Radical trial system shake-up proposed

CLIO FRANCIS
Last updated 11:17 14/02/2012

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The Law Commission has proposed a radical shake-up of New Zealand's trial system, suggesting the dumping of 12-person juries in favour of "semi-professional" trained jurors and judge alone trials.

Justice Minister Judith Collins has called the mooted changes for trained jurors an "interesting idea" and said she was awaiting with interest public feedback to the proposed reforms.

The Commission's review was ordered by the Government in 2011 following the Taskforce for Action on Sexual Violence report recommended changes to the current judicial system, particularly in cases involving sexual offences.

In the consulation paper on alternative trial processes, Commission president Sir Grant Hammond said many participants in criminal trials, both victims and defendants, found the current trial process alienating and disempowering.

"Our current adversarial system leaves it largely to the prosecution and defence to determine what evidence to call and how the trial is run.

"Questioning can be confrontational and aggressive, which can be traumatising for victims and witnesses, especially in sensitive cases such as those involving sexual offending, family violence and child witnesses.

"The fairness of the trial may depend upon the resources and the skills of the counsel involved, which inevitably vary from case to case."

The Commission is also considering the roles of judges and jurors in deciding a verdict in criminal cases.

"Research shows that juries may approach a criminal case with an array of myths and prejudices that impact on their assessment of the evidence and decision making. Juries also do not have to give reasons for their verdicts so their decision-making lacks transparency."

The Commission proposed that facts in trial, including the verdict, could be determined by a judge sitting alone or a two "semi professional" jurors who were trained in criminal procedure.

The possibility of creating a specialist sexual violence court for cases where the offender pleads guilty or providing an alternative process outside the criminal justice system to resolve some sex offence cases was also raised.

"Only a small number of sexual offending victims report to the police and victims can be reluctant to enter the formal system.

"Many victims want the offender held to account but do not want to go through the difficult process of a criminal trial," Sir Hammond said.

Collins said she believed the New Zealand justice system compared favourably with anywhere in the world, although there was issues with people being available to be jurors for lengthy cases.

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"I would suggest to anybody who's interested, to read the paper, get their responses in and I'm looking forward to seeing what comes out of it...

"I'm always looking for better ways we can deliver justice, but I'm also very fully aware that when we try to merge our system with some of the European civil systems, that we can have some unintended consequences so I'm cautious...

"Yes, there are some times when circumstances or cases don't necessarily go the way that people would like them to but at the end of the day, it's a very sound system. I am however, very willing to look at suggested improvements."

The Commission's review of alternative trial processes opens to public consultation today.

POSSIBLE REFORMS

- The Judge would be in control of the trial process and would largely be responsible for how the evidence was given. The Judge would decide which witnesses would be heard and when, and would question the witnesses first, with other parties asking questions only after the Judge was finished.

- The facts in a trial, including the verdict, could be determined by a judge alone, or a judge and two semi-professional jurors. The jurors would be fixed term appointees with training in criminal trial procedure. This would allow many of the rules of evidence to be dispensed with as a jury of 12 lay people is less capable of identifying potential prejudice than a judge.

- The victim would be able to request a review of any decision made by a police prosecutor or a crown solicitor to amend or drop charges. A review would be carried out by either a senior prosecutor or a crown solicitor from a different area.

- A specialist sexual violence court which would deal with suitable cases after a guilty plea had been entered and with victim agreement. The Commission said this would likely encourage more guilty pleas and provide a more effective mechanism for addressing the causes of offending.

- Introduction of specialist training that judges for judges who preside over sexual offence cases. Both prosecution and defence counsel would also be required to be accredited before they could participate in such cases.

- The Dominion Post

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