Criminal Procedure (Simplification) Project
Six-month review of
summary court changes
tested at Manukau
and Tauranga District Courts
July 2009
1
Part A Introduction and Summary of key results
Introduction .................................................................................................................................................... 5
Summary of key results
1. Key features of the test proposal ..............................................................................7
2. Objectives .................................................................................................................7
3. Methodology .............................................................................................................7
4. The cases involved in testing ....................................................................................8
5. Key results ................................................................................................................8
5.1.The extent of compliance with test package
5.2 How the cases progressed
5.3 Case Management Memorandums
5.4 Simple track
5.5 Implementation
6. Conclusion ..............................................................................................................11
Part B Background and Methodology
1. Background.............................................................................................................13
1.1 Summary procedural changes being tested
1.2 Case tracks
1.3 Initial disclosure and instructions to counsel from defendants
1.4 Cases excluded from testing
1.5 Agencies involved in testing
2. Purpose of testing ...................................................................................................17
3. Purpose of six-month review...................................................................................17
4. Methodology ...........................................................................................................18
4.1 Quantitative analysis
4.2 Qualitative research
4.3 Issues with the methodology
Part C Manukau District Court test site
1. Caseload trends......................................................................................................20
1.1. Workload trends over the last few years
1.2 Workload over the testing period
2. Analysis of cases in testing .....................................................................................22
2.1 Overview of cases in each case track
2.2. Cases excluded from testing
3. Aspects of testing....................................................................................................23
3.1 Initial Disclosure
3.2 Reasons for adjournments
3.3 Time to disposal
3.4 Case tracks
3.5 Case Management Memorandums
3.6 Status hearings and defended hearings
Part D Tauranga District Court test site
1. Caseload trends......................................................................................................44
1.1 Workload trends over the last few years
1.2 Workload over the testing period
2. Analysis of cases in testing.....................................................................................46
2.1 Overview of cases in each case track
2.2. Cases excluded from testing
3. Aspects of testing....................................................................................................47
2
3.1 Initial disclosure
3.2 Reasons for adjournment
3.3 Time to disposal
3.4 Case tracks
3.5 Case Management Memorandums
3.6 Status hearings and defended hearings
Part E Operation of Testing
1. Legal Aid Payment......................................................................................................................64
1.1 Key findings
1.2 Summary
1.3 Tauranga
1.4 Manukau
2. Implementation in Sites..............................................................................................................67
2.1 Key findings
2.2 Changes through the duration of the six months
2.3 Communication and materials for implementation
2.4 Support for the test
2.5 Issues and recommendations
Appendix one: qualitative analysis....................................................................................................73
Appendix two: Three-month review document (including background information on the Criminal
Procedure (Simplification) Project). ................................................................................................109
List of Tables
Table 1: Average time to disposal at both sites compared with baseline and overall figures
Table 2: Number of administrative events for cases on each case track
Table 3: Manukau District Court caseload July 2007 to January 2009
Tables 4 and 5: Total criminal summary median age of cases on hand and median time to
disposition
Table 6: Manukau number of cases in testing
Table 7: Manukau average number of appearances at administration stage
Table 8: Manukau average age of disposal from first appearance
Table 9: Manukau: Disposal stages of simple track cases
Table 10: Manukau: Disposal stages of extended track cases
Table 11: Manukau: Number of cases on simple track
Table 12: Manukau: Defended hearing outcomes for simple track cases
Table 13: Manukau: Number of cases in extended track
Table 14: Manukau: Reasons for requesting status hearings on CMMs
Table 15: Manukau CMMs indicating what was in issue
Table 16: Manukau extended track status hearing outcomes
Table 17: Manukau extended track defended hearing outcomes
Table 18: Tauranga number in each stage and percentage of cases disposed
Table 19: Tauranga number of cases in testing period by month
Table 20: Tauranga average number of appearances at the administration stage
Table 21: Tauranga average age of disposal from first appearance
Table 22: Disposal stages of simple track cases
Table 23: Disposal stages of extended track cases
Table 24: Tauranga: number of cases on simple track by month
Table 25: Tauranga defended hearing outcomes for simple track cases
Table 26: Tauranga: Number of extended track cases by month
Table 27: Tauranga: Reasons for requesting status hearing
Table 28: What was in issue as identified on CMMs
Table 29: Tauranga: extended track status hearing outcomes
Table 30: Tauranga extended track defended hearing outcomes
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List of Figures
Figure 1: Key results from six-month simplification testing
Figure 2: Testing of changes to summary court process
Figure 3: Manukau District Court summary cases on hand
Figure 4: Manukau summary caseload July 2008 to January 2009
Figure 5: Manukau cases in testing at each stage in six-month period
Figures 6 and 7: Manukau: Ten major reasons for adjournments – first and second events
Figure 8: Manukau change in CMMs issued and received
Figure 9: Manukau summary of CMM analysis
Figure 10: Tauranga total criminal summary cases on hand
Figure 11: Tauranga: criminal summary new business and disposals
Figure 12: Tauranga summary caseload July 2008 to January 2009
Figure 13: Tauranga cases in testing period on each case track
Figures 14 and 15: Tauranga main reasons for adjournment at first and second appearances
Figure 16: Tauranga change in CMMs issued and received
Figure 17: Tauranga Summary of CMM Analysis
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This report presents an evaluation of the first six months of testing of procedural changes conducted as
part of the Criminal Procedure (Simplification) Project at Manukau and Tauranga District Courts (14 July
2008 through to 14 January 2009).
The aim of the simplification package of proposals was to test whether these processes could reduce
the:
• number of court appearances required for a case to be disposed
• number of adjournments (particularly related to disclosure)
• time to disposal (at the point of guilty plea)
• use of judicial time (through ensuring parties discussed matters between themselves before
appearing in court).
The review incorporates both qualitative and quantitative analysis to identify what benefits arose from
the package of changes, and whether the package achieved its aim. In particular, the qualitative
analysis enriches the quantitative data through user insights into impacts of the implementation of the
test package. The report also includes an overview of how the changes are affecting the flow of cases
at both test sites (Manukau and Tauranga District Courts).
The review considers:
• whether the package of changes being tested achieve their objectives
• whether the processes need to be modified
• the implications of extending the processes beyond the two test sites
• the criteria for cases included in the testing process, to determine whether a wider range of cases
could benefit from these procedural improvements
• impacts as raised through qualitative interviews.
The report, where possible, considers the engagement by participants in the process, and the impact of
any incentives or sanctions. The report also identifies issues relating to the various agencies involved
for further consideration by those agencies.
The analysis and findings in this report (including the three-month review) will inform the legislative
workstream of the simplification project, particularly where procedures would benefit from legislative
support to enable effective implementation.
The report is in five parts.
‰ Part A: Introduction and Summary – including:
o the key results arising from testing
o conclusions.
‰
Part B: Background and methodology of review:
o background to the project and what is being tested
o purpose of the testing and the review.
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‰
Part C and D: Findings from Manukau and Tauranga District Courts:
o the workload of the test sites
o analysis of cases in testing
o user experience of what was being tested.
‰
Part E: Operation of testing:
o Legal aid payment
o Implementation in sites
o Communication and materials.
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1. Key features of the test proposal
The key features of the tested changes are:
• earlier and more extensive disclosure by the prosecution (the goal was to have a full initial
disclosure package provided to defence by no later than the second appearance)
• a differentiated caseflow management system that allocated defended cases to different procedural
tracks (broadly, a simple track for purely summary cases and an extended track for electable cases)
• requirements on the prosecution and defence to engage in case management discussions (whether
by meeting or otherwise)
• requirements on the prosecution and defence to then complete a Case Management Memorandum
(CMM) to reflect that parties interacted outside of court hearings to progress matters.
It was originally intended that status hearings should not be held unless the CMM indicated there was a
matter (such as a request for sentence indication) that required judicial intervention. However for a
variety of reasons, primarily relating to court scheduling, this aspect of the original proposal was not able
to be implemented or tested.
2. Objectives
The main objectives of the changes tested were to:
• reduce the number of appearances in the administration stage
• reduce the average time to disposal
• understand whether out of court discussions and memorandums facilitate earlier case resolution.
3. Methodology
The findings were evaluated against comparable data sets:
• overall summary caseloads for:
o all cases in the period of testing (test and non-test cases)
o all cases in the six months prior to testing
o all cases in the same six-month period from the previous year
• baseline data of comparable cases to those in testing, six months prior to testing
• results from the three-month review report on the changes tested.
This methodology was adopted because it ensured that increases in workload and seasonal variations
(ie. impact of Christmas period on case behaviour) were able to be taken into account. For example,
during the test period in both Tauranga and Manukau there was a significant increase in the number of
summary cases (14 percent Tauranga and 11 percent Manukau) many of which were more serious
offences. 1
In addition, a number of test participants at both sites were interviewed to obtain information about their
experience and opinions of the process, including implementation.
1
Increase in new summary business coming before the court at the time of testing.
7
4. The cases involved in testing
Police gave the disclosure package in all summarily laid cases at both sites. Overall, the disclosure
package was given in 10,990 cases (4,060 at Tauranga and 6,930 at Manukau).
Cases that proceed past the administration stage 2 are those that would benefit the most from
improvements to the summary court process. The majority of summary cases in Manukau and
Tauranga District Courts are disposed at the administration stage (approximately 90 percent in
Tauranga and 80 percent in Manukau). Therefore, the potential cases that could have gone through the
case track process was 297 cases (around 10 percent) in Tauranga and 1478 cases (around 20
percent) in Manukau.
The case tracks applied to Police summary prosecutions except domestic violence cases and cases
involving self-represented defendants. After the excluded cases were removed, 207 cases in Tauranga
and 664 cases in Manukau were left which progressed along the case tracks. This works out at
approximately 50% of the cases that went past the administration stage over the 6 months of testing.
5. Key results
The figure below shows the key findings of the review for cases in Manukau and Tauranga District
Courts.
Figure 1: Key results from six-month simplification testing
2
The Administration Stage includes Judges and Registrar lists which are known generically as list appearances.
At this stage pleas are entered, bail is applied for and initial disclosure is provided.
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5.1 The extent of compliance with test package
It was not possible to obtain quantitative data to assess the extent of improved (more comprehensive
and timely) disclosure before the second appearance. However, of parties in Manukau who advised the
court that disclosure had been provided, 84 percent stated that disclosure had been provided before the
second appearance. In Tauranga, while we were unable to measure the provision of disclosure directly,
half of the participants noted the initial disclosure had improved.
Of those CMMs filed, 39 percent of cases in Manukau and 73 percent of cases in Tauranga were filed
within the required timeframe. The CMM was jointly completed by prosecution and defence counsel in
75 percent of cases in Manukau and 56 percent of cases in Tauranga. Police prosecutors have noted
that while some defence counsel did make and keep CMM meeting appointments, there was often a
reliance on Police to ensure the appointment was booked and took place.
5.2 How the cases progressed
In summary, the test package reduced the average time to disposal for cases in testing at both sites,
sustaining the improvements seen in the three-month review of testing.
Table 1: Average time to disposal at both sites compared with baseline and overall figures
Average Time to Disposal
Manukau
Testing
Disposal at
61 days
Status Hearing
Disposal at
Defended
79 days
Hearing –
Simple
Disposal at
Defended
111 days
Hearing –
Extended
Baseline/ Difference Tauranga
Overall*
Testing
Baseline/ Difference
Overall*
78 / 98 days
17 / 37
days
59 days
87/ 92 days
28 / 33
days
131 / 141
days
52 / 62
days
112 days
128 / 103
days
16 / - 9
days
194 / 154
days
83 / 43
days
97 days
142 / 118
days
45 / 21
days
* Baseline - data of comparable cases to those in testing six months prior to testing.
* Overall - all summary cases in the six months prior to testing showing time to disposal at different stages.
These results represent a minimum reduction in the average time to disposal over the test period of 12
percent (16 days) in Tauranga for simple track cases disposed at a defended hearing and 23 percent
(17 days) in Manukau for extended track cases disposed at a status hearing.
The provision of timely disclosure resulted in a decrease in the average number of list appearances
required for all criminal summary cases at both sites (0.5 in Tauranga and 0.7 in Manukau). There was
also a 4 percent increase at both sites in the number of cases disposed with two or fewer appearances.
Most participants agreed that the disclosure changes were significantly beneficial.
Both courts had high rates of case disposal at the administration stage (Tauranga 90 percent, with 75
percent by way of guilty pleas and Manukau 79 percent with 56 percent by way of guilty pleas). This is
reasonably consistent with the rate of disposal for cases in the same period the previous year (88
percent and 75 percent respectively).
There was a small increase in the number of guilty pleas entered in the administration stage at both
courts (2 percent). This gain is likely to have been impacted on by the increase in the number of
domestic violence, serious violence, and serious property cases. This is because such cases are not
likely to be resolved solely by the provision of improved disclosure, rather if a guilty plea is going to be
entered it is likely to be entered later in the process.
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The number of administrative events for cases within testing also reduced at both courts over the six
month period, and this was consistent with the results from the three-month review. This is shown in the
table below.
Table 2: Number of list appearances in the administrative stage for cases on each case track
List Appearances
Manukau Baseline / Difference Tauranga Baseline / Difference
Overall*
Overall*
Simple
track
Extended
track
1.8
5.3 / 2.3
3.5 / 0.5
2.0
2.6 / 1.9
0.6 / - 0.1
2.2
4.9 / 2.9
2.7 / 0.7
2.2
2.9 / 2.7
0.7 / 0.5
* Baseline - data of comparable cases to those in testing six months prior to testing.
* Overall - all summary cases six months prior to testing, showing average number of administrative events.
Moving beyond the administration stage, 207 (6 percent) cases in Tauranga and 664 (10 percent) cases
in Manukau were subject to the case track procedure. Of these, 198 cases in Tauranga and 601 in
Manukau went down the extended track, with the remainder going down the simple track.
5.3 Case Management Memorandum
The majority of cases in testing progressed along the extended track with the Case Management
Memorandum (CMM) procedure. As noted above, analysis of the CMMs filed has seen reasonable
compliance with the process; however completion of the CMM content itself was mixed, with many
participants noting it could be shortened. Nonetheless, the CMM process enabled earlier case
resolution through the ability to have charge discussions and request sentence indications.
The CMM provided opportunities for earlier charge resolution through the indication of possible changes
in plea or charges which occurred in 128 cases (60 percent) in Manukau and 36 cases (25 percent) in
Tauranga. This enabled earlier charge resolution in 20 percent of those cases on the extended track for
both sites. During the testing period, in Manukau 33 percent of the overall caseload were disposed of at
status hearing, whereas 65 percent of cases subject to the extended track were disposed of at status
hearing (a difference of 32 percent through testing). However, in Tauranga only 48 percent of cases on
the extended track were disposed of at status hearing compared to 58 percent in the overall caseload (a
difference of 10 percent).
Further, the CMM provided the opportunity for the defence to request a sentencing indication (74
percent in Manukau and 16.5 percent in Tauranga requested an indication). Requesting an indication
through the CMM resulted in a change of plea for many cases (76 percent in Manukau and 58 percent in
Tauranga resulted in a change of plea).
The benefits of out of court discussions could have been improved if court scheduling practice was able
to be changed at both sites so that status hearings only proceeded if there was a need for judicial
intervention. In addition, participants commented on the relevance of the CMM if its completion, or the
information in it, was not referred to at status hearing. These findings impacted on participant’s
perceptions of the CMM’s value.
There were a small number of cases that went to defended hearing in the extended track (25 cases in
Manukau and 12 cases in Tauranga). Of those 40 percent (10 cases) were disposed at the defended
hearing in Manukau and 75 percent in Tauranga (9 cases). The remainder of the cases were adjourned
to further court appearances outside of the review period. Because of the low numbers of cases that
required a further hearing it is too early to draw any meaningful conclusion on how the CMM is effective
in disposing of cases at a defended hearing.
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5.4 Simple track
The number of cases that progressed under the simple track was relatively small (nine in Tauranga and
63 in Manukau). Of those that did, only a small number were disposed after evidence was heard (none
at Tauranga and six cases at Manukau). Further, the majority of cases that had a defended hearing
were adjourned to another defended hearing (58 percent of cases in Manukau and 66 percent of cases
in Tauranga).
5.5 Implementation
Implementation of the testing package has impacted on the results. Participants indicated that the legal
aid payment variation was confusing and not well understood. However, the variation of payment did
not appear to provide a significant lever in changing defence practice. Further, some participants felt
that lack of court resources to undertake the test process also affected the results.
Participants at both sites also expressed their desire for more extensive consultation in the earlier
stages of any design process, and that levels of communication could have been better.
6. Conclusion
Overall the test package reduced both the number of appearances in the administration stage and the
time to disposal, despite mixed levels of engagement at both sites and from some test participants.
Improving both the average time to disposal and number of events increases court capacity by removing
unnecessary court appearances, and reducing the volume of cases a court has to manage.
The new process resulted in both a small increase in guilty pleas at an earlier stage, and a reduction in
number of events needed to enable a plea (both guilty and not guilty) to be entered. Improved disclosure
leading to a reduction in the number of appearances needed in the administration stage to have a plea
entered. Participants at both sites agreed that the disclosure changes were beneficial overall to the
court process.
The simple track process was not effective, with small numbers of cases progressing on that track, and
high numbers of those cases falling over at defended fixture. This suggests that some relatively simple
cases with few issues to discuss may benefit from a case management process.
Court scheduling impacted on the potential gains to be realised from the extended track, as status
hearings were unable to be vacated even when requested. Where the CMM process was complied
with, it did prove an effective mechanism for charge discussions or resolution. However, participants
expressed mixed views on the CMM’s content and its relevance at status hearings. In particular, many
participants noted that the purpose of a status hearing currently was unclear.
To some extent the potential effectiveness of the extended track process was limited because the
appropriate incentives and sanctions were not in place. Variation of the legal aid payment for the new
process did not prove to be incentive enough on its own, with the process for payment not well
understood initially.
The positive improvement in disposal rates at status hearing in Manukau, where there was high
compliance with the CMM, suggests that the case management process is effective. By contrast, levels
of compliance in Tauranga were low and disposal rates demonstrated no improvement. This may reflect
the fact that case management practices by the parties in Tauranga were generally acknowledged to be
better at the start of the pilot than they were in Manukau, and therefore there was less room for
improvement.
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Participants at both sites commented extensively on the implementation of the new process. In
particular, additional resourcing and change management was identified by participants as being
needed to ensure that changes to the process are effectively supported throughout the life of the test, as
well as ensuring relevant communication to both sites was sustained.
Addendum:
Following feedback at the Manukau presentation on the review findings, some changes were made to
this paper to explain what periods of data were being compared. Corrections to data were also made to
ensure the same periods were being compared.
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1. Background
1.1 Summary procedural changes being tested
In the last 10 to 20 years criticism of criminal procedure in the District and High Courts has been building
around three main issues:
• unnecessary complexity of the legislation (for example, in order to determine the progress of a
criminal case through the courts, it may be necessary to refer to three or more statutes)
• further short-comings of the legislative framework arising from piecemeal amendments and failures
to keep up with new requirements for justice (including, for example, the Bill of Rights Act 1990)
• unnecessary delay and inefficiency of court processes.
The Criminal Procedure (Simplification) Project was designed to review and implement improvements
to, criminal procedure in the summary and indictable jurisdictions as a joint project between the Ministry
of Justice and the Law Commission.
The key objectives of the project are to:
a) reduce court delay via legislative and operational change
b) create an accessible and simplified criminal procedure.
A collection of proposed changes to the summary court process were designed as a package to test
their combined effect on the court process. The changes focused on the first two stages of the
summary court process; the list court and status hearing stage. Two courts, Manukau and Tauranga,
were selected to test these processes, which commenced on 14 July 2008.
Criminal cases begin in the administration phase. As a general rule, events that occur in later stages,
by their nature, take progressively longer and use more court resource. 3 Therefore, relatively small
percentage differences in the timeliness of case disposals in the administration stage have an impact on
timeliness in the later stages of the court process, due to the volumes of work involved. The more cases
disposed of in the administration stage, the less unnecessary delay and the more efficient the court is.
Accordingly the proposals focussed on the front end of the process. The following process map shows
an overview of the changes tested.
3
Except for the final administration stage (sentencing stage).
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Figure 2: Testing of changes to summary court process
Testing of changes to summary court process
Testing of Differentiated caseflow management:
Criteria will be developed for filtering cases through
different procedural tracks in the summary court process.
Administration
Stage
- List Court
Case Memo
Testing of
Guidelines on initial Police disclosure
and Instructions to Defence Counsel
Pre-Hearing Stage
- Status Hearing
Defended Hearing
Stage
- Defended
Hearing
Sentencing
Hearing Stage
- Sentencing
hearing
Testing of Case Management Memorandum
(the basis for one of the differentiated caseflow
management tracks)
Simple Summary Track
Extended Summary Track
Three proposals were identified for testing as follows.
• Guidelines on best practice for the provision of initial disclosure for cases in the District Court
and guidelines on best practice to enable prompt instructions to be given to counsel by
defendants. The guidelines clarify the roles and responsibilities of the different agencies
involved in the process (including court registry officers and the judiciary).
• A differentiated caseflow management process (or ‘case tracks’), which is being used to allocate
different types of cases to different procedural tracks setting out events and timeframes to meet
the specific needs of the case.
• A Case Management Memorandum (CMM) to ensure that, in summary cases, parties interact to
progress matters outside of court hearings.
The goals of the testing were to:
• promote earlier guilty pleas and fewer adjournments through improved disclosure and
instructions to counsel
• promote fewer appearances in the administration stage
• decrease time from first appearance to disposal
• ensure judicial time was utilised appropriately, particularly for status hearings.
1.2 Case tracks
The criteria for identifying what track a case should be assigned to is based on analysis of the behaviour
of summary cases and on information gathered on current practice in courts. For testing, it was
proposed to have less serious cases progressing to the simple track and more serious and complex
cases progressing along the extended track. The rationale for the two tracks was that generally:
• serious offences would benefit from early case management discussions by parties because of the
complexities of the offences, and may need judicial input at a status hearing
• cases not serious in nature have matters at issue which are narrow and would not necessarily
benefit from detailed case management, or judicial input at a status hearing.
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The case track criteria are very much guidelines and there is discretion in each case for the judicial
officer or registrar to assign a case to a different track based on the characteristics of that case.
It was originally intended that cases which went along the extended track should not have status
hearings unless the CMM indicated there was a matter (such as a request for sentence indication) that
required judicial intervention. However, for a variety of reasons, primarily relating to court scheduling,
this aspect of the original proposal was not able to be implemented or tested.
1.3 Initial disclosure and instructions to counsel from defendants
Previous case analysis had identified that Police initial disclosure and instructions to counsel from
defendants were among the top five reasons for adjournments in the list court stage in the summary
jurisdiction. 4
The guidelines being tested identified best practice for the provision of initial disclosure and instructions
and intended to clarify the roles and responsibilities of the agencies involved in the process.
The changes included improvements to:
• timeliness of disclosure – initial disclosure, where possible, was to be provided at the first
appearance or where that was not possible (eg, overnight arrests) prior to the second appearance.
• quality of disclosure – identifies what should be disclosed as part of initial disclosure; the
presumption is that all relevant disclosure would be disclosed as part of initial disclosure rather than
waiting for a request for its disclosure. Two types of disclosure packs are available: one pack for the
duty solicitor and one for assigned counsel.
• process – the changes clarified who to contact within Police to get initial and additional disclosure
and created a form of record keeping (Initial Disclosure Receipt Document) identifying what was
disclosed, to whom and when.
• best practice for the number of appearances in the list court stage which, where possible, limits the
number of appearances to two.
The changes are intended to enable proper and timely instructions and advice between counsel and the
defendant; and to allow counsel and the defendant to be fully informed so that a plea can be entered
and decisions can be made in respect of the next hearing event. Sufficient and timely disclosure also
assists defence counsel to identify what is in dispute and carry out any charge discussions with
prosecution, if appropriate.
It was also proposed that some defendants when they are aware of the case against them, if guilty, may
plead guilty, thus resulting in guilty pleas being entered earlier in the process.
The Guidelines on Instructions and Disclosure applied to all informations laid by Police in the criminal
summary jurisdiction. Currently, the guidelines are drafted as a standalone document.
Suggested best practice for the list stage is a recommendation of two events and a period of two weeks
(ie, first appearance and an adjournment for the maximum of two weeks, if required, and then the
second list appearance).
4
Casefile analysis of reasons for adjournments captured at part of the Ministry of Justice’s Service Improvement
Programme.
15
1.4 Cases excluded from testing
Police gave the disclosure package in all summarily laid cases at both sites. Overall, the disclosure
package was given in 10,990 cases (4,060 at Tauranga and 6,930 at Manukau).
Cases that proceed past the administration stage 5 are those that would benefit the most from
improvements to the summary court process. The majority of summary cases in Manukau and
Tauranga District Courts are disposed at the administration stage (approximately 90 percent in
Tauranga and 80 percent in Manukau). Therefore, the potential cases that could have gone through the
case track process was 297 cases (around 10 percent) in Tauranga and 1478 cases (around 20
percent) in Manukau. The case tracks applied to Police summary prosecutions except domestic
violence cases and cases involving self-represented defendants.
Some cases were not included in the testing (other than disclosure changes) because they are dealt
with by other processes:
• infringement offences
• charges laid indictably
• cases referred to a family violence court
• domestic violence related cases
• cases indicated early on in the process (the list phase) as being considered for either Police or
judicial diversion
• cases disposed of in the list stage of the process
• cases where trial by jury is elected in the list phase
• cases where the defendant is self-represented
• cases filed by other prosecuting agencies (eg, Ministry of Fisheries, Inland Revenue)
• cases proceeding under the Criminal Procedure (Mentally Impaired Persons) Act 2003
• cases referred for procedures under the Intellectual Disability (Compulsory Care and Rehabilitation)
Act 2003.
After the excluded cases were removed, 207 cases in Tauranga and 664 cases in Manukau progressed
along the case tracks. This works out at approximately 50 percent of the cases that went past the
administration stage over the six months of testing.
1.5 Agencies involved in testing
The nature of court business is that any changes to process will impact on a range of participants.
While the simplification project is a joint project between the Law Commission and the Ministry of
Justice, the project’s success lies with a ‘court community’ approach.
As well as a commitment from both court sites to support the testing, the process changes required a
firm commitment from New Zealand Police and the Legal Services Agency as test partners.
•
New Zealand Police was involved in the design, implementation and testing of disclosure. In
addition, New Zealand Police provided prosecution resource to handle appointments and meetings
as part of the extended track, as well as support for provision of the disclosure packs.
•
Legal Services Agency agreed to vary its legal aid payments at the sites to ensure defence counsel
were adequately remunerated for their time and effort in undertaking the new process (both in court
time and out of court time) and ensure there was no financial incentive to opt out of the changes.
5
The Administration Stage includes Judges and Registrar lists which are generally known as list appearances. At
this stage pleas are entered, bail is applied for and initial disclosure is provided.
16
2. Purpose of testing
The purpose of testing new processes prior to any wider implementation is to ensure the theory can be
implemented in practice. Testing processes also allows refinements, unintended benefits, or further
benefits to be identified prior to drafting legislation or any wider roll-out. In addition, it also ensures the
intended benefits are achievable.
The aim of the simplification package of proposals was to test whether these processes could:
• reduce the number of court appearances required for a case to be disposed
• reduce the number of adjournments (particularly related to disclosure)
• reduce the time to disposal (at the point of guilty plea)
• reduce the use of judicial time (through ensuring parties discussed matters between themselves)
• understand whether out of court discussions and memorandums facilitate earlier case resolution.
3. Purpose of six-month review
An initial (three months) assessment of the project was completed in December 2008 and a report
written outlining the results to 14 October 2008. That report indicated there were improvements in both
the simple and extended track processes in both courts in terms of average age to disposal and the
number of appearances in the administration stage. However, the number of case disposals completed
by the three-month assessment was relatively small, making it too early to draw any definitive
conclusions about outcomes.
The six-month review (ie, 14 July 2008–14 January 2009) is intended to provide broader and more
comprehensive analysis of the effectiveness of the simplification changes, and includes qualitative
interviews with participants reflecting on their experiences to date.
Successful completion of the six-month review will include –
ensuring that business partners, stakeholders and users:
a) accept the methodology of the review
b) accept the results of the review
c) have confidence in any decisions based on the results;
identifying:
d) the impacts of the testing on the court system
e) any implementation issues and / or improvements for future roll-outs
f) the impacts of the changes on partner agencies
g) the views and experiences of those interviewed.
17
4. Methodology
4.1 Quantitative analysis
The quantitative analysis includes comparison of the cases in the six months of testing against the
following comparable data sets
• overall summary caseloads for:
o all cases in the period of testing (test and non-test cases)
o all cases in the six months prior to testing
o all cases in the same six month period from the previous year
• baseline data of comparable cases to those in testing, six months prior to testing
• results from the three-month review report on the changes tested.
This methodology was adopted because it ensured that increases in workload and seasonal variations
(ie, impact of Christmas period on case behaviour) were able to be taken into account. For example,
during the test period in both Tauranga and Manukau there was a significant increase in the number of
summary cases (14 percent Tauranga and 11 percent Manukau) many of which were more serious
offences. 6
The review also includes analysis of overall trends in the summary court workload (new business and
cases on hand). This has been included because increases and changes in court workloads impact on
the court’s ability to cope with, or be able to dispose of, cases efficiently. Therefore, it can be difficult to
assess the total benefits from any testing of processes when workload increases impact on the capacity
within each court (judicial, registry and facility resources). Environmental factors can mean benefits are,
to some extent, tempered.
4.2 Qualitative research
Qualitative research was undertaken to provide insights into the experience of those involved in the
implementation and running of the test package over the six-month review period.
The Ministry conducted interviews with a total of 30 participants from both test sites, including court
staff, Police prosecutors, defence counsel, legal aid staff and judicial officers. Participants were
selected to ensure a representative range of views from those involved. The majority of interviews were
undertaken in person, however some were conducted by telephone. Each interview took approximately
one hour each. All interviews were conducted by two members of District Courts National Office Service
Design team who were independent of the project.
The qualitative research is attached at Appendix one.
4.3 Issues with methodology
A more in-depth review of the baseline data conducted after the three-month review revealed that
around 40 percent of the cases used as part of that data set did not meet the criteria for the
simplification testing. For example, one of the cases contained an indecent assault (summarily laid)
charge which would be included in testing and a fail to answer bail charge which is not a main offence
for cases included in testing. In this example the fail bail charge was used and the assault charge was
not captured as part of the baseline data set.
6
Increase in new summary business coming before the court at the time of testing.
18
There are two types of cases that ended up being included in the baseline data set that will impact the
averages derived from the data set:
1. cases that are minor and disposed in the administration stage (these cases are not included in the
testing of the case tracks)
2. cases that are minor and likely to trail more serious charges (eg, the fail to answer bail charge
trailing a serious charge).
Having a reasonable proportion of the baseline data set including charges that are not similar to the
cases in the test poses challenges when comparing the two. Including these types of cases skews the
baseline data set in respect of both time to disposal and numbers of appearances. For example, having
a reasonable percentage of cases disposed in the administration stage will reduce the overall time to
disposal of baseline cases, and having trailer cases included is likely to result in longer time to disposal
of cases because they take longer to dispose of as they are following serious charges.
It is possible the effect of these two types of cases could cancel each other out, or alternatively one will
have more impact that the other. For completeness therefore, we have compared the six-month test
results to the different data sets listed above.
19
1. Caseload trends
1.1 Workload trends over the last few years
Manukau’s summary caseload has been increasing since 2005. Analysis of Manukau District Court’s
workload over the last few years shows a steady increase, with an 11 percent increase in new criminal
summary business coming before the court in the last six months (with a peak of 9,000 new cases in
January 2009). However, disposal rates over the test period compared to the same period last year
shows that Manukau has seen a reduction in the number of cases disposed over the 6 month period.
Table 3: Manukau District Court cases disposed July 2007 to January 2009
Manukau number in each stage and percentage of cases disposed in
comparable six month periods
Period and total
number of cases
Administration stage
Status hearing
Defended
hearing
July 07 – Jan 08
7038 cases
7038 cases in stage
1736 cases in stage
891 cases in stage
5302 cases disposed
75%
845 cases disposed
49%
891 cases disposed
100%
6930 cases in stage
1478 cases in stage
995 cases in stage
5452 cases disposed
79%
483 cases disposed
33%
995 cases disposed
100%
July 08 – Jan 09
6930 cases
There has been an increase in the number of cases disposed at the list stage by 4 percent but a
reduction in the number of cases disposed at the status hearing stage by 16 percent, resulting in more
cases going through to defended hearing.
The total number of summary cases on hand peaked at the beginning of 2008 at 3,300 summary
cases. Manukau’s cases on hand over the six month period have increased from around 2,538 from
the beginning of testing to over 2,938 cases.
Figure 3: Manukau District Court total criminal summary cases on hand
Total Criminal Summary Cases on Hand
3265
3500
25001897
2000
2249
2482
2938
2687 2759
2538
1500
1000
500
Dec-08
Jun-08
Dec-07
Jun-07
Dec-06
Jun-06
Dec-05
0
Jun-05
Cases
3000
20
In some courts cases on hand peak around December and dip slightly after Christmas. This is in part
due to a larger number of new cases over the November–December period and also because cases
often do not get disposed over the early Christmas period. However, in January the numbers of
disposals start to increase due to changes in plea and cases being withdrawn, resulting in the cases
on hand dipping slightly. This can best be seen in the graph on page 20 with an increase of cases on
hand in December 2007 and dip down towards June 2008. The review of testing occurred during this
seasonal change – it is important therefore that the results of the testing are considered in light of
seasonal variations and their impact on disposals and cases on hand.
Tables 4 and 5: Total criminal summary median age of cases on hand and median time to disposition
Total Criminal Summary - Median Time to
Disposition (6 months ending June/Dec)
55
Jun-06
Dec-06
Dec-07
39
43
Jun-07
36
43
39
29
30
20
10
Dec-08
0
Dec-05
Dec-08
Jun-08
Dec-07
90th Percentile
50 38
40
Jun-05
Median
Jun-07
Dec-06
Jun-06
Dec-05
Days
60
Jun-08
400
350
300
250
200
150
100
50
0
Jun-05
Days
Total Criminal Summary - Median Age of
Cases on Hand
Manukau District Court increased the disposal of cases during this period but has not been able to
match the new business coming in. In part, this has occurred by increasing judicial sitting hours of
cases in the summary jurisdiction. While there was more new business the median time to dispose of
cases reduced from 55 to 39 days. Despite this, the median age of cases on hand stayed stable.
