Part 1: Introduction

Ministry of Justice: Supporting the management of court workloads.

One of the critical issues currently facing the courts is increased workloads caused by an increasing number of court cases. As noted in the 2008 briefing by the Ministry of Justice (the Ministry) to the incoming Minister for Courts:

The most challenging and urgent issue facing the court system is the significant and continuing growth in the volumes of new business coming before the courts. The capacity of the courts to deal with these growing volumes is increasingly constrained leading to an increase in waiting times.2

A function of the Ministry is to provide support to the courts in managing workloads. However, it cannot control the workload that any court is experiencing. As the Ministry further notes in its 2008 briefing:

The court system has inputs (in the form of charges laid or cases brought before the court) and outputs (cases disposed) across all jurisdictions. External factors drive the workload of the courts. In the criminal jurisdictions, decisions on who to prosecute, and on what charges, are made by the various prosecuting authorities (Police, Fisheries, Labour, Immigration, Councils, etc). In civil areas, caseload is driven by parties bringing matters before the courts. … The Ministry of Justice cannot turn off or slow down the rate of new growth into the court system; but the courts must respond to each and every charge, including providing courtrooms, supporting judges and judicial officers and delivering appropriate registry services.3

In our performance audit, we chose to focus on the work the Ministry does to support the District Courts and the High Court in managing criminal and civil workloads. In particular, we looked at work the Ministry was carrying out to help the courts deal with continuing growth in the number of new court cases.

For 2008/09, the appropriation for "District Court Services" within Vote Courts was $186.5 million. The appropriation for "Higher Courts Services", which includes the High Court, Court of Appeal, and Supreme Court, was $57.4 million.

The role of the Ministry of Justice

The Ministry straddles two branches of government.4 As part of the executive branch of government, the Ministry provides advice and support to Ministers. The Ministry also provides the administrative services and employs the staff that enable the judicial branch of government to function. The Ministry is further responsible for maintaining the infrastructure of the courts, such as buildings and information systems.

Ministry staff who work in the courts have a number of different roles and functions. Employees who are court officers (such as registrars) exercise specific functions under statutes and court rules. Some Ministry staff who are not court officers are responsible for carrying out case management directions and orders from judges (and sometimes, from registrars). Whenever staff are managing individual cases, their work is, in effect, within the judicial branch of government.

The role of the Auditor-General is to audit the performance of agencies in the executive branch of government, not the performance of the judicial branch. Therefore, our audit focused on how well the Ministry, as part of the executive, supports the effective functioning of the courts.

In practice, the management of court workloads requires a high level of partnership between the two branches of government. The executive cannot interfere in the progress of individual cases, but it is responsible for policy and legislative development that shapes the court process. The courts, as part of the judicial branch of government, can to some extent control the progress of individual cases or the allocated workloads. However, courts have no formal role in the policy and legislative processes that prescribe the court system. Also, courts cannot control what resources are allocated to them. In practice, if workload problems arise, solutions need to be devised collaboratively.

As well as its administrative role, the Ministry has a role in leading the justice sector. The Ministry describes its role as follows:

The Ministry is a key member of the Justice sector and charged with leadership responsibility in ensuring sector agencies work together to achieve government outcomes from the justice system. … Apart from the sector leadership role, the Ministry in its merged form now has responsibilities at various stages of the end to end justice process. At the beginning, in developing the policy parameters and legislation, in the middle in administering the courts, and to continue the cycle of development, in researching and evaluating the effectiveness of various approaches and their impacts on the community.5

The leadership role is important when it comes to putting in place solutions to issues facing the justice sector – especially as dealing with issues such as court workloads requires collaboration throughout the justice sector.

Court workloads

Court workloads are growing because there are increasing numbers of cases being brought before the courts. Although the courts generally are disposing6 of a greater number of cases, in many courts the number of new cases has also increased. Based on information from the New Zealand Police (the Police), the Ministry is expecting a continuing increase in the number of people charged with criminal offences, further increasing court workloads.

Certain jurisdictions are bearing the brunt of the increased workloads. Figure 1 shows the nationwide numbers of new cases to come before the District Courts' criminal summary jurisdiction during the past five years (this is the jurisdiction that deals with less serious criminal offences that do not require jury trials). This is the jurisdiction that, by far, deals with the largest number of cases.

Figure 1
Number of District Court criminal summary cases, 2004/05 to 2008/09

Figure 1: Number of District Court criminal summary cases, 2004/05 to 2008/09.

In the year to 30 June 2005, 160,396 new criminal summary cases came before the District Courts. In the year to 30 June 2009, 207,623 new criminal summary cases came before the District Courts – up 29% since 2005 (by comparison, the general population increased 5.6% in the same period).7

Figure 1 also shows the number of cases on hand (these are cases in the court system). The number of cases on hand is an indicator of how well courts are keeping up with the number of cases entering the court system. If the number of cases on hand is increasing, the courts are not keeping up with new business. As Figure 1 shows, the number of cases on hand has remained fairly static during the past five years.

Other jurisdictions show very different trends. For example, the number of jury trials in the District Courts has been fairly steady since 2005. The number of civil trials in the District Courts have decreased (see the Appendix for more information on jury and civil trials).

Court workload issues have a geographical component as well. The Auckland region has experienced a large increase in cases overall, particularly in the criminal summary jurisdiction of District Courts. The number of civil cases in the High Court at Auckland has also increased.

As well as an increase in the volume of cases, the Ministry notes that cases are becoming increasingly complex – taking longer to get to trial and to hear (see Figure 2). A case can be complex because the subject matter may require a greater amount of expert evidence to be considered, or it may involve multiple defendants or multiple charges.

