Criminal procedure changes – one year in

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[Spring 2014]

The Criminal Procedure Act 2011 (CPA) unequivocally represents the most comprehensive change to criminal law processes in over 50 years (A Practical Guide to Criminal Procedure in New Zealand, Ian Murray, 2013).

The Act fully came into force on 1 July 2013, and the magnitude of the changes were urged upon us by fellow court users, presenters at intensive trainings delivered on the Act, and by numerous authors who had written on the issue. The initial concept or objective behind the Act was to ‘simplify’ criminal procedures. (The Criminal Procedure Simplification Project was established in October 2007.)

Indeed, the project, culminating in the Act’s adoption, commenced in 2007 and was termed the Criminal Procedure Simplification Project. The Act was intended to reduce unnecessary delays, improve efficiency of court processes, and remove legal complexities within substantive procedural legislation.

Incorporation of electronic technology was a large part of the Act’s inception. New terminology was introduced as part of the Act, new precedents and formats, new procedures, protocol and responsibilities. All criminal practitioners and other criminal court users were forced to rapidly adjust to the differences. At the same time, 14 other amendment Acts came fully into force, not to mention a full new set of criminal procedure rules. Needless to say, the last year has been challenging for any practitioner or court user in adapting to an entirely new procedural regime.

From a defendant or respondent’s perspective there are many practical effects of the change to be felt. A centrepiece of the new Act is the case management process, and the replacing of status hearings with case review hearings. This process includes a statutory obligation on defence counsel to file a memorandum certifying that a meeting in terms of the management of the case has occurred between the informant, now termed ‘prosecutor’, (Police/Crown/Council) and the defence.

Its purpose is to discuss prospects of resolution, or alternatively, evidential issues in preparation for trial. Both parties are obliged to engage in these discussions and the document must be filed within 5 working days of the case review hearing. If defence counsel cannot obtain instructions then they are obliged to inform the court of that.

Heading into a case management meeting without robust instructions from the client can mean that the process fails to achieve what it could. Further, defence counsel will not get paid by Legal Aid if the memorandum is not filed on time, and there is an ability for the court to impose costs directly on defence counsel if they do not comply with these procedural requirements. defendant’s sentences can be increased if they do not proactively progress their case (section 9(k) Sentencing Act 2002).

An instrumental part of the changes is the statutory ability for defendants to seek, at any juncture, but commonly within the case management process, an indication as to sentence on any agreed charges and/or agreed factual premise. The court is obliged to, on receipt of at least a summary of facts and a copy of any previous convictions, give a formal indication to a defendant as to the outcome that would be imposed for any offence(s) should the defendant enter a guilty plea(s) at that point. Once the indication is given by the judge, it remains open for the defendant’s consideration for up to 5 working days, where the defendant can notify the court through counsel that it is to be accepted, or otherwise it will formally lapse at the end of that time period.

While sentencing indications used to be able to be sought in the past, judges weren’t required to give them. Now when one is sought by a defendant, judges, in most cases, are obliged to do so.

This function or tool no doubt is intended to encourage early resolution of matters by the prompting of guilty pleas at an early stage, with defendants able to make an informed decision based on what sentence would be imposed. Whether the changes to the Act have actually achieved that early resolution remains to be seen, although the initial six month testing figures for the Tauranga and Manukau test courts, suggest a small increase of guilty pleas at an earlier stage, and a positive improvement in disposal rates at case review hearings (Ministry of Justice).

Practically, and based on anecdotal information observed locally, it appears initial appearances are required more, and one of the significant practical changes has been that an initial one to two appearances occur before the court staff or Court Registry as opposed to a judge.

That appearance is seen to be required in order to prompt disclosure from Police of an initial package, containing the summary of facts, previous conviction list and charging document only, to enable the defendant to be aware of what is alleged against him or her, so as to put him in a better position to enter a plea early. The requirement to attend before a Registrar is also for the Registry to be able to enquire as to whether the defendant has obtained representation and to clarify the imposition of any bail conditions sought by Police.

Whilst for administrative staff this may be beneficial, the reality for practitioners and defendants is that more appearances are now required than used to be necessary, and the ability for practitioners to deal with those preliminary matters administratively has been removed. This has increased the time practitioners need to spend in court and on a file, ultimately increasing overall costs to the defendant.

The Act also brought into force stringent thresholds for the court to grant name suppression. No longer is there a ‘general interests of justice’ provision to rely on. A number of specific grounds have been outlined within the legislation and the court must find at least one of those specific grounds is made out before suppression can be given. The essential ground is that there is ‘extreme hardship caused to the person charged with, or convicted of or acquitted of the offence, or any person connected with that person’ (section 200(2)(a) Criminal Procedure Act 2011).

This is a very high threshold. The consequent effect on a defendant is that whilst an initial period of name suppression, on establishing an ‘arguable case’, will usually be granted at a first appearance, a court can only continue that interim name suppression order if it is satisfied that a particular ground has actually been made out. It is therefore far more difficult to obtain name suppression, on a continued interim basis while a case progresses, or indeed on a final one now than previously.

A final practical implication for a defendant going through the system now is that the law requires a defendant to enter a plea of either guilty or not guilty at their second appearance, as long as initial disclosure has been received. Anecdotally, it appears that this may be prompting a higher number of not guilty pleas being entered.

The success or otherwise of the new regime in expediting matters to resolution or hearing is yet to be truly assessed. Local evidence suggests that numbers of jury trials have increased as a result of the introduction of the Act, with outstanding jury trials as at 30 June 2012 at 36, 30 June 2013 at 35, and 30 June 2014 at 48.

It would appear that the regime changes have actually increased the complexity of matters in this jurisdiction and it would be more important than ever to retain counsel for advice and representation. It is a challenging, testing and trying time for all involved to continue to adjust to the new procedural regime that ironically began as a simplification project. My experience with the regime to date has been that the effects of its introduction have been anything but!