1.2 Workload over the testing period
Manukau District Court had 6930 new cases coming into the court that disposed over the six month
period of the review (July 2008 to January 2009) 7. During this period Manukau disposed of 79 percent
of their summary cases (5452 cases) in the administration stage. The remaining 21 percent entered a
not guilty plea and progressed through the process. Of those, 483 cases were disposed at a status
hearing and the remaining 995 cases had a not guilty plea maintained and went to a defended
hearing.
Figure 4: Manukau summary caseload July 2008 to January 2009
Manukau Summary Caseload
July 2008 – January 2009 (cases disposed)
Administration
Stage
- List Court
6930 Cases
7
21%
Pre-Hearing Stage
- Status Hearing
1478 Cases
79%
33%
Disposed
5452 Cases
Disposed
483 Cases
67%
Defended Hearing
Stage
- Defended
Hearing
995 Cases
Disposed at Defended Hearing or
at subsequent Sentencing Events
995 Cases
A profile of cases disposed in the summary process during the period of 14 July 2008 to 14 January 2009.
21
2. Analysis of cases in testing
2.1 Overview of cases in each case track
Over the six month, Manukau District Court had 6930 new cases which were included in the testing of
changes to disclosure and instructions. Of those cases, 79 percent were disposed at the administration
stage and 664 cases had a not guilty plea entered and were included in the testing of the case tracks.
The 664 cases were captured on check sheets. Of these, 63 went down the simple track and 601 went
down the extended track. The spread of cases across the months are:
Table 6: Manukau number of cases in testing
Manukau: Number of Cases in testing over the six month period
(Captured on check sheets)
Month
Simple
Extended
Total
July/August
27
60
87
August/September
13
123
136
September/October
9
122
131
October/November
8
134
142
November/December
4
90
94
December/January
2
72
74
Total
63
601
664
The diagram below provides an overview of what happened to the cases which went down the case
tracks.
Figure 5: Manukau cases in testing at each stage in six month period
Manukau Simplification Process: Cases in testing in 6 month period
(14 July 2008 – 14 January 2009)
Testing of Differentiated caseflow management:
Filtering cases through different procedural tracks in the
summary court process.
63 Cases with 50 reaching a defended hearing in the 6 months
Administration
Stage
- List Court
6930 Cases
Disposed
5452
79%
601 Cases
Case Memo (outside of
Court Hearing)
601 Issued 277 Filed
Testing of Guidelines on initial Police
disclosure and Instructions to Defence
Counsel
Pre-Hearing Stage
- Status Hearing
260 cases
Disposed
170 Cases
65%
25 cases
Defended Hearing
Stage
- Defended
Hearing
76 Cases
Disposed
31 Cases
41%
Testing of Case Management Memorandum
(the basis for one of the differentiated caseflow
management tracks)
Simple Summary Track
Extended Summary Track
Note: 814 Cases were excluded from testing, the majority because the case commenced prior to testing or the case
was Domestic Violence Related
Sentencing
Hearing Stage
- Sentencing
hearing
1 case
13 Cases that went along
the Simple Track did not
get to a defended hearing
in the period
65 Cases that went to
status hearing were
awaiting a further Status
Hearing or Defended
Hearing
43 Cases that were
scheduled for a Defended
Hearing were not disposed
in the period.
22
2.2 Cases excluded from testing
There were 814 cases excluded from testing that had not guilty pleas entered. At the beginning of
testing the main reason for cases being excluded was that the first appearance was prior to the start of
testing (14 July 2008). These cases were excluded because it would be difficult to show if the initiatives
being tested had impacted on their progression or result. The other main reason for exclusion was
where the offence was domestic violence related and referred to a family violence court. As the family
violence court is underpinned by a different philosophy, the process varies from the intended process for
summary testing.
3 Aspects of testing
3.1. Initial Disclosure
As identified above, the initial disclosure changes affected all summary cases (6930 cases).
3.1.1 Key findings:
•
•
•
•
•
•
•
•
•
•
Overall most participants interviewed were positive about the disclosure changes tested, only
one participant expressed that there had not been any real change.
All interviewees indicated that disclosure was being received earlier. For those cases that
indicated when disclosure was received, 82 percent had received it prior to, or on the day of,
second appearance with 41 percent receiving it prior to, or on the day of, the first court
appearance. The initial receipt document was relatively well received.
Initial disclosure contributed to the low number of appearances per case in the administration
stage, with both sites having close to the recommended number of two appearances on average
(see 3.2.2). The provision of timely disclosure resulted in a decrease in the average number of
list appearances required for all criminal summary cases by 0.7.
The majority of the participants felt that the quality of disclosure had improved. However, a few
participants commented that they needed additional information, such as a list of what is not
disclosed and any DVD / video evidence of the witness or defendant before entering a plea.
Participants commented that whilst pleas are being entered earlier, it appeared that defendants
are still entering and maintaining not guilty pleas.
The new process resulted in both a small increase in guilty pleas at an earlier stage, and a
reduction in number of events needed to enable a plea (both guilty and not guilty) to be entered.
The small increase in guilty pleas is likely to have been impacted on by the increase in types of
offences which are not as likely to resolve because of disclosure (eg, domestic violence, serious
violence, and serious property).
Improved disclosure leading to a reduction in the number of appearances needed in the
administration stage to have a plea entered.
There was also a 4 percent increase in the number of cases disposed with two or fewer
appearances.
Nil or incomplete disclosure was not the main reason for adjournments and only identified in
around 6 percent of cases (see 3.2.1).
Interviewees commented that the disclosure changes had been resource intensive for both the
court and police prosecutors, and that more resources were needed to handle the disclosure
changes.
3.1.2 Timeliness of disclosure
All participants indicated that disclosure was being received at an earlier stage. A defence lawyer said
the process was “far better now” as there seemed to be more focus on getting the disclosure at the start
(of the process). Another defence lawyer said that the new process was good, “you get most of the
disclosure on the first date, and you can quite readily get good instructions from your client and identify
the issues on the day”.
23
A court staff member said that the new process was ”excellent” and that “it’s brought about huge
changes, where disclosure [packs] are getting released almost at first appearance”.
Another defence lawyer said there was now more certainty regarding “what’s going to be there on that
initial court appearance”.
I’ve found that disclosure has been really good. You have it on the first day, so you can make the
appointment on the first day, and you can talk to the Police officer, and obviously instruct your
client accordingly. It has been quite efficient.
Parties were not required to indicate to the court when their disclosure was provided. However, some
identified to the court either the date it was disclosed or provided a copy of the disclosure receipt
document. Of the 663 cases in testing, parties from 140 cases (21 percent) indicated a date when initial
disclosure was provided. Of those cases, 41 percent received disclosure prior to or on the day of the
first appearance and 82 percent received it after the first appearance but prior to or on the day of the
second court appearance.
A member of Police said that the changes had started off really well, but that the impact reduced over
the months of testing. One Police prosecutor said that initially there had been fantastic results but that it
needed a ‘reboot’. However, this individual thought not all changes were due to the pilot but that another
reason disclosure had improved was because “there’s going to be huge effort now made throughout
New Zealand because of the codification of disclosure coming in…all efforts will be concentrated on
getting everyone on stream by the date”.
3.1.3 Quality of disclosure
The initial disclosure changes proposed that all relevant disclosure that can be disclosed, would be part
of the initial disclosure pack for assigned counsel. The process also established two disclosure packs:
an initial disclosure pack for assigned counsel and a duty solicitor pack. Duty solicitors only need as
much information as required to be able to represent the defendant at the first appearance. Having two
packs mitigates the risks that disclosure information is not passed from the duty solicitor to assigned
counsel. The assigned counsel packs are more substantial with everything that can be disclosed at the
time of first or second appearance.
The majority of the participants felt that the quality of disclosure had improved. One court staff member
said the pilot meant Police usually have either a full disclosure or duty solicitor pack (or both) on the file,
something that the Police did not have previously.
A Police prosecutor said that disclosure had improved: “I think that before the project started, and before
the process came in, it was pretty lax actually and I think that caused a lot of the churn…It’s made my
job easier, because when we meet to discuss a case, counsel have already had enough to be able to
talk about it anyway”.
Another prosecutor noted that the introduction of two disclosure packs had been useful: ”I think the
disclosure improved to the extent that the assigned counsel had enough information, even detailed
information to be able to give their clients some guidance and not just simply take instruction”.
While the majority of participants were happy with what was disclosed, some commented on the need
for additional information before entering a plea including DVD evidence and a list of what has not been
disclosed. A member of the defence bar said they want the whole of the Police file:
I have a three-page disclosure letter, and I want everything, and I also put at the end of my
letter, “I want to know what you’re not going to give me.” At the initial disclosure, at the first
24
appearance, you usually don’t get the DVD, and as far as I’m concerned, I’m not interested in
the little disclosure package…that night, I write to the Police with my three-page letter…the
DVD usually arrives after they’ve got my letter. So for me, the disclosure package means
nothing’.
Another defence lawyer felt that a plea could be entered at the first appearance, “however sometimes if
there’s a DVD, you do want to see that [before entering a plea]”.
Two Police prosecutors said that the new process provides sufficient disclosure at the first or second
appearance, but one said that a lot of times:
…our disclosure is probably not what it should be…. they’ll tell or note in the disclosure pack to
counsel that they’ve had an interview with their client on a DVD but that interview’s not
included – they forget to disclose the DVD itself, and counsel obviously want to see what’s been
said, so we do slip up there…but it has helped and I think that if it’s done properly there’s
definitely enough to enter a plea at first appearance.
One member of Police said the main change was a focus on putting as much disclosurable information
in the documents as possible at the front-end, and encouraging staff to be proactive in ensuring they
have evidential sufficiency at the front-end and giving that information:
…maybe change of philosophy for Police. I think at our management level we’ve understood the
philosophies of good disclosure – operationally we might be a little bit slower in coming to
those conclusions that disclosure is a good thing for everyone concerned.
3.1.4 Entry of plea
Participants felt that early disclosure enables a plea to be entered earlier in the process. This is also
shown in the analysis of number of list appearances (see 3.2.2).
Manukau had a high rate of case disposal at the administration stage (79 percent with 56 percent by
way of guilty plea). This is reasonably consistent with the rate of disposal for cases in the same period
the previous year (75 percent).
There was a small increase in the number of guilty pleas entered in the administration stage over the
period of testing (2 percent). This gain is likely to have been impacted by the increase in the number of
domestic violence, serious violence, and serious property cases.
Serious violence, domestic violence and property cases are not likely to be resolved solely by the
provision of improved disclosure, rather if a guilty plea is going to be entered it is likely to be entered
later in the process. In these cases improved initial disclosure often does not promote early admission
of guilt when the resilience of the witnesses can be the turning point for the entering of a plea or the
withdrawing of charges. Delays in these cases getting to fixture can lead to a perceived increase in the
unreliability of the witness and the uncertainty of the evidence in the case.
Three court staff members indicated that the new process provides sufficient disclosure for a plea to be
entered at the first or second appearance, although one thought this could happen regardless. Another
court staff member said they weren’t sure if people were using the process properly, or if it is working,
but that people were still maintaining their not guilty pleas, regardless of disclosure.
To be perfectly honest I think they could have done it without the disclosure… In the old days we
had guilty pleas all the time on the summary facts, whereas now it seems to have become an
industry of its own.
25
Much discussion was had by participants on whether a plea could be entered at first or second
appearance; it was estimated that this occurred 70-90 percent of the time. One prosecutor felt that a
plea could be entered at the first or second appearance.
Nine times out of 10, sometimes it just can’t be done; it’s the nature of the beast.
A defence lawyer said that whether or not a plea could be entered at the first or second appearance
varied depending on the nature of the case.
3.1.5 Process
The establishment of a process detailing whom to contact about disclosure was not identified by
participants as an improvement, although a large number commented on the process overall being
improved.
One member of Police said they thought the previous process was adequate but there was not a lot of
consistency in it:
…it was an ad-hoc process where one officer in charge, or one section would maybe have a
different philosophy and different operational process about what they were disclosing to
another officer in charge, or another section. So it’s provided a consistency for staff who
prepare prosecution files, and a guideline, and a benchmark of what they are meant to be
achieving.
Interviewed participants did not comment on the disclosure receipt documents, which were used for the
initial disclosure packs for assigned counsel as a form of record keeping. However, anecdotally from
representatives in the process involved in teleconferences with the project team, these documents were
being completed and placed on the prosecutors file. Police Prosecutions did not advise that they were
having any trouble getting them signed by counsel.
Court staff said that Police had a receipt form for counsel to sign when collecting the disclosure pack,
which is sometimes handed to the court staff to put on file, “sometimes they don’t, but they usually have
a record that it’s been received”.
3.1.6 Resources
Participants commented that the disclosure changes had been resource intensive for both the court and
Police prosecutors and that more resources were needed to handle the change. A member of court
staff said the new process had required “quite a bit of changing around of how we do things in the
registrar’s list” as well as ensuring the relevant facilities were available for the Police to provide their
disclosure.
A prosecutor said that there had been some fairly testing times in the list court over disclosure aspects.
It is just that we have become incredibly busy and our clerical support is minimal, and we have
mountains of disclosure requests to try and keep up with.
26
3.2 Reasons for Adjournments
3.2.1 Major reasons for adjournments
Prior to testing, adjournments for disclosure and instructions to counsel were common in the
administration stage. However, the Ministry’s Case Management System (CMS) did not capture
reasons for adjournments until late 2008 so analysis was based on a sample of the court files at each
site.
The following bar graphs identify the 10 major reasons for adjournments from the test data:
Figures 6 and 7: Manukau: Ten major reasons for adjournments – first and second events
Manakau - 1st Event
Defendant has no counsel
Warrant to arrest issued
100%
90%
Possible Police diversion
80%
Manakau - 2nd Event
Case enlarged no proof of
service
Legal Aid
100%
90%
Possible Police diversion
80%
Bail hearing
70%
Defendant not available
70%
60%
50%
Legal Aid
60%
Disclosure incomplete (or nil)
50%
40%
Delayed further offending
Counsel not available
40%
Defendant not available
30%
Warrant to arrest issued
Case enlarged no proof of
service
20%
Disclosure incomplete (or nil)
Not guilty to fixture
10%
30%
20%
10%
0%
Not guilty to fixture
0%
1st Event
Not guilty to status hearing
1st Event
Not guilty to status hearing
The improvements to the quality and timeliness of disclosure were thought to reduce the number of
adjournments and appearances needed due to either disclosure or instructions being provided. For
example, a judicial officer said that previously one of the classic grounds for delay, as far as the counsel
for the defence was concerned, was to say that they had not got adequate disclosure.
…we now know [with the disclosure changes] that that is seldom a proper ground for any
further adjournment or remand, unless the case is of some complexity obviously.
A court staff member noted that because counsel is getting disclosure at an earlier stage, the court is
not having as many adjournments.
Court staff captured reasons for adjournments for cases that were adjourned from the first to second
appearance and from the second to third appearance. Twenty-three reasons were captured on the
court file. A large number of cases did not have reasons captured, with just under 50 percent not being
captured at first appearance and around 30 percent at second appearance. This was either due to the
reason for adjournment not being noted on the file at the time of the appearance, or not noted because it
was not clear to the court taker if a reason was given and what it was. In addition, over the test review
period Manukau District Court had a heavy workload which created pressure on their list courts, and
therefore the court taker was not always able to record the adjournment reason.
27
The main reason for adjournments identified at the first appearance and the second appearance was for
the case to go to a status hearing (125 cases for first appearance / 263 for second appearance). ‘Not
guilty to status hearing’ from first appearance remained stable at 54 percent (three months of testing) to
52 percent (six months of testing). This means defendants were able to enter a plea and go to status
hearing from the first appearance.
The second reason was to go to defended hearing (not guilty to fixture). Similar to the status hearing
reason, these defendants were able to enter a not guilty plea and go straight to fixture (29 cases for first
appearance / 14 for second appearance).
Only 14 cases (6 percent) identified that they needed an adjournment from the first appearance to the
second appearance for initial disclosure, and nine cases from the second appearance to the third.
Adjournments due to disclosure increased from the three-month review (3 percent). 8 The increase is
likely to be due to greater focus on improved disclosure, and therefore parties identifying if it has not
been disclosed.
3.2.2 Average number of appearances
The test processes proposed that two appearances at the administration stage should be sufficient for
most cases.
Table 7: Manukau average number of appearances at administration stage
Manukau: Average number of appearances at the administration stage
Simple/Simple type
cases
Extended/Extended
type cases
(electable)
Average
Average
Baseline* – prior to testing
5.3
4.9
Overall Summary workload
6 month prior**
2.3
2.9
Testing after 3 months –
Average No. of appearances
in admin stage
1.8
2.3
Testing after 6 months –
Average No. of appearances
in admin stage
1.8
2.2
* Baseline - data of comparable cases to those in testing six months prior to testing.
** Overall - all summary cases six months prior to testing, showing average number of administrative events.
The data above shows that the number of appearances have stayed stable over the whole of the six
months with an average of 1.8 appearances in the simple track and 2.2 appearances in the extended
track. The average number of appearances in the extended track has reduced in the second half of the
six month period to result in an average of 2.2 appearances. This low number of appearances in the
administration stage will have been, in part, due to improved disclosure and improved assignment of
legal aid to defendants.
8
Disclosure being nil or incomplete was not identified in the top ten reasons for adjournments in the baseline
sample.
28
3.3 Time to Disposal
3.3.1 Key Findings:
•
•
•
•
•
There was a reduction in average time to disposal for cases in testing, sustaining the
improvements seen in the three-month review of testing
These results represent a minimum reduction in the average time to disposal over the test period
of 23 percent (17 days) in Manukau for extended track cases disposed at a status hearing.
The time to disposal has reduced by at least 20 percent when compared to the baseline cases or
the summary workload prior to testing.
Cases that were disposed at a defended hearing along the extended track took longer than a
case disposed at a defended hearing on the simple track.
The majority of disposed cases in testing were disposed at status hearing (170 cases).
3.3.2 Average time to disposal
In summary, the test package reduced the average time to disposal for cases in testing, sustaining the
improvements seen in the three-month review of testing.
The average time to disposal for cases disposed at status hearing in the extended track has remained
stable at 60 to 61 days. This shows the time to disposal, which was seen by participants as an
improvement in the three month review is still being realised in the second half of the six months where
cases that started in the first three months that took longer to dispose were disposed. Similarly cases
disposed on the simple track at defended hearing have been comparable with 74 days on average in the
three-month review and 79 days on average for the six-month review. As expected, cases disposed at
a defended hearing along the extended track took longer than a case disposed at a defended hearing
on the simple track.
Table 8: Manukau average age of disposal from first appearance
Manukau: Average Age of Disposal (days) from first appearance
Baseline
Baseline* –
comparative
cases
Overall**
Summary
workload
prior to
testing
period
Testing 3
months (14
July–13
Oct)
Testing 6
months
(14 July–
14 Jan)
Status Hearing
Stage
78
98
60
61
Defended
Hearing Stage
194
154
0
111
Final Admin
Stage
N/A
N/A
0
120
Defended
Hearing Stage
131
141
74
79
Track
Stage
Extended Track
Cases
Simple Track
Testing
* Baseline - data of comparable cases to those in testing six months prior to testing.
** Overall - all summary cases six months prior to testing, showing average number of administrative events.
These results represent a minimum reduction in the average time to disposal over the test period of 23
percent (17 days) in Manukau for extended track cases disposed at a status hearing.
The time to disposal has reduced by at least 20 percent when comparing the six month time to disposal
for cases at status hearing or defended hearing to the baseline cases or the summary workload cases
heard prior to testing.
29
3.3.3 Stage of case disposal
The breakdown of where cases were disposed in the 6 month period is identified below. As can be
seen from the tables that there were 31 cases disposed at defended hearing.
Table 9: Manukau: Disposal stages of simple track
cases
Manukau: Simple Track cases –
Disposal stages
Stage
Table 10: Manukau: Disposal stages of extended
track cases
Manukau: Extended Track cases Disposal stages
Number of
cases
Stage
Number
of cases
Pre-trial stage
0
Pre-trial stage
170
Defended hearing stage
21
Defended hearing stage
10
Final administration stage
(sentencing)
0
Final administration stage
(sentencing)
1
3.4 Case Tracks
3.4.1. Key Findings:
•
Most respondents considered that the different case tracks were useful.
Simple track
• There were 63 cases that went down the simple track.
• Early on in the testing there had been some confusion with deciding which cases should go
down which track, and this influenced the high number of electable cases going down the simple
track.
• Participants seemed to have mixed opinions on the simple track process.
• Those participants who agreed with having a simple track agreed with the track’s case mix.
• Of the cases that went down the simple track, 80 percent had a defended hearing (50 cases).
• Of the cases that had a defended hearing, only 6 out of 21 were disposed after evidence was
considered and the cases were dismissed.
• Concern was raised by a participant that cases along the simple track were likely to fall over on
the day of the defended hearing (by guilty plea on the day or charges withdrawn). This has been
realised with around 71 percent of the cases that went to defended hearing being disposed
through a guilty plea or charges withdrawn.
Extended track
• There were 601 cases that went down the extended track.
• Participants indicated that counsel requested some summary cases go down the extended track.
• Most participants thought the extended track worked well, however, most also indicated concern
that counsel were not fulfilling their obligations and that the process was designed to get counsel
to do something they should have been doing anyway.
• A participant identified that the extended track freed up quite a bit of status hearing time.
• Suggestions were made for domestic violence, benefit fraud and indictable issues to be included,
while one individual noted it would be inappropriate to include self-represented cases due to the
discussion and negotiation process with police prosecutors.
3.4.2 The purpose of two tracks
As identified in the introduction, the purpose of two case tracks was that cases proceed to appropriate
court events. The simple track was for cases that were simpler in nature, such as summary cases
where there were no complex legal issues and that if a not guilty plea was entered could go to defended
30
hearing. In comparison the extended track was for complex cases where parties were expected to
discuss what was in issue and any disputes or legal issues would be indicated on a CMM and, if
needed, discussed at a status hearing. The CMM meeting on the extended track also provided an
opportunity for charge discussions and for counsel to indicate if they would like a sentence indication.
The case track criteria determining which cases goes down which track was very much a guideline, and
there was discretion in each case for the judicial officer or registrar to assign a case to a different track
based on the characteristics of that case.
Most respondents from Manukau thought the purpose of the different tracks was to progress cases
through the court system more efficiently. There seemed to be a reasonably good understanding
amongst participants as to how the different tracks assisted this. Most respondents also considered that
the different case tracks were useful.
3.4.3 Simple track
There were 63 cases that went down the simple track, the majority of these cases were summary cases
(58 percent) and the remainder electable. Early on in the testing there had been some confusion in
deciding which track cases should follow which influenced the high number of electable cases going
down the simple track.
Table 11: Manukau: number of cases on simple track
Manukau: Simple track
Month
Electable
Summary
Total
July/August
11
16
27
August/September
5
8
13
September/October
4
5
9
October/November
4
4
8
November/December
1
3
4
December/January
2
0
2
Total
27
36
63
Participants seemed to have mixed opinions on the simple track process; some thought it worked well
and removed unnecessary hearings, while others said it was not much different from the previous
process.
One court staff member said the simple track allowed them to put cases in for hearing with minimal
effort on the part of everybody involved “so they get there quickly, while the complicated track means
that those cases that need intervention can have it and that a more formal process can be gone through
to look at the types of charges, and make sure the charges or evidence can be admitted”. Another court
staff member thought the purpose of having two tracks was “so that when they go to the status hearing
it’s because they’ve actually got issues that could be resolved”.
I actually think, and having worked in registrar’s court, that most of this stuff should go
through the status hearing, through the extended track. We have certain cases that don’t go
through the extended track, and I've had requests for them to go through the extended track by
counsel, because they feel that a meeting with the prosecution could actually resolve a case
which would normally have gone straight to a defended hearing… so I've set that down on my
own initiative through the extended track rather than putting it straight through to the simple
track.
31
One court staff member thought that the simple track worked well, especially for cases such as driving
charges, as defendants go straight to a defended hearing, and get the dates straight away. This person
said that the simple track stops lawyers ‘parking’ cases in the status hearing court, “and then the
defendant knows that the next time they appear in court that they should be getting their hearing and
their matter should get dealt with”.
A defence lawyer said that the simple track was a “just a common sense thing – if you want to enter
pleas early, or if you want to go straight to a defended hearing, then you should have that option”.
Another lawyer did not think that the simple track was useful, partly because it does not allow for a
sentence indication.
Another lawyer, who did not understand the difference between the two tracks, said that sometimes a
judge will say that a matter is going straight to a defended hearing, but they will call the Police and
organise to meet regardless.
A Police prosecutor said the benefit of the simple track is relevant cases go to a hearing “and you are
not wasting any more court time by an unnecessary intermediary step”.
Case mix
Those participants who agreed with having a simple track also agreed with the track’s case mix. One
lawyer thought the simple track was useful for cases such as drink driving:
because a lot of those cases the client just needs to confirm what the charge is going to be on the
day, so we then make sure there’s no defences…once the charges are confirmed the next thing
they want to know is the sentence, so the simple process sort of answers all those questions
quite effectively.
This person also said they did not necessarily think there were any disadvantages, although “maybe the
odd case slips through that should have a probation report done that doesn’t get done”.
A member of Police also thought the cases included were on the right tracks, as did another defence
lawyer.
Defended hearings
Of the cases that proceeded down the simple track during the six-month period, 80 percent had a
defended hearing in this period (50 cases). The majority of these cases had their defended hearing
adjourned to another hearing date outside the six-month period (29 cases) and the remaining 21 cases
were disposed in the timeframe. Anecdotally, a reasonable percentage of the cases that required
another defended hearing were because the defendant absconded and a warrant to arrest had to be
issued.
32
Table 12: Manukau: Defended hearing outcomes for simple track cases
Manukau: Defended hearing outcomes for the summary cases
(simple track type cases)
Disposal type
Number of cases
Guilty plea
7
Withdrawn by leave
6
Evidential guilty
0
Evidential dismissed
6
Guilty Plea / Charge(s) withdrawn by leave
2
Another defended hearing was needed
29
Total
50
Concern was raised early in the proposal stage that cases along the simple track were likely to fall over
on the day of the defended hearing (through either guilty pleas or charges withdrawn) as there had been
no judicial involvement at status hearing or discussions between parties at a CMM-type meeting. The
data above shows that of the cases disposed at defended hearing only 6 out of 21 were disposed after
evidence was considered (evidentially dismissed). The other cases were disposed by way of guilty plea,
charges withdrawn or both. Around 71 percent of the cases that went to defended hearing were
disposed through a guilty plea or charges withdrawn.
This concern was also reiterated in the interviews by a member of the court staff who commented that
the simple track was not working well, “these are cases that we’ve put 25 hours down for, and then a lot
of them come to the day, they’re finished before lunchtime…when we get to court, they’ve all decided to
plead guilty, or the charges have been withdrawn. So now we’ve wasted half a day”.
3.4.4 Extended Track
Overview
There were 601 cases that went down the extended track. Of the 601 cases, 42 percent were electable
cases (252 cases), and 58 percent were summary cases (343 cases). As identified above, some
confusion around which cases go down which track and requests made by counsel to go down the
extended track have resulted in a high percentage of summary cases in this track.
Table 13: Manukau: Number of cases in extended track
Manukau: Extended track
Month
Electable
Summary
Total
July/August
42
18
60
August/September
76
47
123
September/October
62
60
122
October/November
45
89
134
November/December
22
68
90
December/January
11
61
72
Total
258
343
601
Most participants thought the extended track worked well, however most also indicated they were
concerned that counsel were not fulfilling their obligations and that the process was designed to get
counsel to do something that they should have been doing anyway.
33
A defence lawyer said they thought the extended track is for “where you want to explore avenues of
resolution, negotiate deals…where dialogue with the Police would be useful. Whereas the shortened
track is either an absolute watertight defence and you just go straight to a defended, or you enter pleas”.
Another lawyer thought the purpose of having two separate tracks was to allow for certain more complex
cases, or where clients might have personal issues which require more preparation or more of the
court’s time.
Benefits
A court staff member said the extended track freed up quite a bit of status hearing time, “we previously
had cases going to status hearing that didn’t benefit from it, and by placing them on a simple track they
just didn’t go down there”. This person said that other advantages of the extended track are that lawyers
and prosecution get together and discuss the case before it gets to status hearing, “which is how status
hearings were meant to be when they were brought in thirteen years ago”.
Another court staff member said that the extended track works, “but I still think there’s an element of
counsel that are just parking it there, rather than dealing with it perhaps when they could”.
One person said that disadvantages of the extended track are that they should have been doing it
without the memorandum anyway, and:
…all we try to do is use a four-page document to try to get the lawyers to do what’s always been
their job and what they’re being paid to do by Legal Services. The system is, again, being
engineered to overcome the problems of the law profession, which has been a major problem
for Manukau for years and years and years.
I don’t know what the statistics are, but generally the ones I have had have gone down the
extended track with the interview etcetera, have all been resolved.
A defence lawyer said that a clear benefit of the pilot is it places more pressure on lawyers to be
organised, and that consequently status hearings have operated more the way they were designed to:
everyone at Manukau is really overworked – under the old system people used to turn up to
status hearings really unprepared, they’d have a two minute conversation with the prosecutor
in court before the status hearing, and you couldn’t have any meaningful discussion…whereas
now, you tend to be a lot more organised when you get to the status stage.
I think it’s a vast improvement on the old system, but it’s definitely got a few things that need to
be ironed out.
Case mix
There were also mixed views on the cases that have been and should be included in the tracks.
Suggestions were made for domestic violence, benefit fraud and indictable issues to be included, while
one individual noted it would be inappropriate to include self-represented cases due to the discussion
and negotiation process with Police prosecutors.
A member of court staff said that there had been requests for cases to go through the extended track by
counsel, because they considered that a meeting could resolve cases which would normally have gone
straight to a defended hearing. Another member of court staff said they thought that all matters should
go down the extended track, ‘because what we have seen happening is the matters that have gone
down the simple track to a defended hearing are either pleading or being withdrawn’.
34
3.5 Case Management Memorandums (CMMs)
3.5.1 Key Findings:
•
•
•
•
•
•
•
•
•
•
•
•
•
Participants noted difficulties in filing the CMMs and the court receiving them late or not at all.
A large percentage of CMMs were not filed with the court; the majority of these would have been filed
outside the timeframe, or not filed before the status hearing because defence counsel did not
complete it, or it was not provided to the court because the defendant absconded and a warrant to
arrest was issued.
A member of Police noted that it was hard to get defence counsel to meet and discuss the CMM.
Three-quarters of the CMMs filed were completed by both Police and counsel.
Almost all participants had a clear understanding of the purpose of the CMM, with minor variations.
It was noted by participants that the timeframes for meeting on the CMMs and the discussion helped
with the status hearings.
Only 39 percent of the CMMs were filed within the required time period (three weeks prior to the
status hearing). The remainder were filed out of time. However, the first available date for status
hearings in the second half of testing was shorter so status hearings were able to be scheduled just
over three weeks out from the list appearance, which would give little time to file the CMM.
Also in the second half of testing Police held off on filing the CMM in time if there was a chance they
could still meet with defence counsel and file the CMM prior to the status hearing.
74 percent of CMMs analysed requested sentencing indications, and 76 percent of those entered a
guilty plea to one or more charges at the status hearing or subsequent list appearance.
60 percent of the CMMs indicated changes in plea (intimated guilty plea) or charges withdrawn or
amended resulting from charge discussions.
The amount of the CMM completed varied. For example, a defence counsel said that they always
use CMMs but don’t fill out a lot.
52 CMMs included a statement of what was “in issue”. The reasons given in some cases were quite
candid or quite vague – “Everything is in issue.” The main reason given was identification of a mental
element such as intent which was in dispute.
30 CMMs included identification of either suitable or unsuitable dates for the defended hearing.
However, none of them had contacted the registrar to arrange a defended hearing date prior to the
status hearing. Therefore, the CMMs were not being used effectively to reschedule the status
hearing to a defended hearing date. The difficulties of the court doing this on the papers are likely to
have influenced counsel not completing this section of the CMM.
Of the CMMs which were likely to go on to a defended hearing, 54 percent consented to either a
further custodial remand until the defended hearing, or continuation of the conditions of bail until the
defended hearing date (13 CMMs).
3.5.2 Summary
CMMs were issued in 601 cases. Of those, 277 were filed in the six-month period, with the remaining
either filed outside the review period or not filed at all. The majority of the CMMs that were not filed
were either filed outside the timeframe, or not filed because defence counsel did not complete it, or it
was not provided to the court because the defendant absconded and a warrant to arrest was issued.
(Often Police were keen to have the CMM discussion to see if a case could be resolved and this
accounted for some of the filing out of time.) Of the 277 CMMs filed, 75 percent (207 CMMs) were
completed by both counsel and Police, or had counsel involvement in their completion.
3.5.3 Purpose and benefits of the CMM
Almost all participants had a clear understanding of the purpose of the CMM, with minor variations.
However, some participants did not understand how the process was meant to work – and not all of
these people were aware that their understanding was incorrect.
35
It was apparent that the CMM is not always used, with only two Police prosecutors and one defence
lawyer saying that they always use the CMMs. It was also evident that Police prosecution had some
difficulties getting counsel to take part in the meetings, particularly in a timely manner, which had
affected the process and also put more pressure on court staff.
A court staff member considered the document was to set out relevant information for discussion and
resolve issues prior to status hearings, and another said it was to document what was discussed at the
meeting between prosecution and counsel. Another court staff member said the memo was to focus
prosecution and counsel discussions on relevant issues and also to provide the judge with clear and
succinct information; another said that it was to determine whether there could be negotiation on the
charges.
However, one court staff member, who said they attended the launch, still was not ‘100 percent’ sure as
to the purpose of the CMM, and said that other staff had been too busy to provide further explanation.
