. That will stop the police from using the courts as an extra-legal punishment by arbitrarily charging without evidence. Some of the cases that I’ve seen brought are so weak that the judges have sometimes not bothered to hear the defense before dismissing the case.

Second: Get the courts to award costs against the NZ Police in the event that a case is dropped or lost after the first status hearing. Make these costs a separate part of the police budget so that it can be monitored. Hopefully that would provide some incentives for police managers to ensure that the quality of their prosecutions is increased.

If those things were done, then I suspect that there would be a considerable clearing of the court calendar. However I suspect that Power’s statements have more to do with providing a ‘political’ topic for the redneck BBQ’s and dinners than solving the clogged court problem.

14 comments on “Simon Power needs to do some research”

  1. bilbo 1

    Bahahaha

    So the lawyers say that none of their own are anything naughty to try and feather their own nests ….. priceless another add for Tui methinks

  2. randal 2

    the power of the pin heads
    pin heads rule
    this government is made up of infantile juveniles who wish to boss other people around and/or take anything they have got
    they dont really care about process or rules and it is only when they run up against them do we see the true personalities of these greedy ignorant people
    I am not sorry about the direct language
    randal is not some hot house policy wonk with access to the beltway coded messages for in house consumption

  3. Am I right that legal aid isn’t paid by the hour worked? I understand from what I have read around the place that various different types of trials have a set amount of hours that the lawyer will be paid for, which usually is less than they work for.

    I guess to many this is another “giving more of my taxes to criminals\maoris” (never mind innocent until proven guilty, that’s just unimportant detail).

    A bit of an explanation may be in order, but part of the root cause of this is people who don’t understand “innocent until proven guilty”

  4. tsmithfield 4

    I think you make some good points re the police.

    To be fair to Powers, as I understand it, his comments were in the context of a general review of the whole system, rather than immediate changes to legislation. So, there should be an opportunity to put forward submissions re the police component in delays. However, that is not to say that other aspects such as those pointed to by Powers can’t be streamlined and improved as well.

    I have grave doubts about the jury system myself. Having worked in the courts and also been a foreman on a jury, I think there are a number of deficiencies with the jury system.

    Firstly, the pay rates for jurors are abysmal ($13 per half day I think). This means that often juries are suboptimal in composition due to selection more on the basis of availability rather than ability.

    Secondly, juries have no training into the complexities of the legal process, which can be a major liability, especially when evidence gets highly technical.

    IMO, we should have professional, trained juries selected on ability and contracted for jury work. This would mean that the jury system is efficient and produces equitable results.

    • Con 4.1

      The whole point of juries is that they’re ordinary people. A corps of highly paid, highly trained legal professionals is a different thing. That’s not trial by jury, it’s trial by a panel of judges.

  5. DeeDub 5

    I have never been arrested for any crime but if it ever happens I hope I am to be judged by a jury of my peers, not some ancient man who went straight from high school, to law school, to a highly paid career as a criminal lawyer, to judge. Yep, he’d have the law and the technical stuff DOWN but I’d still rather trust the life experiences and collective nouse of 12 regular people from all walks of life over one cloistered, upper-class academic with too many years sitting in a chair hearing about horrible crimes.

  6. Greg Presland 6

    Good post Lynn.

    I have practised law for 25 years and in that time I have performed a lot of criminal legal aid work. I do little now, maybe one or two cases a year. The work is stressful and very poorly remunerated and I have better things to do. I believe that I can speak with some authority and I have minimal financial interest in the subject.

    Power is being mischievous at best in his presentation. Some comments:

    1. High Court jury delays are almost exclusively to do with the P epidemic. These are multi week trials involving usually many defendants and they just clog up the Court lists. The proposed change in jurisdiction will have no effect on these lists as the High Court does not deal with offences where the maximum jail sentence is 3 years.

    2. District Court jury trials are also out of control but this has a lot to do with the increased jurisdiction that the District Court has generally and the ever increasing complexity of the legal system.

    3. I practice extensively in the Waitakere District Court. Jury trials are not held here and every time a Jury trial is scheduled the case leaves the Court so that the workload is decreased. Despite this lists are getting worse and worse. More Judges and Court time is needed and fewer jury trials will have no effect on local problems.

    4. The comment about legal aid is gratuitous at best. Lawyers tend to get paid lump sums for certain classifications of case. For instance a guilty plea and remand for a pre sentence report and sentence generally attracts the same payment no matter how many appearances there are. Lawyers are incentivised to make sure that there are as few appearances as possible as otherwise the pay per hour goes down. Defended hearings are also problematic. I can recall performing 40 hours preparation on a jury trial and being paid for only 5 of those hours.

    5. The underlying hourly rates for criminal lawyers are the lowest in the justice system. I used to time record all of my files and if I was paid for 2/3 of the actual time that I spent on a file I was doing well.

    6. The odd lawyer has given me cause for concern. Most of them however are dedicated and wish to achieve the best for their client. This can mean that you do not roll over and plead your client and actually put the police to the proof.

