People charged with minor offences are stuck in the court system because of the judiciary's resistance to technology and the government's reluctance to clarify its role.
File image. Photo: RNZ / Marika Khabazi
That's the message from one lawyer who says the justice system is clogged with minor cases that cannot be dealt with virtually due to technology barriers.
Pandemic restrictions have curtailed 'in-person' court hearings and forced courts to increase the use of audio-visual link technologies for remote hearings.
Despite this uptake, the average time it takes to clear jury cases has grown from 374 days in 2020 to 435 days in 2022.
For judge-alone cases that time has grown from 118 days in 2020 to 145 days in 2022.
Auckland barrister and member of the Auckland District Law Society member Samira Taghavi has worked criminal cases throughout the pandemic.
She was in court one day when a young, pregnant woman, who was not her client, appeared remotely charged with her first drink driving offence.
"The case was already two years and five or six months old ... she was eight months pregnant and she wanted the matter to be dealt with.
"She wanted to plead guilty on the screen and get sentenced."
Taghavi said the woman was facing a fine and driving disqualification but the court magistrate refused to take her guilty plea virtually and adjourned the case.
"This girl just burst into tears. She said, 'Well I'm going to have a one month old baby on my hands, I just want to be over and done with this'. [The magistrate] refused to deal with it."
Taghavi said it was just one example of people charged with minor offences having to wait "outrageous" amounts of time, sometimes several years, to have their cases resolved.
The Courts (Remote Participation) Act sets out the laws governing the use of audio-visual-link hearings in New Zealand's courts.
The Auckland District Law Society (ADLS) recently pointed out many judges interpret the legislation as allowing only defendants in prison to plead guilty or be sentenced virtually.
In a submission on the Covid-19 Response (Courts Safety) Legislation Bill, the ADLS suggested the legislation be amended so willing defendants could plead guilty and be sentenced virtually.
Taghavi said many people wanted the option so they could move on with their lives and it had the added benefits of reducing case backlog and the justice system's carbon footprint.
"The government needs to clarify the law; they need to make it easy to understand so we don't have two different, complete opposite interpretations of the remote participation act."
In a response to RNZ, a spokesperson at the minister of justice's office said the government considered amending the law to allow remote appearances for guilty pleas and sentencing but decided against it.
"The Covid-19 Response (Courts Safety) Legislation Bill only made temporary changes because of the speed with which the bill needed to be developed and enacted.
"Permanent changes to allow remote appearances for the entry of guilty pleas and sentencing hearings would require a full policy process to work through the operational issues and full Parliamentary scrutiny."
The spokesperson said the "fuller processes" were particularly important where changes could potentially impact on people's fair trial rights under the New Zealand Bill of Rights Act.
The National Party supported amending the remote participation legislation to allow willing defendants to plead guilty and be sentenced virtually.
Paul Goldsmith Photo: RNZ / Samuel Rillstone
National's justice spokesperson Paul Goldsmith said New Zealand's court system should be using available technologies to its advantage.
Goldsmith was surprised to recently learn more than a dozen courts did not have any audio-visual-link facilities, through an answer to a written parliamentary question.
Courts in Dargaville, Morrinsville, Ōpotiki, Waihi, Ruatoria, Waipukurau, Wairoa, Hāwera, Marton, Taihape, Danniverke, Chatham Islands and Kaikōura have no audio-visual-link facilities.
Courts in Kaitaia, Papakura, Pukekohe, Huntly, Te Awamutu, Te Kuiti, Thames, Taumarunui, Tokoroa, Hastings, Wellington, Westport, Ashburton, Oamaru, Alexandra, Gore and Queenstown have only transportable audio-visual-link trolleys.
"Not everything can be done over audio-visual link but a lot can and if it improves movement by 20 or 30 percent that makes a huge difference," Goldsmith said.
"It's something that's pretty basic. The rest of the world, the economy and society, has moved very quickly on this and the sector has been hobbled by a lack of equipment."
Taghavi confirmed the difficulties working in smaller courts have when they did not have proper audio-visual link resources.
"They have to take the trolley from one court to another court, it's ridiculous. We have to check if there's a trolley available for a courtroom every time we want to appear.
"For a five minute hearing we sometimes end up spending three hours of travel to go to court and back because they don't have the AVL trolley available."
Auckland District Law Society president Marie Dyhrberg QC believes some judges resist virtual hearings because they think justice should happen in person.
"There's a variety [of reasons] of why judges are not going along with what we have learned, that you can safely have remote participation."
She said people in minor cases are desperate to have their court appearance so they can get on with their lives.
People wanting to plead guilty could have worked through disqualification periods for driving offences during lockdown when they were working remotely anyway, she said.
"Now they face the prospect of the full disqualification period... I think the legislation is there already and there are a number of cases that can be dealt with remotely and justice is still well served."
"There are a number of cases that can be dealt with remotely and justice is still well served" Auckland District Law Society president Marie Dyhrberg QC
The spokesperson at the minister of justice's office said an existing work programme to expand AVL technology in courts had been hampered by the pandemic and supply chain issues.
The programme was prioritising courts with the most cases as a result, they said, adding that where AVL facilities did not exist, other technological solutions were available.