A defence lawyer thought the CMM was a record of the meeting between the prosecution and the
defence, which their firm used so that if someone who was not present at the meeting attended the
status hearing “there’s a record of what’s been said”, and the same would apply to prosecution. One
defence counsel said the CMM was to “inform the court”, and another said it laid out how the case was
going to proceed. A police prosecutor said:
…the memorandum is hopefully to focus prosecution and defence on their responsibilities and
use that process to document a negotiated settlement, so when it does come to court you are not
going to get any delay and the issues have been sorted out and the judge can just rubber stamp
it…he can look at the process, it is clear, it is documented, he can either agree or disagree with
it.
It’s trying to free up Court time, it’s trying to get Police and defence to commit to a path of
where they are going with contentious stuff and trying to focus the minds of both parties earlier
in the process about what are the issues.
There were varying views of the benefits of the CMMs within each court. For example, a court staff
member said that the memorandum:
…clearly provides a starting point for both parties, that is prosecution and defence, to highlight
issues, to discuss, to agree on things, and if used properly…gives the judge a better idea of what
discussions have taken place, which could shorten the time in court for a judge.
One prosecutor said the CMM is “for the Police and prosecution and defence counsel to guide them in
what information is needed for court”. Another prosecutor remarked that it was “really just to get the
parties talking like they used to”. This participant said the questions in the memo are reasonably good,
and that “it allows you to come to some form of resolution on the form, and at least simplify things for the
judge at the status hearing”. A third prosecutor said the CMM is useful if it works in the right way, “if both
participants go into it with the right mindset”.
A member of the judiciary said the CMM is useful if properly done.
A Legal Services Agency (LSA) staff member said that the CMM was “to have everything in writing
that’s gone on between counsel and prosecution so that when you get in there the judge has already
seen it or a decision has already been made”.
36
3.5.4 CMM meetings
The testing changes at both sites had a local process for discussions between Police prosecutors and
defence counsel to enable the completion of the CMM. The process included a Police prosecutor
identifying dates and times when they were available to defence counsel at the appearance where a not
guilty plea was entered. In Manukau this information was provided in a yellow folder kept at the back of
the court room.
Police prosecutors have noted that while some defence counsel did make and keep CMM meeting
appointments there was often a reliance on Police to ensure the appointment was booked and took
place.
Three defence lawyers and a Police prosecutor said that the set timeframes for discussions and filing of
CMMs assists with the progress of a status hearing. One prosecutor said that “if you don’t make that
appointment, you will just never talk to them [counsel], because you just get too busy”. Another Police
prosecutor indicated that the more time you give the better the process can be.
The challenge in the timeframe is getting defence to the meetings, but I think in principle we are
not struggling with our obligations within the timeframe.
One defence lawyer said they would look at the disclosure and if they saw there was a defence they
would tell their client “’I think you’ve got a defence, let’s go for it.’ But, I’d give them the other option too,
and ask them if they wanted to see whether we negotiate”. This person said that often during the
negotiation, the prosecutor will be able to acknowledge that they have a defence and so they can enter
into negotiations taking that into consideration, and “so we’d offer something to the client and say – do
you want to go through the stress and do the simple track, and go for a defended hearing, and still take
a chance. Or, do you want to take a deal, which could be diversion or something quite small”.
A Police prosecutor said there is no way of getting counsel to come to meetings. This person said they
thought the LSA could be involved in some way, as:
…at the end of the day, counsel don’t have to participate. They seem to be able to just do what
they want, and the whole thing falls down if they don’t participate.
3.5.5 Filing time of CMMs
The testing required the CMM to be filed with the court three weeks prior to the scheduled status
hearing. Police Prosecution Service was responsible for ensuring that the completed CMM was
returned to court by the due date. The average time taken to file a CMM was 25 days. However, only
39 percent of the CMMs filed were filed three weeks prior to the status hearing. The remainder were
filed out of time.
One court staff member noted that there was an issue in receiving the CMMs, and said they were quite
often getting theirs the day before. This person commented that previously there had not been the
capacity to chase these up, but a new staff member would assist with this. This participant also noted
that if counsel were not getting in contact, the Police were not filling in a CMM.
Basically what the Police were doing is if the counsel did not contact them they weren’t filling
one in. Also then the prosecutors that we had doing the project really really pushed for these
CMMs to be filled, ought to be filled out, and so that’s why I was receiving them so late, because
they were giving counsel more opportunities...like they’d hold an interview the day before…And
so our prosecutors, and they’d come up to me and say these are for tomorrow, we’re sorry, but,
you know, just saw the lawyer yesterday.
37
For the purposes of analysing the CMMs, if a filing date was not noted when the CMM was issued or
filed, the issued date was allocated to the list appearance where a not guilty plea was entered, and the
received date was allocated the date the CMM was signed. If the CMM was not dated, the CMM could
not be analysed and therefore does not appear as filed on the graph below.
Figure 8: Manukau change in CMMs issued and received
160
140
Number
120
100
CMM
Issued
CMM
Received
80
60
40
20
Au
gu
st/
Se
pt
em
be
r
Se
pt
em
be
r/O
cto
be
r
O
cto
be
r/N
ov
em
be
r
No
ve
m
be
r/D
ec
em
be
r
De
ce
m
be
r/J
an
ua
ry
Ju
ly /
Au
gu
st
0
Months
Approximate time taken for the completion of the CMM was:
• 23 days (3 weeks 2 days) in July/August
• 25 days (3 weeks and 4 days) in August/September
• 15 days (2 weeks and 1 day) in September/October
• 37 days (5 weeks and 2 days) in October/November
• 36 days (5 weeks and 1 days) in November / December
• 32 days (4 weeks and 4 days) in December / January.
The time taken to file the CMM reduced in the first three months which reflected, to some extent, the
responsiveness of counsel and a proactive Police Prosecution Service in Manukau in ensuring CMM
meetings were arranged, and memos were filed. If the CMM meeting could not go ahead the prosecutor
often filed the CMM early. However, in the second half of testing prosecutors wanted to see the benefits
of those discussions and often held off filing the CMM until the meeting could be held. Also the first
available date for status hearings in the second half of testing was shorter so status hearings were able
to be scheduled just over three weeks out from the list appearance, which would give little time to file the
CMM.
38
3.5.6 Analysis of the content of CMMs
A sample of 214 CMMs filed prior to 14 January 2009 was analysed (77 percent of all the CMMs filed). Of the CMMs analysed 74 percent (159 CMMs)
answered yes to whether they would like a sentence indication.
Figure 9: Manukau summary of CMM analysis
74%
128
Requested
a Sentence
Indication
(159 CMMs)
46%
CMMs Issued
601
CMMs Filed
277
Of the159 CMMs requesting a
Sentence Indication 76% (121)
resulted in a change of plea to
one or more charges at a Status
Hearing or subsequent List
appearance
99%
77%
CMMs Analysed
214
1%
Of the 277 filed
- 75% were completed
by Counsel
- 39% were filed within
the required timeframe
(3 weeks prior to Status
Hearing)
212
Requested a
Status Hearing
60% of the CMMs identified
changes in plea or charges
22% had both charges
withdrawn/amended and an
intimated guily plea entered
36% Identified Intimated Guilty
Pleas to one or more charges
1% Identified Charges to be
amended / Withdrawn or were
to be withdrawn in full
2 did not
identify either
way
39
The majority of cases in testing progressed along the extended track with the Case Management
Memorandum (CMM) procedure. As noted above, analysis of the CMMs filed has seen reasonable
compliance with the process; however completion of the CMM content itself was mixed, with many
participants noting it could be shortened. Nonetheless, the CMM process enabled earlier case resolution
through the ability to have charge discussions and request sentence indications.
The amount of the CMMs completed varied. For example, a defence counsel said that they always use
CMMs but do not complete them out in full:
It’s a lot of paperwork you’d have to say. I think you could probably shorten it a lot more.
From memory, really, I don’t fill out a lot. I just sign it and [the prosecutor] basically just fills it
in. We don’t need this; we don’t need that, just cross it out…And I think, at first that was a
stumbling block for a lot of defence lawyers, thinking that they’d to fill it out, and later realising
that it was the prosecutors that did that. But, then again, it’s a burden on them, isn’t it?
Another participant said their use of the CMMs was dependent on how much disclosure they received,
but that if they had full disclosure it was easy to complete. Defence counsel indicated that it takes
around 10 to 20 minutes to complete the CMM. Two defence lawyers said the timeframe allowed for
completion of the CMM was appropriate. One lawyer said “after our discussions it only takes about five
minutes”, another said they took about four minutes – “memos are very quick, it’s good”. One prosecutor
indicated that is takes 10 to 40 minutes depending on the complexities of the issues; another said that
they normally book 15 minute slots. One prosecutor noted the issue with the timeframe was getting
defence counsel to meet.
Charge Resolution
The CMM provided opportunities for earlier charge resolution through the indication of possible changes
in plea or charges which occurred in 128 cases (60 percent) in Manukau. This enabled earlier charge
resolution in 20 percent of those cases on the extended track. During the testing period, in Manukau 33
percent of the overall caseload were disposed of at status hearing, whereas 65 percent of cases subject
to the extended track were disposed of at status hearing (a difference of 32 percent through testing).
Requested a sentence indication
District Courts do not capture whether a sentence indication is requested or granted. If submissions are
requested by the parties for a sentence indication this is sometimes noted in CMS. The CMM analysis
indicated when a request for a sentence indication has been made on the papers and is likely to be
made at a status hearing. While it is not known if a sentence indication was provided there were a large
number of cases where the request was made on the CMM and a change in plea was entered (to one or
more of the charges). Further, the CMM provided the opportunity for the defence to request a
sentencing indication (74 percent in Manukau). Requesting an indication through the CMM resulted in a
change of plea for many cases (76 percent in Manukau resulted in a change of plea).
Requested a status hearing
Of the CMMs analysed, 99 percent (212 CMMs) requested a status hearing with the remaining 1 percent
(two CMMs) not answering the question. The main reason given for going to a status hearing was for a
sentence indication, with 66 percent (139 CMMs) identifying this reason.
The second most common reason for requesting a status hearing was to schedule a defended hearing
(24 CMMs). It has been noted by District Court staff that in Manukau defendants are needed to attend
court to receive their next hearing date. This is due to the transient nature of a majority of the
defendants appearing in court. It is not practical to notify them of appearances in writing, as often the
addresses they provide are no longer current or they do not exist. This prevents the court from being
40
able to schedule a different date of an appearance based on the CMM (eg, adjourning to a defended
hearing, when the scheduled status hearing is not required).
Table 14: Manukau: Reasons for requesting status hearings on CMMs
Manukau: Reasons for requesting Status
Hearing identified on the CMMs
Sentence indication
139
Diversion
10
No contact from counsel
8
Set fixture date
24
Reparation
2
Take instructions
3
Guilty plea
6
Additional disclosure
6
Withdrawn by Leave
1
Not identified
11
Legal discussion
2
Total
212
What was in issue?
Of the 214 CMMs analysed, 52 included a statement of what was “in issue”. The reasons given in some
cases were quite candid or quite vague eg, “Everything is in issue.” To assist in analysis the reasons
have been placed into 11 categories. The main reasons given were mens rea or actus reus/denies
charge, or a dispute as to the identity (ie, it was not the defendant who did it but someone else).
Table 15: Manukau CMMs indicating what was in issue
Manukau: CMMs that indicated what
was in issue
Issue
Total
Defence
1
Defence of Another
2
Dispute of Facts
7
Everything is in Issue
6
Actus Reas/Denies Charge
7
Identity
7
Mens Rea
11
Process
2
Self Defence
6
To be determined
1
BORA
2
Grand Total
52
41
Scheduling the defended hearing
There were 30 CMMs which included identification of either suitable or unsuitable dates for the defended
hearing. However, none of them had contacted the registrar to arrange a defended hearing date prior to
the status hearing. Therefore, the CMMs were not being used effectively to reschedule the status
hearing to a defended hearing date. The difficulties as identified above of the court doing this on the
papers are likely to have influenced counsel not completing this section of the CMM.
Cases going to defended hearing
Of the CMMs which were likely to go on to a defended hearing, 54 percent consented to either a further
custodial remand until the defended hearing, or continuation of the conditions of bail until the defended
hearing date (13 CMMs).
3.6 Status hearings and defended hearings
3.6.1 Key Findings:
•
•
•
•
•
•
Of the 601 cases going down the extended track, 260 cases (43 percent) were scheduled for a
status hearing during the six-month testing review period.
65 percent of cases that had a CMM filed were disposed at status hearing. In comparison only 33
percent of all summary cases that went to status hearing over the six months were disposed at a
status hearing.
A participant commented that the number of cases going to status hearing on the extended track per
day might need to be limited so that judges’ time was not restricted, resulting in better outcomes.
Of the 25 cases adjourned to a defended hearing from the status hearing, ten were disposed at a
defended hearing during the review period, while the remainder were adjourned to another defended
hearing.
Due to the low number of cases that required another appearance after a defended hearing it is too
early to draw any meaningful conclusions on how effective the CMM is in disposing of cases at a
defended hearing.
One court staff member said that advantages of the extended track are more certainty that the
defended hearing will go ahead, and benefits for scheduling purposes.
3.6.2 Status hearing outcomes
Of the 601 cases going down the extended track, 260 cases (43 percent) were scheduled for a status
hearing during the six-month testing review period. Of those, 65 per cent (170) were disposed at the
status hearing and 25 per cent (65) were adjourned to another appearance outside of the testing period
(judge’s list, status hearing or defended fixture). An additional 25 cases were adjourned to a defended
hearing which was heard during the testing period. The remaining cases were disposed of by way of
guilty plea, withdrawn by leave, or guilty plea with charges withdrawn or amended. The table 16 shows
this breakdown.
42
Table 16: Manukau extended track status hearing outcomes
Extended Track Status Hearing Outcomes
Guilty plea/charges withdrawn or amended
41
Guilty plea (conviction and sentenced or discharged)
113
Withdrawn by leave
16
Adjourned to another hearing (outside of period)
65
Adjourned to a defended hearing (inside of period)
25
Total
260
A defence lawyer thought the extended track was working well but there was room for improvement in
some aspects of it:
I think that they need to limit their number of extended track cases per day, otherwise the
judge’s time is really limited and it just distinguishes them from the simple cases.
A member of the judiciary said that the extended track “stutters – we’ve got to go back to the drawing
board when we remand people from the list court once they’ve entered a plea of not guilty, to ascertain
whether a status hearing is in fact going to achieve anything”. The judicial officer said that often at the
status hearing “you find that there was never any intention to defend the case, they just want a sentence
indication…Well you don’t need to go to a status hearing for a sentence indication, you can almost
invariably get it on the spot in the list court”.
3.6.3 Defended hearing
Of the 25 cases adjourned to a defended hearing inside the review period, ten were heard at a defended
hearing during the review period; the remainder were adjourned to another defended hearing or
sentencing list. Because of the low numbers of cases that required a further hearing it is too early to
draw any meaningful conclusion on how the CMM is effective in disposing of cases at a defended
hearing.
One court staff member said that advantages of the extended track are more certainty that the defended
hearing will go ahead, and benefits for scheduling purposes.
Table 17: Manukau extended track defended hearing outcomes
Extended Track Defended Hearing Outcomes
Guilty plea/charges withdrawn or amended
4
Guilty plea (conviction and sentenced or discharged)
3
Evidentially dismissed
2
Proved Guilty
1
Adjourned to a another appearance (outside of
period)
14
Adjourned to a sentencing list
1
Total
25
43
1. Caseload trends
1.1 Workload trends over the last few years
As with Manukau, the caseload in Tauranga District Court has seen a steady increase of 14 percent in
new criminal summary workload over the six months of testing. New business compared to the same
period in the previous year has risen by 24 percent, with a particularly stark increase in cases on hand
being experienced, driven by a spike in new business from approximately July 2008 that was unable to
be met through increased numbers of disposals. This resulted in the significant increase in the numbers
of cases on hand. Cases disposed at the status hearing stage compared with the same period in the
previous year showed that while there was a small reduction in the proportion of cases disposed
(reduced from 63 percent to 58 percent), in number, more cases were being disposed at that stage
because of the increased numbers of new business.
Cases on hand in Tauranga have been increasing for the past few years with a significant amount of the
increase occurring across two periods. The first period was during the later part of 2006 with 852 cases
on hand, an increase from 663 in the previous year. The number of cases on hand then slowed during
2007. Since then there has been a noticeable increase from December 2007 to December 2008 by 55
percent (885 to 1322 cases).
Figure 10: Tauranga total criminal summary cases on hand
Total Criminal Summary Cases on Hand
1322
1400
830
885
Dec-07
660
852
Jun-07
663
Jun-06
800 571
Dec-05
Cases
1000
Dec-06
1200
952
600
400
200
Dec-08
Jun-08
Jun-05
0
The increase in the number of cases on hand has been primarily driven by the increase in new
business received (16 percent over the past 12 months, 30 percent as compared to the 12 months
ending December 2006). Disposals have increased noticeably over the same periods (13 percent over
the past 12 months and 29 percent as compared to the 12 months ending December 2006) but not to
sufficient levels to match or exceed new business received. As shown in the graph on page 45, a
small gap between disposed and new business received can translate into a significant increase in
number of cases on hand.
44
Figure 11: Tauranga: criminal summary new business and disposals
Total Criminal Summary - New Business and
Disposals (6 months ending June/Dec)
5000
Cases
4000
3000
2000
1000
Dec-08
Jun-08
Dec-07
Jun-07
Dec-06
Jun-06
Dec-05
Jun-05
0
Total 6 M ont hly New Business
Total 6 M ont hly Disposals
Table 18: Tauranga number in each stage and percentage of cases disposed
Tauranga: number in stage and percentage of cases disposed in
comparable 6 month periods
Period and total number
of cases
Administration Stage
Status Hearing
Defended
Hearing
July 07 – Jan 08
3269 Cases
3269 Cases in stage
297 Cases in stage
109 Cases in stage
2972 Cases
91% disposed
188 Cases
63% disposed
109 Cases
100% disposed
July 08 – Jan 09
4060 Cases
4060 Cases in stage
421 Cases in stage
175 Cases in stage
3639 Cases
90% disposed
246 Cases
58% disposed
175 Cases
100% disposed
Comparing the summary cases disposed over the testing period with a comparable six-month period
(July 2007–Jan 2008) there has been a 20 percent increase in cases disposed over the period, but the
percentage of cases disposed at each stage has stayed relatively stable. However, there has been a 5
percent decrease in cases being disposed at the status hearing stage, therefore increasing the number
of cases going to a defended hearing (from 109 to 175).
1.2 Workload trends over the testing period
Tauranga District Court had 4060 new cases coming into the Court and disposing over the six-month
period of the review (July 2008 to January 2009). 9 During that period Tauranga disposed of 90 percent
of its summary cases (3639 cases) in the administration stage. The remaining 10 percent entered a
not guilty plea and progressed to the pre-hearing stage for a status hearing. Of those, 246 cases were
disposed and the remaining 175 cases had a not guilty plea maintained and went to a defended
hearing.
9
A profile of cases disposed in the summary process during the period of 14 July 2008 to 14 January 2009.
45
Figure 12: Tauranga summary caseload July 2008 to January 2009 (cases disposed)
2. Analysis of cases in testing
2.1 Overview of cases in each case track
Over the six-month period Tauranga District Court had 4060 new cases which were included in the
testing of changes to disclosure and instructions. Of those cases, 91 percent were disposed and 207
cases had a not guilty plea entered. Of these, nine went down the simple track and 198 went down the
extended track. The spread of cases across the months are shown in the table below.
Table 19: Tauranga number of cases in testing period by month
Tauranga Number of Cases in testing over the six month period
(captured on check sheets)
Month
Simple
Extended
Total
July/August
2
29
31
August/September
3
51
54
September/October
1
39
40
October/November
2
43
45
November/December
1
31
32
December/January
0
5
5
Total
9
198
207
Figure 13 (on page 47) provides an overview of what happened to the cases which went down each
case track.
46
Figure 13: Tauranga cases in testing period on each case track
2.2 Excluded cases
There were 90 cases excluded from testing, the majority of these being because the case commenced
prior to testing or that the cases were domestic violence related.
3. Aspects of testing
3.1 Initial disclosure
3.1.1 Key findings:
•
•
•
•
•
•
•
•
•
Some respondents saw the new processes for disclosure as a positive change, although not all
agreed on how well it was working.
Not many of the participants commented on the quality of disclosure as the general belief was that
disclosure had not really changed.
Half of the participants noted the initial disclosure had improved.
The provision of timely disclosure resulted in a decrease in the average number of list appearances
required for all criminal summary cases at both sites (0.5 in Tauranga). (See page 51).
Initial disclosure changes contributed to the low number of appearances per case in the
administration stage, with Tauranga having close to the recommended number of two appearances
on average. There was also a 4 percent increase at both sites in the number of cases disposed with
two or fewer appearances.
Some participants felt that early disclosure should enable a plea to be entered early in the process
but this was not a change from what happened in Tauranga prior to testing.
Initial disclosure contributed to a small increase in the number of guilty pleas entered earlier (2
percent) and a reduction in the number of appearances needed in the administration stage to have a
plea entered (whether guilty or not guilty). The small increase in guilty pleas is likely to have been
impacted on by the increase in types of offences which are not as likely to resolve because of
disclosure (eg, domestic violence, serious violence, and serious property).
Some participants commented on extra work needed for the receipt of disclosure.
Nil or incomplete disclosure was only identified as a reason for adjournment in 6 percent of cases.
47
Some respondents saw the new processes for disclosure as a positive change, although not all agreed
on how well it was working.
It [disclosure] is, from my perspective, really the only part of the pilot for Tauranga that has
been worthwhile.
One Police prosecutor considered the initial disclosure should be on the file for first appearance, and
then when counsel is assigned they can request it:
…what we’re finding in the project is everything’s attached to the file, including great big
chunky video tapes. They say “I’m going to be assigned.” You give them both bundles, then you
note the file, you get the signed receipt, then two weeks down the track they say no, we haven't
got it, we never received that, because somebody else has been assigned.
3.1.2 Quality
Not many of the participants commented on the quality of disclosure as the general view was that
disclosure had not really changed. One participant commented:
I think that early disclosure’s always good because you can explain to your client very early in
the process about the jeopardy they’re facing and the merits of any defence they think they
might have.
One Police prosecutor said that disclosure was previously done “quite appallingly”, and that it had
improved somewhat because there were specific guidelines on how to assemble it on the file, “such as
affixing the assigned counsel and the initial disclosure to the file”.
3.1.3 Timeliness
In Tauranga, while the project team were unable to measure the provision of disclosure directly, half of
the participants noted the initial disclosure had improved. Of the 297 cases in testing only parties from
one case had indicated to court staff when disclosure had been provided. This disclosure was provided
the day of the second court appearance.
Three court staff members in Tauranga indicated that the pilot had not brought significant changes as
they already had early disclosure, and another thought there may have been more emphasis placed on
solicitors asking for initial disclosure, and more of a conversation in their registrar’s list.
One court staff member felt there had been an improvement to disclosure as it had to be available at the
first appearance. Another court staff member noted there are some instances where disclosure does
come later because it is more difficult to put it together, or there are delays due to waiting for videos or
analysis reports etc, but these were caused by outside influences.
A defence lawyer thought the pilot had made things a lot quicker. Another lawyer said they now
generally get “at least some disclosure on the files when we appear the first time, which has been a good
thing”. This person said there are still occasions when they do not get full disclosure, but “it certainly
speeds up the process by having the disclosure attached to the file at the beginning. Decisions can be
made earlier”. However another defence lawyer felt the new process had not made any changes to
disclosure.
48
3.1.4 Process
In Tauranga some participants commented on the extra work needed for the receipt of disclosure. A
Police prosecutor noted that signing of the disclosure receipt is “really hard work” because in a registrar’s
appearance there is not time to get counsel to sign papers, “it’s all complicated. You get all these
sheets”.
This person suggested that disclosure should be coordinated and there should be barcodes on the
receipts to record what is done, “when you give the disclosure packet you note on the barcode who their
lawyer was, so when you return it back and the file is data captured, all the clerk has to do is swipe with
their wand the barcode and select which lawyer it was given to”.
Another Police prosecutor noted the sign-off of disclosure packages was “a bit of a hassle to all counsel”.
The signing off and ticking the boxes for disclosure…to be complied with correctly is onerous in
the sense that such a checklist procedure has to be carried out.
Two court staff members noted it had created extra work. A court staff member said that:
…all it’s done is added in extra work for parties in that they have now got documents they’ve got
to sign off. Before it was handed over, and the Police would have recorded on their file
disclosure to counsel…now there is all this extra paperwork signing off this copy, that copy…
3.1.5 Entry of pleas
Tauranga had high rates of case disposal at the administration stage (Tauranga 90 percent, with 75
percent by way of guilty pleas). This is reasonably consistent with the rate of disposal for cases in the
same period the previous year (88 percent).
There was a small increase in the number of guilty pleas entered in the administration stage (2 percent).
As with Manukau, this gain is likely to have been impacted on by the increase in the number of serious
cases and these cases are not likely to be resolved solely by the provision of improved disclosure.
Some participants felt that early disclosure should enable a plea to be entered early in the process, but
this was not a change from what happened in Tauranga prior to testing. Three court staff members said
the new process provides sufficient disclosure for a plea to be entered at the first or second appearance;
however another said this was not a change from previously.
The majority of our cases on a first appearance enter a plea and go before a community
magistrate and are dealt with on the same day. That hasn’t changed. A lot of those enter a not
guilty plea – I don’t think it’s changed that either.
A defence lawyer said that a plea could be entered on the first appearance and “certainly by the second”.
Another lawyer said they generally found there is sufficient disclosure to make an earlier decision, but
they were still concerned that more disclosure may be required.
Three Police prosecutors said that the new process did provide sufficient disclosure for a plea to be
entered at the first or second appearance. Another Police prosecutor agreed, but noted that it was
dependent on the charge, “I mean if it was serious violence, verging on manslaughter etc, then those
files are always going to be far more complex and there will be much more information that is required”.
Another prosecutor said that a plea could only be entered at the second appearance because at the first
appearance “they’ve only just got rid of disclosure”.
49
A judicial officer said they thought the new process allowed pleas to be entered at the second
appearance, ”it depends how severe it is and what it is, but I would think at the second appearance…if
legal aid and disclosure has been done, and people have got a lawyer and they’ve had discussion, then
there’s no reason why it shouldn’t”.
A Police prosecutor commented that an advantage of early and better quality disclosure is earlier
resolution, “it probably will increase, or has increased, the percentage of early guilty pleas, and we seem
to have more defence counsel satisfied with the information that they are getting”.
3.2 Reasons for adjournment
3.2.1 Main reasons for adjournment
In Tauranga the main reason for adjournment from the first to second appearance and second to third
was for the case to be adjourned to a status hearing as a result of a not guilty plea being entered (32
percent from first appearance to 67 percent from second appearance).
Legal aid (31 percent) and lack of instructions (8 percent) followed as the next reasons for adjournment
from the first to second appearance. Nil or incomplete disclosure was identified as a reason for
adjournment in 6 percent of cases (11 cases at first appearance and 10 cases at second appearance).
The adjournment due to disclosure is up from the three-month review (3 percent) and baseline (5
percent). This is likely to be due to more focus on improved disclosure and therefore parties identifying if
it has not been disclosed.
Figures 14 and 15: Tauranga main reasons for adjournment at first and second appearances
Tauranga 2nd Event
Tauranga 1st Event
Delayed further offending
100%
Delayed further offending
100%
90%
Possible Police diversion
90%
Possible Police diversion
80%
Not guilty to fixture
80%
Resolution likely
70%
Other reason
70%
Other reason
60%
60%
Warrant to arrest issued
50%
40%
30%
20%
Warrant to arrest issued
50%
Not guilty to fixture
Bail hearing
40%
Disclosure incomplete (or
nil)
No instructions
30%
Disclosure incomplete (or nil)
20%
No instructions
10%
10%
Legal Aid
Legal Aid
0%
0%
1st Event
Not guilty to status hearing
2nd Event
Not guilty to status hearing
50
3.2.2 Average number of appearances
The test processes proposed that two appearances at the administration stage should be sufficient for
most cases. The data below shows that the number of appearances in the administration stage has
stayed at approximately two for cases considered in both the three and six month reviews. The average
number of appearances has increased slightly from 1.8 to 2.0 in the simple track but decreased from 2.5
to 2.2 in the extended track.
The provision of timely disclosure resulted in a decrease in the average number of list appearances
required for all criminal summary cases (0.5 in Tauranga). The low number of appearances in this
stage will have been in part due to early and sufficient disclosure to enter a plea and proceed to the next
stage of the case.
Table 20: Tauranga average number of appearances at the administration stage
Tauranga: average number of appearances at the administration stage
Simple/simple-type cases
Extended/extended-type
cases (electable)
average
average
Baseline* – Cases prior to
testing
2.6
2.9
Overall** summary workload
prior to testing
1.9
2.7
Testing after 3 months –
average no. of appearances in
admin stage
1.8
2.5
Testing after 6 months –
average no. of appearances in
admin stage
2.0
2.2
* Baseline - data of comparable cases to those in testing six months prior to testing.
** Overall - all summary cases six months prior to testing, showing average number of administrative events.
3.3 Time to disposal
3.3.1 Key findings:
•
•
•
There was a minimum reduction in the average time to disposal over the test period of 12 percent
(16 days) in Tauranga for simple track cases disposed at a defended hearing.
The average time to disposal for cases disposed at status hearing in the extended track has
increased since the first three months of testing from 52 days to 59 days. However, this is still a lot
lower than cases in the baseline (87 days) or summary workload prior to testing (92 days).
Interestingly in the Tauranga data cases on the extended track that went to defended hearing were
disposed faster than those in the simple track (97 versus 112 days).
The average time to disposal for cases disposed at status hearing in the extended track has increased
since the first three months of testing from 52 days to 59 days. Cases on the extended track that went to
defended hearing were disposed faster than those in the simple track. This is interesting in light of the
baseline and summary workload data which shows the simple track-type cases were disposed at
defended hearings faster than extended track-type cases (eg, 103 simple track compared with 118
extended track-type cases).
51
Table 21: Tauranga average age of disposal from first appearance
Tauranga: average age of disposal (days) from first appearance
Prior to Testing
Baseline*
comparative
cases
Overall**
summary
workload –
6 month
prior
Testing 3 months
(14 July–13 Oct)
Testing 6 months
(14 July–14 Jan)
Status hearing
stage
87
92
52
59
Defended hearing
stage
142
118
N/A
97
Final admin stage
N/A
N/A
N/A
91
Defended hearing
stage
128
103
N/A
112
Track
Stage
Extended
track cases
Simple
track
Testing
* Baseline - data of comparable cases to those in testing six months prior to testing.
** Overall - all summary cases six months prior to testing, showing average number of administrative events.
There was a minimum reduction in the average time to disposal over the test period of 12 percent (16
days) in Tauranga for simple track cases disposed at a defended hearing (when compared to baseline
cases).
3.3.2 Stage of case disposal
The breakdown of where cases were disposed in the six month period is identified below. There were
74 cases disposed at status hearing and 12 cases disposed at defended hearing. One case was
disposed at a sentencing list as a change in plea was not entered till the list event.
Table 22: Disposal stages of simple track cases
Tauranga: Simple track cases – disposal stages
Stage
Number of
cases
Table 23: Disposal stages of extended track cases
Extended track cases – disposal stages
Stage
Number
of cases
Pre-trial stage
0
Pre-trial stage
74
Defended Hearing stage
3
Defended Hearing stage
9
Final administration stage
(sentencing)
0
Final administration stage
(sentencing)
1
3.4 Case tracks
3.4.1 Key findings:
•
Most respondents felt the two case tracks were not useful or were no different from the previous
processes.
Simple track
• Nine cases went down the simple track. All nine cases had a defended hearing during the six-month
period. Two-thirds had their defended hearing adjourned to another hearing date out of the sixmonth period (six cases) and the remaining three cases were disposed in the timeframe.
• While a concern was raised that more cases in the simple track fell over at the defended hearing, this
could not be tested because of the low numbers of cases that went to fixture over the review period.
52
Extended track
• There were 198 cases that went down the extended track.
• There were mixed views on the extended track process, with some people indicating the process
allowed for useful discussions between prosecutions and defence, and other people saying the
process created administrative burdens without the requisite benefits.
3.4.2 Purpose and benefits of case tracks
Participants in Tauranga generally thought the purpose of the different tracks was to progress cases
through the court system more efficiently, although there seemed to be some confusion as to how the
different tracks assisted with this. Of those participants who commented on whether the different tracks
were useful, most felt that they were not.
Two court staff members thought there were some advantages while another said that it was no different
from their previous processes.
One defence counsel thought the purpose was to deal with matters efficiently and quickly:
It’s to put defended matters that can never be anything but defended cases straight on to
defended hearings. Everything else that could be negotiable should go through a negotiation
process.
Another defence lawyer indicated that the tracks were only useful where counsel did not have a good
relationship with the Police, “I think, if you have got an ongoing working relationship and rapport between
Police, prosecutors and counsel, most of those sort of discussions can be dealt with full and frankly on a
registrar’s appearance”. Another defence lawyer said they did not think the different tracks were useful
but that all summary cases should be on the same track.
There was also a difference of opinion on whether the cases currently included were on the right tracks,
and whether cases currently excluded could benefit from the case tracks approach; one common theme
was that domestic violence matters could be included.
3.4.3 Simple track
Nine cases went down the simple track; the majority were summary cases (66 percent), with three being
electable.
Table 24: Tauranga: number of cases on simple track by month
Simple track
Month
Electable
Summary
Total
July/August
0
2
2
August/September
0
3
3
September/October
1
0
1
October/November
1
1
2
November/December
1
0
1
December/January
0
0
0
Total
3
6
9
There were mixed views on the simple track process – some people did not think it had changed much
from the previous process, while others indicated that it was working well. Two disadvantages identified
were that there is less opportunity for discussion and negotiation between the prosecution and defence,
and allocating fixture time is still an issue.
53
Two defence lawyers indicated the simple track was working well in Tauranga, and that the only
disadvantage was less opportunity for discussion and negotiation with the prosecution.
Defended hearing
All nine simple track cases had a defended hearing during the six-month period. Two-thirds of these had
their defended hearing adjourned to another hearing date out of the six-month period (six cases) and the
remaining three cases were disposed in the timeframe.
