‘No man’s land’: Judicial workforce, victims cry out for post-Delta fix to crippling court backlog

A sexual assault victim has been waiting months for her attacker to be sentenced because the Covid-19 Delta community outbreak has pushed back the court hearing three times.

The woman is one of thousands of victims, defendants, lawyers and court staff who have been left in “no man’s land” as judge-alone and jury trials were rescheduled or adjourned indefinitely during the country’s Covid-19 alert levels 3 and 4 last year.

Legal experts say the delays mean some people will be waiting years for justice.

There are also fears perpetrators will walk free if victims give up on the judicial process, while remand inmates will remain locked in jail as they await their day in court.

“Going through the build-up to the sentencing over and over again is horrible,” said Katy, whose name has been changed for legal reasons.

“The days before I think the next sentencing is going to happen, I obviously do all the normal catastrophising and wondering what it’s going to be like, and I’ve had to go through that multiple times because it keeps getting pushed back.”

Only select “priority” proceedings have continued amid tight restrictions imposed across the country on August 18 last year, with District Court jury trials suspended until at least February 1 and High Court jury trials until February 8.

Longer-term strategies to be developed for the judicial system likely involve vaccine certificates and rapid antigen testing.

Chief Justice Helen Winkelmann said it was important to ensure access to the courts while protecting the health of court participants and staff.

“Achieving these objectives in the current environment has involved working through complex legislative and operational issues, which takes time,” Winkelmann said.

But frustrated Auckland barristers accuse justice officials of inadequate post-Delta planning.

“[It’s] sort of like at the airport where the planes are flying around waiting to land, hoping they don’t run out of fuel,” said Criminal Bar Association president Fiona Guy Kidd, QC.

More than 44,000 High and District Court proceedings and 400 jury trials were adjourned or rescheduled between the first day of lockdown — August 18 — and mid-October.

Almost half of those proceedings have been in Auckland, where delays continue.

Independent victims advocate Ruth Money said that’s leaving victims in a “no man’s land”.

“I have got people who were supposed to be at a trial in September, and they had done so much work with their therapist and they were ready to give evidence, and now they’re just in complete limbo,” Money said.

Katy, who lives in Auckland, said the uncertainty of an ever-looming sentencing date had been a heavy burden.

“I can’t go through another five months of agonising over it, I just can’t,” she told the Herald.

“If they push it again I’m honestly considering going, ‘Just leave me out of it’. I can’t keep waiting for it to happen and then it getting pushed again.”

Criminal lawyers say it’s difficult prioritising cases without a clear plan, and some are losing significant income due to an absence of jury trials.

They are also worried about their clients — defendants waiting for prolonged periods in custody or on bail to learn their fate.

“Some who are on strict bail conditions and were expecting their cases to be finished, it’s pretty tough because they’re having to wait an extra three months on a 24-hour curfew,” said Auckland criminal barrister Harry Redwood.

“People who are waiting for trials and jury trials particularly, I feel for them the most because a lot of them are waiting anxiously almost all year in custody for these trials to happen and now they can’t go ahead.”

Lawyers said delays caused by the Delta outbreak will put further pressure on a court system already struggling to clear pre-Covid backlogs.

They fear back-to-back trials will wear out lawyers.

With the backlog growing by the day, Money believed some cases will inevitably be dropped.

“Some of the survivors are saying, ‘Nope, I’m not going to do this again, I’m not going to wait’,” she said.

“You may have offenders getting off because victims cannot go through this anymore.”
Auckland barrister Jonathan Hudson agreed, saying “the will to defend cases or carry on as a witness can sometimes fade over time”.

Guy Kidd predicts it’s going to take years to clear the case backlog.

“Even when we get started, in the new year hopefully, there’s limitations on the number of lawyers available to run trials, there’s limitations on rooms available for jury trials — especially with social distancing.”

She and the lawyers and victim advocates spoken to by the Herald strongly support vaccination passports being enforced at courts.

There is also support for more proceedings to take place via audio-visual link (AVL) and for technology enabling this to be installed across all courts.

The overwhelming sentiment was for the Government to outline a long-term operational strategy that aligns with the new Covid-19 traffic light framework.

“The health orders made so far cover getting a haircut, a coffee or a drink, but we’re yet to see justice being addressed,” said Guy Kidd.

Money is calling for victims to be included in any planning.

“I have a number of people who would be more than happy if their sentences were being done right now via AVL to get it over and done with and not hanging over their heads.

“I’d like to see some leadership, some communication about what is being proposed … to try and expedite this massive backlog which is harming people.”

Ministry of Justice chief operating officer Carl Crafar said “protocols have been reviewed frequently”.

Crafar acknowledged the difficulty Auckland has been under and the “need to provide certainty to court participants and the profession”.

“We are in regular contact with the legal profession and our sector partners,” Crafar said.

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