Delivering timely and accessible justice

Contents

The judiciary and the Ministry of Justice are together responsible for developing and maintaining a justice system that is just, fair, accessible, modern, and effective, and which delivers timely, impartial and open justice. This joint responsibility is described in the Statement of Principles (see Appendix 1).

This section describes the challenges to delivering timely and accessible justice, and the work underway to meet those challenges.

The challenge: Delay

Delay in court proceedings is a problem that affects individuals before the courts and those awaiting court determinations or decisions. It also impacts on the public perception of the judicial system and the legitimacy of the courts.

The judiciary is keenly aware of the causes and impacts of delay, and addressing these challenges is a priority. Some causes of delay are systemic—they relate to the complexity of the court system and the many agencies and participants involved.

Others are due to resource constraints such as the number of available courtrooms. Others are related to external events—such as the pandemic and natural disasters. These are explored below.

Complexities in the criminal jurisdiction
Courts are an ecosystem of different agencies and individuals, which means that delay can occur at several points in the process. For a fair trial to take place, key agencies and individuals need to be available and fully prepared, including judges, registry staff, court security staff, jurors, Police or Crown prosecutors, defence counsel and witnesses. Specialist reports may be needed—for example, from mental health professionals—and all evidence must be disclosed in time for the parties to consider it.

Emerging trends that also contribute to delay include more defendants selecting jury trials, trials becoming increasingly complex with more multi-defendant trials and more serious charges, and fewer people choosing to make early guilty pleas. A whole-of-system approach is needed to ensure that properly-advised defendants can and do enter guilty pleas, if that is the just outcome, sooner rather than later.

A shortage of key personnel including Police prosecutors, defence counsel and psychologists is a contributing factor affecting the timely progression and completion of trials and sentencings in parts of the country. In July 2023, Cabinet authorised two years’ funding to strengthen the Police Prosecution Service’s ability to provide timely support to the courts, which has resulted in another 60 roles in the Police Prosecution Service and 21 roles in the associated Criminal Justice Support Unit to help improve the effectiveness of the service.

Extreme weather events: The impact on the courts
Extreme weather in the North Island in the early months of 2023 resulted in the closure of several courtrooms, exacerbating the delays already faced by the District Court. In January, Auckland District Court, the country’s busiest, was badly damaged by the Auckland Anniversary floods. Four of its 15 criminal courtrooms were severely affected.

A local solutions framework (see "Local solutions to local conditions: The District Court Local Solutions Framework") was implemented following the floods to re-prioritise scheduling of Auckland District Court hearings to other courts in the area. AVL was used where possible.

In mid-February Cyclone Gabrielle caused severe disruption across the north and east of the North Island and the local solutions framework was extended to cover all District Court locations under a red weather warning or where a state of emergency had been declared.

The communities in Tairāwhiti and the Hawke's Bay were severely affected. Recognising that the community’s first priority was to undertake recovery work, scheduled jury trials in Gisborne and Hawke's Bay were halted until mid-April to enable court participants (jurors, counsel, witnesses and defendants) to concentrate on their immediate needs for housing and business recovery.

Other local solutions were lifted in stages, with the Auckland District Court the last to resume full operations. The four damaged courtrooms came back into service between mid-August and mid-September. That courthouse had already faced challenges with delay, due in part to the ongoing impact of the Auckland COVID-19 lockdowns in 2021.

COVID-19: continued impact
In August 2023 all remaining regulatory COVID-19 restrictions were lifted, and courts were able to resume operations without the need for any special pandemic precautions to keep participants safe. This enabled the courts to focus on addressing backlogs that developed during the pandemic and in the aftermath of the extreme weather events in the early months of 2023.

Jury trials were particularly affected by COVID-19 restrictions. As the fact-finders in serious criminal trials, it was important jurors stayed well, both for their own health and to avoid having to re-hear cases, which is both distressing for participants and compounds delays in the courts. Jury trials also rely on the jury being together in one room, hearing the same evidence at the same time, which meant that remote options were not possible.