Table 25: Tauranga defended hearing outcomes for simple track cases
Tauranga: Defended hearing outcomes for the summary cases
(simple track cases)
Disposal type
Number of cases
Guilty plea
1
Withdrawn by leave
2
Evidential guilty
0
Evidential dismissed
0
Guilty plea / charge(s) withdrawn by leave
0
Another defended hearing was needed
6
Total
9
A court staff member said they thought the simple track worked well, and that the only negative aspect
was missing the status hearing step, which resulted in cases falling over at hearing. They said this was
because when you go down the simple track and allocate a defended hearing time, date, and time:
if you’ve got the person that’s come in an EBA [excess breath alcohol] and it goes down that
simple track, you give them an hour, or an hour and a half for their hearing. If they turn up on
the day and change their plea in the morning, that’s an hour, hour and a half
wasted…allocating fixture time is still a no win situation - we’re setting down 13 hours and
some days those 13 hours are going to go ahead and some days you’re going to be out by 11
o’clock.
Because of the low numbers of cases that went to fixture over the review period it is hard to tell whether
cases are falling over at fixture, as only three cases were disposed prior to a judicial decision after
evidence was heard. A judicial officer could discern no benefits resulting from the simple track:
…there could possibly be a saving of a week or two from plea to fixture for cases on the fast
track, but it’s very hard to separate signal from noise.
3.4.4 Extended track
There were 198 cases that went down the extended track. Forty-nine percent were electable (97 cases),
with the remainder being summary.
54
Table 26: Tauranga: number of extended track cases by month
Extended track
Month
Electable
Summary
Total
July/August
21
8
29
August/September
29
22
51
September/October
21
18
39
October/November
12
31
43
November/December
12
19
31
December/January
2
3
5
Total
97
101
198
There were mixed views on the extended track process, with some people indicating the process
allowed for useful discussions between prosecutions and defence, and other people saying the process
had created administrative burdens without the requisite benefits.
A Police prosecutor said that an advantage of the extended track was that it forced defence counsel into
talking to the prosecutor. However this person also said they had a problem with the extended track due
to the difficulties with getting lawyers to attend meetings.
3.5 Case Management Memorandums
3.5.1 Key findings:
•
•
•
•
•
•
•
•
•
•
•
•
198 cases had CMMs issued, of which 180 were filed in the six-month period.
Of the 180 CMMs filed, 56 percent were completed by counsel and Police, or had counsel
involvement in their completion (101 CMMs).
Most participants at Tauranga understood the purpose of the CMM, but most also felt this purpose
was being achieved prior to the pilot, and indicated that it was a lot of work for little or no benefit.
There were mixed responses as to whether the timeframe was sufficient, with those in different roles
expressing different preferences.
Participants commented there would be benefit in having the defendant present at the CMM meeting.
The CMM process was considered resource intensive for Police, courts and counsel.
Participants commented on the perceived lack of the use of the CMM in court at the status hearing.
The average time taken for the CMMs to be filed was 18 days (two weeks and four days). Of the
CMMs, 73 percent were filed in the timeframe (131 CMMs).
The amount of the CMM completed varied.
Counsel in Tauranga seemed not as inclined as those in Manukau to indicate an intimated plea or
request a sentence indication. Of the CMMs analysed, 16 percent (24 CMMs) answered yes as to
whether they would like a sentence indication.
A sample of 145 CMMs were analysed – 96 noted they needed a status hearing (66 percent). The
main reason given for going to status hearing was because there had been no contact from counsel
and the CMM had not been completed (54 percent, 52 CMMs).
Of the CMMs analysed, 59 identified what was in issue. The main reason identified was that an
element of the actus reus was in dispute or they denied the charge.
3.5.2 Purpose and usefulness of the CMM
CMMs were issued in 198 cases, of which 180 were filed in the six-month period, the remaining cases
having CMMs filed outside the review. Of the 180 CMMs filed, 56 percent were completed by counsel
and Police, or had counsel involvement in their completion (101 CMMs).
55
Most participants at Tauranga understood the purpose of the CMM, but felt this purpose was being
achieved prior to the pilot, and indicated that it was a lot of work for little or no benefit. Some participants
also indicated there was an issue with getting counsel to fully participate, which diminished potential
benefits from the CMM process.
A court staff member understood the purpose of the CMM was to get the parties together at an earlier
occasion and discuss the actual aspects of the case, “whether it proceeds as a fixture or sentencing
indication or whatever the options are”. This person also said that their court ”did fine without it” and that
they did not see the CMM as useful “because we’re still getting defendants pleading guilty on the day of
their fixture…it hasn’t eliminated any of the defendant behaviour that we’ve experienced before”.
A defence lawyer said the purpose of the CMM was to identify the core issues. This person viewed the
memorandum as part of the meeting process, and considered the whole process was good.
An LSA staff member said the purpose of the CMM was to define issues, such as what the Police were
saying and that the defendant understood, and identifying certain legal issues.
A member of the judiciary said that the CMM was only useful for people who did not think about things in
advance before, “there are certainly one or two in Tauranga who would benefit from a more thoughtful
approach to it, but for at least 90 percent of the criminal work that we do, no discernible difference. It was
already being done”.
The majority of participants stated that they always used the CMM for extended track cases.
Participants commented that it appeared that CMMs were completed because it was a directive or a
requirement for payment, rather than because they viewed it as useful. A few noted that initially
compliance by counsel was low, but this situation had improved by the time of the interview.
Anecdotally, Police have indicated that counsel are now completing more CMMs than at the time of the
review.
The majority of people who commented on whether cases excluded from the CMM process would
benefit from out-of-court discussions thought the CMM would be useful for other cases, including
domestic violence cases and cases brought by other prosecuting agencies, such as WINZ.
3.5.3 CMM meetings
A defence lawyer said that the purpose of the CMM was to record all the issues on paper for the Judge
to view prior to the status hearing. This person said that the CMM might be useful, but noted that things
can change by that point, “you can go back to your client and they’re not happy with what agreement’s
been reached”. This person said “you really need to be able to talk with your client when you’re
negotiating”, and in the past they would have a conversation with the prosecutor over the phone then go
back to their client to see if they could get a plea.
Another defence lawyer said that:
if you’re in Court, and the matter’s in the judge’s list and a not guilty plea is entered and it goes
to a status hearing, the prosecutor there isn’t able to allocate a time for a CMM meeting... that’s
just an extra step that’s required for us to proactively contact the Police to organise the CMM
meeting, and often you’re so busy that that just falls by the wayside – we do end up missing a
CMM meeting it’s usually because of that...in our office we’re trying to remedy that by having a
list of available times and getting our PA’s involved to constantly proactively email the police if
we enter a not guilty plea on something.
56
3.5.4 Resources and use of the CMM
One member of court staff explained how many more steps were involved in completing the CMM
compared with the previous process, but felt that not much of the CMM was used anyway, “nine times
out of 10 there’s only two areas on the form that are filled out”. Some court staff members also noted the
introduction of the CMM process had negatively impacted on stakeholder relationships.
A lawyer said a disadvantage was that the extended track requires more time from counsel, and having
to participate in the meeting was often hard to find time for.
One Police prosecutor said that use of the CMM, from their perspective and from information from both
prosecutors and defence counsel, was “a waste of time” in Tauranga. This person said they did not get
good “buy in” from the judges and:
once defence counsel saw that the judges weren’t utilising the Memorandum [CMM], then their
view was, well why are we bothering to complete it…we lost what little support we did have, we
lost as soon as they became aware that the judges weren’t taking too much notice of what was
written on those forms.
One prosecutor said that when the pilot first started they chased the solicitors up, but this added too
much to their workload, ”I had to stop and they had to come to me...then it all stopped and a lot of
memorandums were getting filed incompleted”. However this person said that when the Law
Commission and Ministry of Justice advised solicitors that if they did not sign it, they would not get any
money for the case, they all started signing them, “but they were just signing them for the sake of signing
them and they still are – there was no great involvement as far as discussion goes between the Police
and defence”.
…this is where you might get a bit of hostility or objection from counsel – the extra effort
required is not really compensated for, because you have to now go to a meeting…we have got
to put ourselves out and arrange meetings around all other things, to go to something which
may or may not be beneficial.
One other lawyer said that for most of the status hearings they had lately a CMM document had not
been done, but that had not necessarily affected the outcome of the status hearing, ”it just means we get
paid significantly less”.
A defence lawyer said the early disclosure and the CMM meeting prior to the status hearing was very
useful, ‘any opportunity you can get to focus on the merits of the case with the prosecutor are generally
very productive”. They said that prior to the pilot such meetings either did not take place or were in the
form of a very quick conversation at a status hearing in court.
3.5.5 Filing time for CMMs
The testing required the CMM to be filed with the court prior to the scheduled status hearing. The Police
Prosecution Service was responsible for ensuring that the completed CMM was returned to court by the
due date, which is three weeks from when the CMM is issued to counsel or a maximum of three weeks
after the not guilty plea is entered. There was a mixed response in terms of whether the timeframe was
sufficient, with different preferences expressed by those in different roles.
A Police prosecutor said they had difficulties in meeting the timeframes, as initially there were some
teething problems, and then later it got busier and became more difficult to get the information back from
the court staff. One member of Police said they were aware there were strict timelines to be complied
with, which puts pressure on counsel and on the court system, but they could not see the timeline as
being a great advantage. Two defence lawyers said they always used the CMM, although one
57
considered the three week timeframe was fine while another said it was ”too difficult”. This person
thought that changing the timeframe to four or five weeks would be useful. Another defence lawyer said
that one difficulty, especially with being in court every day, was to schedule time to ”jump out to
something else at the Police station down the road”.
It’s a bit restrictive. Three weeks is too difficult. Seems to be a black and white rule for the
programme and it’s difficult. We’re under extreme pressure here – it’s a very small defence bar
and the caseload in this court is huge.
A defence lawyer said that “where the CMM is available” they would normally go down the extended
track,”and then I would tend to do all the CMMs that have been arranged for my cases”. However this
person also said that there had been times over Christmas where the dates for a CMM meeting had not
been available and therefore they missed having one, “as long as it doesn’t come back on the defendant
I am not really overly concerned”. Another defence lawyer said that the timeframe for the CMM works
well, but that it puts an extra onus on defence counsel, especially in legally aided cases. This person,
who acknowledged that some of the issue was time management, said there may be some hostility
because ”if you have missed one meeting then you have missed the whole thing. So you are pretty much
tied to it”.
The average time taken for the CMMs to be filed was 18 days (two weeks and four days). Of the CMMs,
73 percent (131) were filed within the timeframe.
Time taken for the completion of the CMM was:
• 15 days (2 weeks 1 day) in July/August
• 12 days (1 week and 5 days) in August/September
• 15 days (2 weeks and 1 day) in September/October
• 20 days (2 weeks and 6 days) in October/November
• 18 days (2 weeks and 4 days) in November/December
• 24 days (3 weeks and 3 days) in December/January.
Figure 16: Tauranga change in CMMs issued and received
60
Number
50
40
CMM Issued
30
CMM Received
20
10
ob
O
er
ct
ob
er
/N
ov
em
No
be
ve
r
m
be
r/D
ec
em
De
be
r
ce
m
be
r/J
an
ua
ry
be
r /O
ct
Se
pt
em
ep
te
m
t/S
Au
gu
s
Ju
ly/
Au
gu
st
be
r
0
Months
The graph above shows the time over testing where CMMs were issued and received with the highest
number issued in October/November.
58
3.5.6 Analysis of the content of CMMs
A sample of 145 CMMs which were filed prior to 14 January 2009 was analysed (81 percent of all the
CMMs filed).
The amount of the CMM completed varied. One prosecutor said they thought the CMM was “long
winded” and that solicitors were signing it off for the sake of signing it off:
I think they’d already made their minds up prior to the meetings – 99 percent of them would
come in and just say, ’Oh no, we are going to plead not guilty’, and if you want to discuss the
case with them they say, ’Well look, it’s not really worth it, we just want to plead not guilty’.
That happened quite often.
Counsel in Tauranga seemed not as inclined as those in Manukau to indicate an intimated plea or
request a sentence indication. Of the CMMs analysed, 16 percent (24 CMMs) answered yes to whether
they would like a sentence indication.
For example, a defence counsel noted concern at the potential that at some stage the defence could be
held to account for what has occurred at a CMM meeting, “especially if their defence changes at some
stage or something in the defence doesn’t comply with what was discussed at the CMM”. This person
said that could cause an injustice in that it would put blame on the defendant for something which could
be outside the defendant’s control. However they considered that, as long as nothing in the CMM can
be used against the defence in subsequent hearings:
I think there will be full and frank discussion. But it will only take one occasion where
something that occurred in CMM is used against the defence, that I think lawyers will start
claming up and then you are not going to have any reason to have them, so there is an element
of risk there I think.
Requested a status hearing
Of the 145 CMMs, 96 noted they needed a status hearing (66 percent). The main reason given for going
to status hearing was because there had been no contact from counsel and the CMM had not been
completed (54 percent, 52 CMMs). The reason identified in 23 CMMs was a legal issue for judicial
consideration at a status hearing. The other reasons given are identified in the table below:
Table 27: Tauranga: reasons for requesting status hearing
Reasons for requesting status hearing identified on the CMMs
Sentence indication
6
No contact from counsel
52
Additional disclosure
9
Not identified
2
Diversion
2
Legal discussion
23
Take instructions
2
Total
96
A summary of the CMM analysis is included in a diagram on page 60.
59
Figure 17: Tauranga summary of CMM analysis
Tauranga Summary of CMM Analysis
16.5%
Requested
a Sentence
Indication
(24 CMMs)
Of the 24 CMMs requesting a
Sentence Indication 58% (14)
resulted in a change of plea to
one or more charges at a Status
Hearing or subsequent List
appearance
96
Requested a Status
Hearing
66%
91%
81%
CMMs Issued
CMMs Filed
180
CMMs Analysed
145
6%
198
Of the 180 filed
- 56% were completed
by Counsel
- 73% were filed within
the required timeframe
(3 weeks from date
issued)
25% of the CMMs identified
changes in plea or charges
8% had both charges
withdrawn/amended and an
intimated guily plea entered
9% Identified Intimated Guilty
Pleas to one or more charges
8% Identified Charges to be
amended / Withdrawn or were
to be withdrawn in full
28%
9 not identified
either way
41
Did not request a status
hearing
60
What was in issue?
Of the CMMs analysed, 59 identified what was in issue. The main reason identified was that an element
of the actus reus was in dispute or they denied the charge. The other reasons are identified below:
Table 28: what was in issue as identified on CMMs
Issue
Total
"Everything is in issue"
2
"Reasonableness" of Act
1
"Recklessness" of Act
1
Bill of Rights Act 1990
1
Compulsion
1
Credibility of Police witness
1
Defence of another
1
Defence
2
Defence of property
1
Dispute charge
1
Dispute of facts
4
Identity
1
Mens rea
8
Not known
1
Process
1
S66 Summary Proceedings Act 1957
1
Self defence
4
Sufficient purpose
1
Actus reus /denies charge
26
Total
59
Scheduling the defended hearing
There were only nine CMMs (six cases) that included identification of either suitable or unsuitable dates
for the defended hearing. However, no parties had identified that they had contacted the registrar to
arrange a date.
Cases going to defended hearing
Of the CMMs that were likely to go on to defended hearing, 12 CMMs contained consent to either a
further custodial remand until defended hearing or continuation of the conditions of bail until the
defended hearing date. At the time of the review, none of the CMMs had gone to a defended hearing.
Charge discussions
Charge discussions at the CMM meeting resulted in:
• 25% of the CMMs identifying changes in plea or charges
• 8% indicating both charges withdrawn/amended and an intimated guilty plea
• 9% identifying intimated guilty pleas to one or more charges
• 8% identifying charges to be amended /withdrawn or to be withdrawn in full.
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3.6 Status hearings and defended hearings
3.6.1 Key findings:
• Of the 198 cases going down the extended track, 153 were scheduled for a status hearing during the
six-month test period.
• The majority of cases that went to status hearing (52 percent, 79 cases) were adjourned to another
appearance (judge’s list, status hearing or defended fixture).
• All 12 cases adjourned to a defended hearing had a hearing during the review period, with 75
percent disposed at a defended hearing (nine cases).
• One case was dismissed at defended hearing after evidence was heard and two were found guilty.
• One case was adjourned from a defended hearing to a sentencing list, which was disposed at the list
appearance by way of guilty plea.
• Because of the low numbers of cases that required a further hearing it is too early to draw any
meaningful conclusion on how the CMM is effective in disposing of cases at a defended hearing.
3.6.2 Outcomes
Of the 198 cases going down the extended track, 153 were scheduled for a status hearing during the sixmonth test period. Of those, the majority (52 percent, 79 cases) were adjourned to another appearance
(judge’s list, status hearing or defended fixture). The remaining 48 percent of cases were disposed of by
way of guilty plea, withdrawn by leave, or a combination of guilty plea with charges withdrawn or
amended. Comparing the percentage of disposals at status hearing of cases in testing with the overall
summary workload, cases in testing had a lower rate of disposal at 48 percent than those overall (59
percent).
The table below shows this breakdown:
Table 29: Tauranga: extended track status hearing outcomes
Tauranga: Extended track status hearing outcomes
Guilty plea/charges withdrawn or amended
18
Guilty plea (conviction and sentence or
discharged at status hearing)
39
Withdrawn by leave
17
Adjourned to defended fixture
12
Adjourned to another hearing (outside of period)
67
Total
153
3.6.3 Use of the CMM at status hearing
A member of the judiciary said they did not really use the CMM, “the only time we really have any
contact with it is at status hearings, and that’s all about talking to counsel and the client. It’s not about
what’s written on a piece of paper, it’s about expectations and how realistic the expectations are”. This
judicial officer said that they ‘glance’ at the CMM to see what is at issue but that it is really of limited
benefit:
from my point of view that information is obtained in a dialogue that lasts a minute or
something, if that, probably 30 seconds in most cases…the fact they’ve written it on a piece of
paper tells me nothing about whether or not the client’s got a handle on what’s ultimately going
to happen with the charges they face.
This judicial officer said that it was one thing to fill in a piece of paper but another thing entirely for a
client to stand in the court room and face a judge.
62
A member of the judiciary said that it was hard to tell whether the cases included were on the right track,
“the answer’s got to be in changes of plea at a hearing”. However this person noted that even then it is
hard to tell ”the signal from the noise” as you get changes of plea for various reasons, and also
witnesses who do not turn up for the prosecution.
3.6.4 Defended hearing
All 12 cases adjourned to a defended hearing had a hearing during the review period with 75 percent
disposed at a defended hearing (nine cases). Of these the majority were disposed by change in plea,
some with charges withdrawn. Only one case was dismissed after evidence was heard and one case
was proved guilty (found guilty after evidence was heard). The remaining three cases were adjourned to
a defended hearing, status hearing or sentencing list. The one case that was adjourned to a sentencing
list was disposed by way of guilty plea.
Table 30: Tauranga extended track defended hearing outcomes
Tauranga: extended track defended hearing outcomes
Guilty plea/charges withdrawn or amended
3
Guilty plea
3
Evidentially dismissed
1
Proved guilty
1
Withdrawn by leave
1
Adjourned to defended hearing
1
Adjourned to status hearing
1
Adjourned to a sentencing list
1
Total
12
Because of the low number of cases that required a further hearing it is too early to draw any meaningful
conclusion on how the CMM is effective in disposing of cases at a defended hearing.
63
Part E
1. Legal aid payment
1.1 Key findings:
•
•
•
•
Participants felt that the changes to the process were not communicated clearly, including to Legal
Services Agency staff.
There is a perception that defence counsel will receive legal aid payments regardless of whether
they follow the process.
In some circumstances, following the proper process may not be advantageous to the defendant, but
not to do so may result in financial penalty for defence counsel.
Consideration should be given to notifying relevant support staff of process changes (ie, PAs drafting
claims for legal aid).
1.2 Summary
At both test sites many interview participants felt unable to answer questions relating to legal aid, some
because they were not directly involved in relevant processes and others because they did not
understand the new processes.
The Legal Services Agency (LSA) was able to provide clarification to defence counsel after testing had
started on the purpose of the varied payment and what that payment covered. This was done via emails
and letters from the agency to all local counsel at both test sites. In addition, LSA was involved in a
meeting held by local counsel in Tauranga to assist with clarification of the step payment for the
simplification project testing.
Of those able to answer the interview questions, most were confused over the process for payment from
LSA, and also the amount of the payment. Respondents had conflicting views as to the appropriateness
of the payment: some felt that payments should not be made unless the proper process was followed,
while others felt that circumstances sometimes prevented the proper process from being followed, and it
was unfair to penalise lawyers for this.
LSA indicated that changes to payments were not clear to either LSA staff or counsel, consequently
(after Christmas) LSA developed material to assist both parties with claims.
Participant responses indicated that the assignment of legal aid has not been affected by the new
processes.
1.3 Tauranga
1.3.1 Appropriateness of payment
Two defence lawyers indicated they did not have an issue with the changes to the payment, but did not
know how much the new payment was.
64
A defence lawyer gave an example of where the CMM process could not be followed which resulted in
the LSA payment not being made. The lawyer said that when a status hearing was brought forward to
combine the hearing of different charges it resulted in no time to have a CMM meeting. The lawyer
commented that ”the LSA should have discretion if for some reason a CMM meeting can’t take place for
us to be paid”. Another disadvantage, which the individual indicated was very significant, was that “if we
go down a status hearing procedure now, and are sending memo uncompleted, then we lose out in
terms of funding from LSA”.
A Police prosecutor felt that legal aid payments should be linked to compliance by lawyers, and this was
not necessarily happening. This person said that lawyers did not turn up to about 60 percent of their
scheduled meetings:
…and it wasn’t until the Legal Services Agency said well, if you don’t file the memorandum and
don’t comply you won’t get your $450. So what happened then was some practitioners started
filing in group lots their case file memorandum, and calling [the Police prosecutors], wanting us
to just administratively rubber stamp the CMM and whack it through so they could get paid.
This person said they tried to contact some of the lawyers involved on numerous occasions, “I left
messages with their clerks to get back to me. No-one ever did. No-one was interested. So people didn’t
attend the interviews… but since Legal Services decreed that you don’t get paid, I know one practitioner
that wanted to file a group of about 10 memorandums that were months and months old”.
Another member of Police also noted that there were “threats from legal services that lawyers wouldn’t
get paid their legal aid but…there was no consequence to them not completing it”.
1.3.2 Communication and clarity of changes
A defence lawyer noted there had been a big focus on legal aid, ”there was a meeting in December last
year where the Law Commission and Justice people came up from Wellington, and there was a Legal
Services representative there as well, and the position that they portrayed and what subsequently
happened afterwards were at odds with each other”.
Another defence lawyer said they did not know how the new processes worked, “I don’t know about
anybody else but I am still a little bit confused as to how charges are meant to be made for each of these
processes. I mean when you do or do not go through to a status hearing”. This person understood that if
the CMM was completed, and they continued on to the status hearing, they would receive a one-off
payment of $450. However they said they were unsure of what happens afterwards – ”like if a defendant
changes plea at the status hearing, whether you still only get $450 or whether there is a sentencing fee
put on there as well, or, because you are making an application of status hearing…I am not overly
confident that I am actually billing it correctly”.
It's a bit sort of, fuzzy, as to what we can or can't claim for, which brings in the fact that we feel
there is an extra process which has put added burden on counsel – like having to go to a
meeting and whether there is any financial benefit in that.
One defence lawyer said that, if there was one thing they could change about the project, it would be to
“not get stung so heavily by the LSA if you miss it”. This person said that there are sometimes genuine
reasons for not complying or not filling out a CMM:
it’s sometimes reasons beyond your control…that causes me the biggest sort of grievance really,
to know that you’re losing money effectively because of silly reasons, like it’s easier for someone
to come from another place at a sooner date, which effectively speeds everything up
anyway…but as a result you lose out on money.
65
Another defence lawyer indicated that the changes were not communicated well, although they were
aware of the additional payment for a guilty plea.
A staff member at LSA said the new process initially was not clear to both LSA staff and defence
counsel. This person said that when it became evident that it was not clear, another LSA staff member
took it upon themselves to send a memo with a diagram to counsel showing what could be claimed in
the different tracks.
This person said that the majority of lawyers are now advising whether cases are in the pilot, and if so,
what track they are on. However it was noted that it took six months to get to this stage. It was also
noted that it was important for PA’s to receive such information as they often write up invoices for
lawyers to sign off.
1.3.3 Assignment of legal aid
A defence lawyer said that the new processes had not affected the way legal aid is assigned; a court
staff member also said they could not see any difference.
The assignments get processed in the usual way to the relevant person regardless of whether it’s
on the extended track or not. If it’s on the simplification project track it doesn’t make any
difference.
An LSA staff member said there had been no effect on the assignment of legal aid, although there had
been pressure to instantly notify whether legal aid had been granted. This individual noted that if
timeframes were extended for CMMs to be filed it would take pressure off stakeholders.
In respect of timeliness, the LSA staff member said they have a 24 hour turnaround. For the majority of
the time, urgent applications are dealt with straight away, and the others will either be processed on the
day received, or the next day. It was also noted that LSA accommodates urgent applications and that
applications involved in the pilot were given priority.
1.4 Manukau
1.4.1 Appropriateness of payment
A court staff member said they did not think the new process affected the way legal aid is assigned, but
thought that it should. Another court staff member thought the pilot had raised issues around legal aid:
“there’s a whole separate lot of issues that were brought out by this…around the competence of the
lawyers doing it, and lawyers actually performing the duties they’re supposed to, and the contract that
LSA has with the providers”.
One defence lawyer felt the $450 payment was inadequate, depending on how much they had to do for
their client. This person said they were not sure ”how they quantify it” and that ”if you work out your initial
appearance with your client and get instructions from them, read the file on that same day, then put in an
appearance and then go see the interview, talk about the file, get back to your client, and then go to the
status hearing…It’s quite a lot of work for that amount of money”.
A Police prosecutor said that a small minority of counsel have never participated properly in the pilot,
and some counsel have said “I don’t have to do it, I’m gonna get paid anyway”. Another prosecutor said
that a main issue from the start was the engagement of defence counsel, ”I think there’s still a problem
with regard to how the whole system should be built with regard to legal aid, and it fits in to their
contractual obligations”.
66
1.4.2 Communication and clarity of changes
A court staff member said that if things could be done differently LSA should provide more input at the
beginning, ”they seemed to say that everything was happening but obviously it wasn’t and they got very
defensive right from the outset. Somehow that needs to be changed”. A meeting held to discuss issues
with LSA was not successful.
A LSA staff member said the process was not as clear as it could be, and it was not well understood by
staff or legal counsel. This person also mentioned the flow chart developed by an LSA staff member, ”it
was like ‘Claiming for Dummies’ – it was fantastic, so we actually sent that out to counsel who asked for
it, and hopefully that will make it much more easier for them to claim. And all the staff have got one too
so they can make sure the payment is right”.
A defence lawyer’s response indicated that they were unclear on the amount of the payments made; a
Police prosecutor also incorrectly described the payment process.
1.4.3 Assignment of legal aid
One court staff member said they were not sure whether the new processes had affected the timeliness
of legal aid but “they’re still slow”. However another court staff member said there had not been any
changes to the timeliness of legal aid assignment and ”we have always had that same day type legal aid
assigning”.
An LSA staff member said they have a same day turnaround at the Manukau court, ”that’s why we have
two staff in here, so the expectation is that we grant aid here and now, so yeah it hasn’t changed”.
A member of the judiciary thought there was more concentration on increased performance by Legal
Services Agency, ”we get less delay on account of people not having lawyers assigned, so that’s
improved”.
2. Implementation in sites
2.1 Key findings:
•
•
•
•
•
•
•
•
•
The process for LSA payments needed to be clarified to counsel.
Momentum needed to be maintained for the project.
New processes are liable to change, particularly to suit local circumstances – flexibility in the process
design is necessary to encompass such changes.
More comprehensive consultation needed to be undertaken with all stakeholders prior to the
implementation of the pilot.
Increased consultation and two-way communication would have assisted in getting people on board
from the outset.
Communication should be targeted to include all relevant staff and stakeholders, as not all key
contacts disseminate information.
Feedback should be provided to participants on how the pilot is working (or not) throughout the
duration of the pilot.
Feedback should also be provided on whether those involved are correctly following the changed
processes.
A face-to-face debrief would be welcomed by stakeholders.
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2.2 Changes through the duration of the six months
There were different views at both sites regarding the implementation and the operation of testing,
although participants at both sites indicated they would have liked to receive more concise and practical
information. Participants at both sites also felt that there should have been more consultation with those
involved prior to implementation.
Participants at Manukau had different views on whether they felt prepared when testing commenced,
with some indicating they expected to learn as they went, whereas in Tauranga it was felt that
participants were not sufficiently aware of the pilot and consequently did not understand the process
changes.
2.2.1 Tauranga
Four Tauranga respondents said there was no change to the way the process has been conducted over
time.
One court staff member said the pilot had “started off with a hiss and a roar…but it waned greatly”. This
person had noticed counsel “dropping off” in completing the forms which they thought was because
“generally they [counsel] were thinking what's the point, and they’re extremely busy, and having to fit in
this extra meeting…I think they were kind of talking anyway, but not on a specific time or date”.
Another court staff member said the only thing they noticed that had changed were the appointments
made by the Police and counsel – ”they make an appointment now when they enter their plea at the
court appearance so they actually have a firm appointment time”.
An LSA staff member said that initially CMMs were not being completed in a lot of circumstances, and
that lawyers did not know what they could claim for. A defence lawyer said they had spoken to someone
involved and discussed a lot of the processes to get clarification as to ‘what it was all about”.
2.2.2 Manukau
One court staff member said that initially they were filling out the yellow form incorrectly, and they ended
up getting a different form. They also noted the CMM was initially printed out and filled in manually, but
now it is printed through CMS. A different court staff member said that the CMMs were “coming in later
and later”. Another court staff member said that initially they were providing the early disclosure
packages first thing in the morning, which changed to mid-morning, and then late morning. They said it
also changed from every day to three days a week across at the Police station.
An LSA staff member said that because counsel were not sure how to bill the LSA, and did not always
include information on which case track the case was going down, it was taking the LSA longer to
process the payments. This person said “it’s not just as simple as getting an invoice and paying it”. The
person commented that when an invoice is received the LSA need to make sure it is going down one of
the tracks, get confirmation and if the track is not identified by counsel they may need to contact counsel,
“there are some counsel who are fantastic and put down what track…but they’re very few”. This person
advised this has not changed much since the pilot was first implemented.
A prosecutor said they had done things to try and simplify matters. This person said that initially the
court was to provide a room for the Police to meet with counsel, but that they dispensed with that early
on:
We’ve done certain things to try and simplify matters...We’d arrange to meet counsel in times
that suited them, if they were in a break. Let’s say they had a defended hearing and it fell over,
they’d give us a call, bring the meeting forward, so we’d try and fit in. So we didn’t always
structure it as it was meant to be structured, but I think that was for the better.
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Another participant considered the process had been ‘fine tuned’ over time, but noted this was expected
of a new process. A defence lawyer indicated the pilot had changed their communication with Police.
Three participants felt that nothing had changed.
2.3 Communication and materials for implementation
2.3.1 Tauranga
Most participants had read the material provided at the launch of the pilot but many could not remember
what this covered, or felt there was too much detailed background information and not enough practical,
day-to-day information.
Both LSA and lawyers indicated that the changes had not been well communicated to them as they did
not understand the new process, even two to three months after the pilot had commenced. It was
suggested that face-to-face communication might have improved this, however a number of face-to-face
events were held, at which very few defence counsel were present.
It was also implied that communication from project team leaders was directed at key contacts and
managers, and not necessarily disseminated to all relevant staff. Possibly as a consequence of this,
there were a number of people who had not been invited to the launch or meetings.
Suggestions for improving the implementation of potential future pilots included that more consultation
should be held with those working with the relevant processes on a day-to-day basis, and that
communication should be improved. It was suggested that such measures would assist in bringing
counsel on board and preventing issues such as those relating to legal aid.
Launch and materials
Three participants, including a court staff member, an LSA staff member, and a defence lawyer attended
the launch and initial meeting, and also the follow-up meeting. However many other participants either
could not attend all the events, or were unaware of them.
An LSA staff member and two Police prosecutors also noted that not many lawyers attended the launch
or the follow-up meeting. Two prosecutors thought this was because lawyers did not know about it:
…at the launch, there was only probably two or three lawyers there. The majority didn’t come
and even at the meeting in November there were only three or four lawyers at that as well. So
there wasn’t a great deal of interest in it and even today… one solicitor spoke to me about two
weeks ago and he still didn’t know anything about it, he hasn’t even been involved in a meeting.
So I don’t think they were given enough information, right from the very start.
One court staff member, who set up the process in Tauranga, said they had not attended the launch or
initial meeting as they were not invited. They said they had ”probably” read the material provided, but
could not recall the details. Another court staff member said they had not attended the launch or
meetings, but had read the material supplied, although they also could not recall whether this was useful
or not.
One court staff member had read the material supplied regarding the pilot and said that it was useful and
the level of detail was appropriate. However this person also noted that the initial material was “bulky”,
and said that “sometimes the bigger the document the less it’s going to get absorbed and read”, so a
summary may have been useful.
The material gave good background, set it out, what was the intention, how it was going to
work...I thought it was good.
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An LSA staff member had read the material supplied and said the information was useful, but that it did
not explain how the process would work on a day-to-day basis. This person said that two to three
months down the track they still did not understand how things should be happening, and said it was the
same for lawyers. This person said that the level of detail was not appropriate, and it would have been
better to have a step-by-step breakdown of the new process, and the reasoning behind each step.
One defence lawyer said that they couldn’t attend that launch, initial or follow up meetings due to work
commitments. This person said they had read the material supplied, but would have preferred to have
attended the meetings and had the opportunity to ask questions. Another defence lawyer read the
information supplied regarding the pilot, which they said was useful.
One Police prosecutor said they had attended the launch and initial meeting, but not the follow-up
meeting, as another prosecutor had attended. This individual had also read the material supplied, but
could not recall what was in it, ”I do recall we got the materials at short notice and I looked at it and it
didn’t make a lot of sense”. This person said that they would prefer abbreviated material, identifying the
main points and potentially referring to a website for more detail.
Another Police prosecutor said they had not attended the follow-up meeting, but they had attended the
launch and initial meeting, and also participated in a number of phone conferences, “we didn’t have a
huge number of our defence counsel turn up, but the meetings, particularly the first one, was beneficial
and quite clear, and it was obvious what was trying to be achieved”. This person had also read the
material provided. One other prosecutor had not attended any events but had read the material provided,
which they said contained appropriate detail and “gave an insight as to what the pilot was all about”.