    7. Police performance can be better but again performance varies. Some deal with people in a dignified manner and you never see them in court. Others are over the top in their approach and seem to have defended hearings all of the time.

    Power’s comments have a sense of dog whistle about them.

    • Graeme 6.1

      High Court jury delays are almost exclusively to do with the P epidemic. These are multi week trials involving usually many defendants and they just clog up the Court lists. The proposed change in jurisdiction will have no effect on these lists as the High Court does not deal with offences where the maximum jail sentence is 3 years.

      With the passage of the Criminal Procedure Bill, a large proportion of P trials will now be able to heard in the district court.

  7. tsmithfield 7

    Con “The whole point of juries is that they’re ordinary people. A corps of highly paid, highly trained legal professionals is a different thing. That’s not trial by jury, it’s trial by a panel of judges.”

    I did not intend a panel of judges, or lawyers. Rather a group of people who at least have basic training in understanding and balancing evidence rather than being carried along by some emotive whim. A professional jury pool would build up experience as well. Randomly selected jurors are usually complete novices at the job.

    Surely, a defendant would prefer to be tried objectively rather than have a novice jury swayed by some emotive aspect of the case.

    • Lyn 7.1

      I have to say I second tsmithfield, although I appreciate the apprehension that having a “trained” jury might cause. Let me elaborate my position…..like every other moderately educated person I know, I’ve always managed to escape jury duty. I’ve been called three times. When I was working shift work I did, however, became familiar with the kinds of people who are usually around and not busy during the day – they are typically beneficiaries – short and long-term unemployed, people on sickness and disability and retired people. You can probably add students and full-time parents to that list, but they, obviously, have other things they really “should” be doing (arguably so do unemployed people but that’s another conversation). Parents will require childcare coverage for the duration of a trial, which may incur a financial cost, thus meaning they too have a cash incentive to avoid jury duty.

      When people say they would prefer to be trialled by a jury of their peers, I’m not sure they really have any understanding of what that might mean. A really interesting insight into the jury process is available on The handmirror and I include the link here.

      I’d certainly prefer that all jurors at least had a workshop training session beforehand to make sure they actually understood what they were supposed to be doing re procedure and burden of proof. And it might also be a good idea to tighten up on the excuses required to get out of jury service, and make the payments to jurors indexical at least to the cost of fulltime childcare.

      • Draco T Bastard 7.1.1

        The problem isn’t the jury but the laws. They’re far to complex for anybody but the well trained in them to understand and they are looked at in black and white rather than in the shades that real life exists in. This is why people can do a crime, get caught, and yet get off on a technicality.

        We need to fix the laws and how we deal with them.

      • Con 7.1.2

        I certainly would prefer to be tried by a jury of my peers, and I’m proud to say I have actually been called to jury service, on three occasions, and never tried to avoid it, despite it being a hassle. I served on two trials, and didn’t make it onto a jury the third time (just waited around for hours in a huge crowd of potential jurors in case we were needed).

        Sure the jury members weren’t all perfect; that’s why you have a panel of them. But they were a range of different ages and backgrounds, mostly working class. Once you start organising a “special jury pool” of “qualified” people, you’re going to lose that, aren’t you?

        It wouldn’t hurt to give people a bit more information before the trial, but honestly, being on a jury doesn’t require legal training. You discuss the case, you ask questions, you argue and vote, and you decide democratically. Jury trials are an important part of a democratic system. They shouldn’t be pissed away on the basis that the average punter can’t be trusted to make important decisions.

        I believe that (random) juries are actually the most democratic (in the original sense of the word) parts of our state. Much more so than our so-called “representative democracy” which is not at all what was originally meant by “democracy” but is, rather, a kind of “aristocracy” (“rule by the best people”). A random parliament would actually be much more representative than the current one, despite probably lacking a lot of business experience and legal knowledge.

        Whereas the NACTs ideology is fundamentally elitist – I can see why juries make no sense to them.

  8. Ben R 8

    >”Anyone who has had to sit through criminal status hearings is aware that the >problem is almost entirely due to the slowness of the police in finalising their case >and producing evidence for the court. It is completely routine for defendants and >their lawyers to turn up at court, and have the police or their lawyers say that they >are not ready to proceed.”

    What are you basing this comment on? Have you done any research on the issue or is this your anecdotal observation? This has not been my experience.

    >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 This gaming of the >criminal justice system has got to stop.

    >This is total bollocks.

    How much criminal law experience do you have?

    • lprent 8.1

      Anecdotal and observation. In the cases I’ve seen, the people charged have wanted to get to court for a defended hearing. Still took a year despite the defendants bring ready at the first stays hearing – apart from what the police were charging them with and why.

      Of course these are mainly for protests. But have a look at the ‘terrorist’ arrests from 2007. Still waiting to go to trial. The police have been running this as slowly as possible mainly by arguing that basic charges should somehow be heard in the high court and wanting to introduce evidence unreleted to the actual charges.

      In my experience this is the norm

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