Throughout the pandemic, the judiciary worked closely with the Ministry of Justice, the profession and other court participants to ensure that justice was delivered; this required the commitment and flexibility of all parties. Many of the operational and technological changes that were introduced during the pandemic delivered additional benefits, such as improving access to justice for those who find getting to court difficult, and may continue to be used in certain circumstances.

Despite these efforts, the pandemic has left behind a legacy of delay that continues to impact the District Court. Work continues to address these delays.

Addressing delay

Addressing delay in the court system is vital. This section covers the specific responses of the courts to this shared challenge.

Working together to make courts more effective
For the court system to work effectively, participants at each stage must be ready for hearings. Recognising this, the judiciary regularly meets with lawyers and justice agencies to identify barriers to the prompt and efficient disposition of cases.

The most long-standing of these connections is the Criminal Practice Committee (CPC). (See Appendix 2 for more information). The CPC looks at systemic issues that require cross-agency cooperation to solve. On occasion, the CPC may decide to recommend legislative change to the government.

At a courthouse level, local executive judges chair (and take part in) stakeholder meetings with members of the local criminal bar, Police, Crown solicitors, and Department of Corrections | Ara Poutama staff, among others.

Since the first pandemic lockdown, the chief judges of the High and District Courts have met regularly online with legal professional groups, the Police Prosecution Service, Crown Law and the Department of Corrections | Ara Poutama to address operational issues that are hindering the prompt disposal of cases.

Technology has enabled faster, less formal ways for professional court participants to interact with the judiciary to make practical operational changes to how the courts operate.

District Court
Improving timeliness and reducing backlogs

In 2023 the District Court introduced a priority-based approach to scheduling cases and rostering judicial resources to hear them, targeted at the District Court locations with the largest backlogs, with a particular focus on the Auckland region.

Initial indications suggest this approach is having some impact, with a reduction in the national criminal backlog following its introduction in May.

Backlogs have grown in the District Court since 2015. The District Court Timeliness Programme was established in 2023 to bring together judicially-led and Ministry-led initiatives focused on improving timeliness. This included the range of activities developed under the Criminal Process Improvement Programme to improve systems and ensure each appearance in court is meaningful and progresses the case towards completion. District Court timeliness will continue to be a focus for the Court in 2024.

Work also began on developing a timely access to justice standard and category-based timeliness thresholds for criminal cases. This is an important next step to tackle backlogs and improve timely delivery of justice in the District Court.

Courtroom capacity

Court administrators endeavour to have courtrooms running at full capacity, wherever possible. However, all courts are ultimately constrained by the number of judges and courtrooms available. To alleviate issues of courtroom capacity and, because justice may at times be delivered more effectively in a different setting, a variety of facilities are used as alternatives to traditional courtrooms.

In February, the Newmarket Hearing Centre opened, primarily to hear cases from Manukau District Court’s family jurisdiction. This addresses the lack of suitable courtrooms in the Manukau courthouse for Family Court business and the number of Family Court judges based there.

Te Kōti Rangatahi | Rangatahi Courts and Pasifika Courts operate out of marae or community venues. There are 16 Rangatahi Courts across the country and two Pasifika Courts based in Auckland. These courts were established to address the over-representation of Māori and Pasifika in the youth justice system.

This initiative has had positive effects.

Criminal Process Improvement Programme

The District Court’s Criminal Process Improvement Programme (CPIP) is a judicially led justice sector-wide initiative to improve timely access to justice. It establishes best practice in criminal procedure to ensure all court hearings are meaningful, and to reduce the time it takes to resolve cases. After considerable planning, design, testing and evaluation, CPIP processes and practices are starting to be rolled out across the Court. In 2023, CPIP made improvements across areas such as case management, bail applications and improved documentation.

High Court
Criminal Disclosure Practice Note

Sometimes a criminal jury trial will need to be adjourned due to late disclosure by the prosecution. Given this, the High Court Criminal Disclosure Working Group was established (comprising representatives of the judiciary, prosecution and defence) to look at ways to improve the timeliness of disclosure. Following the Working Group’s report, Chief High Court Judge Justice Susan Thomas issued the Criminal Disclosure in High Court Trials Practice Note in March 2023.