Another prosecutor said they had attended the launch and follow-up meeting but had not been invited to
the initial meeting. This person had read the material supplied and said it was ‘okay’. Another
prosecutor had not attended the launch or meetings, but had read the material which they thought was
useful, “it’s one of those things that there’s so much to digest, like 57-odd 58-odd pages, but it’s a good
reference manual that’s for sure”.
A member of the judiciary said they had attended the launch and initial meeting, but not the follow-up
meeting as they were not aware of it. They had read the material supplied regarding the pilot, but could
not remember whether it was useful or not.
Preparedness and communication
One court staff member said they felt prepared when the testing commenced. Another court staff
member said that, despite not attending the launch or initial meeting, they felt prepared when the testing
commenced. This person said it was about putting the pilot into action and seeing how it worked.
Well like anything new, it’s a case of feeling your way isn’t it, putting it into action and seeing
how it’s going to work, how you’re going to develop it…I've had no complaints about what's
happening.
Another court staff member, who had not attended the launch or meetings, said they felt prepared when
testing commenced, “but I’ve had 20 years in the department and I just sort of rock on up…I kind of learn
better that way anyway. But it’s nice to have a general idea of what you’re walking into”.
Two court staff members said they thought that email was the best means of communication as it goes
out to the people who need to see it. One of these people noted that the intranet does not always work
as people do not always look for something to read on the intranet, “if it comes personalised to
individuals then you know it affects you and that you need to read the material, rather than just saying
there’s an update on the intranet, which makes it seem less important”.
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A staff member from LSA said they did not feel prepared when the testing started. This person said they
had required additional advice relating to the payment process, which they sought from the LSA head
office. This person said that it had been difficult to get clarity on the issues, which was frustrating. They
thought that communication should be a combination of teleconferences and a seminar, and that the
frequency should be ‘as-and-when’. They said that face-to-face communication was important as it
provided the opportunity to ask questions.
A defence lawyer said that having attended the initial meeting, and then reading the materials which
were available from the meeting, they felt prepared when testing commenced. One defence lawyer said
that they preferred face-to-face communication, as it provides an effective forum to talk or discuss it, “but
email is good as well”.
A Police prosecutor said they felt prepared when testing commenced as the Police involvement and
administrative processes were relatively straightforward, “We didn’t need to know the theoretical
background of how it's all going to work in the big picture. We are process people and we knew enough
to do the process”. Another Police prosecutor said they felt prepared as the details of the pilot had been
quite clearly spelled out in the initial meeting.
Another Police prosecutor said:
…I think we possibly underestimated how much time it would take to complete all the CMM
forms, you’ve got to have a dedicated person…we possibly underestimated that versus the
advantages of doing the CMM, the advantages versus disadvantages…and I still can't see a win
to at this stage.
One prosecutor said they preferred emails for communication, another preferred meetings, while another
said that occasional face-to-face face discussions would be more appropriate given there are only two
pilots operating. They said they were also aware that there had been a number of ‘compulsory’ group
phone calls made, “and I didn't get a totally positive impression from my colleagues who have attended
those”.
One judicial officer said the meetings and reading material had been good, but that “it’s good to have
somebody actually sit down and talk with you, just to make sure that you’ve got the right slant on it”.
While another indicated:
I still haven’t had anybody articulate to me exactly what measurable outcome we’re going to get
from the pilot, what was the aim in terms of measurable outcomes, how are those outcomes to
be accurately measured, and, in the context of running it in [the court], is it possible to separate
the signal from the noise?
2.4 Support for the test
Three court staff members said the only support they required was extra resourcing; one noted they now
had an extra person to assist with the project. Another court staff member said that for general
information email was fine, but if it was something like instructions on changes it was best to have oneto-one discussions. This person noted that emails can often be interpreted in more than one way, which
meant people doing things differently, ”and then the axe falls on us because we aren’t doing something”.
This person also said they were involved in running the pilot, but felt they were not being communicated
with, ”I’m not sure whether I’ve been party to everything”. This person said they also did not get any
confirmation of faxes sent to national office.
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I just feel I'm the person who’s doing all the work at the bottom and I'm not sure I've been party
to everything…I don’t know if there’s stuff being sent out or anything like that, that I don’t
know, how do you know that?
A court staff member said that support had come from an extra staff member, which they had only just
got at the time of the interview, “And we said that right at the start, we can’t do this, we’re already
overloaded, but there was no resourcing, it was basically you are doing it and that’s it”.
One court staff member said that if they had any issues or queries they called national office, who were
able to answer these:
[National Office Staff] were fantastic, so we talked a lot, so any issues or concerns I had, or
queries I had or wasn’t clear on, I just called [them]....And I think, for all of us, it was unknown,
it was new, and that’s why you have pilots, you treat them as you go along don’t you, you don’t
always have it perfectly how you intend it to be…I felt really well supported at the initial part by
the national office team, which was great.
A defence lawyer said they had not required any additional information or support, other than clarity of
the legal services payment, “once it’s up and running it pretty much takes care of itself I think”.
A Police prosecutor said they had requested guidance on what to do in relation to counsel who were not
attending meetings, but they had never received a satisfactory response on this issue. Two prosecutors
also said that clerical support was needed, particularly to assist with file management. Another
prosecutor said they had received support in the form of regular telephone conferences with their
supervisor. Another prosecutor said the only additional support they needed was staff, but they were not
sure this could be justified, as they thought it would be a waste of resources.
One Police prosecutor said they thought it would be useful to brainstorm with a group “so that people
can highlight their problems and issues and have their say, and then answers can be given to address
specific problems or concerns at the time”. This person thought that would be the best way for lawyers
to get involved, ”then if they miss an opportunity it is their own doing – if they get given an opportunity
and don’t take it they can't criticise it can they?” This person also suggested an 0800 number be set up
to answer queries.
2.5 Issues and recommendations
A court staff member said there is an issue with getting all the parties involved to attend meetings, and
thought that lawyers may not have had problems with payments if they had attended the launch. This
person said it was important that everybody involved is at the launch, and that the launch is done at a
sensible time when people can attend, “maybe do it twice so that everybody has the opportunity to
attend”. Another court staff member thought there was a need to talk to the lawyers personally as “they
weren’t sure after they had been to the pilot of exactly what was going to happen”.
A defence lawyer said they thought the issues of Legal Services remuneration for participation in the
project “could well have been handled a lot better”. This person said that email was their preferred
means of communication. Another defence lawyer said it was best to hold meetings in the evenings as it
was too difficult to attend during the day.
I think the issue about the Legal Services remuneration for participation in the project could
well have been handled a lot better, because there was an enormous amount of confusion about
what was happening if you didn’t participate or you missed a meeting.
An LSA staff member said that people need to know how processes are going to affect them in their dayto-day work environment, and so need more in-depth information.
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A Police prosecutor noted there was a lack of awareness amongst stakeholders as to the purpose of the
project, which they felt may have affected attendance at the launch and meetings, and buy-in more
generally. This person thought the best method for communication was email, although they said they
would rather have such communication passed on to them by the relevant person at their office rather
than receiving a number of group emails as ”you get them and you know, you are not even sure if they
apply to you”.
Another Police prosecutor said they thought that more consultation needs to happen with the people on
the front line, “people that actually are in the court dealing with the files”. Another prosecutor also said
that more consultation was necessary with people who were dealing with relevant processes on a dayto-day basis.
It’s something which the people who design it have a pie in the sky idea of how it could work,
and the consultation with people who are actually dealing with it day-to-day hasn’t been
adequate…or if people have been consulted on the day-to-day workings, they haven’t been
listened to, they’ve said, oh you’re negative obviously and we won’t listen to you anyway…the
people who are physically dealing with things on a day-to-day basis must be consulted prior to
these things coming into pilots.
Another prosecutor thought it would be good to have a face-to-face meeting, like a debrief, and invite the
defence counsel, judges and other stakeholders to discuss the result of the pilots.
A judicial officer said they were unsure whether they had fulfilled the envisaged requirements, “nobody
has come back to us and said whether we’re doing it right...we’ve really just taken the initiative as we
interpreted and applied it across our work in terms of trying to keep the cases moving”. This person said
they had not been involved in the teleconferences or had any other contact from national office staff, “it
would’ve been quite good just to have somebody come in and check that I was doing what you wanted
me to do in terms of the pilot and the new process”. This judicial officer indicated they were also
involved in training other judicial officers and were not sure whether they were passing on correct
information.
An LSA staff member said that it might be useful to have a confidential computer link between LSA and
the court and Police on which issues could be recorded. They noted that LSA has a criminal register
where legal aid decisions get entered on a daily/weekly basis.
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Appendix one: qualitative analysis
Simplification project –
Key findings of qualitative research
Contents:
01: Introduction
02: Methodology
03: Benefits & issues
04: Project purpose
05: Key aspects of the pilot
06: Disclosure
07: Differentiated caseflow management
08: Case Management Memorandum
09: Compliance
10: Legal aid
11: Scheduling
12: Impact on roles
13: Interaction with others
14: Local practices
15: Changes in perceptions & behaviour
16: Implementation & operation of testing
17: Impact on defendants
18: Impact on other processes
19: Additional issues and feedback
1
2
2
5
7
8
11
13
15
17
18
20
21
22
23
24
26
28
29
Appendix 1: Interview guide
38
01: Introduction
This document outlines the key findings from the qualitative research component of the six-month review
of the Criminal Procedure (Simplification) Project. As part of this project, two pilots have been conducted
– one in Manukau District Court and one in Tauranga District Court.
This research aimed to understand the experiences of those involved in these pilots over the past six
months, and provides insights on perceptions and behaviour of stakeholders. These findings are
presented in relation to specific aspects of the tested processes. Many participants also raised other
unanticipated benefits and issues in response to other questions asked throughout the interview. These
issues have been captured in Section 19: Additional issues and feedback.
As the findings presented in this document are opinion based, they should be considered against the
quantitative data collected for the six-month period.
Appendix one
74
Please note:
ƒ Not all research participants were asked every interview question, as some were only applicable
to certain positions
ƒ Not all interview questions asked were answered, as some interview participants were unable to
answer the questions. This may be due to lack of direct involvement in the matter discussed, or
due to misinterpretation of the interview question.
02: Methodology
Targeted interviews were conducted with participants who had been involved in the testing. This
information provides the Ministry of Justice with a broad understanding of their experience of the testing
over the past six months.
The Ministry conducted interviews with 30 participants including court staff, Police prosecutors, defence
counsel, legal aid staff and judicial officers. Participants were involved from both sites - Manakau and
Tauranga District Courts. Sixteen people took part in the research at Manukau 10, and 14 in Tauranga.
Participants were selected to ensure a representative of each of the various roles involved was
interviewed from both sites.
Participants were contacted via email, and sent a copy of the information sheet and consent form. The
face-to-face interviews were conducted between Tuesday 27 January and Friday 30 January, and phone
interviews were conducted between Monday 2 February and Tuesday 23 February. Each interview took
approximately one hour and were conducted by Ministry staff who were not involved in the project at that
time and did not personally know any of the participants they interviewed.
03: Benefits & issues
Summary
Overall there were a number of benefits and issues identified by research participants. However there
was a marked difference in views of the research participants from Tauranga compared with those in
Manukau. Research participants in Tauranga largely indicated that the new process was not useful,
while many of those from Manukau identified multiple benefits. Participants at both sites commented on
the additional workload, however while Manukau interviewees said there was a need for additional
resourcing, those from Tauranga suggested that the lack of benefits meant such resourcing could not be
justified.
Many participants also raised other unanticipated benefits and issues in response to other questions
asked throughout the interview. These issues have been captured in Section 19: Additional issues and
feedback.
Tauranga
Most research participants in Tauranga indicated that the pilot was not useful and had not brought about
benefits, other than improvements to disclosure. Around a third of all research participants at Tauranga
indicated that the pilot had increased workload and pressure on staff. Some participants also said that
the pilot negatively affected working relationships and had slowed down the process.
Only half of all research participants commented on any benefits of the new process. Of these, three
interviewees said that the pilot had not brought about any benefits. However two interviewees indicated
that the changes to disclosure were beneficial, while others said that there were also benefits relating to
early discussion and resolution, time requirements for defended hearings, and guilty pleas.
Less than half of all research participants commented on issues arising from the new process. The
majority of those who did comment indicated that the process was not useful, despite creating extra work
for those involved. One defence lawyer said that there weren’t any issues with the new process.
10
This number includes one individual who works at a National Office, but was interviewed in Manukau.
Appendix one
75
“I can see the need for it to be an experiment or a test to see how it is going to work and I
understand the way they are doing it… But I think a lot of us have a concern that in
Tauranga things were working quite well [and the process] is actually going to have a
detrimental effect rather than a beneficial effect… but I can understand it may be
different in other courts, it might be actually a beneficial effect in other courts. Whether
the one solution fits all is going to work is debatable”
The majority of research participants in Tauranga who responded to this question (half of the all research
participants in Tauranga), said that the pilot had not brought about any improvements. However two
people said disclosure was an aspect that had improved; and one indicated that the liaison between
defence counsel and Police had improved. It was also suggested that there had been an increase in
guilty pleas, and that the pilot had raised awareness of the process.
“…I can see no advantage to it whatsoever, for the time, effort put in by everyone
concerned, I'm talking about judiciary, the court staff, solicitors, and prosecution, I can
see no advantage to it at all, that isn’t already being coped with and dealt with quite
sufficiently by a status hearing”
“…the Judge is a person of authority - the defendant recognises that, and when the Judge
says ‘listen, this is what may happen at a not-guilty hearing, this is what may not
happen, these are your choices, but if you were to plead today, if you’ve done the crime,
this is what you’d be getting’ often they’d think to themselves, ‘yeah actually that’s not a
bad deal, and I did do it after all, yeah okay I’ll plead guilty’, and resolve them… so it’s
still important that they go through that process”
.
Around a third of all research participants at Tauranga indicated increased work and pressure on staff as
a negative aspect of the pilot. Some participants also said that the pilot negatively affected working
relationships and had slowed down the process. One person was concerned with the impact of the Case
Management Memorandum (CMM) on defendants, while another said that there was no benefit from
using the CMM.
“The commitment, the absolute commitment of a staff member, it’s effectively the loss of
a staff member who is now tied up in CMM. It’s actually a loss of a staff member and I
fail to see any benefits at this stage”
Manukau
Research participants from Manukau generally indicated that the tested processes had multiple benefits,
particularly in relation to case progression and earlier resolution, and also improved communication and
relationships, despite nearly a third of participants indicating there were issues with a lack of resourcing.
Participants from Manukau also identified as issues: lack of engagement from defence counsel, noncompletion of the CMM, confusion regarding the new LSA processes, and issues with dates/scheduling.
Many participants from Manukau highlighted more than one benefit from the new processes. More than
half of all research participants from Manukau indicated that the new process had increased the speed
that cases were progressing through the courts and/or provided earlier resolution. Other benefits
mentioned by more than one interviewee were better outcomes for defendants, and a reduction in churn.
“There are huge benefits…cases getting finalised. People aren’t having to come back six
times before their matter’s going to court. A lot of people now are getting to talk to their
lawyers, which they weren't before - a lot of our lawyers were talking to the defendants
on the day, and the same with the prosecution… Now when the lawyer stands up in
status he at least knows what he’s talking about because he’s had to look at the file”
Appendix one
76
Half of all research participants from Manukau indicated that there were issues with the tested
processes. Issues identified included:
• lack of resouring
• lack of engagement from defence counsel
• non-completion of CMMs
• the structure of legal aid
• the ability to ‘park’ cases at the status hearing court
• people not knowing whether they were correctly complying with the new processes
• the possibility that people might lose interest over time, and consequently lose momentum for the
pilot.
“…I think a big deal for everybody is actually knowing that we’re on the right track. And
if that means seeing our initial results and seeing if we’re actually on the right track, or
we need to do something different, it might help. Because we don’t want to come to the
next six months and then realise we’ve just wasted our time”
“I think over time that will be interesting to see whether this maintains its momentum.
Family Violence Courts are a really good example where we were doing all sorts and
people were taking it very seriously. Now it’s just become another parking lot for cases.
Status hearings were the same…”
Research participants from Manukau also identified a number of aspects that they considered had
brought about improvements, the most frequently referred to being improved communication and
relationships (which was mentioned by around a third of all interviewees). Also identified as positive
aspects by more than one interviewee were: improved disclosure, less adjournments and/or time
savings, improved participation by counsel, and improvements to status hearings.
“It’s improved [disclosure] in so far as we only have to negotiate with one person,
whereas in the old days we were ringing round tracking down five Police officers who
were working night shifts and all sorts of things… the other advantage is it gets rid of
those cases where inexperienced Policemen have over-charged…”
Just under a third of all research participants from Manukau indicated that the increased workload had
been a negative aspect of the pilot, particularly without extra resourcing. Other negative aspects
mentioned by more than one interviewee were confusion regarding the new LSA processes and issues
with dates/scheduling. However a quarter of all interviewees said that they didn’t think any aspects of the
pilot had made things worse.
“…Before Christmas I worked four Saturdays in a row, in my own time, trying to keep us
up to speed on this simplification processes… So while you’re saving judicial time and
the files are going through a lot quicker… you’ve made staff work twice as hard in order
to get this work processed through the courts”
“…it feels like another load of paperwork we have to fill out, that we don’t know if
anybody ever reads them...”
“We have got two prosecutors taken out of our armoury really to go and fight the good
fight in the other courts. You know, they are over there handling all those files, and
chasing lawyers everywhere, and a lot of their time is wasted… the pressure comes on
the other staff within the office and, of course, you are put into courts with very little
preparation time so it has a detrimental affect on the way you can conduct your cases”
Key messages
• Participants at Tauranga strongly indicated that the process was not beneficial 11; if this is not the
case, consideration might be given to communicating the results.
• Participants at both sites indicated that additional resourcing was required for the tested process.
11
This view might be given further consideration taking the quantitative data into account
Appendix one
77
04: Project purpose
Summary
Generally, research participants saw the purpose of the project as improving or speeding-up court
processes. However, very few participants could identify the four aims of the process as set out in the
documents provided to participants 12. Some responses indicated that the purpose of the pilot differed
depending on the location and role of those involved.
A recurring view, particularly amongst Tauranga participants, was that the purpose of the project was to
test the processes in a ‘good’ versus a ‘poor’ court. This perception is reflected in many of the Tauranga
participants’ responses to other interview questions as well.
Tauranga
Research participants from Tauranga thought that the purpose of the project was to improve efficiency,
reduce court hours, and utilise judicial time well. Other responses given by more than one person were
ensuring that discussions were held and all issues dealt with, improved liaison with Police, and getting
non-performing courts working as well as Tauranga. One person thought the purpose was to achieve
standardised results nationwide. Two people indicated that they were confused as to the purpose of the
pilot.
“My understanding is that we had a system that was working well in our court and it’s
been retested by this to try and get other courts perhaps working as well as we were
anyway in the particular system. We were told that they had selected the worst case
scenario and the best case scenario in the courts in the system to see whether the system
would bring everyone up to a different level. My understanding was that we were
already there. That’s how it was sold to us”
Manukau
Various research participants from Manukau said that the project was ‘an attempt to streamline the
process, make it more efficient, make status hearing function more the way they’re designed to’ and
‘prevent needless adjournments’. Others indicated that the purpose involved earlier disclosure, meetings
between prosecution and defence counsel to clarify issues (charges/pleas), earlier disclosure, and
facilitating the movement through the court in a more efficient manner. It was indicated that this results in
less, and more certain, court events, and also faster progress/resolution of cases.
“My understanding of it is that MOJ and Law Commission were looking to try and find
some way to help the summary process through the court, which I think is becoming
over-burdened and clogged… I think this was a way of trying to get defence and
prosecution to meet outside of the court arena, so that when they came to court the
ducks were in a line and they weren’t wasting the court’s time with needless
adjournments”
“Manukau is probably the busiest court in the country... so I think the main purpose is
to try to clean up the back-log”
“Police wouldn’t bring their witnesses because they knew that there was a very good
chance the case wouldn’t go ahead; the witnesses that did come didn’t want to wait
around all day, as they often had to do, and often they’d say, ‘Well I’m never going to
help the Police again, I’m never going to give evidence again if this is what’s going to
happen.’ So the simplification was to simplify all that, and it’s a great system, that
works”
12
The four aims identified were to:
• promote earlier guilty pleas and less adjournments through improved disclosure and instructions to
counsel
• promote less appearances in the administrative stage
• decrease time from first appearance to disposal
• ensure judicial time is utilised appropriately, particularly for status hearings.
Appendix one
78
Key messages
• Participants’ responses generally indicate that the purpose of the project was not well
understood, or was misinterpreted; consideration might be given to improving how such
messages are conveyed in future.
• Misunderstood messages about the project purpose (in relation to court performance) may have
influenced Tauranga participants’ attitudes on the pilot.
05: Key aspects of pilot
Summary
Most participants identified one or more of the key aspects of the project, which were early initial
disclosure, differentiated caseflow management (tracks), and the CMM, however few were able to
describe all aspects. Some participants saw the key aspects as synonymous with their understanding of
the project’s purpose, while others viewed the impacts of the pilot as the key aspects.
These responses may reflect a lack of understanding of the key aspects of the pilot, which would
indicate that the pilot was not well understood. However such responses may also be due to the way in
which the interview questions were worded, and the research participants’ lack of clarity as to what they
were being asked.
Tauranga
Research participants at Tauranga identified a wide range of features as the key aspects of the pilot. The
most common response was to improve co-operation and communication between parties, while more
than one participant identified disclosure, reduction of delay and early pleas/decision making as key
aspects. Individual participants identified timeliness, issue resolution, increase in workload, compliance,
CMM, and less adjournments (and removal of backlog) as key features.
‘From where I sit it’s been a lot of work for something that was trying to fix something
that wasn’t broken’
Manukau
A number of research participants at Manukau identified earlier or improved disclosure as a key aspect
of the pilot. A number also identified improved negotiation and liaison between parties as key aspects.
More than one participant responded that the CMM was a key aspect, as was the knowledge of process,
including judicial awareness. Individual participants identified various other features including:
investigation/solving problems; differentiated case management; simplifying the process; improving court
staff capability; delivering a fairer and more equitable form of justice to all; early identification of issues;
stopping churn; completion of documents out of court; reducing appearances/adjournments; and
speeding up the court process.
“The key aspect is to figure out what makes it happen, and what can make it happen
quicker… whether it be the court’s fault, counsel’s fault, prosecution’s fault… try and
figure out where the problem is stemming from and fix it”
“I think the key aspect is the negotiation stage with the Police, and the ability to try and
resolve the matter with a senior Police officer rather than doing it on the day with the
prosecutor”
Key messages
• The key aspects were unclear, and therefore should be more clearly identified for any future
projects/pilots.
• A number of interviewees did not understand what was meant by the term ‘key aspects’; such
interview questions may need to be worded differently in any future research.
Appendix one
79
06: Disclosure
Summary
Many respondents saw the new processes for disclosure as a positive change, although not all were in
agreement about how well they were working. Court staff reported that the change had resulted in extra
administrative work for the registry; Police prosecutions also said that the pilot had created a lot of
clerical type work for them. There was a difference of opinion amongst participants as to whether this
extra work could be justified.
All participants indicated that they are getting disclosure at an earlier stage, and one participant said that
they are not having as many adjournments for disclosure. However a number of participants noted that
the disclosure isn’t always complete. Almost all participants said that they felt the disclosure process
meant that a plea could be entered at the first or second appearance, however it was also noted that
sometimes this was not possible.
There was a marked difference between respondents from Manukau, who were generally positive about
the pilot, and those in Tauranga, who indicated that they felt that there was little to no room for
improvement in their processes.
Tauranga
Half of all the research participants at Tauranga (seven interviewees) indicated that initial and/or further
disclosure had improved. However other participants (four interviewees) said that the pilot had brought
about little or no change. One research participant said that the pilot had ‘made things a lot quicker’.
“I think it’s been a timely reminder for constables to make sure they have the most
amount of disclosure available at the first opportunity”
“It only brings about a change for those who didn’t know how to do it previously… and
those who haven’t shown any skills don’t show any sign of improving under that new
regime.”
A number of research participants from Tauranga indicated that the pilot had brought about positive
changes to disclosure, with one saying that it ‘worked excellently’. However one participant said that it
involved extra paperwork, one said that it wasn’t working, and another said they weren’t sure if it was
working as they had good processes in Tauranga prior to the pilot.
“all its done is added in extra work for parties in that they have now got documents
they’ve got to sign off. Before it was handed over, and the Police would have recorded on
their file disclosure to counsel… now there is all this extra paperwork signing off this
copy, that copy…”
“It [disclosure] is, from my perspective, really the only part of the Pilot for Tauranga
that has been worthwhile”
A number of research participants in Tauranga identified early discussion as a positive aspect of the
tested processes, while positives identified by individual participants included better discussion with
clients, earlier resolution, and awareness raising. The main negative aspect identified was extra work,
while one research participant said that the sign off process for disclosure was ‘a hassle’, and another
said that there was ‘some inherent adversity to change’.
“It’s added a step in the process that is only desirable for those who are incapable of
doing those things themselves”
Appendix one
80
All research participants at Tauranga said that the new processes provided sufficient disclosure for a
plea to be entered at the first or second appearance. However one participant noted that this was
dependent on the seriousness of the charge, and two felt that a plea was more likely to be entered at the
second appearance. One interviewee indicated that plea entry hadn’t changed as a result of the process.
‘The majority of our cases on a first appearance enter a plea and go before a community
magistrate and are dealt with on the same day. That hasn’t changed. A lot of those enter
a not guilty plea - I don’t think it’s changed that either’
One research participant noted that Police officers are not trained to determine what disclosure can and
can't be given, such as reasons for withholding items under the Official Information Act, and as such, the
process is 'fundamentally flawed'.
Manukau
More than a third of all research participants from Manukau noted that the new processes had brought
abount improvements to disclosure, although a member of Police noted that this may also be due to the
impending codification of disclosure. A number of participants indicated that the pilot had brought about
positive changes, which were described as ‘huge’, ‘excellent’ and ‘fantastic’. Individual participants
identified a number of other changes including: less adjournments; changes to the Registrar’s list;
increased workload; improved efficiency; and more certainty. One research participant said that they
didn’t think there had been any real change.
“I’ve found that disclosure has been really good. You have it on the first day, so you can
make the appointment on the first day, and you can talk to the Police officer, and
obviously instruct your client accordingly. It has been quite efficient”
A number of research participants from Manukau indicated that disclosure had improved, with one
describing the changes as ‘excellent’. However one person noted that some of the improvements may
be due to the new Criminal Justice Support Unit 13. Two research participants said that they were unsure
how well the changes to disclosure had worked; one thought it was too soon to tell and the other noted
that people were still maintaining their not guilty pleas. One research participant said that more people
had come on board with the pilot, however another said they thought that the benefits had declined over
time as people had ‘fallen back into bad habits’.
A number of research participants said that improved communication was a positive aspect of the tested
processes. Individual research participants said that other positives were: quicker case progression;
more judicial time; improved guidance for staff; the ability to elect a defended hearing, and that there
were rarely grounds for any further adjournments or remands. Very few research participants from
Manukau identified negatives with the new processes. Those that were noted were: increased workload
(and lack of resourcing), administrative issues with the process within the court room, and, as the
process was ‘totally reliant in the people dealing with it’, maintaining momentum was likely to be an
issue.
“I just see that the whole simplification process has always been something that the
courts, in particular, have tried to achieve but they can't achieve it on their own”
“Unfortunately it is a similar scenario from when the status hearings first happened…
everything was dealt with really efficiently and quickly, and then of course as it went by
different prosecutors had different ideas. There was no leeway, there was no talking,
and so it got to the point it became a lot more adversarial again and that was like, we’ll
plead not guilty to everything. So, this is working for now. But are you able to keep the
momentum up?”
13
A Police initiative focussed on improving the preparation of files prior to first appearance
Appendix one
81
Around half of all research participants from Manukau said that the new processes provided sufficient
disclosure for a plea to be entered at the first or second appearance, although one of these participants
indicated that this happened prior to the pilot. Just under a third of all interviewees from Manukau said
that the plea could be entered at the first or second appearance most of the time, depending on the
case. None of the participants said that a plea could not be entered at the first or second appearance.
“To be perfectly honest I think they could have done it without the disclosure… In the old
days we had guilty pleas all the time on the summary facts, whereas now it seems to
have become an industry of its own”
“Nine times out of 10, sometimes it just can’t be done, it’s the nature of the beast”
“…If he’s [the defendant’s] made a DVD evidential video, there’s no way I’m going to
enter a plea until I’ve seen it. Because if a conviction rests on that DVD, and the process
hasn’t been followed properly, i.e. Bill of Rights, it would be negligent on my part to
plead him before seeing the DVD”
Key messages
• The pilot has created a large amount of administrative work; it was suggested that this needs to be
justified.
• Participants indicated that disclosure had improved, although it should be recognised that the
provision of disclosure can be constrained by outside influences.
• Participants indicated that if either pilot were retained, focus needs to be given to sustaining
momentum.
• It was suggested that Police are not adequately trained to provide disclosure and that this needs to
be addressed.
07: Differentiated caseflow management (use of extended and simple tracks)
Summary
Participants at both test sites understood the intention of introducing the case tracks approach, although
participants in Tauranga seemed confused as to how, at a practical level, the tracks would assist with
improving the progress of cases. There was also some confusion amongst individuals at both sites as to
what the different tracks actually were.
Many Tauranga participants appeared to hold the view that the new processes had increased their
workload and that they hadn’t seen many positives arising from this, and also that the different tracks
were not useful. This is in contrast to Manukau where respondents thought that the different case tracks
were useful.
A few specific issues were also identified at each test site, including difficulties with scheduling and
changing hearing dates, and also contacting defendants. It was also noted the personalities of those
involved had an impact on how well the processes work..
There were mixed views on the extended track – most Manukau participants thought that it worked well,
while Tauranga participants did not. There were also conflicting opinions amongst participants at each
site on the simple track process and also on the cases that should be included in the tracks approach.
Tauranga
Participants in Tauranga generally thought that the purpose of the different tracks was to progress cases
through the court system more efficiently, although there seemed to be some confusion as to how the
different tracks assisted with this.
Appendix one
82
Of those participants who commented on whether the different tracks were useful, most felt that they
were not. There were mixed views on the extended track process, with some people indicating that the
process allowed for useful discussions between prosecutions and defence, and other people saying that
the process had created administrative burdens without the requisite benefits.
Those research participants who commented on the simple track process generally indicated that it was
working well. Two negatives identified were that there is less opportunity for discussion and negotiation
between the prosecution and defence, and that allocating fixture time is still an issue.
There was also a difference of opinion regarding whether the cases currently included were on the right
tracks, and whether cases currently excluded could benefit from the case tracks approach - one common
theme was that domestic violence matters could be included.
“I don’t believe that we have seen huge changes because it was already happening
anyway. We’re still having status hearings. We’re still putting cases to status hearing
even if both parties agree that their case is ready for a fixture because it enables us then
to give the defendant the fixture date… so it probably hasn’t changed in the number of
events we have and it would have happened at the status anyway”
“‘any opportunity you can get to focus on the merits of the case with the prosecutor are
generally very productive…, prior to this pilot project, that meeting either didn’t take
place or it was in the form of a very very quick conversation at a status hearing in court
when the prosecutor was under significant pressure”
“It works, I suppose, but I just feel it’s unnecessary. I don’t think it adds enough to
justify its existence if you know what I mean? It sort of feels a bit superfluous”
Manukau
As with Tauranga, most respondents from Manukau thought that the purpose of the different tracks was
to progress cases through the court system more efficiently. While some research participants didn’t
understand the difference between the two tracks, other participants demonstrated a reasonably good
understanding as to how the different tracks assisted with this goal. Most respondents also considered
that the different case tracks were useful.
Most participants thought that the extended track worked well, however most participants also indicated
that they were concerned that counsel were not fulfilling their obligations and that the process was
designed to get counsel do something that they should have been doing anyway.
Participants seemed to have mixed opinions on the simple track process - some people thought it
worked well and removed unnecessary hearings, while others said it wasn’t much different from the
previous process and therefore hadn’t brought about any improvements. It was also noted that there
were problems with scheduling.
There were also mixed views on the cases that have been and should be included in the tracks.
Suggestions were made for domestic violence, benefit fraud, and indictable issues to be included, while
one individual noted it would be inappropriate to include self-represented cases due to the discussion
and negotiation process with Police prosecutors.
“I actually think, and having worked in registrar’s court, that most of this stuff should
go through the status hearing, through the extended track. We have certain cases that
don’t go through the extended track, and I've had requests for them to go through the
extended track by counsel, because they feel that a meeting with the prosecution could
actually resolve a case which would normally have gone straight to a defended
hearing… so I've set that down on my own initiative through the extended track rather
than putting it straight through to the simple track”
“I don’t know what the statistics are, but generally the ones I have had have gone down
the extended track with the interview etcetera, have all been resolved”
Appendix one
83
“…all we try to do is use a four-page document to try to get the lawyers to do what’s
always been their job and what they’re being paid to do by Legal Services. The system is,
again, being engineered to overcome the problems of the law profession, which has been
a major problem for Manukau for years and years and years”
“I think it’s a vast improvement on the old system, but it’s definitely got a few things that
need to be ironed out”
Key messages
• The function and purpose of the differentiated case tracks approach seemed unclear, particularly
amongst research participants from Tauranga – communication of these may need to be improved if
additional pilots are carried out.
• It was suggested that consideration might be given to including additional cases in the tracks
approach in any future pilots, particularly family violence.
• It was indicated that the tracks approach may be more suitable for some courts than others (e.g. if
the quantitative data supports the view that the case tracks approach was useful in Manukau but not
in Tauranga).
08: Case Management Memorandum
Summary
The majority of participants understood the purpose of the CMM, however there were mixed responses
in terms of its usefulness - Tauranga participants generally did not believe that the CMM was useful, as
they believed that the previous process was working well without the CMM, while in Manukau a number
of participants did find the CMM useful. A number of issues were raised by participants, including the
work required to complete the CMM process, and the lack of buy-in from some stakeholders. There were
mixed views on whether the timeframe was appropriate, and also on whether the CMM process would
be useful for other cases.
