Taranaki Daily News

Caution urged over plea bargains

- STAFF REPORTER

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

In a recent speech Chief Justice Dame Sian Elias cautioned against criminal justice management innovation­s that risked the fundamenta­ls of justice and fairness. Management-driven change to the criminal justice system should not neglect procedural safeguards, she said.

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

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

‘‘It is difficult to get a handle on whether judges are consciousl­y or unconsciou­sly attempting to obtain pleas by offering discounts that provide incentives,’’ Elias said. ‘‘I have been surprised to hear senior judges speak of their ‘‘success’’ in obtaining pleas on sentence indication­s.’’

Sentencing indication­s were introduced in 2012, so a defendant could ask what type of sentence they would receive if they pleaded guilty.

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

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

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

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

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

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

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

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

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

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

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

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

 ??  ?? Dame Sian Elias
Dame Sian Elias

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