The practice note requires the Crown and defence to address disclosure issues at an early date to avoid delays and adjournments caused by late disclosure. It is discussed in more detail in “Addressing late disclosure of evidence—High Court Criminal Disclosure Practice Note”.

Steps were also taken in 2023 to improve timeliness in the High Court’s civil jurisdiction; see "Civil justice". See also below for information on proposed High Court Rules, aimed at ensuring High Court civil proceedings are effective and proportionate.

Coroners Court
Coroners Court backlog reduction strategy

The Coroners Court launched a backlog reduction strategy in 2023, aimed at progressing older files efficiently and effectively without any reduction in the quality of the work produced. This is already having a notable impact (see "Backlog reduction strategy").

The challenge: Barriers to access to justice

To be accessible, justice must be easy to understand, easy to participate in and timely. People must understand that their issue might have a legal solution, and be able to navigate their way through the legal environment to find resolution.

Improving access to justice in all interactions the public have with the courts and with judicial processes is a priority for the judiciary.

Improving access to justice

Four initiatives underway to improve access to civil justice
It is a fundamental right for all people to have access to courts or tribunals where their civil rights can be upheld, and breaches of those rights compensated, in a fair and transparent way by a neutral decision-maker in accordance with law.

If everyone does not have the same access to civil justice—because they cannot afford it, or do not know how to seek it, or find the process too intimidating—then this inequality undermines the rule of law because it means that the law’s protection is only available to some, not to all.

The system as it stands has numerous barriers to accessing civil justice. The following four significant projects are underway to enable better understanding of these barriers, and to reduce them.

Rules Committee—Simplifying court procedures to resolve disputes quickly and efficiently

The Rules Committee,[55] in its report Improving Access to Civil Justice in November 2022, proposed substantial changes to the civil justice framework aimed at simplifying court procedures so that disputes can be resolved more quickly and efficiently. Its recommendations for rules, legislative and policy change included:

expanding the role of the Disputes Tribunal so it becomes the primary court for a significant proportion of civil disputes
revitalising the District Court’s civil jurisdiction, including by creating a separate civil division headed by a Principal Civil List Judge
new rules that simplify case management and the hearing of civil disputes in the High Court to make them more effective and proportionate
continued use of electronic documents and remote hearings conducted by audio-visual link where appropriate.

In accordance with its remit, the Committee focused on making changes to the High Court Rules regarding case management, proportionality, use of electronic documents and facilitating remote hearings. A sub-committee has proposed specific rule changes and is consulting with stakeholders on them. The proposed rules will be considered by the Committee in 2024.

The recommended policy proposals, relating to the jurisdiction of the Disputes Tribunal and constitution and judicial officers of the District Court, will require legislative change and are with the government for consideration.

The Access to Justice Advisory Group

Improving access to justice forms part of the Courts Strategic Partnership Group’s (CSPG) terms of reference. The access to civil justice work programme is part of the shared CSPG workplan.

Building on a workshop held in 2020 with people on the frontline of civil justice, including not-for-profit and community groups, members of the legal profession, ministry officials and judges, the Chief Justice and the Secretary for Justice established the Access to Justice Advisory Group. The Group was charged with developing a strategy to enhance access to civil justice and to conduct a survey to better understand legal need.[56]

Having delivered these two initiatives (explored below) the Access to Justice Advisory Group will disband in 2024. The judiciary will continue to work on improving access to justice through other committees, including the Rules Committee, the Criminal Practice Committee, Huakina kia Tika, the Courthouse Design Committee and Tomo Mai, as well as through the Digital Strategy and Te Ao Mārama. There is a summary of committee work contained in Appendix 2.

Navigating the system—Wayfinding for Civil Justice

The Access to Justice Advisory Group set up a working group to develop a stakeholder-led strategy, now known as Wayfinding for Civil Justice, in consultation with those working in and for civil access to justice.[57]

The Wayfinding for Civil Justice strategy encourages a unified and coordinated approach to the design and planning of individual initiatives to improve civil access to justice. It provides a set of guiding lights or principles and waypoints or goals. It seeks the following outcomes.

