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Chief Justice’s annual report: The defendants and their late guilty pleas

Criminal Bar Association president Fiona Guy Kidd QC says there’s a variety of reasons why defendants enter late guilty pleas.

Defendants are increasingly not entering guilty pleas until later in court proceedings, taking up considerably more judicial resource and putting a strain on victims.

The actual cost of that stretch in proceedings couldn’t be put on the issue when Chief Justice Dame Helen Winkelmann and Chief District Court Judge Heemi Taumaunu addressed media on the topic today, but the Criminal Bar Association says the causes of late pleas were varied, including Covid-19, but it was “not necessarily a bad thing”.

In her inaugural annual report released this afternoon, Winkelmann reveals a number of issues faced by the judicial system between January 1, 2020 and December 31, 2021.

The report also provides a rare and stark insight into those behind the benches, with the participation of more than 250 judges in an up close and personal diversity survey, revealing everything from their ethnicity and education to sexuality and family background.

But one of the apparent “complex problems” currently facing the criminal jurisdiction at the moment, Winkelmann says, is the increase in delays in the District Court.

Judicial leaders had already expressed concern prior to the pandemic about delays, but they had been reinforced since the onset of the Covid-19 pandemic.

One key area was defendants now choosing to stretch out proceedings by not entering guilty pleas until later in the process and many electing to put their case in front of a jury.

“All delays in criminal justice have significant human costs, imposing stress and uncertainty on victims of crime, on defendants and on their whānau,” Winkelmann wrote in her report.

“There are many causes of delay. It is in part due to increasingly late guilty pleas, which disrupt workload planning and are wasteful of judicial resource.

“There has also been a significant increase in people electing jury trials up almost a third from 25 per cent of eligible cases in December 2017 to 33 per cent in December 2021.”

Jury trials took longer to hear and consumed a greater amount of judicial resource, she said.

“There are many reasons for the increased election rate, including systemic issues which make the jury trial track more favourable for defendants, and the creation of new offences with maximum sentences which sit above the jury trial threshold.”

Chief Justice Helen Winkelmann. Photo / Supplied
Chief Justice Helen Winkelmann. Photo / Supplied

Chief Judge Taumaunu said people charged with offending were entitled to the presumption of innocence until a verdict was reached or guilty plea entered.

“It’s worth bearing in mind that this issue of late guilty pleas pre dates Covid-19 and has been affecting the court for a number of years … what is very clear is that the impacts are clear in terms of further court delays, rising legal aid costs and time spent on remand.”

As for an accused preferring jury trials, he said the choosing of jurors over judges had risen from 27 per cent to 33 per cent over the past two years in the District Court.

But Criminal Bar Association president Fiona Guy Kidd QC said the past two years had been “tumultuous” for the courts and Covid “may have affected the timing of guilty pleas in a number of ways.

It had slowed processes in court including pre-trial arguments or timing of sentence indication hearings.

“In Auckland especially, a large number of cases have been effectively stalled, with important court steps such as case review hearings before judges not being held for months and trial dates repeatedly adjourned.”

More recently it had been hard for lawyers to see their clients in prison because of Covid restrictions, while the number of defence lawyers doing legal aid work was declining, placing those who do it under more pressure.

Resourcing of police prosecution teams in some centres was “understaffed and also stretched, which makes early resolution of cases difficult too”.

It could also be that it wasn’t until closer to a trial date that a more “appropriate charge has been offered” to an accused by police who then have to change the summary of facts document.

“Late guilty pleas are not necessarily a bad thing. Delayed guilty pleas can often reflect that a defendant has taken strides in improving their situation since they were charged … and have reached a stage where they acknowledge their offending and where a non-custodial sentence becomes appropriate.”

She said she couldn’t account for why more accused were electing trial by jury, it could just be that accused “are clearly increasingly preferring to be tried by 12 members of their community rather than by a judge alone”.

“It is the defendant’s decision as to whether to elect trial by jury.”

However, often not all disclosure had been given to defence counsel at a defendant’s second appearance so it was considered easier to elect trial by jury earlier in the process.

Meanwhile, in her report, Winkelmann stated one of the tasks of the Criminal Trials Committee was assessing the extra strain the courts were now under.

“It is undertaking an analysis of the causes of the rising rate of jury trial election, and the increased incidence of late guilty pleas … in order to recommend changes that are desirable and consistent with fair trial rights and the New Zealand Bill of Rights Act 1990.”