Contents

Chapter 6
The fact-finder in sexual violence cases

The right to trial by jury in New Zealand

6.8In New Zealand, the right to trial by jury is guaranteed by section 24(e) of the NZBORA 1990 for offences carrying more than two years’ imprisonment. It is one of the criminal procedural protections that guard a defendant against the “overwhelming power” of the State in a criminal prosecution.437 The New Zealand Supreme Court has likewise noted the weight to be given to the right to trial by jury.438
6.9The CPA 2011 has reduced the number of criminal offences that are automatically eligible to be tried by jury. Trial by jury is the default position only in respect of category 4 offences (which include such things as murder, manslaughter, treason, corruption and so on). For category 3 offences the defendant can elect to be tried by jury, but the default position is trial by judge-alone (see Chapter 3).439 Previously the right to trial by jury in the NZBORA 1990 extended to all offences carrying a penalty of three months’ imprisonment or more; it is now limited to offences carrying a penalty of two years’ imprisonment or more.440

6.10Almost all sexual violence offences on the statute book fall into category 3 (with the exception of a few minor category 2 offences). As such, the position under the CPA 2011 is that most sexual violence offences are tried by judge-alone unless the defendant elects trial by jury. The majority of sexual violence offences carry penalties of two years’ imprisonment or more and so will engage the right to trial by jury in section 24(e) of the NZBORA 1990.

437Note that it has been argued that the right to a fair trial in New Zealand does not include the right to elect a jury in Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis, Wellington 2005) at 900.
438R v Porter [2009] NZSC 107 at [9].
439Criminal Procedure Act 2011, s 73.
440See Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the proposed amendment to s 24(e) of the New Zealand Bill of Rights Act 1990 in the Criminal Procedure (Reform and Modernisation) Bill (2010).