Legal assistance is accessible, appropriate and integrated.
Providers of legal assistance understand and serve the needs of their communities.
Dispute resolution—from initiation to enforcement—is accessible and equitable.
There is knowledge about the system and progress towards these goals can be monitored, evaluated and improved.

Wayfinding for Civil Justice was released in December 2023 and is available in both te reo Māori and English.[58]

As part of implementation, the working group recommended establishing a National Civil Justice Observatory to support the Wayfinding for Civil Justice strategy to be useful in practice. The Observatory would be responsible for coordinating reporting of initiatives, sharing information between stakeholders, and maintaining momentum for Wayfinding.

The working group was greatly assisted by feedback from civil justice stakeholders.

Discovering the extent of unmet legal need in New Zealand—Justice Legal Needs Survey

The Access to Justice Advisory Group commissioned a nationwide Access to Justice Legal Needs Survey to gather data about people’s experiences with civil justice issues and how they seek (or do not seek) resolution of those issues.

Developed in conjunction with the Ministry of Business, Innovation and Employment and the Ministry of Justice, the survey was conducted from September to December 2023. The data and subsequent analysis will inform future work to improve access to civil justice.

Sharing knowledge across the courts
The theme of the 2023 All Courts Conference held in Auckland in March was Access to Justice—Aotearoa style, reflecting the emphasis that the judiciary places on improving access to justice.

The programme focused on innovative approaches in different courts and environments to facilitate access to justice such as the effect of Kaiārahi | Family Court Navigators in assisting litigants in the Family Court (see "Family Court Associates and Kaiārahi”) and included an insight into the unique needs of litigants before specialist courts (Environment, Employment, Māori Land Court and the Coroners Court).

Accommodating communication difficulties and neuro-disability in the courts
Everyone appearing in court has the right to participate in proceedings that affect them—participation is an aspect of access to justice. Yet many people who appear in our courtrooms have disabilities that affect their ability to fully participate. Research shows that people with neurodisabilities, including traumatic brain injury and foetal alcohol syndrome, are overrepresented in the criminal courts.[59]

The courts employ strategies to accommodate people who may face barriers to full participation. These include using plain language instead of “legal speak” and using court-appointed communication assistants to support defendants and complainants who require it. In 2023 the Te Awa Tuia Tangata | Judicial Diversity Committee and Tomo Mai | Inclusive Workplace and Courtrooms Committee jointly hosted a Disability and Access to Justice conference, which provided valuable information from those with lived experience about disabled people’s barriers to access to justice. This feedback will inform future judicial initiatives.

Te Awa Tuia Tangata and Tomo Mai are preparing a report on Ministry of Justice disability initiatives. The report and recommendations will be presented to the heads of bench in 2024.

Interpreting in the criminal courts
Over a quarter of New Zealanders were not born in New Zealand and many have first languages other than English. New Zealand has three official languages which can be used in court: English, Te Reo Māori and New Zealand Sign Language.[60] In 2023, interpreters were used in 10,150 court and tribunal court events using over 99 distinct languages.

Good quality interpreting is necessary in all courts to ensure that people who need it can properly participate in criminal proceedings—whether as defendants or witnesses. Poor-quality interpretation (for example, where questions or evidence are interpreted incorrectly) can lead to a miscarriage of justice, and to successful appeals.

In May, the Ministry of Justice published the Interpreter Services Quality Framework (the Framework) to support interpreters to deliver quality services in courts and tribunals.[61]

The Framework covers interpreter qualifications, training and induction; includes a code of conduct; sets out the logistics of assessing the need for and the delivery of interpreter services in individual cases; and addresses monitoring and ongoing quality improvement. It is the result of an extensive and collaborative work programme, involving the Ministry of Justice and the judiciary, and informed by best practice in Australian courts.

Increasing public understanding of judicial processes
Bench books were originally developed for and by judges as a resource for use in their day-to- day work on the bench (see "Bench books and related resources") but it is recognised that providing this information more widely would be of benefit to the legal profession and would provide greater transparency into, and understanding of, court processes.