Tauranga
Most participants at Tauranga understood the purpose of the CMM, but most also felt that this purpose
was being achieved prior to the pilot, and indicated that it was a lot of work for little or no benefit. Some
participants also indicated that there was an issue with getting counsel to fully participate, which
diminished potential benefits from the CMM process.
The majority of participants stated that they always used the CMM for extended track cases, though this
appeared to be because it was a directive or a requirement for payment, rather than because they
viewed it as useful. A few noted that initially compliance by counsel was low, but this situation had
improved by the time of the interview.
There was a mixed response in terms of whether the timeframe was sufficient, with different preferences
for those in different roles. The majority of the people who commented on whether cases excluded from
the CMM process would benefit from out of court discussions thought that the CMM would be useful for
other cases, including domestic violence cases and cases brought by other prosecuting agencies, such
as Work and Income.
“… often [counsel] don’t get to see their client until the court day that the client has been
told they are to turn up, because clients they don’t answer their phone, or the only
contact they have got is a cell phone and there is no credit on it and so forth and so on…
so yes, I do have sympathy for them”
“… it’s very important for that process to be implemented in the likes of Manukau, South
Auckland, but I’m not so sure of the relevance of it south of the Bombay hills”
Appendix one
84
“I think there will be full and frank discussion. But it will only take one occasion where
something that occurred in CMM is used against the defence, that I think lawyers will
start clamming up and then you are not going to have any reason to have them, so there
is an element of risk there I think”
“… this CMM seems to be a status hearing before a status hearing, and doesn’t seem to
serve any great purpose that a status hearing doesn’t serve. It’s the old trying to reinvent the wheel which is already actually going round and round and getting us in a
forward motion”
“I had one solicitor come in one day and I think he had about four memorandums. He sat
there and ate his lunch while he did it, and he walked out and he said to me, ‘That was
the easiest money I have ever made.’”
Manukau
Almost all participants had a clear understanding of the purpose of the CMM, with minor variations.
However some participants did not understand how the process was meant to work – and not all of these
people were aware that their understanding was incorrect.
It was apparent that the CMM is not always used, with only two Police prosecutors and one defence
lawyer saying that they always use the CMMs. It was also evident that Police prosecution had some
issues getting counsel to take part in the meetings, particularly in a timely manner, which had affected
the process and also put more pressure on court staff.
There were mixed views on whether cases that have been excluded from the CMM process would
benefit from out of court discussions – while some individuals thought this would be useful others
indicated that there would be the same issues as already experienced in trying to get these completed.
“It clearly provides a starting point for both parties, that is prosecution and defence, to
highlight issues, to discuss, to agree on things, and if used properly… gives the judge a
better idea of what discussions have taken place, which could shorten the time in court
for a judge”
“It’s a lot of paperwork you’d have to say, I think you could probably shorten it a lot
more. From memory, really, I don’t fill out a lot. I just sign it and [the prosecutor]
basically just fills it in. We don’t need this, we don’t need that, just cross it out… And I
think, at first that was a stumbling block for a lot of defence lawyers, thinking that
they’d fill it out, and later realising that it was the prosecutors that did that. But, then
again, it’s a burden on them, isn’t it?”
Key messages
• There is a lack of buy-in from stakeholders, particularly in Tauranga, many of whom are unconvinced
of the benefits of the CMM process – this may be addressed via communication of the quantitative
data if it indicates that there are benefits.
• Consideration might be given to the CMM form as participants’ responses indicate that the benefits
of the CMM are ‘questionable’.
09: Compliance
Summary
Research participants at both test sites indicated that most parties were complying with the piloted
processes where possible, with the exception of defence counsel, whose involvement appeared to be
superficial.
Research participants from both courts advised that participation and compliance changed over the
duration of the pilot, which may be attributable to resourcing, follow up by Police, clarity of LSA payment
changes, and changes in the number of cases including in the testing. It was also suggested that judicial
input and perceived value of the CMM was likely to have affected buy-in and participation of counsel.
Appendix one
85
Suggestions for encouraging compliance included reducing administrative burdens, clarifying the LSA
process, and formalising the process for CMM meetings and outcomes. However it was also noted that
the focus should be on encouraging buy-in via consultation and communication, which would improve
participation, rather than enforcement of the processes.
Tauranga
The majority of research participants from Tauranga indicated that, with the exception of defence
counsel, all parties had made an effort to comply with the piloted processes. It was indicated that
defence counsel were not having the meetings with prosecution or completing the CMMs. It was also
indicated that some defence counsel were superficially complying, but that little real value was being
attributed to the tested processes. However the defence counsel that were involved in the interviews
indicated that any non-compliance was due to workload or oversights, rather than a conscious decision
not to comply.
Most interviewees indicated that counsel participation and compliance had fluctuated. It was said that
counsel initially appeared to comply with the pilot processes, possibly due to follow up by Police
prosecution, but that this dropped off. In addition, participants felt that compliance had improved more
recently, which may be due to clarity around LSA payment processes. However it was noted that judges
did not appear to use the CMMs, and that they weren’t encouraging counsel to complete these, which
was likely to have affected counsel buy-in and compliance. It was also suggested that recent
participation by counsel was superficial and carried out only to satisfy the LSA payment requirements.
Most of the interviewees who commented on compliance thought that the focus should be on
encouraging buy-in via consultation and communication, rather than enforcing compliance. It was also
suggested that CMM meetings could be held at the court to make it easier for those attending the
meeting.
“The lawyers, most of them, are self-employed, they are their own bosses, they have got
their views about the CMM process and, you know, they are driven by the money… they
have got a different interest in it than what we have - we still get paid the same. We just
come to work, do our job, whereas it is different for a lawyer, because there are different
interests at stake… I don’t think the compliance has had integrity”
“…the judges didn’t help this either… I was under the impression right from the start
that if the CMMs weren’t filed and weren’t being completed the judges would deal with
that - there was no onus on [court] staff to follow the filing of those up before a status
hearing. I have to say that the judges didn’t do anything about it”
“…I mean you could put penalty type provisions in place you know, or refuse to pay
legal aid…but rather than forcing people to do something because they are not going to
get paid or there is going to be a consequence in that regard, it is better to try and get the
buy-in in the first place”
Manukau
Research participants at Manukau generally indicated court staff and police were doing their best to
comply with the piloted processes, while defence counsel were not. It was also suggested that not all
judges had bought into the pilot. Court staff indicated that they did not have the resources to correctly
comply with the pilot, and as such had not always followed the tested processes. It was also noted that
Police were late in passing information to court staff as they had been giving defence counsel extra time
to complete the CMM meeting. Defence lawyers indicated that they would not comply with the tested
processes where it put their client at a disadvantage.
It was noted that participation in the pilot had changed over the duration of the pilot, which may be due to
an increase in cases included in testing, as well as participant behaviour. It was suggested that
participant involvement had increased over the duration of the pilot, however it was also suggested that
there still wasn’t buy-in from all parties, and compliance may be superficial.
Appendix one
86
Suggestions to encourage compliance included more administrative support for courts and Police, and
reducing paperwork, including simplifying the CMM. It was also suggested that the legal aid payment
needed to be clarified, and possibly reviewed. A defence lawyer also proposed developing a formalised
process for the CMM meetings.
“…everybody’s really, really behind it, but you can only do so much. And I know the
prosecutors and myself and court staff here, we’ve really gone over and beyond, and yet
we’re not complying with what is required because we can't. And we can't because we
just physically can't do it”
“…a beef of ours is that there’s no way of getting counsel to come to meetings… they seem
to be able to just do what they want, and the whole thing falls down if they don’t
participate”
“…you have got public servants like the Police and the courts and everybody else
involved, and as salaried people it’s our job to try and make these processes work
properly. But lawyers… they don’t see themselves as public servants even though they
are hanging off the public purse really. They feel they are independent - they get quite
offended to feel that they have to be part of a bureaucratic process just to make things go
better”
Key messages
• Consideration may need to be given to the involvement of defence counsel, as participants
responses indicate that they are not fully complying with the new processes, and some involvement
may be superficial.
• It was indicated that compliance was affected by a number of factors relating to the ease of following
the processes, and the perceived value of the pilot, the latter of which might be addressed via
quantitative information.
• Participants’ responses indicate that focus on consultation and communication should be increased
to encourage participation and compliance with the processes.
• Participants’ responses suggest that consideration might be given to reducing administrative
burdens, clarifying the LSA process, and formalising the process for CMM meetings and outcomes.
10: Legal aid
Summary
At both test sites many interview participants felt unable to answer questions relating to legal aid, some
because they weren’t directly involved in relevant processes, and others because they didn’t understand
the new processes.
Of those that were able to answer the questions, most were confused over the process for payment from
LSA, and also the amount of the payment. There were also conflicting views amongst respondents as to
the appropriateness of the payment: some felt that payments should not be made unless the proper
process was followed, while others felt that circumstances sometimes prevented the proper process from
being followed, and that it was unfair to penalise lawyers for this.
LSA staff indicated that changes to payments were not clear to either LSA staff or counsel, consequently
(after Christmas) LSA developed material to assist both parties with claims. Participant responses
indicate that the assignment of legal aid has not been affected by the new processes.
Tauranga
Research participants from Tauranga had varying views on the appropriateness of the legal aid
payment: some thought the level of payment was adequate despite being unsure of the dollar amount,
while some thought that LSA should have the discretion to make payments to lawyers when they were
not able to follow the prescribed process. More than one interviewee said that LSA payments should be
linked to compliance by defence counsel, while one person indicated that this has been happening to
some degree.
Appendix one
87
Research participants from Tauranga indicated that the information they received regarding changes to
LSA payments was contradictory, confusing, and not communicated well.
“It's a bit sort of, fuzzy, as to what we can or can't claim for, which brings in the fact that
we feel there is an extra process which has put added burden on counsel - like having to
go to a meeting and whether there is any financial benefit in that”
The majority of research participants from Tauranga indicated that they were not aware of the impact of
process changes on the assignment of legal aid, however those that were said that this had not been
effective. A staff member from LSA also noted that there had been pressure to instantly notify whether
legal aid had been granted.
A staff member from LSA said that it was important for PA’s to receive such information as they often
write up invoices for lawyers to sign off.
Manukau
More than one research participant from Manukau indicated that there were pre-existing issues with the
payment structure for legal aid in respect of defence counsel meeting their contractual obligations, and
one participant noted that such issues had been brought out by the implementation of the pilot. One
research participant said that the payment to counsel was inadequate.
Of the few participants from Manukau that commented on the communication and clarity of changes to
LSA payments, almost all indicated that the changes were unclear and that they did not understand the
process. A staff member from LSA, who also thought that the process was unclear, said that they had
tried to rectify this issue, however one research participant indicated that LSA were defensive ‘right from
the outset’.
Very few research participants from Manukau commented on the assignment of legal aid. Those that did
had mixed views – some felt it hadn’t changed, one participant thought LSA performance had improved,
and another said that LSA were ‘still slow’.
Key messages
• The changes to the process were not communicated clearly, including to LSA staff – consideration
should be given to improving such communication in future.
• There is a perception that defence counsel will receive legal aid payments regardless of whether
they follow the process as outlined, which may need clarifying by LSA.
• It was suggested that, in some circumstances following the proper process may not be
advantageous to the defendant, but to not do so may result in financial penalty for the defence
counsel – this might need addressing.
• One participant suggested that consideration might be given to notifying relevant support staff of
process changes (ie, PA’s drafting claims for legal aid).
11: Scheduling
Summary
Most research participants who were able to answer (i.e. court staff who were involved in scheduling)
said that there was little to no impact on the scheduling of defended hearings, and that even if there had
been, it was of limited benefit. However it was suggested that the pilot would have a positive impact if it
was run over a longer period of time. Other scheduling related benefits mentioned by participants
included improved case management of defended hearings, less cases proceeding to fixtures, and
defendants getting defended hearings at an earlier dates. Issues noted by court staff included an
increase in workload in Tauranga and the inability to utilise any court time that was freed up due to the
short timeframe.
Appendix one
88
Tauranga
The three court staff interviewed who were involved in scheduling indicated that the new processes had
no impact on the scheduling of defended hearings. However one court staff member said that less cases
had proceeded to a fixture because of the processes, and that they were able to case manage the
defended hearings per day. Additionally, one person noted that the case load for Tauranga had
increased since testing started, and another advised that a decision had been made to not review filed
CMMs to ascertain if they needed to go to another appearance – these factors may have affected both
the perceived and real benefits of the pilot.
“…there’s been more cases that have not proceeded to a fixture because of the process…
we are still able to keep the lid on our defended hearings, our time isn't blowing out,
we’re still able to give a date within three to four months of a status hearing... It would
be nice to bring it back, but again it’s more about increasing case load rather than the
project, because our case load has increased since we started this project, we’re not
actually measuring the same things… I think it has kept the number of fixtures going
through down”
Manukau
Most court staff in Manukau indicated that the new process had little if any impact on the scheduling of
defended hearings, although one staff member thought that the pilot would have a positive impact if it
was run over a longer period of time. Another court staff member said that defendants were getting a
defended hearing at an earlier date. However court staff said that they were unable to schedule
defended hearings as expected due to the fall-out rate and culture at Manukau. It was also noted that if
cases were rescheduled, court staff were unable to use the freed up the space due to the short notice
and timeframe. Court staff also suggested that scheduling may need to be done differently.
“…it’s unfortunate, but because we haven't had it resourced we haven't been able to
really get a full grasp of what impact its had on defended hearings, which is a bit of a
shame. I would like to think that it has. At first it blew the defended hearings right out.
But I think now that it’s settled in I’m hoping that not as many cases will go to defended
hearings”
“…the purpose of taking them out was to then free up a space in the status hearing that
could be used for another case. But, because of the short notice time that we got, we
couldn’t use the space anyway, so it was a lot of work for no benefit”
Key messages
• Staff experienced difficulty changing the type of court appearance (from a Status Hearing to a
Judges List) due to the short timeframe between when they are advised and the date of the next
hearing – this issue might need investigation to determine how it can be overcome.
• Staff also indicated that, even if the court could schedule the case to another type of appearance,
they couldn’t use the vacated space due to the short timeframe, which may also need further
consideration.
12: Impact on roles
Summary
Respondents at both sites indicated an increase in administrative work as a result of the pilot. This
impact was very substantial for those directly affected and, as other staff had to pick up additional work
to cover those people, the pilot put increased pressure on the offices of those involved.
There was a difference of opinion on most other matters between the participants at the two test sties,
with those in Tauranga indicating that the pilot increased workload without the requisite benefits, and
those in Manukau indicating that the benefits outweighed the impact on their roles.
Appendix one
89
Tauranga
Most participants indicated an increase in workload, largely due to the administrative side of the pilot.
While it impacted more on those directly involved, it was also noted that other staff had to pick up
aspects of their work, which put increased pressure on the offices of those involved. It was also indicated
that the court staff weren’t prepared to manage the workload created. Some participants said that
despite the additional workload they couldn’t see any benefit in the pilot, with some indicating that the
pilot had decreased the efficiency of the court process.
“…it put a lot of pressure on our office. It basically took a staff member away from her
job doing the paperwork, a couple of days a week maybe so it impacted on our office in a
negative way but in saying that if we weren’t already operating how we were, and this
was a new initiative coming in for our particular area, then it probably would have been
of benefit”
Manukau
Most court staff from Manukau indicated that the pilot had increased the time it took to complete their
role, while most defence counsel indicated that it had improved the process for them. Police had differing
experiences from each other as to how the pilot had affected their role, although both Police and court
staff noted that the administration and paperwork was time consuming. It was also indicated that the pilot
had increased pressure on the Registry. However around half of Manukau respondents also indicated
that the pilot allowed them to do their job better and/or increased their job satisfaction. Additionally, some
respondents felt that the process had improved and was more efficient and that consequently they were
not worried about the additional time involved. However two respondents indicated that the pilot had
decreased their job satisfaction; one court staff member said they were frustrated that they weren’t able
to deliver what they were meant to. It was also noted that more cases had become involved over the
duration of the pilot, which affected the ability for the workload to be managed by those involved.
“it’s just like too many things that are really important, and it’s not like one is more
important than the other - they’re all important, but we just don’t have the time to do it”
“… [the prosecutors] worked as much as they could to try and keep the process going
and they had the onerous requirement to document all the feedback… our management,
and management from the Justice Department and other agencies, they all wanted to
know what was going on and so a lot of emphasis went on documentation, spreadsheets,
what have you… and that took them away from the core business, which is working with
the lawyers… So with not only all that kind of bureaucratic process, but also chasing
lawyers… it just takes away a lot of that job satisfaction that everybody wants”
“It makes it easier, and it means that I’m not hanging round a not-guilty court with
stressed-out Police officers, with angry witnesses, with frustrated clients. So the stress
levels have gone down”
Key messages
• The pilot substantially impacted on the roles of those directly involved in the pilot (through more work
that expected), and created pressure on the offices of those involved, which needs to be taken into
account.
• Research participants said that the impact of the pilot needed to be justified in terms of benefits,
which would assist with buy-in.
13: Interaction with others
Summary
The majority of research participants who spoke about interaction with other participants indicated that
the pilot had not affected such interaction. However a third of participants from Tauranga indicated that
the pilot had negatively affected their working relationships, while more than a quarter of those
interviewed in Manukau indicated that the pilot had improved or increased interaction with other
participants.
Appendix one
90
Tauranga
Just under half of all the research participants from Tauranga said that the new processes had not
affected the way they interacted with other participants. However around a third of participants indicated
that the pilot had negatively affected their working relationships. There was a suggestion that this may
have been due to lack of clarity in relation to the changed LSA process, lack of buy-in from counsel, and
increased workload for some participants. None of the interviewees thought that the pilot had improved
interaction with others.
“I think prior to the project pilot I think we had excellent communication with our local
bar. I don’t think it’s as good now… And I know [court staff] are not that happy with it
because I think they’re actually bogged down in paperwork as well”
Manukau
Just under half of all research participants from Manukau said that the pilot had not changed their
interaction with other participants. However over a quarter of those interviewed indicated that the pilot
had improved or increased interaction with other participants. No interviewees from Manukau indicated
that the pilot had negatively affected their working relationships with other participants.
“I personally have a fairly good professional relationship with the prosecutors, but I’ve
just found them a lot more accessible. Not because I found them unco-operative before,
just that the whole system has made them more accessible, putting in an interview and
knowing that they’re going to keep it, and you’ll keep it”
Key message
• Some participants from Tauranga indicated that their working relationships had been adversely
affected by the pilot, possibly due to a lack of clarity around LSA processes; this might be addressed
by increased communication and direction.
14: Local practices
Summary
The majority of research participants indicated that they had developed practices to accommodate the
process changes arising from the pilot. Most such practices were administrative, and involved changes
to file management, record keeping, and the making of appointments, however members of Police noted
that some staff training had been necessary.
Tauranga
More than half the interviewees from Tauranga said that they had developed practices to accommodate
the process changes, although these practices were largely administrative. Non-administrative practices
included the training of Police staff (who are not directly involved) to identify pilot matters, and using the
CMM meeting time to discuss multiple cases.
“…we just kept doing what we’ve always done, which worked well anyway, so there was
no need to change”
Manukau
Around half of the interview participants from Manukau said that they had developed practices to
accommodate the process changes arising from the pilot. As with Tauranga, most of these practices
were administrative. However a member of Police said that Officers in Charge and support staff had
needed to change their practices to accommodate the disclosure processes. A court staff member also
noted that a room had been made available for Police and defence counsel to hold their CMM meetings.
“…because what we found the first time it came up was you have to go through all your
files and get the yellow forms out… and everything is in alphabetical and date order, so
you had to bring it all out and copy it, and then the second time you have got to do it
again, and well how do I know what I have done?”
Appendix one
91
Key messages
• While no substantial local practices have been required to accommodate the pilot and process
changes, a number of administrative practices were developed.
• In the case of Police, staff not directly involved in the pilot were affected by the process changes; this
might be considered for the implementation of any pilots, particularly when multiple pilots are tested
at the same time.
15: Changes in perceptions and behaviour
Summary
Most research participants indicated that they didn’t feel differently about the pilot at the time of the
interviews compared with when it was first implemented. However, participants at Tauranga indicated
that the pilot was not justifiable, whereas participants at Manukau indicated that the pilot had brought
about positives for their court.
Interviewees at both sites indicated that defence counsel had become more active participants over the
duration of the pilot, although it was noted that they had not fully bought into the new processes. It was
also noted that legal aid issues affected such buy-in. Interviewees at both sites also indicated that the
additional workload had a negative impact on those directly involved in the new processes.
Tauranga
Only a small number of research participants responded to questions regarding either whether their view
of the pilot had changed, or whether they had noticed any changes in other participant’s behaviour. Of
those who did respond to the question, ‘do you felt differently about the pilot now than you did when it
was first implemented?’ there were mixed views, however the majority indicated that either their views
hadn’t changed or that they changed, but that they still weren’t convinced that the pilot was justifiable.
Those who commented on the behaviour of participants said that there were issues with participation by
defence counsel throughout the pilot, although it was suggested that resolution of legal aid issues may
have improved the situation. It was also suggested that some negativity may have arisen over the
duration of the pilot due to increases in workload.
“…I can see it working in perhaps other courts where they didn’t have the processes in
place, where there was no disclosure and that sort of thing… and the relationship
between the stakeholders wasn’t good, I can see it working there but I'm yet to be
convinced that it’s had an impact here”
“…I still ask myself that continual question – why. So, no, my attitude remains the
same, I’m still asking why it needed to be implemented and is it relevant”
“Solicitors became very negative, court staff became very negative… prosecutors were
prepared to give it go but I think we saw a lot of flaws in it, and because of that some of
those guys started to become a little bit negative over it as well. A lot of the stats that
were coming through didn’t seem right either”.
Manukau
Around half of the interviewees who responded to the question, ‘do you feel differently about the pilot
now than you did when it was first implemented?’ said that their views had not changed over the duration
of the pilot. Most of these people indicated that they had always thought the pilot was a positive thing. A
few research participants indicated that their feelings regarding the pilot had changed as they saw
positives being realised, while two participants noted both positives and negatives. Only one person
indicated that their view of the pilot had changed in a negative way, however while this person viewed
the workload as onerous, they still considered that the pilot was a positive.
Appendix one
92
Commenting on whether other participants’ behaviour had changed over the duration of the testing, just
over a third of interviewees from Manukau said that counsel participation had increased, although a few
respondents said that counsel had not bought in to the processes and still weren’t complying. Research
participants also commented on the additional pressure on Police and court staff, and one interviewee
suggested that LSA could have done more to assist the testing.
“When I first heard it I thought what a fantastic idea. Now I’m tired… I still think it’s a
fantastic idea but I'm just exhausted by it”
“I’m more positive now…I initially thought that the pilot would put [clients] at a
disadvantage, but when I saw it in action I realised that there’s more advantages than
disadvantages”
“…initially I was opposed to the project but then after the first month or some when I
saw the advantages that the clients were receiving, then I had a change of attitude”
Key message
• Most participants retained their initial view of the pilot, which suggests that the initial
communication was more influential than their practical experiences, and that focus should be
directed to achieving buy-in prior to implementation.
16: Implementation and operation of testing
Summary
There were differing views at both sites regarding implementation and how the testing was carried out,
although participants at both sites indicated that they would have liked to receive more concise and
practical information. Participants at both sites also felt that there should have been more consultation
with those involved prior to implementation. Participants at Manukau had varying views on whether they
felt prepared when testing commenced, with some indicating that they expected to learn as they went,
whereas in Tauranga it was indicated that participants were not sufficiently aware of the pilot and didn’t
consequently understand the process changes. It was also suggested that a face-to-face meeting should
be held, like a debrief, with defence counsel, judges and other stakeholders invited to discuss the result
of the pilots.
Tauranga
Most participants had read the material provided at the launch of the pilot, but many either couldn’t
remember what this covered or felt that there was too much detailed background information and not
enough practical, day-to-day information.
Both the LSA and lawyers indicated that the changes hadn’t been well communicated to them as they
did not understand the new process, even two to three months after the pilot had commenced. It was
suggested that face-to-face communication might have improved this. 14
It was also suggested that communication from national office was directed at key contacts and
managers and not necessarily disseminated to all relevant staff. Possibly as a consequence of this, there
were apparently a number of people who hadn’t been invited to the launch or meetings.
In terms of suggestions for improving the implementation of potential future pilots, research participants
indicated that more consultation should be held with those working with the relevant processes on a dayto-day basis, and that communication should be improved. It was suggested that such measures would
assist in bringing counsel on board and preventing issues such as that surrounding the process for legal
aid.
14
A number of face-to-face events were held, however very few defence counsel were present.
Appendix one
93
“…at the launch, there was only probably two or three lawyers there. The majority
didn’t come and even at the meeting in November - there were only three or four lawyers
at that as well. So there wasn’t a great deal of interest in it and even today… one
solicitor spoke to me about two weeks ago and he said still didn’t know anything about
it, he hasn’t even been involved in a meeting. So I don’t think they were given enough
information, right from the very start”
“I do recall we got the materials at short notice and I looked at it and it didn’t make a lot
of sense. It was just too much… you just want to know what the basic point is… it needs
to be abbreviated in bullet points, and if you need more detail refer back to somewhere
else, like a web site perhaps’”
“I think the issue about the Legal Services remuneration for participation in the project
could well have been handled a lot better, because there was an enormous amount of
confusion about what was happening if you didn’t participate or you missed a meeting”
Manukau
Most of the Manukau participants attended the launch or initial meeting, and most had read the materials
provided. Participants generally agreed that the material was useful, however some people indicated it
should have included additional information while others thought it should have been summarised.
There were different views on how prepared people were when the pilot commenced; some participants
indicated that it wasn’t until they started working with the new processes that they understood how it
worked. There were also different views on the appropriate form and frequency of communication,
although email, teleconferences and face-to-face communication were popular choices.
Most recipients said that they had not required additional support, information or advice with the
exception of the registry, who required additional staff, and Police prosecutions, who indicated that they
needed administrative support.
In terms of recommendations, many recipients felt that they should have been involved earlier in the
process - defence counsel in Manukau commented that there should have been more consultation with
them prior to the commencement of the pilot, while court staff indicated that if they had more lead-in time
they would have been more prepared.
“…I know what they’re trying to achieve… but if you don’t have the resources and the
staff, then it’s always just going to fail”
“I think seriously we need to look at the realities of any pilot, what that is going to bring
to a specific court and whether that court has the real capabilities of doing the pilot, and
also whether you are going to get the desired results out of it… I think there needs to be
good communication around that or consultation”
“…as far as the launch goes, maybe better communication with the defence counsel,
more of a lead-in time, and more consultation with major stakeholders… before the
initiation of the project date… there’s been a lack of communication and preparation
which has lead to maybe a bit of resentment from defence counsel which caused initial
problems, because they saw it as something done without their consultation. And
something they were basically ordered to do by Wellington”
“I think the telephone conferences we have are a complete waste of time. There seems to
be a coldness coming from Wellington, almost a disinterest in what’s being said up in
Auckland… the Police and the court and the defence lawyers feel what a complete waste
of time. There just doesn’t seem to be any friendly interaction. There’s just silence… And
they probably feel the same way about us”
Appendix one
94
Key messages
• Participants’ responses indicate that increased consultation and two-way communication would
assist in getting people on board from the outset, and that more comprehensive consultation needs
to be undertaken with all stakeholders prior to the implementation of any pilot.
• Participants’ responses also indicate that communication needs to be targeted and include all
relevant staff and stakeholders, as not all key contacts disseminate information.
• Participants’ indicated that feedback should be provided to participants on how the pilot is functioning
throughout the duration of the testing, and also on whether those involved are correctly following the
changed processes.
• Participants’ responses indicate that a face-to-face debrief would be welcomed by stakeholders.
17: Impact on defendants
Summary
In both Tauranga and Manukau there were mixed views on the impact of the pilot on defendants.
Research participants at both sites commented on the benefits of earlier disclosure, although it was also
noted that defendant behaviour hadn’t changed. Defence lawyers at both sites raised concerns
regarding disclosing their clients defence at the CMM meeting.
Tauranga
The three defence lawyers who took part in the Tauranga interviews had mixed responses to the
question ‘do you think the new process has benefits or disadvantages (or both) for your client’. One
thought that it was beneficial, another thought it was only useful where counsel and prosecution weren’t
already talking, while another thought that the earlier disclosure was beneficial, but were cautious of the
discussion with Police.
Three other research participants raised issues relating to the impact on defendants including the
benefits of earlier disclosure. However it was also noted that completion of the CMM didn’t necessarily
mean that defendants understood the charges they were facing. One staff member said that defendants
behaviour hadn’t changed.
“I don’t think [the pilot] has really affected the client…I don’t think it's had an overall
affect on the client because it is buffered by counsel… Normally the status hearing date is
set down at the same time, it's going to be the same date anyway and we are just fitting
in other process in the middle. Whether anything is achieved at that or not is debatable”
“… I think the courts have got to be careful there isn't an injustice coming about by the
fact that the accused is going to be railroaded through the system rather than given the
chance to explain or have a full and frank discussion beforehand, but in saying that, I
don’t think having it on the fast track excludes the opportunity to have a full and frank
discussion, I think it just forces it to happen earlier which may at some stage become
detrimental to the defendant, or the accused”
“I don’t see [the pilot] as hugely useful because we’re still getting defendants pleading
guilty on the day of their fixture… it hasn’t eliminated any of the defendant behaviour
that we’ve experienced before”
Manukau
In Manukau four defence lawyers took part in the interviews, the majority of whom indicated that the pilot
was generally beneficial to defendants. Defence lawyers commented on the benefits of improved
disclosure, however it was noted that the CMM was only beneficial if Police upheld the agreements
reached, and there were concerns about revealing clients’ defence. Other research participants
commented on the benefits of cases progressing more quickly, and more certainty for defendants,
although it was also noted that defendant behaviour hadn’t changed.
Appendix one
95
“…what you’re actually wanting is some sort of deal on the table. That’s the only reason
why you go to those interviews… So you can go back to your client and say – well, they’ll
drop this charge, or keep this charge, but the client wants to feel like they’ve had
something out of it”
“…it's of benefit in the sense that it opens up dialogue, but that benefit only exists if you
are really clear that what’s being offered will be honoured”
“[Defendants] get a little bit of quick justice and they get generally a reduction in
charge. Even if sometimes a reduction in charge isn’t justified, they’ll consider reducing
as a carrot or incentive. Oh and the sentence indication… they can be well advised of
what the sentence is going to be”
Key messages
• Participants indicated that timely disclosure has benefited defendants, however defendant behaviour
hasn’t changed and may need to be addressed another way.
• Defence counsel raised issues concerning the disclosure of clients defence to Police at the CMM
meeting; this issue might need to be clarified or formalised.
18: Impact on other processes
Summary
Responses from research participants indicated that individuals had differing experiences of the impacts
on other processes as a result of the pilot at the two test sites. Those interviewees at Tauranga that
commented on this issue generally indicated that there hadn’t been any impacts, whereas interviewees
at Manukau noted a number of impacts. However, Police at both sites commented on impacts, and some
court staff members suggested that there had been changes to hearings.
Tauranga
Eight of the research participants in Tauranga who commented on the impact on other processes said
that there had not been any impact. However one of these thought there may have been an increase in
both cases going to status hearings and not guilty pleas, but said it was hard to know whether this was
due to the pilot or not. One member of Police said that the pilot had impacted on their office, largely due
to administrative processes.
“…the project pilot makes us hold the files basically in our office until we’ve dealt with
them at a meeting with the lawyers, so that slows that whole process down for us. I
know it creates extra work for our clerical staff in that they’re busy trying to track down
files that are going down the CMM process. And often if we can’t get the file back to the
officer in charge of the case prior to a status hearing because it’s been held for
CMM…then obviously we’re not able to take a decent file to the status hearing in which
to discuss it”
Manukau
Two research participants in Manukau said that they had not experienced any impacts on any other
processes as a result of the pilot. However one court staff member said that the pilot had lead to an
increase in pressure in the court room, while another said it had increased work for Registrars and court
staff. One other court staff member noted that the pilot had impacted on defended hearing dates. Most
members of Police indicated that the pilot did have some impact on other processes, and may have
increased stress levels. LSA and defence counsel responded that the pilot didn’t have an impact on
other processes, although one lawyer indicated that it had improved communication and certainty.
“It’s just another important priority thing you have to do in court, and it just has to be
done, too many other people rely on you… So I think for [all court staff], that’s just more
pressure in court. And sometimes… they’ll be missed, and the form won’t be printed out
because it took too long, and then the [staff] at the back will have to do it, and that’s
more work for them”
Appendix one
96
Key messages
• Participants indicated that the impacts of the pilot on other processes may be relevant to specific
roles and/or local circumstances (and the ability of those affected to manage such impacts),
which should be considered for implementation of any pilots in the future.
• Participants’ comments regarding impacts on hearings might be given further consideration in
conjunction with the quantitative information.
19: Additional issues and feedback
Summary
Research participants were asked whether they felt that the objective of the pilot could be achieved
another way, and if they could change one thing about the pilot what would it be. At the conclusion of
each interview, participants were also asked if they had any additional comments to make.
Asked whether the objective of the pilot could be achieved in other ways, around a third of all research
participants said that the objective could not be achieved in other ways. Suggestions for alternative ways
to achieve the objectives included improvements to disclosure, addressing issues with duty solicitors,
giving more powers to LSA, and having a full-time case manager.
In response to the question ‘if there was one thing that you could change about the new processes what
would it be?’ research participants from the two test sites had very different views, as set out below, with
some participants from Tauranga saying that the pilot should be stopped. Changes suggested by
individuals at both test sites included removing the simple track and utilising electronic tools.
The qualitative review also identified a number of benefits and issues that were not anticipated by the
project team; these arose from comments made either in response to questions on other issues, or at
the conclusion of the interview. These issues varied at each test site, although research participants at
both sites commented on:
• communication
• judicial involvement
• measure of benefits.
Tauranga
Achieving the objective of the pilot
Asked whether the objective of the pilot could be achieved in other ways, just over a third of all research
participants from Tauranga said that it could not be achieved in other ways. Just two research
participants thought that the objective of the pilot could be achieved other ways – one said that the
objective could be achieved through improvements to disclosure, and the other said that it could be
achieved by addressing issues with duty solicitors. Two interviewees said that nothing could achieve the
objective of the pilot, and two interviewees also said that the pilot wasn’t useful.
