Rush to guilty plea should not be the goal of judges, says Chief Justice

Dame Sian Elias' speech raised questions about whether changes had helped
with the certainty and fairness of criminal ...
KEVIN STENT/STUFF

Dame Sian Elias' speech raised questions about whether changes had helped with the certainty and fairness of criminal justice, but did not attempt answers, she said.

New Zealand's top judge has questioned whether her own judges might be rushing to get guilty pleas ahead of the interests of justice.

In a recent speech Chief Justice, Dame Sian Elias, cautioned against criminal justice management innovations that risked the fundamentals of justice and fairness.

Management-driven change to the criminal justice system should not neglect procedural safeguards, she said.

Dame Sian Elias is the Chief Justice, the top judge in New Zealand and head of the Supreme Court.
PAUL McCREDIE

Dame Sian Elias is the Chief Justice, the top judge in New Zealand and head of the Supreme Court.

Innovation should not throw over basic principle such as in open justice and certainty, and the ability of impartial judges to do what was "fair and just", she said.

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And she did not exclude her own judges' from scrutiny, saying they operated some of the more important levers in disposing of cases through guilty pleas.

Changes to the New Zealand system took place against changes overseas designed to mass produce guilty pleas and where the main marker of success was rate and speed at which cases were finished, she said.

"It is difficult to get a handle on whether judges are consciously or unconsciously attempting to obtain pleas by offering discounts that provide incentives," Elias said.

"I have been surprised to hear senior judges speak of their "success" in obtaining pleas on sentence indications."

Sentencing indications were introduced in 2012, so a defendant could ask what type of sentence they would receive if they pleaded guilty. The process was not able to be made public until the defendant was sentenced or the charge dismissed.

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Elias said it was worrying to hear reports of prosecutors and lawyers, who wanted more time to prepare for cases, feeling under pressure from judges whose attitude was that there was little point because "the defendant knew what he had done".

Such reports were common but it was difficult to know if they gave an accurate picture, she said. 

As well as the interest of individuals, there was a public interest in proper conviction, she said.

"Rush to plea is not a goal we should be pursuing. And it should not be something that is exacerbated by case-management and understandable anxiety to move cases along and not be wasteful of resources."

In a speech to the Criminal Bar Association conference Elias acknowledged the savings in time and cost if guilty pleas were entered early, and reduced sentences were an inducement. But she cautioned against "inaccuracy" in guilty pleas due to a calculation of risk or simply to put an end to uncertainty.

"Pressures for lawyers to cut corners in prosecuting and in defending by reaching deals on pleas raise the risk of such errors."

Pressures arose in part from institutional design, by the way the state pays lawyers on both sides, but also because of the relentless press of cases and "remorseless" scheduling in a system that was under-resourced and was transferring costs to prosecutors and defence counsel, Elias said.

In her speech the judge questioned various ways in which criminal justice was being removed from public view. She quoted figures from 2015 that 40 per cent of "police apprehensions" were dealt with in ways that did not lead to prosecutions, mostly by police-administered diversion by a defendant admitting guilt and meeting conditions such as apologising and making good for any loss or damage, or by police giving a formal warning.

The Independent Police Conduct Authority has found inconsistent use of police warnings and disparity between treatment of Maori and non-Maori.

A pilot in Canterbury had police shifting cases from the courts to neighbourhood panels with lay members.

Other pilots were for "therapeutic courts" and for cases of sexual violence, if the victim agreed. Those alternative resolutions were suggested to deal with some of the causes of crime, the massive under-reporting of sexual violence crimes and to hear the allegations without re-victimising the complainants.

Elias said she did not underestimate the problems and the need to find better alternatives, but the suggestions risked the principle of open justice, and also risked opening the door to unequal treatment of serious offending, depending on the attitude of the victim.

The alternative ways to resolve some cases were inevitably discriminatory because they were available in some areas but not others, she said.

 - Stuff

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