FACT SHEET 1: CASE MANAGEMENT

What is the general proposal?

To establish a new process for managing cases to avoid unnecessary delay. The new process will:

Place the onus on parties to progress their cases outside the courtroom to the extent practicable.

Require a high level of cooperation between all the participants in the court process in order to resolve cases in a timely, efficient, and appropriate way.

Why change the law?

Traditionally, courts have been passive actors in the management of case resolution, waiting for parties to initiate and complete the steps necessary to progress proceedings to the point where a judicial decision is required. However, it is not always in the interests of parties to complete these steps in a timely and effective manner. This can lead to delay and inefficiencies, with consequent costs (emotional and financial) to others caught up in the system, and to the system itself.

In the past 10 years, courts have adopted a more active role in overseeing cases as they progress through the system, and further developing this is essential to achieving the aims of this reform.

How?

Though some case management strategies do not require legislation, legislative backing for case management obligations is desirable to ensure they are consistently followed. Many requirements will appropriately be set out in court rules or regulations, rather than in statute. However, the bill will include provisions:

o Requiring parties to complete case management memoranda.

o Requiring the defendant to plead guilty or not guilty early in proceedings.

o Requiring the defendant to elect (if this is their choice) a jury trial at the time a plea is entered, and imposing restrictions on their ability to change this decision.

o Formalising the current practice of giving sentencing indications.

Case management memoranda

A key case management requirement will be the preparation of case management memoranda (CMMs). These will be mandatory for the more serious or complex cases. CMMs will facilitate discussions between the defence and prosecution, and indicate to the court whether, for example:

o There is to be a guilty plea, or a not-guilty plea is to be maintained.

o Some form of judicial intervention is required (eg, a sentence indication).

CMMs will assist the court to effectively schedule hearings for when progress on a case can be made (and avoid having hearings that must be adjourned because they are either unnecessary, or because parties are not prepared to proceed).

The use of CMMs has been tested at Manukau and Tauranga District Courts. These tests demonstrated that CMMs assist in reducing delay and unnecessary appearances by parties, and increasing efficiency. However, compliance with the requirement to complete a CMM as part of the testing was patchy, relying on legal aid funding incentives in the absence of legislative change.

Entry of plea

Until recently, in indictable cases the defendant was not asked to plead until after committal. This means cases have proceeded to later stages without any confirmation that defendants actually intend to defend the charges.

Under the proposed reform, case management processes will start only once there has been a not-guilty plea. All defendants will be asked to enter a plea at an early opportunity and, if they fail to do so, a not guilty plea will be deemed to have been entered, so it does not hold up the progress of the case.

Election of jury trial

Where they have the option, defendants will be asked, at the time a plea is entered, to decide whether they wish to be tried by jury. Further, the defendant’s ability to change their choice will be restricted, so that decisions will be able to be changed only with the court’s permission. Currently, defendants may change their choice multiple times throughout proceedings. This can lead to unnecessary delay and cost as cases are switched between different processes.

Sentence indications

Experience shows that providing defendants with information on the likely sentence they would receive if they plead guilty at an early stage in the court process can reduce the number of late guilty pleas and defended matters. Sentence indications are now an established practice in district courts. As a result, cases are resolved more quickly, resulting in savings to the court system and a reduction of trauma and inconvenience to victims and witnesses.

Currently, there is no legislative framework for providing sentence indications. The reform will allow this, including protections so that sentence indications are given fairly and do not create further opportunities for delay.

International Comparisons

The review of criminal court processes and the development of case management memoranda is a trend in jurisdictions similar to New Zealand. In particular:

The United Kingdom has established a compulsory case management memorandum system, and Victoria, Australia, created a similar process for encouraging out-of-court discussions between prosecution and defence in 1999.

Canada is undertaking a review of its criminal processes to reduce unnecessary delays in their system.

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