“…assuming that the objective is better allocation of resources, that can only be done by
the application of experience and good judgement by all the participants in process. And
the excellent relationship that exists between the defence bar in Tauranga and the
prosecutors, and the court staff and the judges, is not something that a form can alter.
It’s a matter of trust and attitude, and there is very high level of trust in the competence
of the other people involved in the process in Tauranga, trust which would be misplaced
in some other centres. So replicating the Tauranga environment is a very difficult task…
I can’t see any means by which you could export what we have”
“…I actually thought we were achieving it prior to the pilot scheme in this area. You
know, we had good communication with solicitors… if not guilty hearings are down, if
fixture hearings are down, I think it’s due to disclosure, I don’t think it’s got anything to
do with the pilot scheme… if you complete disclosure properly, that’s going to speed up
the whole process”
Appendix one
97
Key suggestions for change
In response to the question ‘if there was one thing that you could change about the new processes what
would it be?’ research participants from Tauranga mentioned different issues, although more than one
person said that the pilot should be stopped, and the court should revert to the processes that were in
place prior to testing. Individual interviewees identified a number of other changes they thought should
be made, these related to:
• removing the simple track
• improving initial consultation
• Removing financial penalties for defence counsel in extenuating circumstances
• improving compliance by defence counsel
• having measurable goals
• utilising electronic tools.
“For Tauranga, I would suggest that CMM was not necessary, so therefore, they would
just go back to the processes that we were using…. Definitely continue with the
disclosure, I think that is very important… as far as status hearings and the discussions
that we had, or that we used to have, are probably sufficient. I don’t know that the
[pilot] process serves any great purpose”
“I’d come back to the very beginning and I’d say more consultation and justification we need to be sold the idea as to what the advantages were, because to date I haven't
seen any advantages, that's really what’s missing from the whole process. So more of a
two-way consultation rather than just saying well it’s happening to everyone’s benefit we haven't seen any benefits to date”
“Not get stung so heavily by the LSA effectively if you miss it. There are genuine reasons
sometimes for not complying or not filling out a CMM. It’s sometimes reasons beyond
your control… that causes me the biggest sort of grievance really, to know that you’re
losing money effectively because of silly reasons like it’s easier from someone to come
over from [another area] for a sooner date, which effectively speeds everything up
anyway, but as a result you lose out on money”
“…To me it’s pointless running the pilot without a goal that you can measure, and in
Tauranga at least I haven’t seen any sign of measurable goals being articulated, being
monitored, and accordingly I wonder whether or not you’re going to get any results out
of Tauranga that make even the slightest difference”
Additional benefits and issues
Throughout the interview many participants from Tauranga raised unanticipated issues (often in
response to other questions asked throughout the interview). These comments cover a number of
benefits and issues, some of which have been raised by numerous research participants, but many are
comments made by individual participants only. However, as these comments are not in response to
interview questions, it cannot be assumed that other participants do not share such views.
Issues raised by research participants in Tauranga related to:
• appropriateness of the pilot
• awareness raising
• communication
• enforcement
• impact of courtroom discussion
• judicial involvement
• measure of benefits
• participant availability
• perceptions of pilots
• other comments.
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•
Appropriateness of pilot
“… I’m loathe to implement something that’s needed, shall we say, in Auckland and then
implementing it in, say, Dunedin where their needs and results are somewhat different.
That’s the trouble with introducing a black and white policy. I appreciate there has to a
standardised system but I don't think it’s required everywhere…”
“…I’m going, wow, where did it come from that Tauranga needed this? I suppose what
I’m saying is I think we ran a pretty professional ship prior to the pilot coming in, and
just these requirements you’re going, oh wow, I’m not sure if they’re actually relevant to
us, to this area…”
“You know what I found really interesting about this whole project was it was a Law
Commission and Justice Department project isn’t it? It was the police doing all the work.
We’re the ones that were doing all the hard yards… plus one member of the court staff.
And I said to the guys something’s not quite right here... I think it’s probably going to
continue… but I think there’s probably something better out there”
•
Awareness raising
“it’s made us aware of the slowdown effect of lack of process in a case and usually it’s
just words that can change it, or just making sure that things like… legal aid and
disclosure have been given… [it] used to happen a lot where somebody would come in
and the duty solicitor would just say, “Oh we just want a two weeks remand without
plea”, and during that time nothing would happen… and they’d come back in two weeks
and they’d want another two weeks because they hadn’t got a legal aid application, or
they hadn’t found a lawyer or hadn’t got disclosure… that could go on for perhaps three
appearances…”
•
Communication
“… we don’t always get the feedback that we should … I went to the initial meeting, this
thing started and now sort of six or eight months we’re talking about it again and I’ve
had no contact in between… it would’ve been quite good to have a proper approach to
say, ‘Look this is the pilot, are you doing it, is there any support that you need or
anything else’ –what concerns me is that what I’ve been doing maybe quite often not
what you wanted at all”
•
Enforcement
“There was threats from legal services that [lawyers] wouldn’t get paid their legal aid
but… there was no consequence to them for not completing it… and if they saw that the
judges weren’t interested, they became disinterested”
• Impact of courtroom discussion
It was noted that there were benefits from bringing a defendant to the courtroom due to the
formal/serious environment and the pressure from the judge, or ‘shaking the tree’. As such, the same
process often took place whether or not a CMM had been completed.
“The Judge’s can’t come in and say “good morning Mr Smith, I’ve got your document
here. I see what the problems are, right let’s get on with it,” because the defendant’s not
hearing that. He needs to hear and be fully informed as to what’s going on, so the Judge
will say “right now the situation is this, this, this, this and this”. Well it shouldn’t come
from the Judge, it has to come from the defence counsel and he’d say, Your Honour the
issues are this, this, this, this, this, this, this, and this. It’s got to be verbalised… So that
same process is going to take place, even if there’s a CMM done…”
•
Judicial involvement
“… I don’t think from feedback I’ve received that some of the judges were reading [the
CMMs], because the lawyers and both the police were saying that they were asking
questions that had the information on the CMMs in front of them, which would indicate
pretty well they weren’t taking too much notice of them”
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“…defence counsel and prosecutors were going to the extent of having these meetings,
filling out the CMM form, and it was being attached to the court file, it would get to a
status hearing and the judges would then say, well what are the issues, how many
witnesses are you going to call? I mean all that information was already there and it
was just they hadn’t bothered to read it, they were preferring to come into court and
hear it orally and of course then everybody was saying, well why the hell are we filling
these forms in if the judges aren’t going to read them. That was why the completion of
the forms dropped off.
•
Measure of benefits
“… with increased workloads business has increased, like our status hearings where
they were a month out now [they are]out six weeks… we’re feeling the pinch of our extra
business coming in, so we’re not quite as efficient as what we were. But that’s nothing to
do with the pilot that’s just our busy time with Christmas and stuff”
“…the report, the three month one, it’s so little in numbers that you’re working with, that
one or two cases swing it this way or that way [and] can change your percentage
hugely…”
“I’m pleased that the pilot is being run, and I look forward to seeing the results in due
course, but I’d like to see a draft before it’s published because all the material I’ve seen so
far, it’s arisen from a trial, in my view, it’s not statistically soundly based, and I’ve got
grave doubts that the statistical basis for it is fair and accurate, or constitutes a large
enough sample to be truly representative of what we do and how we do it”
•
Participant availability
“…a large issue that still rears its head with setting fixtures is OC availability… when
you query that it’s always well they have six week rosters or something like that, and
they’re unable to change their rosters… and this is my only criticism of the Police, is that
I think that their rostering for their OC’s needs to be more flexible to work with the
court”
• Perceptions of pilots
“I’ve seen it happen before, and I guarantee, mark my words, in twelve months time this
system will roll out as a permanent thing, and time wastage will be absolutely horrific.
Excuse me for being cynical, but I’ve seen it happen so many times, that if it doesn’t work
and they say, ‘oh what do they know, they’re just negative, they’re just negative because
they don’t want to do the work’….it just clogs up our system with more unnecessary stuff
and Police, justice, and defence are spending more time instead of doing the court
process which is stopping crime and making the community safe, and we waste time on
things which are unnecessary like the CMM…”
“…it’s just sad that what happens in the Government is that someone has an idea,
someone of high ranking has an idea, and it gets under a pilot process, suddenly it
becomes the way we do it, and in ten years time we say why on earth have we been doing
this for, because it serves no purpose. I just hope that whoever has developed this, sees
from my point of view, that it’s having absolutely no benefit at all, and if it is having
benefit, then it’s very, very minuscule and are big enough to say, cool we tried it, didn’t
work, back to the drawing board if we’re trying to save judicial time wastage, let’s try
something else, or develop something else which does work, and doesn’t cause all this
work and pull the pin. My biggest hope is that someone is man enough, or big enough to
say it’s not working, let’s call it quits, we had a try, didn’t work, let’s move on… but I
have my doubts”
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•
Other comments
“It’s simply just for the sake of something different…it’s like designing a bicycle and
putting a wheel on a bicycle, and then someone coming along and saying let’s put a
faster wheel on that bicycle…if you do that, I’ll be happy, but what they’ve done instead
of putting a faster wheel on, they’ve put coloured spokes on the old wheel, they’ve put
fancy little flags on the old wheel - still travels at the same speed, it’s just got lots more
weight now and does exactly the same, it hasn’t gained anything, so I just can’t see the
point of it”
Manukau
Achieving the objective of the pilot
Research participants from Manukau had mixed opinions on whether or not the objectives of the pilot
could be achieved in other ways. Around a third of all research participants didn’t think there was an
alternative that would achieve the objectives, while slightly less interviewees thought there were valid
alternatives, including giving more powers to LSA and having a full-time case manager. A number of
interviewees indicated that they weren’t sure whether the objectives of the pilot could be achieved other
ways.
“the only other way it could be done, would be a full-time case manager for both status
hearings and defended hearings, where they actually contact the police and the counsel
to check everything’s ready to go… you’d have to be phoning counsel and getting on their
case…That would be the only other way I could see it being done”
“I think every other way has been explored and spoken about but I suppose it is about
apportioning rewards… as public servants we see the benefits but… how are you going
to get everyone to play ball?”
“This is so ideal. You’re dealing with experienced police officers who’ve got many years
of prosecuting under their belt. They look at their file and think, look, this is silly. The
young cops well and truly overcharge. Looking at the evidence, we’re not going to be
able to prove this or this, and then experienced lawyers come along, tell them the same
thing, and work out something that gives the client something, that gives the public
interest something. Or, in the case of the one that I did today, it gives the client a chance.
He’ll get diversion and one chance”
Key suggestions for change
In response to the question ‘if there was one thing that you could change about the new processes what
would it be?’ research participants from Manukau had very mixed views. A number of participants said
that resourcing was the one thing they would change, while some others indicated that participation by
defence counsel was the key issue they would like to see addressed. Individual interviewees identified a
number of other changes they thought should be made, these related to:
• stopping collation of statistics
• changing process for CMM
• removing the simple track
• making the process electronic
• ensuring documents printed quickly
• Police honouring agreements with counsel
• making disclosure more comprehensive.
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“I’d get rid of the stats, but I mean you can't do that because I do understand how this
works, you still need something filed in writing because if it’s relevant you need to be
able to place that before the Judge so in actual fact you can't get rid of the paperwork,
but I would get rid of those stupid yellow forms, I would get rid of the courts sending out
the CMM and just let the prosecutor fill it out at the meeting and the prosecution would
just bring that over, that would go on file…basically all you need is a meeting between
prosecution and counsel, and all we need is something in writing about that meeting...
forget about all the other stuff that we have to do for it”
“I’d want to take the pressure off the Police of lawyers making appointments and not
attending…if it’s part of their contract to comply with such new systems, write to them
and say, ‘We will consider not renewing your contract as a legal aid provider if you
don’t comply’… three strikes out- if we get more than three complaints from the Police
that’s it. A monetary interest would ensure that lawyers took part”
Additional issues and benefits
As with Tauranga, throughout the interviews many participants from Manukau raised unanticipated
issues (again these were often in response to other questions asked throughout the interview). These
comments cover a number of benefits and issues, some of which have been raised by numerous
research participants, but many of which are comments made by individual participants only. However,
as these comments are not in response to interview questions, it cannot be assumed that other
participants do not share such views.
Issues raised by research participants in Manukau related to:
• communication
• consultation (and buy-in to pilot)
• issues with scheduling/adjournments
• judicial involvement
• maintaining momentum
• measure of benefits
• participation of stakeholders
• perceptions towards pilots
• staffing issues
• upholding of agreements
• other comments.
•
Communication
“…we have got more work, and to be honest I just don’t know whether we are actually
doing what is expected of us properly, because of not having the manpower and the [lack
of] understanding of it… I am putting stuff in the system and I am thinking, ‘I don’t
know why I am doing this’ you know”
“…and actually knowing the results, because we do all this work and sometimes they tell
us the end results two years later. So we don’t know if we’re actually working towards
something that’s working or just wasting our time in trying to get our staff motivated.
Go, ‘Yes it will work, because here’s our stats’.”
“…And you still get counsel, I had one the other day when I asked her to remain for the
case management memorandum form, and she goes, ‘What?’”
•
Consultation (and buy-in to pilot)
“Don’t come and just tell us. Do you understand? It seems to happen all the time, where
you tell us. We have to tell you now, but already we’ve decided to do the pilot. Could we
not be part of the process beforehand? Then we could tell you, hand on experience, what
we experience”
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“…more consultation with major stakeholders… before the initiation of the project
date… lack of communication has lead to maybe a bit of resentment from defence
counsel which caused initial problems because they saw it as something done without
their consultation… And [they] were basically ordered to do something from
Wellington”
“…consultation with everybody…could have been done at an earlier stage, to get better
buy-in or, you know, earlier buy-in, particularly with counsel so that we didn’t have
that three months where really we were still struggling to get buy-in”
•
Issues with scheduling/adjournments
“I remember there was a deposition today, it was the fourth time it had come for a
hearing, and three times previously people had been flown up from down country… the
lawyer decides to raise an issue about some bit of disclosure and of course the justice of
the peace… they won’t hear any argument… it gets put off again. The thing is they load
the hearing days with depositions and defended hearings. The judges and the JPs just
want to clear the desks”
• Judicial involvement
One member of Police indicated that judges were not on board, ‘I know some judges looked upon it with
some degree of cynicism and would comment openly in court about it’.
“…what we propose, is to say to the counsel when they enter a plea of not guilty, your
case is being remanded to the such and such date for a status hearing, your appointment
with the Police is a day, obviously significantly before the status hearing, to discuss the
issues and to complete the memorandum…and that date will be recorded on file, and
then the judge will say you’re supposed to be at a meeting on the 15th of March, what did
you do? Oh I forgot. He might accept that once and then you start worrying about their
memory”
•
Maintaining momentum
“…things always start off okay, and then it gets back into a rut again. So it needs
someone at the helm to always keep a whip on it… there is no point everyone being there
at the pilot and no one being there afterwards, because then it just goes back to the backlog. You need someone at the helm saying – why is something happening here?”
•
Measure of benefits
“…because we haven't had it resourced, we haven't been able to really get a full grasp of
what impact it’s had on defended hearings”
•
Participation of stakeholders
“…it takes a while to build up a relationship with anyone really, and that includes
prosecutors… and you need a dedicated prosecutor who wants to be in the job, and
wants to make it work, and wants to have a good relationship with the defence. Not all
defence lawyers are easy to work with, but generally they will be if there is a good
working relationship. So, again, do we look at extending the six months to perhaps nine
months? It just depends on the stress levels of prosecutors and whether they want that
job for that long?”
• Perceptions towards pilots
One defence lawyer said that they were dubious about pilots, ‘Manukau seems to be a guinea pig for
many pilots for obvious reasons, and you have a lot of defence lawyers that are quite suspicious of
pilots’. This person implied that the reason they were dubious was that, even if a pilot was useful,
momentum was not sustained.
•
Staffing issues
“If you put an out of town judge with an inexperienced court taker then you’ve got to be
very careful. We don’t want to be giving them too much of the simplification process”
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•
Upholding of agreements
“Basically you will go and have discussions in good faith, you will come to a proposed
resolution, you’ll put that proposal to your client, in some cases have to spend a bit of
time convincing your client that that's the way to go, and then have the Police come back
and say we are not going to honour our proposal now. That's happened several times
and I think that is something that really needs to be addressed. It has happened in two
different ways. One with just the simplification co-ordinators reneging after thinking
about it a bit further, and in one case the prosecutor who appeared on the day had seen
the proposal that was put in place and was not been happy with it, so unilaterally
reneged on the deal, which in my view completely ridiculous”
•
Other comments on the pilot
“I think it should continue even when the pilot’s run out, I think now the Manukau court
has got it up and running it should continue on. It would be a backward step to get rid of
it”
“I like it and I think you’ll find that across board everybody in Manukau likes it, it’s the
work we don’t like, you’ve increased our workload”
“…I think if all parties, including Legal Services, get on board with the objectives behind
it…the defendants and victims and everyone will get through the court process in a
better way. I think it is absolutely the best way to go, but… everyone has got to have a
common goal I guess and see it for what it is. It is not about the court trying to save
money or the court trying to get things through so that no one knows what they are
doing. It is really to try and get disclosure and victims and defendants and counsel,
everyone, having as much information as possible at the earliest stage, so that we can
get things on the right track”
“…there’ll be real trouble if anyone in Wellington tries to stop it. I’ll be on that plane.
There are too many benefits for the court. Well, I shouldn’t say that, because I don’t
know what the figures are, but I’m looking forward to seeing the figures, and to whoever
started up the scheme, thank you very much”
“Before we had the pilot project we had just the status hearings, and it got to the stage
where you’d turn up to do a status hearing and the prosecutor will still have a 150 files
and no time to talk… at least if that happens now the memorandums there, the files all
been pre-done beforehand. So the meetings are important in my view and so are the
memorandums”
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Appendix 1: Interview Guide
Criminal Procedure (Simplification) Project
Qualitative interview guide for six-month review
INTRODUCTION & PURPOSE
The Criminal Procedure (Simplification) Project involves changes to summary proceedings. This
interview is part of a review to better understand participants’ experience of the pilot over the past six
months.
A: General
• You have already received the information sheet and signed the consent form to be interviewed –
correct?
Just to recap:
• Participants have been selected based on the level of their involvement and role in the pilot.
• It is anticipated that this interview will take approximately 60 minutes.
• We will not identify you in the ensuing report/s by name. However we are only interviewing a small
number of project participants and we will be reporting the results in relation to the different roles. For
example, we may say ‘defence counsel indicated that such and such’.
• Just to clarify, the questions in this interview relate to the processes that we have been testing – we
will refer to these as the ‘new processes’.
B: Background context
Objective: to gather contextual information in relation to the respondents’ engagement in the pilot.
To start with, we would like to collect some background information.
1. Firstly, can you please give me a brief overview of your role in the court
1.1. What is your role/position?
1.2. How long have you been in this role?
2. Knowledge of the project and pilot
2.1. What do you think the purpose of the pilot is?
2.2. What are the key aspects of the pilot?
C: Aspects of testing
Objective: to gain an understanding of how various aspects of the pilot are working in practice.
Now I would like to discuss some specific aspects of testing.
1. Firstly, guidelines on Police Initial Disclosure and Instructions
1.1. What changes has the new process for disclosure brought about?
1.1.1. How well have these worked?
1.1.2. What do you think are the pros and cons of the previous and new processes?
1.1.3. Do you think the new process provides sufficient disclosure for a plea to be entered at the
1st or 2nd appearance?
2. Now to differentiated caseflow management (simple and extended track)
2.1. What do you think the purpose is of having different case tracks?
2.2. Do you think the different tracks are useful?
2.2.1. How well do you think the extended case track works?
2.2.1.1.
What do you think are the pros and cons of the extended track?
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2.2.2. How well do you think the simple case track works?
2.2.2.1.
What do you think are the pros and cons of the simple track?
2.3. To you think the cases currently included are on the right track?
2.4. Do you think cases currently excluded could benefit from the case tracks approach?
2.4.1. If so, what type of charges/cases (e.g. domestic violence or Family Violence Court
cases/self-represented/non-Police prosecuting agencies) do you think should be included?
3. And lastly, the Case Management Memorandum (CMM)
3.1. What do you think the purpose of the CMM is?
3.2. Do you think the CMM is useful?
3.3. For extended track cases, do you use the CMM’s (always, sometimes or not at all)?
3.3.1. If not, why not?
3.3.2. Is the timeframe allowed for completion of the CMM appropriate?
3.4. Do you think the CMM process would be suitable for other types of cases?
3.4.1. Do you think that non-serious cases would benefit from out of court discussions?
3.4.2. Do you think cases that are currently excluded (e.g. domestic violence or Family Violence
Court cases/self-represented/non-Police) would benefit from out of court discussions?
D: General perceptions
Objective: to gain an understanding of participant’s perceptions of the pilot.
Now I am interested to hear what you think of the pilot more generally.
1. Motivations vs. barriers:
1.1. What aspects of the pilot do you think have improved things?
1.1.1. What aspects of the pilot do you think have made things worse?
2. Interaction with others
2.1. Do you think the new processes changed the way you interact with other participants involved in
the pilot?
2.1.1. If so, how?
2.1.2. If so, is this an improvement?
3. Role specific research questions:
3.1. To all - has the implementation of the project changed your role, or aspects of your role?
3.1.1. If so, how?
3.2. To Police Prosecutors – do you think the Guidelines on Police Initial Disclosure and
Instructions (improved and earlier disclosure) worked well?
3.3. To Police Prosecutors – do you think the level of overall engagement from defence counsel is
satisfactory?
3.3.1. Why/why not?
3.4. To Police Prosecutors and Counsel –do you think the set timeframes for discussions and filing
of CMM’s assists with the progress of a status hearing?
3.4.1. How long does it take to complete the CMM?
3.5. To Counsel – do you think the level of overall engagement from Police Prosecutors is
satisfactory?
3.5.1. Why/why not?
3.6. To Counsel – do you think the new process has benefits or disadvantages (or both) for your
clients?
3.6.1. If so, in what way?
3.7. To Counsel - the new process involved changes to payment from LSA - do you think what the
payment covers is appropriate for the new process?
3.7.1. Do you think that communication of the changes to payments was clear/timely?
3.8. To LSA - The new process involved changes to payments made to counsel - do you think the
process for payment and invoicing is clear? Do you think the new payment step is well
understood by counsel?
3.9. To all, do you think that the new processes affected the way legal aid is assigned, e.g.
timeliness?
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3.10 To Court Staff – what involvement do you have in the scheduling of defended hearings?
3.10.1 Do you think the new process impacts on the scheduling of defended hearings, and if so,
how (e.g. timeframes)?
E: Operation of testing
Objective: to understand users experiences regarding the operation of the pilot and to identify the
preferred ways of implementing potential future projects.
Now we will discuss the operation of the pilot in your area.
1. Implementation & service delivery
1.1. Did you attend the launch and initial meeting regarding this pilot? 15
1.1.1. If not, why not?
1.2. Did you attend follow up meeting?15
1.2.1. If not, why not?
1.3. Have you read the material supplied regarding the pilot?
1.3.1. If not, why not?
1.4. Do you think that the material supplied about the pilot was useful?
1.4.1. Was the level of detail appropriate?
1.4.2. Did you feel prepared, from the material supplied and sessions held, when testing
commenced?
1.4.3. Do you think anything could have been done differently?
1.4.4. If so, what and why?
1.5. Throughout the duration of this pilot have you required additional support, information or advice?
1.5.1. If so, what information was sought, and was it provided?
1.6. What do you think would be the best way to receive future information on the pilot (e.g.
internet/intranet/face-to-face/printed publications)?
1.6.1. What frequency of communication do you think is suitable?
1.7. Do you have any suggestions for improving the implementation of potential future
pilots/projects?
1.8. Do you think additional support for this pilot is necessary?
1.8.1. If so, what type of support?
2. Recent experiences
2.1. Throughout the duration of this pilot has there been any changes to the way the process
changes have been conducted over time?
2.1.1. If so, what type of changes?
2.2. Do you think that the new processes affect the time it takes to complete your job?
2.2.1. If so, in what way?
2.2.2. Do you think this has changed since the project was first implemented?
2.2.3. If so, in what way?
2.2.4. Since the implementation of the new processes, what do you think has had the biggest
impact on how long it takes to complete your role?
2.2.5. Do the new processes enable you to do your job better or increase your job satisfaction?
2.2.5.1.
If so, how?
3. Overall process
3.1. What do you think are the benefits/issues of the new process?
3.2. Have you experienced any impacts on any other processes as a result of the pilot?
3.2.1.1.
If so, did you monitor any of these impacts throughout the duration of the pilot?
3.2.1.1.1.
If so, has this uncovered (or confirmed) any benefits/issues?
3.2.1.1.2.
If issues, have you attempted to solve these and, if so, how?
3.3. Have you developed any practices (e.g. personal/local) to accommodate the process changes?
3.3.1. If so, what type of practices?
3.4. Do you feel differently about the pilot now than you did when it was first implemented?
15
A launch event and meeting (including the distribution of materials) was held at both locations in early July
(2008). A follow-up meeting was held in Manukau in late November, and in Tauranga in mid-November.
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3.4.1. If so, how?
3.5. Did you notice any changes in other participant’s behaviour (in relation to the pilot) throughout
the duration of the testing?
F: Compliance
Objective: to understand if participants are complying with the process and, if appropriate, how this
compliance might be altered.
Now I would like to discuss issues relating to how well the new process is followed in practice.
1. Compliance with the new process:
1.1. How well do you think the new process has been complied with by all involved?
1.1.1 If not, what hasn’t been complied with?
1.1.2 Do you think this has been the case for the duration of the pilot or just at particular times?
1.2. What do you think might assist in making the project easier to comply with?
1.1.3 Do you think any other measures should be taken to encourage compliance?
1.3. Are there any aspects of the new process that you choose not to comply with?
1.1.4 If so, which aspects and why?
1.4. Thinking back to when the process changes were first introduced compared with now, do you
think your use of the new process has changed?
1.4.1. If so, in what way?
1.4.2. Do you think the same applies to other participants?
G: Closing comments
Objective: to identify and gain an understanding of any issues that haven’t been covered already.
1.
2.
3.
4.
We are nearly finished now, but first a couple of quick questions:
If there was one thing that you could change about the new processes what would it be?
Do you think the objective of the pilot could be achieved in other ways?
Unidentified issues:
4.1. Do you have any other comments on the pilot?
Thank you for taking part in this research – your insights will be invaluable
Appendix one
108
Appendix two: Three-month review document
Criminal Procedure (Simplification) Project
Three Monthly Review of the Testing of
Differentiated Caseflow Management and
Guidelines on Police Initial Disclosure
and Instructions to Counsel
17 December 2008
Appendix two
109
Contents Page
1. Introduction.............................................................................................................................. 111
Key Findings.............................................................................................................. 111
Key Findings for Manukau ....................................................................................... 111
Key Findings for Tauranga ....................................................................................... 112
Next Steps.................................................................................................................. 113
Background ............................................................................................................... 113
2. Testing in Manukau District Court .......................................................................................... 116
General Workload Data – Manukau ......................................................................... 116
Baseline Data............................................................................................................... 23
Three Month Review Data......................................................................................... 117
Initial Disclosure........................................................................................................ 117
Reasons for Adjournments ...................................................................................... 117
Time to Disposal........................................................................................................ 119
Case Tracks ............................................................................................................... 120
Case Management Memorandums .......................................................................... 121
Status Hearings ......................................................................................................... 123
3. Testing in Tauranga District Court......................................................................................... 125
General Workload Data - Tauranga.......................................................................... 125
Baseline Workload Data ............................................................................................. 46
Three month Review Data ........................................................................................ 125
Initial Disclosure.......................................................................................................... 47
Reasons for Adjournment .......................................................................................... 50
Time to Disposal.......................................................................................................... 51
Case Tracks ................................................................................................................. 52
Case Memorandums ................................................................................................... 55
Status Hearings ........................................................................................................... 62
Appendix One: Review Methodology ......................................................................................... 133
Appendix Two: Background Information on the Criminal Procedure (Simplification) Project134
Appendix two
110
1. Introduction
This report presents an initial assessment of the testing of summary procedural changes
conducted at Manukau and Tauranga District Courts as part of the Criminal Procedure
(Simplification) Project.
The goals of the testing were to:
•
•
•
•
Promote earlier guilty pleas and less adjournments through improved disclosure and
instructions to counsel;
Promote less appearances in the administration stage;
Decrease time from first appearance to disposal;
Ensure judicial time was utilised appropriately, particularly for status hearings
Summary Procedural Changes being Tested
Three proposals were identified for testing:
•
Guidelines on best practice for the provision of Initial Disclosure for cases in the District
Court and Guidelines on best practice to enable prompt instructions to be given to
Counsel from Defendants. The Guidelines clarify the roles and responsibilities of the
different agencies involved in the process (including Court Registry Officers and the
Judiciary).
•
A differentiated caseflow management process, which is being used to allocate different
types of cases to different procedural 'tracks' that set out events and timeframes
designed to meet the specific needs of the case.
•
A Case Management Memo (CMM) to ensure that, in summary cases, parties interact to
progress matters outside of court hearings.
The proposals above focus primarily on the first two stages of the Summary Court Process, the
List Court Stage and Status Hearing Stage. The proposals have been brought together as a
package to assess their combined effect on the court process.
Key Findings
To date we have seen improvements in both the simple and extended track processes in both
courts in terms of average age to disposal and the number of appearances in the administration
stage. Reducing the number of events and the time between events notably contributes to
improved case throughput in the court. However, because of the short period of time from
initiation to the review, the number of case disposals included in the three month review is still
relatively small (Manukau 32 cases, Tauranga 25 cases). The number of cases included in
testing, particularly the number of CMMs filed, is reasonably low because the first 6-8 weeks of
testing involved the bedding-in of the process in each court. In addition, most cases will take
longer than three months to progress through to disposal.
We recommend that testing of the model summary process continue at both courts until the sixmonth period review is completed.
Key Findings for Manukau
Appendix two
111
In Manukau, 343 cases were captured on check sheets as part of testing, over the three month
review period (14 July – 13 October). In September for example, the cases included in testing
made up 19% of Manukau’s total criminal summary caseload. Of the 343 cases - 41 were
excluded from testing, 45 went down the simple track, and 257 went down the extended
track). 16
Age of disposal differences
• Simple Track - Cases disposed of at Defended Hearing took an average of
(compared with 176 days for cases disposed of at a Defended Hearing within
sample 17).
• Extended Track - Cases disposed of at Status Hearing took an average of
(compared with 127 days for cases disposed of at a Status Hearing within the
sample).
90 days
baseline
63 days
baseline
Average number of appearances in administration stage
• For cases on the simple track there were 1.8 appearances (compared with purely
summary cases disposed in baseline of 5.3 appearances).
• For cases on the extended track there were 2.3 appearances (compared with electable
cases in baseline of 4.9 appearances).
Case Management Memorandums (CMMs)
• 233 cases had CMMs issued, of which 85 were filed in the three month period, with the
remaining filed outside the review period (and not including cases excluded from testing
ie. self represented, DV related and first appearance prior to 14 July).
• In the first two months of testing, CMMs were filed on average within 3 weeks and 2
days. By the third month, the average for CMM filing had reduced by a week to 2 weeks
and 1 day. This is likely to indicate a level of responsiveness from counsel in engaging
with Police.
• A random sample of CMMs were gathered (65), and of this sample:
- 95% were completed by counsel
- 75% requested a sentencing indication
- One-third consented to either further custodial remand or continuation of the
conditions of bail until defended hearing.
Key Findings for Tauranga
In Tauranga, testing involved 25% of total criminal summary caseload in Tauranga District
Court. 202 cases were captured on check sheets as part of testing, over the three month
review period (14 July – 13 October). In September for example, the cases included in testing
made up 25% of Tauranga’s total criminal summary caseload. 18 Of the 202 cases - 82 were
excluded from testing, 6 went down the simple track, and 114 went down the extended track).
Age of disposal differences
• Simple Track – There were no cases disposed of by Defended Hearing during the review
period.
16
Manukau received 1,433 new cases in September, of these 86% were prosecuted by Police (1,227). Of these cases 149 were
joined and 399 cases were disposed prior to a cases track decision (first/second appearance) this left a remainder of 679 cases.
Of the 679 cases 129 were part of testing which makes up 19%.
17
An explanation of baseline workload data is in Appendix 1.
18
Tauranga received 713 new cases in September, of these 83% were prosecuted by Police. Of these cases 47 were joined and
305 cases were disposed prior to a cases track decision (first/second appearance) this left a remainder of 240 cases. Of the 240
cases 61 were part of testing which makes up 25%.
Appendix two
112
•
Extended Track - Cases disposed of at Status Hearing took an average of 52 days
(compared with 119 days for cases disposed of at Status Hearing within the baseline
sample).
Average number of appearances in administration stage
• For cases on the simple track there were 1.8 appearances (compared with purely
summary cases disposed in baseline of 2.6 appearances).
• For cases on the extended track there were 2.5 appearances (compared with electable
cases in baseline of 2.9 appearances).
Case Management Memos
• 102 cases had CMMs issued, of which 71 were filed in the three month period, with the
remaining filed outside the review period (and not including cases excluded from testing
ie. self represented, DV related and first appearance prior to 14 July).
• CMMs were filed on average within 2 weeks over the whole review period.
• A random sample of CMMs were gathered (45), and of this sample:
- 75% were completed by counsel
- 24% requested a sentencing indication
- 10% consented to either further custodial remand or continuation of the conditions of
bail until defended hearing.
- 42% noted they did not require a Status Hearing and could go directly to Defended
Hearing.
Next Steps
Six-Month Review
This review was taken at the halfway point of the testing period. The six-month review will
provide broader and more comprehensive analysis, including qualitative interviews with
participants reflecting on their experiences to date. The review will discuss the implications of
implementing the process wider than the test sites and whether the processes need to be
modified. Wider resource implications of the test processes will be considered and the report
may include analysis on scheduling, judicial resource, incentives or sanctions required, and
overall engagement in the process.
Consideration will also be given to the criteria for cases included in the model process, to see
whether a wider range of cases could benefit from these procedural improvements.
The outcome of both reviews will also inform legislative work, particularly procedures that might
require legislative support.