Publication of bench book material began in 2019, with the question trails from the Criminal Jury Trials Bench Book published on the Courts of New Zealand website. In August this year, example sexual violence evidential directions—developed to assist judges to direct juries on misconceptions about sexual offending—were also published. The public release of this material sparked further engagement with the profession.

Work is continuing towards public release of further bench books, with the Criminal Jury Trials Bench Book and Te Puna Manawa Whenua | Māori Land Court Bench Book scheduled for release in 2024.

Ensuring people have access to legal advice and legal aid
Our adversarial court system assumes that parties will be legally represented. The law is complex and court processes can be hard to follow; legal advice helps people understand their rights and what is taking place in the courtroom.

However, the rising cost of legal services has far outstripped the increase in median weekly income.[62] Difficulty in getting and affording legal representation can be a barrier to access to justice.

A fair, just and sustainable legal aid system is necessary to provide access to justice and to promote respect for the rule of law. The Ministry of Justice, through the Legal Services Commissioner, is responsible for administering the legal aid system.

No matter what their financial status, any unrepresented defendant can seek advice from a duty lawyer (also known as a duty solicitor). Duty lawyers advise on penalties, the strength of the available evidence and, for defendants without sufficient means, assist them to apply for legal aid.

Duty lawyers are paid on a different regime to lawyers acting for a client granted legal aid. In August, duty lawyer rates were raised for the first time in 10 years, to $103 per hour on weekdays and $126 per hour on weekends and holidays. The weekday rate is equivalent to the hourly rate of the lowest level of criminal legal aid. In assessing the adequacy of this rate, it is necessary to bear in mind that this does not reflect the rate at which the lawyer is remunerated for their time—they must first pay the cost of practice out of that hourly rate.

Nevertheless, this long-overdue increase offered a reprieve to duty lawyers, who were increasingly finding duty lawyer work to be untenable and unsustainable.

The Legal Services Commissioner also announced a broad-scope review of the duty lawyer service to ensure it is fit for purpose in meeting the needs of unrepresented defendants in their appearances in the District Court. The review, which is being led by a professional services firm and supported by an advisory stakeholder group, commenced in August 2023 and is due to be completed in 2024.

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Footnotes

[55] A statutory body that determines the rules of procedure for the senior courts and the District. Its membership consists of representatives from the judicial and executive branches of government, and also from the profession. See Rules Committee—Courts of New Zealand (courtsofnz.govt.nz).

[56] The Advisory Group was co-chaired by the Chief High Court Judge, Justice Thomas, and Sam Kunowski, General Manager, Courts and Justice Service Policy (Ministry of Justice), and its members are Chief Employment Court Judge Inglis; Dr Bridgette Toy-Cronin, Director, University of Otago Legal Issues Centre; Horiana Irwin-Easthope, Managing Director, Whāia Legal; Donella Gawith, General Manager, Commissioning and Service Improvement; and Sarah Lynn, Chief Advisor, Office of the Chief Executive in the Ministry of Justice.

[57] The working group members are Dr Bridgette Toy-Cronin (Chair), Hon Raynor Asher KC, Wi Pere Mita (Rongowhakaata, Te Aitanga a Mahaki / Te Whānau a Kai, Waikato/Tainui), Gabrielle O’Brien and Anne Waapu (Rongomaiwahine, Ngāti Hinemanu, Ngāti Kahungunu me Te Ati Haunui-ā-Pāpārangi.)

[58] Wayfinding for Civil Justice—Imagining a better way of working together to improve access to civil justice in Aotearoa New Zealand (2022).

[59] Dr Ian Lambie What were they thinking? A discussion paper on brain and behaviour in relation to the justice system in New Zealand (Office of the Prime Minister’s Chief Science Advisor, January 2020).

[60] Te Ture mō Te Reo Māori 2016 (Māori Language Act 2016), s 7. New Zealand Sign Language Act 2006, s 7.

[61] Interpreter Services Quality Framework (2023).

[62] Bridgette Toy-Cronin “Explaining and Changing the Price of Litigation Services” (2019) NZLJ 310.