We discuss in the Appendix changes in the numbers of cases, from 2005 to 2009, in the District Courts and the High Court.

Why and how we carried out our audit

Because of the continuing pressures from increases in court workloads, we carried out a performance audit to provide assurance to Parliament that the Ministry was effectively and efficiently planning for and supporting the management of court workloads. Our audit examined whether the Ministry was working effectively and efficiently with other court participants to:

  • manage court workloads (Part 2); and
  • plan for the management of future court workloads (Part 3).

How we carried out our audit

To test how the Ministry helps support the courts in managing workload pressures (see Part 2), we needed to understand how the Ministry works with the courts, and also needed to gain an understanding of how the court system works day-to-day. To do the former, the Ministry briefed us on how the courts function. For the latter, we observed criminal and civil proceedings in the High Court and District Court in Wellington, before visiting six courts in the Auckland and Christchurch regions.

Figure 2
Causes of delay in the courts

For criminal trials, the court must ensure that a defendant gets a fair trial. This means it must allow the defendant full opportunity to get legal representation, to have prosecution information and evidence disclosed in advance, and to exercise other procedural rights. Many of these procedural rights are fundamental rights protected by the New Zealand Bill of Rights Act 1990 and by international human rights treaties. The prosecution also needs to be ready. These factors often lead to delay, while one party or another seeks time to better prepare their case.

There are limits, however. Defendants also have a right to have criminal charges determined promptly, and too much delay can lead to a court dismissing a case.

Generally, the courts have taken measures, over the years, to improve case management and to encourage the parties to complete the preliminary steps so that cases are heard promptly. However, the courts can never take too strong a controlling hand, or they risk undermining the rights of the parties to a fair hearing. This is particularly important for defendants in criminal cases.

For a court case to proceed, the relevant court participants* need to be present and prepared. If a required court participant is not present or prepared, a case may need to be adjourned and a new date set for the hearing.

The Ministry told us that common reasons for adjournments include:
  • the defendant has not yet been assigned a legal aid lawyer;
  • the lawyer is not present or available;
  • no disclosure (or incomplete disclosure) of information before trial;
  • a witness is not available;
  • a party is not available; or
  • further reports are required.
During the time we spent observing the operations of the courts, we saw these factors result in cases being adjourned.

It is also possible that one or other court participants may not want a case to proceed quickly. A criminal defendant might want to delay their sentencing for as long as possible (or for a specific time). For example, when a drink driver is sentenced they immediately lose their driver's licence. If they can delay sentencing, they delay the loss of their licence.

* As well as the parties to the proceedings (such as defendants/the accused, and, for civil cases, plaintiffs), many other entities or individuals are involved with each case coming before the court. We refer to these entities and individuals as "court participants". These participants include witnesses, the judiciary, lawyers, the Police, Crown prosecutors, the Legal Services Agency, the Department of Corrections, and court staff. Not all types of court participant are actively involved in each case.

We interviewed staff at the Ministry's national office and court staff in the Auckland, Christchurch, and Wellington regions. This enabled us to hear staff experiences and understand their roles. We spoke separately with representatives from the judiciary, the Police Prosecution Service, the Police, Department of Corrections, Legal Services Agency, the Law Commission, Crown Law Office, and the Auckland branch of the New Zealand Law Society. These interviews enabled us to look at the consistency of what the Ministry told us, what we saw, and what court participants told us.

We then acquired information on, and observed, systems and processes the Ministry uses to support the courts in managing workload pressures.

In assessing how well the Ministry was planning to manage future court workloads (see Part 3), we first sought to understand current and expected court workloads. We did this by reviewing statistical information on court workloads and performance, and by talking to court participants. We then examined the Ministry's plans for supporting court workload planning, before discussing these plans with other members of the justice sector (to test their awareness of the plans and to hear their views about the plans).

To test how the Ministry interacts with the justice sector, we reviewed minutes from meetings held by the Ministry with court participants and other members of the sector. We then spoke with people from groups involved with the justice sector and courts to hear what they had to say about their working relationship with the Ministry.

For our findings about how well the Ministry communicates the level of court workloads, we assessed the consistency of information that is reported in internal and external documents. We also considered how the reported information aligned with the information we reviewed during the course of our audit.

We checked whether the information aligned with our expectations, set out at the start of Parts 2 and 3. Our analysis of whether the Ministry met our audit expectations is the basis for our judgement on how effectively and efficiently the Ministry is supporting the management of court workloads.

What we did not audit

We did not review the performance of the judiciary or any other participant in the justice sector other than the Ministry. We did not assess courts or tribunals other than the civil and criminal jurisdictions in the High Court and District Courts. We did not audit activities carried out by Ministry staff acting on the directions of the judiciary.

2: Ministry of Justice (2008) Briefing to Incoming Minister: Vote Courts, page 10.

3: Ministry of Justice (2008) Briefing to Incoming Minister: Vote Courts, page 11.

4: The judiciary, executive, and legislature are the three branches of government. The constitutional doctrine of separation of powers requires independence between the three branches as a check on government power.

5: Ministry of Justice (2004) Report of the Ministry of Justice Baseline Review, page 12.

6: Courts "dispose" of cases in a variety of ways. For example, by reaching a verdict or when a charge is withdrawn.

7: The number of cases coming before Associate judges showed a significant increase as well. This is discussed in more detail in the Appendix because the overall numbers involved were lower than those of the criminal summary jurisdiction.

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