The Wellington District Court court has advised Crown and defence counsel that the court system is being swamped with a backlog of cases and a stakeholders meeting will be held at the court on the 27th of July 2012, seeking input from those concerned. There are currently 261 trials outstanding and a number of pre-trial conferences to be held. Fixtures are jammed full until the end of the year, with about 30 cases to be called on 31 August for allocation of trial dates in 2013
At stake, is the ability of the courts to provide defendants in the criminal jurisdiction with their right to trial by a jury of their peers. Civil jury trials have, for all practical purposes, been done away with in New Zealand. The last known case of trial by jury was Menzies v Attorney General (CIV2002 41800005) in late 2004. The shift away from juries has occurred without any law change. Rather, it has evolved quietly, by judicial fiat. It is now routine for judges to simply rule it is 'inconvenient' to have a jury trial or ambiguously - if not spuriously - claim that civil cases are too complicated for juries, or that the law is inextricably linked to the factual issues long accepted in law as suitable for a jury determination.
While juries remain an option in criminal trials in New Zealand, they too are under serious threat of extinction. High Court Justice Tony Randerson publicly blamed the increased NZ Court backlog on criminal jury trials, noting the large increase in methamphetamine cases in particular. Accordingly Randerson J implored Parliament to act to relieve the backlog. Many saw this as a veiled promotion to abolish jury trials altogether. In a 16 May 2008 publication of LawNews, retired District Court Judge Ron Gilbert questioned the fairness of jury trials although, paradoxically, his own experience admittedly supported the use and retention of jury trials. Why then should jury trials be abolished? The implication in that article was that jury trials delay, if not defeat, justice.
This view is in stark contrast to the crucial origins of English law. Before the Magna Carta came into existence, the King was able to rule by decree - and whim. Adjudication by one's peers of conflicts with the Crown was considered an essential ingredient to natural justice in a legal system where the King's appointments governed the Courts, Judges had inherent conflicts. The 14 year New Zealand Court battle of Keith and Margaret Berryman and their counsel Dr Rob Moodie to merely get the uncensored government report regarding the Te Rata bridge collapse into evidence proves that reasoning is as sound today as it was at any time.
Should we care that judges generally consider juries have outlived their usefulness in the New Zealand civil justice system?Not only has the jury model worked for almost 800 years, it is widely recognized as the yardstick in distinguishing democracies from autocracies. The right to trial by jury has direct lineage to the MagnaCarta, one of only three clauses which are still law - and certainly the most famous. The principle that no free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled except by the lawful judgement of his equals or by the law of the land is considered so fundamental to a free and just society that it resonates forcefully in the American Bill of Rights and the United Nations Universal Declaration of Human Rights.
More than any other right, the right to trial by jury singularly provides a safeguard against despotic state rule. It is virtually impossible to overstate the importance to democracy of this judicial safeguard.
We believe overwhelmingly as a people that democracy is safe in New Zealand, yet New Zealand Courts ordered 17 citizens held without bail as terrorists while suppressing the 'evidence' that purported to prove they deserved to be imprisoned ahead of trial. Fortunately, in that case, sustained public protests were followed by a change of heart by the Solicitor General. Sure, this was a criminal proceeding where those accused could still, eventually, elect to a jury trial when the Court got around to trying them. The most alarming aspect is more than one judge not only got it terribly wrong in depriving an essential liberty but also single-handedly had the authority to suppress the evidence which would have revealed how wrong they got it. We all know how prevalent suppression orders are in NZ Court cases. Prudence alone dictates not putting such absolute power in the hands of one individual and then trusting that judge to summarize the case completely, no matter how clever and legally qualified they are.
The decision that gave Britain, and the world, the independent jury is the Bushells case of 1670, when a jury cleared the Quakers William Penn (a barrister who later founded Pennsylvania) and William Mead who had been improperly charged with unlawful assembly in Gracechurch Sreet, in London.The judge wanted a conviction and told the jury: “you shall not be dismissed till we have a verdict that the court will accept.”The jurors were then locked up without food or drink, and when they refused to submit to the judge’s demands, they were fined for their defiance. But, they refused to be browbeaten by the Bench.One juror, Edward Bushel, appealed against his treatment and eventually won the jury’s right to come to a verdict according to their own opinion even if it is a verdict the judge does not want
Remember 'Mt Erebus'? Remember the Winebox scandal? Along with the Berryman case these cases demonstrate, even in high profile cases where there is considerable media scrutiny, judges can and do succumb to undue influences. For every Winebox or Erebus, scores of cases wither under the public radar, becoming mere footnotes in the legal lexicon by virtue of judicial decrees that purport to accurately summarise the case as they primarily justify the judicial position taken by the judge.
This may be fine where the judge's objectivity is not compromised and where they have no personal connection with any of the litigants. But this is New Zealand. Because we are a small country we have been indoctrinated to, firstly, accept judges can hardly avoid knowing one of the parties in many cases and, secondly, trust our judges are accustomed to presiding in such cases and therefore accustomed to putting aside their innate human bias when allies do appear before them. You can add to the mix that lawyers are forbidden from publicly criticizing judicial decisions. When cries do arise that judges fictionalised some critical facts, most likely by one of the litigants, the tendency of the public is to instinctively dismiss such claims as sour grapes.
Defamation cases, in particular, highlight how far the Courts have regressed in law on the right to jury trials. By definition, defamation is a factual determination based upon what meanings the ordinary person attributes to words used - and pointedly not what one judge who is taught to argue the meanings of words on the head of a pin thinks. But even in these cases, where a jury determination would seem a foregone conclusion, the Courts have intervened to prevent this from occurring.
In July 2006, Television New Zealand appealed a High Court decision denying them a trial by jury as defendants in defamation proceedings to the Court of Appeal (TVNZ Ltd. v Haines and ors  NZCA 243 (6 September 2006). In a ruling by Susan Glazebrook J on behalf of the appellate panel, a trial by judge alone was upheld on the premise that "the issues of law are tightly intertwined with the facts at each stage of the inquiry." In ruling so, the Appeal Court appeared to condone taking obvious cases out of the hands of juries simply because the judge might otherwise need to give the jury careful instructions on the legal issues - something which has always been considered customary practice but now allows trial judges greater discretion to prevent jury trials, which may disappear altogether if long fought for constitutional guarantees are allowed to be eroded by misguided judicial activism.