Kerre Woodham: Should juries be reserved for the big-ticket crimes?

There's an old saying that justice delayed is justice denied.

It's a legal maxim that means if legal redress to an injured party is available, but it's not forthcoming in a timely fashion, that's effectively the same as having no remedy at all. I don't think it's entirely true - a conviction and a prison term would bring some relief for victims of serious crime, but the stress of waiting years to see that justice delivered would be a heavy burden for the victim and their families.

The Government's looking for feedback on ways to speed up the court process. Currently, people can choose a jury trial if they're charged with an offence that has a maximum penalty of two years or more in prison. The discussion document from the Government is requesting feedback on whether that threshold should be extended to three years or more, five years or more, or seven years or more. Justice Minister Paul Goldsmith told Heather du Plessis-Allan last night how the changes might work:

PG: There will be arguments around three years, five years or seven years. Seven years would be a big change, and it would certainly have a huge impact on the overall efficiency of the courts, but of course you’ve got to balance that against, you know, the ancient right. And so I think it would be an interesting discussion. I certainly think we should lift it, it's just a question of how far.

HDPA: What kind of a crime we're talking about that carries seven years in jail?

PG: Well, things like tax evasion and arson.

HDPA: Indecent assault?

PG: Yes, and so five years for thinking of things like aggravated assault and three years, it would be things like, you know, driving while disqualified or with excess breath alcohol.

HDPA: I don't think you should go for a jury if you've just been pinged boozing behind the wheel, do you?

PG: Well if you lift it to three years you'd exclude those and so yeah, I think that's a very reasonable starting point.

That was Heather talking to Paul Goldsmith last night. Law Association Vice President Julie-Anne Kincade told Mike Hosking this morning that right now in the Auckland District Court, you'll get a jury trial faster than a judge-alone trial. And we need to be careful about using a “blunt tool” to try to solve the problem of the backlog within the courts. And certainly, there are improvements to the court process she outlined that have come into play just this year. Category 1 and 2 offences are heard in the district court before a judge alone. You don't have the choice of a jury trial. Category 3 offences that carry a maximum penalty of two or more years in prison, you do get the choice right now. Category 3 offences could include aggravated assault, threatening to kill, dangerous driving, or a third or more drunk driving conviction - that boozed behind the wheel one that Heather was talking about. So that's Category 3 where you do get the choice of judge-alone or jury.

They are serious offences, but do we really need a jury of our peers to sit in judgment of those crimes? Shouldn't we save the jury trials for the most serious crimes, the ones that are heard in the High Court -the murder, the manslaughter, the rape, the aggravated robbery? Jury trials are vitally important, they date back to Athens. Chief Justice Sian Elias and her colleague in the Supreme Court, Justice McGrath, summed up the importance of the jury in the case of Siemer v Heron in 2012:

"In exercising that function, jurors bring a diverse range of perspectives, personal experience and knowledge to bear in individual cases, which judges may lack. As fact finders, jurors determine which of the admissible evidence presented at trial is to be believed and acted upon. Juries ultimately decide whether the facts fit within a particular legal definition, according to community standards. In this way, they reflect the attitude of the community and their determination of guilt or innocence. The right to trial by jury is also generally seen as providing a safeguard against the arbitrary or oppressive enforcement of the law by the government."

They go on to say that in cases where they feel the government or the forces of government through the prosecutor and through the police are using a sledgehammer to crack a walnut, then juries will acquit. They'll go no, this is oppressive, this is unfair, you've been way too heavy-handed. We, the community think this is wrong and it's a way for the community to say to the state you've overstepped the mark. So vitally important.

But should juries be reserved for the big-ticket crimes? Intuitively, I think yes, you know it should be for the big-ticket ones. But we don't want judges clearing up the backlog in the courts by whipping through cases without due thought and process. I'm not saying they would, and they don't at the moment. Judges seem to be a little bit too thoughtful, a little bit too considered for my liking from time to time. But if you're told right, judge-alone, get cracking, let's clear this backlog - wouldn't your subconscious say righto, bugger it, guilty, next case, please. That kind of pressure to clear the backlog may inform the decision you make.

And it may not sound like a big deal, two years or more in prison, but by the time you take into account discounts and troubled backgrounds and the like, you'd probably only get nine months. But nine months in prison, you say it like it's nothing but what would nine months in prison do to you and me? It would be absolutely devastating if you were innocent. So intuitively, yes, save the juries for the big-ticket crimes, the High Court offences. At the same time, you don't want to see people sent to prison, even if it is just for a six-month term for a crime they didn't commit.

Kerre McIvor, is a journalist, radio presenter, author and columnist. Currently hosts the Kerre Woodham mornings show on Newstalk ZB - where this article was sourced.