Background
Criminal Summary Jurisdiction
All criminal cases begin in the administration phase. As a general rule, events that occur in
later stages, by their nature, take progressively longer and use more court resource 19.
Therefore, relatively small percentage differences in the timeliness of case disposals in the
administration stage, have an impact on timeliness in the later stages of the court process, due
to the volumes of work involved. Accordingly, the more cases disposed of in the administration
stage, the less unnecessary delay and the more efficient the Court is.
19
Except for the final administration stage.
Appendix two
113
A process map showing an overview of the changes being tested is identified below:
Proposed Summary Court
P
Testing of Differentiated caseflow management
:
Criteria will be developed for filtering cases through
different procedural tracks in the summary court process
.
List Court Stage
Case Memo
Testing of
Guidelines on initial Police disclosure
and Instructions to Defence Counsel
Pre-Hearing Stage
- Status Hearing
Defended Hearing
Stage
- Defended
Hearing
Sentencing
Hearing Stage
- Sentencing
hearing
Testing of Case Management Memorandum
(the basis for one of the differentiated caseflow
management tracks)
Simple Summary Track
Extended Summary Track(1 )
Extended Summary Track(2 )
Case Tracks
The criteria for identifying what track a case should be assigned to, is based on analysis of the
behaviour of summary cases and on information gathered on current practice in courts. For
testing, it was proposed to have less serious cases progressing to the Simple Track and more
serious and complex cases progressing along the Extended Track. The rationale for the two
tracks was that generally:
•
serious offences would benefit from early case management discussions by parties
because of the complexities of the offences, and may need Judicial input at a status
hearing;
•
cases not serious in nature have matters at issue which are narrow and would not
necessarily benefit from detailed case management, or Judicial input at a status hearing.
The case track criteria is very much a guideline and there is discretion in each case for the
Judicial Officer or Registrar to assign a case to a different track based on the characteristics of
that case.
Reasons for Adjournment
Previous case analysis had identified that Police initial disclosure and instructions were among
the top five reasons for adjournments in the list court stage in the summary jurisdiction.
The Guidelines which were included in testing identified best practice for the provision of initial
disclosure and instructions and intended to clarify the roles and responsibilities of the different
agencies involved in the process.
The purpose of the Guidelines are:
•
to enable sufficient disclosure to be provided within a reasonable timeframe to allow
proper and timely instructions / advice between Counsel and the Defendant; and
Appendix two
114
•
•
to allow Counsel and the Defendant to be fully informed so they can make decisions in
respect to the next hearing event;
to enable plea and charge discussions.
The Guidelines on Instructions and Disclosure included in testing applied to all informations laid
by Police in the criminal summary jurisdiction. Currently, the Guidelines are drafted as a
standalone document and more discussions need to occur on whether they are presented in the
right form for testing.
Suggested best practice for the list stage should be limited to two events and a period of two
weeks (ie. first appearance and an adjournment for the maximum of two weeks, if required and
then the second list appearance).
Cases Excluded from Test Processes
The following cases were not included in the testing (other than disclosure changes) because
they are dealt with by other processes:
•
Infringement Offences
•
Charges laid indictably
•
Cases referred to a Family Violence Court
•
Cases that are Domestic Violence related
•
Cases where either Police or Judicial diversion is being considered
•
Cases disposed of in the list stage of the process
•
Cases where trial by jury is elected in the list phase
•
Cases where the Defendant is self-represented
•
Cases filed by other prosecuting agencies (eg, Fisheries, IRD).
•
Cases referred to the Criminal Procedure (Mentally Impaired Persons) Act 2003
•
Cases referred to the Intellectual Disability (Compulsory Care and Rehabilitation) Act
2003
Appendix two
115
2. Testing in Manukau District Court
General Workload Data – Manukau
The Manukau District Court had 7509 cases of new business for all jurisdictions for the three
month period 1 July to 30 September 2008 20. Of these, 4346 cases were in the criminal
summary jurisdiction.
Criminal Summary Jurisdiction Workloads
Over the test period the total criminal summary jurisdiction showed the following results to the
end of October 2008 21:
• the total number of active criminal summary cases increased by 384 cases (15%)
• case disposals were down by 252 cases (16%)
• the median age of the caseload over that period reduced by 2.0 weeks (from 9.1 to 7.1
weeks), and reduced by 0.8 weeks over the previous 12 month period.
• the number of aged cases 22 reduced by 44 cases (10%) over the test period, but were at
similar levels to 12 months ago.
The number of Not Guilty cases over the test period was:
• Up 167 cases (100%) but was at similar levels to the same period last year;
• The number of case disposals was down 25 cases (21%) over the test period but again,
at the same levels as the previous time last year.
• The median age of Not Guilty cases reduced by 3.0 weeks over the test period, and 1.6
weeks over the previous 12 month period.
Baseline Data
The make up of the baseline data for Manukau District Court is identified in the table below:
Number and stage of disposal for Baseline Cases
Administration
Simple Track Type
25
cases
Extended Track Type
18
cases (Electable)
Pre-Trial
6
Defended Hearing
6
Total
37
12
10
40
77
To get an idea of the scale of the cases included in testing, in the month of September 2008
Manukau District Court received 1,433 new summary cases with 86% being prosecuted by
Police. There were 129 new cases in September included in testing which made up 19% of
Police Prosecution summary matters over that period. 23
20
This is the closest proxy to the actual dates for the test period (14 July to 13 October)
Technically the end date for the 3 month review of testing was 14 October 2008.
22
Active Cases aged over 26 weeks from first appearance.
23
Manukau received 1,433 new cases in September, of these 86% were prosecuted by Police (1,227). Of these cases 149 were
joined and 399 cases were disposed prior to a cases track decision (first/second appearance) this left a remainder of 679 cases.
Of the 679 cases 129 were part of testing which makes up 19%.
21
Appendix two
116
Three Month Review Data
Over the three month period of 14 July 2008 – 13 October 2008, 343 cases were captured on
check sheets. Of these 41 were excluded from testing, 45 went down the simple track and 257
went down the extended track. The spread of cases across the months are:
Number of Cases in testing over the three month period (Captured on check sheets)
Month
Excluded
Simple
Extended
Total
Prior to 14 July
32
32
July/August
4
26
51
81
August/September
4
13
107
124
September/October
1
6
99
106
Cases Excluded from Testing
There were 41 cases excluded from testing. The main reason for cases being excluded was
that the first appearance was prior to the start of testing (14 July 2008). These cases were
excluded because it would be difficult to show if the initiatives being tested had impacted on
their progression or result.
A table identifying the reasons for exclusion of the cases is
provided below.
Make up of Cases excluded from testing
Reason
First appearance prior to 14 July
Domestic Violence Related
Self Represented
Police Diversion Given
Indictably Laid Charge
Other Prosecuting Authority (non Police)
Total
Number of cases
32
2
3
1
1
2
41
Initial Disclosure
•
•
The initial receipt document was relatively well received, and anecdotal feedback from counsel
was that they were pleased with both the timeliness and quality of the disclosure.
Initial Disclosure is likely to have contributed to the reduction in the number of appearances per
case in the administration stage (see page 11).
Parties were asked at court appearances in the administration stage if they had received initial
disclosure and the date it was provided. Of the 302 cases included in testing, 119 parties
advised the date of when initial disclosure had been received, and 49 initial disclosure
documents were provided to the court and placed on the court files.
This review will not capture the full benefits of initial disclosure as cases disposed at first and
second appearance were not captured on the check sheets.
Reasons for Adjournments
The following pie graphs, identify the major reasons for adjournments from the test data and the
baseline data. These pie graphs indicate the top ten reasons for adjournment and their
proportion of that total, rather than proportion of the total number of cases.
31% of cases in baseline had No Reason identified for adjournments from first to second
appearance, compared with the testing data we can see that the Reason Unknown was higher
at 48%. This figure reflects some of the bedding-in of the test processes as reasons for
Appendix two
117
adjournment were not fully captured during the first month of the testing. In addition, over the
test review period Manukau District Court had a heavy workload that has created pressure on
their list courts, and therefore the court taker was not always able to record the adjournment
reason.
In both sets of data the adjournment reason of Defendant not Available appears to have
dropped dramatically from 26% to 1% for between 1st and 2nd appearance, and 12% to 1% for
between 2nd and 3rd appearance. There are a number of possible reasons why this might have
reduced such as, earlier discussions with Counsel confirming with the Defendant the date of the
next appearance. However, this is unable to be confirmed from the data collected.
Not Guilty to Status Hearing has risen from 22% (baseline) to 54% (testing). This may indicate
that improved disclosure has meant that more cases are progressing and not requiring a further
administration event, moving onto the appropriate track.
In addition we can see that “No Instructions” has increased to 18% from 1%, however, it had
reduced to 4% as an adjournment reason between 2nd and 3rd appearance. This could be due
to disclosure being provided earlier which results in the need for earlier instructions to counsel
for a plea to be entered. However, this also cannot be confirmed from the data collected.
Baseline Data
Testing Data
Reasons for adjournments identified in baseline analysis from
first to second appearance
NG to SH
2%
NG to Fixture
2%
NPS - Enlarged
20%
No Instructions
1%
Defendant has No
Counsel
6%
Defendant Not
Available
26%
NG to SH
15%
Counsel Not
Available
1%
Disclosure
Incomplete (or nil)
3%
Possible Police
Diversion
8%
Transferred to a
different court
3%
No Instructions
18%
Defendant has
No Counsel
1%
NG to Fixture
8%
Legal Aid
2%
Other Reason
4%
Reason Unknown
28%
Top 10 Reasons for Adjournments from the First to
the Second Appearance
Defendant Not
Available
1%
NPS - Enlarged
3%
Reason
Unknow n
48%
Key: NG = Not Guilty; SH = Status Hearing; NPS = No Proof of Service; No Instructions = No instructions to counsel from defendant
Appendix two
118
Baseline Data
Testing Data
Reasons for adjournments identified in baseline analysis from second to
third appearance
Defendant has No
Counsel
5%
NG to SH
22%
Top 10 Reasons for Adjournments from the Second to the Third
Appearance
Counsel Not
Available
3%
Counsel Not Available
2%
Disclosure Incomplete
(or nil)
2%
No Instructions
4%
Defendant Not
Available
12%
Defendant Not
Available
1%
NG to Fixture
4%
Reason Unknow n
29%
Possible Police
Diversion
4%
To lie until serious
matters
4%
NPS - Enlarged
13%
NG to SH
54%
NPS - Enlarged
1%
Possible Police
Diversion
1%
Reason Unknown
29%
Warrant to Arrest
Issued
1%
Other Reason
4%
NG to Fixture
5%
Key: NG = Not Guilty; SH = Status Hearing; NPS = No Proof of Service; No Instructions = No instructions to counsel from defendant
Time to Disposal
•
•
The time to disposal has decreased by just over 50% for both case tracks. While the number of
cases this applies to is not large (32 cases) it gives a good indication of the potential benefits.
The number of appearances in the administration stage has also dropped significantly, and this
would also be likely to contribute to the reduction in time to disposal.
Average Age of Disposal (days) from first appearance
Not Guilty (Status Hearing Stage)
Defended (Defended Hearing
Stage)
Baseline (prior to testing)
127
176
Testing (14 July-13 Oct)
60
74
The average time to disposal was 52% less (67 days) in the status hearing (Not Guilty) stage
for those cases included in testing compared to Manukau District Court’s average age of
disposal for summary cases.
Also the average time to disposal in the defended hearing stage for those cases included in
testing was 57% less (102 days).
Stage of Case Disposal
Simple Track Cases - Disposal stages
Stage
Administration stage
Pre-Trial stage
Defended Hearing stage
Appendix two
Number of
cases
0
0
13
Extended Track Cases - Disposal
stages
Stage
Number
of cases
Administration stage
0
Pre-Trial stage
19
Defended Hearing stage
0
119
Average Number of Appearances
Average Number of Appearances at the Administration Stage
Excluded
Simple/Simple type
cases
Baseline - Average
No. of
appearances in
admin stage
Testing - Average
No. of
appearances in
admin stage
0.0
5.3
Extended/Extended
type cases
(electable)
4.9
2.5
1.8
2.3
The test processes proposed that two appearances at the administration stage should be
sufficient for most cases. The data above shows a significant reduction in the number of
appearances at the administration stage for both the simple and extended tracks. This will have
been, in part, due to improved disclosure and improved assignment of legal aid to defendants.
Case Tracks
Simple Track
There were 45 cases that went down the simple track, the majority of these cases were
summary cases (62%) with the remainder being electable cases. Early on in the testing there
had been some initial confusion with which cases should go down which track, and this has
influenced the high number of cases that were electable going down the Simple Track.
Month
July/August
August/September
September/October
Simple Track
Electable
9
7
1
Summary
17
6
5
Total
26
13
6
Of the cases that proceeded down the simple track during the three month period, 28% had a
defended hearing in this period. The majority of these cases (9 cases) resulted in the case
being disposed of with the remaining (4 cases) needing another defended hearing.
Defended hearing outcomes for the
Summary Cases (Simple Track Type
Cases)
Disposal type
Number of
cases
Guilty plea
3
Another defended hearing
4
Withdrawn by leave
4
Evidential Guilty
1
Guilty Plea / Charge(s)
1
withdrawn by leave
Total
13
Appendix two
120
Extended Track
There were 257 cases that went down the extended track. A high proportion of these cases
were electable cases (79%), with the remainder being summary cases.
Extended Track
Electable
47
78
79
Month
July/August
August/September
September/October
Summary
8
25
20
Total
55
103
99
Case Management Memorandums
From a random sample of CMMs, the usefulness of the CMM for identifying issues out of court was
demonstrated through:
- Almost all CMMs (96%) being completed by both Police and Counsel.
- A large number of case CMMs in Manukau DC wanting sentencing indications, however this
contributed to them requiring status hearings to get one.
- On half of the CMMs an Intimated Guilty plea was given for one or more charges.
- About a third of case CMMs consented to further custodial remand or conditions of bail
continuing until defended hearing.
233 cases had CMMs issued, of which 85 were filed in the three month period, with the
remaining filed outside the review period (and not including cases excluded from testing ie. self
represented, DV related and first appearance prior to 14 July). A graph comparing CMMs
issued and received is identified below. If a date was not noted when the CMM was issued or
filed, the issued date was allocated to the list appearance where a Not Guilty plea was entered,
and the received date was allocated the date the CMM was signed.
Change in CMMs issued and received at Manukau
140
120
Number
100
80
CMM Issued
60
CMM Received
40
20
Se
pt
em
be
r /O
ct
ob
er
be
r
Au
gu
s
t/S
ep
te
m
Au
gu
st
Ju
ly/
Pr
io
rt
o
14
Ju
ly
0
Months
Appendix two
121
Filing time of CMMs
The testing required the CMM to be filed with the Court prior to the scheduled status hearing.
Police Prosecution Service were responsible for ensuring that the completed CMM was
returned to court by the due date, which is:
•
In Manukau - 3 weeks prior to the scheduled status hearing or a maximum of 4 weeks after
a Not Guilty plea is entered;
Time taken for CMM to be filed at Manukau
30.00
Time in days
25.00
20.00
Time taken
15.00
10.00
5.00
0.00
July/August
August/September
September/October
Months
Approximate time taken for the completion of the CMM ranged from:
• 23 days (3 weeks 2 days) in July/August
• 25 days (3 weeks and 4 days) in August/September
• 15 days (2 weeks and 1 day) in September/October
The time taken to file the CMM has reduced and this reflects, to some extent, the
responsiveness of counsel and a pro-active Police Prosecution Service in Manukau in ensuring
CMM meetings were arranged, and memos were filed.
Analysis of the content of CMMs
A random sample of CMMs from 65 court files were analysed. Of the 65 CMMs, 95% (62
CMMs) were completed by both Counsel and Police, or had Counsel involvement in their
completion. The remaining 3 CMMs automatically went to a Status Hearing because counsel
had not engaged in any discussions with Police about the CMM
Requested a Status Hearing
Nearly three quarters of the CMMs requested a sentence indication (73% or 48 CMMs). This
was therefore the main reason given for going to a Status Hearing. Other reasons given are
identified in the table below, with some CMMs indicating more than one reason:
Appendix two
122
Reasons for requesting Status Hearing
identified on the CMMs
Sentence Indication
48
Diversion
6
No contact from counsel
1
Set fixture date
5
Reparation
1
Take instructions
2
Proof of Service
1
Guilty Plea
1
Disclosure
1
Withdrawn by Leave
1
Not identified
18
Total
85
Charge negotiations were made on 19 of the CMMs, with charges identified as being withdrawn
or amended. Intimated Guilty pleas were given for one or more charges in 34 of the 65 CMMs.
What’s In issue
Of the 65 CMMs, 22 included a statement of what was “in issue”. The main reasons given
disputed the offence took place at all, which leads to all evidence being in dispute. However, it
could also be that counsel are hesitant to show their hand too early. The “in issue” reasons
included:
• Mens Rea (capacity for mental element in an offence committed)
• Not Indecent – disputed facts
• Self defence / property defence / remove trespasser, reasonable force
• Was the defendant involved in the transaction and was it reckless
• Not driving at a dangerous speed
• Claim of right
Scheduling the Defended Hearing
There were 11 CMMs which included identification of either suitable or unsuitable dates for the
defended hearing. However, only 1 CMM included reference to contacting the Registrar to
arrange a date.
Cases going to Defended Hearing
Of the CMMs which were likely to go onto a Defended Hearing, 21 of these consented to either,
a further custodial remand until the defended hearing, or continuation of the conditions of bail
until the defended hearing date. At the time of the review, none of the CMMs had gone to a
defended hearing.
Status Hearings
Of the 257 cases going down the extended track, 46 cases were scheduled for a Status Hearing
during the three month testing review period. Of those, 58% (27) were adjourned to another
appearance (Judges List, Status Hearing or Defended Fixture). The remaining cases were
disposed of by way of Guilty plea, withdrawn by leave, or Guilty plea with charges withdrawn or
amended. The table below shows this breakdown:
Appendix two
123
Status Hearing Outcomes
Extended Track Status Hearing Outcomes
Guilty Plea/Charges Withdrawn or
8
Amended
Guilty Plea with adjournment for a
Pre-sentence report
1
Guilty Plea (conviction and
sentence or discharged at status
hearing)
9
Withdrawn By Leave
1
Adjourned to Defended Fixture
8
Adjourned to another hearing
19
Total
46
Of the 8 cases adjourned to a Defended Hearing from the Status Hearing, none of these cases
have been heard at a defended hearing during the review period.
Appendix two
124
3. Testing in Tauranga District Court
General Workload Data - Tauranga
The Tauranga District Court had 3199 cases of new business for all jurisdictions over the testing
period. Of this, 2091 new cases were in the criminal summary jurisdiction over the 1 July to 30
September 2008 period of testing 24.
Criminal Summary Jurisdiction Workloads
Over the test period the total criminal summary jurisdiction showed the following results to the
end of October 2008 25:
• The total number of active criminal summary cases increased by 150 cases (or 17%)
• The number of case disposals down by 60 (or 8%).
• The median age of the caseload over that period reduced by 1.6 weeks (from 2.9 weeks
to 1.3 weeks), a reduction of 1.0 week over the previous 12 month period.
The number of Not Guilty cases over the same period was:
• Up 36 cases (44%) with the number of case disposals at similar levels – up by 2 cases
(0.5%) over the test period, and reducing 9 cases (19%) over the previous 12 months.
• The median age of Not Guilty cases also stayed at similar levels over the test period and
the previous 12 month period (up 0.2 weeks to be 6.3 weeks).
Baseline Workload Data
The make up of the Tauranga baseline data is identified in the table below:
Number and stage of disposal for Baseline Cases
Administration
Simple Track Type
27
cases
Extended Track Type
27
cases (Electable)
Total
54
Pre-Trial
4
Defended Hearing
4
Total
35
5
3
35
9
7
70
Three month Review Data
Over the three month period of 14 July 2008 – 13 October 2008, 202 cases were captured on
check sheets. Of these 82 were excluded from testing, 6 went down the simple track and 114
went down the extended track.
24
25
The 1 July to 30 September 2008 period was used as a proxy for the testing period of 14 July to 13 October 2008.
Technically the end date for the 3 month review of testing was 14 October 2008.
Appendix two
125
The spread of cases across the review period months are:
Number of Cases in testing over the three month period (Captured on check
sheets)
Month
Excluded
Simple
Extended
Total
Prior to 14 July
20
0
0
20
July/August
23
2
29
54
August/September
24
3
49
76
September/October
15
1
36
52
Cases Excluded from Testing
There were 82 cases excluded from testing. The main reason for cases to be excluded was
that they were domestic violence related, which was excluded from testing. These cases
included in the table below were excluded because it would be difficult to show if the initiatives
being tested had impacted on their progression or result. A table identifying the reasons for
exclusion of the cases follows.
Make up of Cases excluded from testing
Reason
First appearance prior to 14 July
Domestic Violence Related
Self Represented
Indictably Laid Charge
Other Prosecuting Authority (non Police)
Total
Number of
cases
20
36
24
0
2
82
Initial Disclosure
•
The initial receipt document was less well received, with only a small number advising the court
that it had been received, however, anecdotal feedback from counsel via teleconferences was
that they were pleased with both the timeliness and quality of the disclosure.
Parties were asked at court appearances in the administration stage if they had received initial
disclosure and the date it was provided. Of the 202 cases captured on the check sheets as part
of testing, 4 parties advised initial disclosure had been received in the administration stage and
1 initial disclosure document was provided to the court and placed on the court file.
Reasons for Adjournment
In the pie graphs below, the major reasons for adjournments from the test data and the baseline
data are outlined. The percentage of cases that had no reason identified for adjournments from
the first to second appearance was comparable in the baseline and testing data (23% from
baseline compared with 27% from testing).
In addition, we can see that “No Instructions” has increased from less than 1% (therefore not
included in the graph) to 19% for cases included in testing. In the second to third appearance it
increased from less than 1% in baseline, to 4% as an adjournment reason in testing.
Not Guility to status hearing has risen from 5% to 15% in the first to second appearance, or 9%
(baseline) to 48% (testing) from second to third appearance
In both sets of data the Defendant not Available appears to have dropped dramatically as well
from 27% to 1% for between 1st and 2nd, and 21% to 1% for between 2nd and 3rd appearance.
Appendix two
126
Baseline Data
Testing Data
Baseline: Tauranga top 10 reasons for adjournments from first to second
appearance
Other Reason
4%
NG to SH
5%
Delayed further
offending
3%
Tauranga: Reasons for adjournm ents first to second appearance
Disclosure
Incomplete (or nil)
3%
Disclosure Incomplete
(or nil)
2%
Defendant has No
Counsel
8%
No Instructions
19%
NG to SH
15%
Counsel Not
Available
1%
NPS - Enlarged
7%
Defendant Not Available
27%
Reason Unknow n
23%
Defendant Not
Available
1%
No Record
21%
NG to Fixture
8%
Transferred to a
different District Court
4%
Reason Unknow n
27%
Legal Aid
2%
Possible Police
Diversion
17%
NPS - Enlarged
3%
Key: NG = Not Guilty; SH = Status Hearing; NPS = No Proof of Service; No Instructions = No instructions to counsel from defendant
Baseline Data
Testing Data
Baseline: Tauranga top 10 reasons for adjournments from second to third
appearance
Roster Change / No
Judge available
4%
NG to SH
9%
NG to Fixture
4%
Pre-Sentence
Report
13%
Reason Unknow n
25%
Disclosure
Incomplete (or nil)
5%
Defendant has No
Counsel
New Counsel
5%
Instructed
5%
Defendant Not
Available
21%
Tauranga: Reasons for adjournments from second to third appearance
No Instructions
Disclosure
4%
Incomplete (or nil)
2%
Counsel Not
Available
2% Defendant Not
Possible Police
Diversion
1%
Available
1%
Reason Unknow n
25%
NG to SH
48%
Warrant to Arrest
Issued
1%
Possible Police
Diversion
9%
No Record
12%
NG to Fixture
4%
Key: NG = Not Guilty; SH = Status Hearing; NPS = No Proof of Service; No Instructions = No instructions to counsel from defendant
Appendix two
127
Time to Disposal
•
•
The time to disposal has decreased by just over 50% for the simple track. However this only
applies to a small number of cases disposed (25).
The average number of appearances in the administration stage has reduced slightly for both
tracks.
Average Age of Disposal (days) from first appearance
Baseline (prior to testing)
119
146
Not Guilty (Status Hearing Stage)
Defended (Defended Hearing
Stage)
Testing (14 July-13 Oct)
52
N/A
The average time to disposal was 56% less (67 days) in the status hearing (Not Guilty) stage
for those cases included in testing compared to Tauranga District Court’s baseline analysis.
Because there were no cases disposed of in testing at defended hearing over the review period
we can not tell if any improvements in the disposal of cases at defended hearing have been
seen.
Average Number of Appearances
Excluded
Baseline - Average
No. of
appearances in
admin stage
Testing - Average
No. of
appearances in
admin stage
Summary/Simple
type cases
0.0
2.6
2.1
1.8
Electable
/Extended type
cases
2.9
2.5
The test processes proposed that two appearances at the administration stage should be
sufficient for most cases. The data above shows a slight reduction in the number of
appearances at the administration stage at Tauranga District Court for both the simple and
extended tracks.
Disposal Stages
Simple Track Cases - Disposal stages
Stage
Administration stage
Pre-Trial stage
Defended Hearing stage
Appendix two
Number of
cases
0
0
0
Extended Track Cases - Disposal
stages
Stage
Number
of cases
Administration stage
0
Pre-Trial stage
25
Defended Hearing stage
0
128
Case Tracks
•
•
All the case disposals for the extended track have been disposed at the pre-trial stage, however
this is likely to be because the majority of cases have not reached a defended fixture yet. (The
numbers of cases disposed at the time of the review was still small.)
No cases for the simple track have reached a defended fixture as yet.
Simple Track
There were 6 cases that went down the simple track, the majority of these cases were summary
cases (83%) with 1 being electable.
Simple Track
Electable
0
0
0
1
Month
Prior to 14 July
July/August
August/September
September/October
Summary
0
2
3
0
Total
0
2
3
1
Of the cases that proceeded down the simple track during the three month period none of them
had a defended hearing in this period.
Extended Track
There were 111 cases that went down the extended track. A high proportion of these cases
were electable (80%), with the remainder being summary.
Month
July/August
August/September
September/October
Extended Track
Electable
22
39
28
Summary
8
8
6
Total
30
47
34
Case Memorandums
As part of a random sample of CMMs, we note that:
• As with Manukau DC, those cases requiring a sentence indication required a Status Hearing,
however, the proportion that requested a sentencing indication in Tauranga was smaller (24% vs
75%).
• A reasonable number of CMMs (75%) were completed by both Police and Counsel.
• 42% noted they did not need a status hearing and could go to directly to defended fixture.
102 cases had CMMs issued, of which 71 were filed in the three month period, with the
remaining cases having CMMs issued or filed outside the review period (and not including
cases excluded from testing ie. self represented, DV related and first appearance prior to 14
July). A graph comparing CMMs issued and received is identified below 26.
26
If a date was not provided for when the CMM was issued or filed, the issued date was allocated to the list appearance where a Not Guilty
plea was entered, and the received date was allocated the date the CMM was signed.
Appendix two
129
Change in CMMs issued and received at Tauranga
40
35
Number
30
25
CMM Issued
20
CMM Received
15
10
5
0
July/August
August/September
September/October
Months
Time to Filing for CMMs
The testing required the CMM to be filed with the Court prior to the scheduled status hearing.
Police Prosecution Service were responsible for ensuring that the completed CMM was
returned to court by the due date, which is:
•
In Tauranga - 3 weeks from when the CMM is issued to Counsel or a maximum of 3 weeks
after the not guilty plea is entered.
Time taken for CMM to be filed at Tauranga
18
16
Time in days
14
12
10
Time taken
8
6
4
2
0
July/August
August/September
September/October
Months
Time taken for the completion of the CMM ranged from:
• 15 days (2 weeks 1 days) in July / August to
• 13 days (1 weeks and 6 days) in August / September
• 14 days (2 weeks) in September / October
The time taken for the completion of the CMM seems to reflect mutual completion of CMMs by
Police Prosecution and Defence Counsel rather than filing of the CMM by Police on the day due
when Counsel have not engaged in discussions on the CMM.
Analysis of the Content of CMMs
Appendix two
130
A random sample of CMMs from 45 Court files were analysed. Of the 45 CMMs, 75% (34
CMMs) were completed by Counsel and Police, or had Counsel involvement in their completion.
The remaining 11 CMMs automatically went to a Status Hearing because counsel had not had
discussions with Police about the CMM. As a proportion of the total number sampled, the rate
of non-completion by counsel at Tauranga District Court was significantly higher than for
Manukau District Court (24% vs 4%).
Requested a Status Hearing
Of the 45 CMMs, 19 CMMs noted they did not need a Status Hearing. The main reason given
for going to Status Hearing was for a sentence indication with 24% of the CMMs (11 CMMs)
requesting a sentence indication. 8 CMMs identified a dispute of fact as the reason for a Status
Hearing. The other reasons given are identified in the table below:
Reasons for requesting Status Hearing
identified on the CMMs
Sentence Indication
11
Not contact from counsel
3
Disclosure
2
Not identified
9
Dispute of fact
8
Other
1
Total
34
Charge negotiations were made on 16 out of the 45 CMMs, with charges identified as being
withdrawn or amended. Intimated Guilty pleas were given for one or more charges on 10
CMMs.
Whats In Issue
Of the 45 CMMs, 17 included a statement of what was “in issue”. The range of issues is
outlined on page 15.
Scheduling the Defended Hearing
There were only 3 CMMs that included identification of either suitable or unsuitable dates for the
Defended Hearing. However, no parties had identified that they had contacted the Registrar to
arrange a date.
Cases going to Defended Hearing
Of the CMMs that were likely to go onto Defended Hearing, 4 CMMs contained consent to either
a further custodial remand until Defended Hearing or continuation of the conditions of bail until
the Defended Hearing date. At the time of the review, none of the CMMs had gone to a
Defended Hearing.
Appendix two
131
Status Hearings
Of the 114 cases going down the extended track, there were 32 cases scheduled for a Status
Hearing during the three month test period. Of those 40% (13) were adjourned to another
appearance (Judges List, Status Hearing or Defended Fixture). The remaining cases were
disposed of by way of Guilty plea, withdrawn by leave, or a combination of guilty plea with
charges withdrawn or amended. The table below shows this breakdown.
Outcomes
Extended Track Status Hearing Outcomes
Guilty Plea/Charges Withdrawn or
Amended
3
Guilty Plea with adjournment for a
Pre-sentence report
5
Guilty Plea (conviction and
sentence or discharged at status
hearing)
6
Withdrawn By Leave
4
Adjourned to Defended Fixture
9
Adjourned to another hearing
5
Total
32
Of the 9 cases adjourned to a Defended Hearing none of these cases had a hearing during the
review period.
Appendix two
132
Appendix One: Review Methodology
Methodology
The three monthly review includes, where possible, comparative analysis of baseline data and
data on cases heard during the first three months of testing (14 July to 13 October inclusive).
The review includes information obtained from:
• District Court workload reports (showing throughput of cases, disposals, and time to
disposal for cases heard over the three month period)
• The Ministry of Justice’s Case Management System (CMS);
• Manual court returns (check sheets completed for a case included in testing when a Not
Guilty plea was entered)
• Copies of Case Management Memorandums and Police Initial Disclosure Documents
filed with the Court as part of testing;
• Court case file analysis of cases heard prior to and during testing.
This includes all summary informations filed by Police in the test courts during the test period,
excluding charges laid indictably and infringement offences.
Baseline Workload Data
Baseline data was captured from a random selection of criminal summary cases disposed of in
the Tauranga and Manukau District Courts during the 12 month period immediately preceding
the testing (14 July 2007 to 13 July 2008). Cases are counted as disposed of when all charges
have a final disposition by way of guilty plea, by a determination of guilt or innocence by a
Judge, or have been withdrawn by the prosecution.
The baseline data cases were restricted to those that would have been eligible for the testing
and had their first appearance fall within the testing period (ie. cases that were summary Police
cases, where the defendant was represented by defence counsel and the cases were not
domestic violence related).
Assumptions
With any review there are always constraints with the amount or quality of information that can
be collected or analysed. The following outlines the constraints for this review:
•
•
•
•
The analysis is only capturing case information recorded on the check sheets (ie. It does
not include cases disposed of early on in the process such as 1st – 2nd appearance);
Reasons for adjournments have not always been recorded – however this has been
mitigated to some extent by checking the CMS record;
The data is not as accurate as we would like it to be. For example, not all check sheets
have been received;
The number of cases involved in testing at this point is proportionally small and we
expect larger numbers as part of the six-month review.
Appendix two
133
Appendix Two: Background Information on the Criminal Procedure
(Simplification) Project
The Criminal Procedure (Simplification) Project is a joint project between the Ministry of Justice
and the Law Commission. The key objectives of the project are to:
•
reduce court delay via legislative and operational change; and
•
create an accessible and simplified criminal procedure by developing a new Criminal
Procedure Act.
The project has two main workstreams:
•
An operational workstream looking at the summary and indictable jurisdiction
procedures;
•
A policy workstream focusing on the drafting of an “Exposure Bill” and vision paper.
In addition, linkages are being made to the Electronic Operating Model work being undertaken
by the Ministry of Justice’s Operations Group.
Legislative Workstream
As part of the Criminal Procedure (Simplification) Project, a cross agency legislative drafting
working group is looking to simplify the current criminal procedure legislation through repealing
the Summary Proceedings Act 1957 and parts of the Crimes Act, and replace it with a new
Criminal Procedure Act. This new Act will:
• consolidate current provisions governing criminal procedure;
• support new processes being developed within the operational strand of the project; and
• clarify and make the relevant law more accessible to participants in the court process;
• ensure the legislation is future proofed for use of technology.
A consultation draft Bill and vision paper will be ready for consultation in August 2009 and a
final Bill for introduction in the House in early 2010. It is expected that draft Regulations will
also be ready for consultation at this time.
Operational Workstream
As part of validating options for a summary court process model, (the model) the project is
testing a package of procedural initiatives in two District Courts (Manukau and Tauranga) from
14 July 2008 to assess their effectiveness within an operational setting. This testing will inform
the development of the model, and any recommendations that need to be made regarding
operational or legislative change required to support that model.
Appendix two
134