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The Criminal Bar Associations Special General Meeting (SGM) will be held online via Zoom on Wednesday 4 December 2024 at 1.15pm. The Zoom link will be provided on the day. This Special General Meeting is being held for members of the Criminal Bar Association to vote on the proposed resolutions about taking part in industrial action. Voting will take place by way of an online poll. You can view the notice here. Please click here for access to various documents relevant to the issues around Legal Aid and Duty Lawyer rates. We have also established a forum on the CBA website where members can express their views as part of a discussion. Although indications so far have been overwhelmingly in favour of taking industrial action, I acknowledge the views of those who dissent. I want our members to make an informed decision when you vote on 4 December 2024.
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Meeting with Tracey Baguley - Last month, our vice-president Sumudu Thode met with Tracey Baguley. Issues discussed included:
- further funding required for lawyers under the new CRH protocol (where fixed fees are inadequate)
- further funding for compassionate bail applications made directly to the Department of Corrections
- Difficulties in contacting case managers via email or phone
- Delay in payments, amendments to grant being approved or reassignments
We will continue these discussions with the Ministry on a monthly basis. As always, if you have any issues you can contact kamini.McCarthy@justice.govt.nz or greg.Ishikawa-Pearson@justice.govt.nz about individual cases.
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Meeting with Department of Corrections
Sumudu Thode also attended our monthly meetings with stakeholders of the Department of Corrections.
MECF are in the process of setting up an international unit and are hoping to finalise this prior to Christmas. The unit will have video calling capabilities so that they can be in contact with their whānau overseas.
There were significant discussions about seeking compassionate bail through the Department. We have sought that a letter be provided by the Department outlining each prison’s position (including staff availability). Once this is received, we will circulate this to our members.
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Chief Justice’s Criminal Practice Committee Meeting
On Friday 29 November 2024, Chris Wilkinson-Smith attended the Criminal Practice Committee meeting. There was good discussion on the issues raised by the CBA, which included security checks for lawyers at Courthouses and disclosure.
Scanning of lawyers
The CBA has asserted that it is unnecessary for lawyers to go through security screening at Court. We view it as a disproportionate intrusion on privacy for a negligible threat.
The Secretary for Justice (Andrew Kibblewhite) initially responded in writing that the MoJ had no intention to change this policy. However, he appears to have softened on this and is open to the possibility of lawyers not being treated as members of the public if security staff recognize them (i.e. local lawyers) or if the lawyers can produce identification.
We plan to continue to keep the pressure on in relation to this issue in 2025, to try to make your job easier. We will update you on any changes in the new year.
Local Justice network welcomes the CBA!
There has been some mixed messaging and differences in approaches as to whether CBA representatives are welcome at Local Justice Network Meetings after a revamp.
After discussions, the CBA have been advised that we have a seat at these meetings again. If there are any issues to raise, please get in touch with our executive committee or your local representative.
Disclosure
Rowe DCJ is chairing a group that plans to apply the High Court disclosure practice note to the District Court. It is envisaged that there will be some variation to take to into account the different work load in District Court. Some draft guidelines for the District Court will be distributed shortly.
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LSJN and Sentencing meetings at ADC
Annabel Ives attended the ADC LJSN and the Sentencing Framework meeting this month on behalf of the CBA. A significant focus of both meetings was 'timeliness’ and clearing backlog.
Items of more relevance to CBA members include:
Local Justice Sector Network
Compassionate bail – the protocol sent out by ADC Judges seems to be more of a work in progress than a formal declaration. There was considerable discussion by the defence bars members present as to the difficulties in providing affidavit evidence on such short notice especially from remand prisoners given delays with in person visits. The motivation behind any change in compassionate bail applications seems to be to somehow get corrections to ‘step up’ , this issue has been parked and it to be discussed further with Corrections.
Judge for Saturday Courts – this is being looked into. Annabel indicated that generally criminal bar would support but that ability for counsel to appear via VMR as a given would be beneficial. The concern seems to be that at ADC at least there are often between 5 -10 defendants on Monday who are in custody simply because of breach on Crown charges and / or DCJ only bail but without actual or strong opposition to bail.
Sentencing
Reminder to use the new email for ALL sentence matters – akdc.sentence@justice.govt.nz – and to put sentencing date in the subject line as then court staff can prioritize
Counsel are encouraged to provide two addresses for EM sentence so that if one is not available / suitable the second can be assessed without the need for an appearance and an adjournment
Probation officers are to be encouraged to liaise with defence counsel early if there are issues with addresses.
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Solicitor-General’s Prosecution Guidelines (2024) These have now been released. Click here to see the updated guidelines.
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The new Bail Application Scheduling Framework has been released. Click here to see the new guidelines.
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The Honourable Justice Simon Moore's Valedictory Sitting will be at the Auckland High Court on Thursday, 14 November 2024 at 4.00pm. Click here for more information.
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The Honourable Justice Cooper’s Final Sitting will be held at the Court of Appeal in Courtroom One on Tuesday, 19 November at 4:00 pm.
Please let me know (president@criminalbar.org.nz) by 27 October if you wish to attend on behalf of the CBA.
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Thats Just Criminal podcast is now live
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AnS Consulting Limited – Phone Data: One of the Conference presenters was A Sathyendran (“Sathy”). Sathy has helpfully provided the two attached documents for us to circulate to you, in relation to requests of the Police regarding cellphone data. The first document here is for you to adopt and give to police to get cell phone data. The second document here provides an explanation of why the requested information is needed.
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Discount code for evidence text: As usual Associate Professor Scott Optican presented an informative and humorous update on the law of evidence, at the Conference. See here for the latest edition of Mahoney on Evidence. “CBA24” is the code for a 20% discount.
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The Criminal Bar Association provided feedback to Corrections and the Ministry of Justice on the proposal to move defendants remanded in custody closer to their trial location three weeks before trial. See here for the Ministry of Justice's response to our letter and the proposed changes that will be implemented.
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Legal Eagles Soaring From Their Eyries – click here to read an opinion piece penned by CBA committee member Steven Zindel.
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Sentencing: Discounts for youth: click here to read (High Court Judge’s clerk) Kelci Alderton-Armstrong’s recent New Zealand Law Review article on “The Judicial Approach to the Youth Discount in Aotearoa New Zealand”
- The CBA sent a letter to Legal Aid in response to the implications of other funded reports due to the defunding of section 27 reports. You can read this here. My thanks are due to James Gurnick from our executive committee who helped with this.