Have Your Say On The Judicature (Timeliness) Legislation Amendment Bill
The Chairperson of the Justice Committee is calling for public submissions on the Judicature (Timeliness) Legislation Amendment Bill. The objective of the bill is to improve timeliness in New Zealand's courts by maximising judicial resources. It aims to ensure that judicial time is focused on the most critical tasks and decisions.
The bill would amend the Senior Courts Act 2016, the Criminal Procedure Act 2011, and the Coroners Act 2006. It would:
increase by two the number of High Court Judges that could be appointed, from 55 to 57
make procedural amendments to minimise the volume of proceedings that abuse the process of the courts
reduce duplication at the pre-trial stage and maximise the use of judicial and court resources
allow appeals to the Court of Appeals relating to District Court decisions to be heard by a court at the appropriate level
enable coroners to close an inquiry if it were no longer appropriate to conduct an inquiry because of new information or changed circumstances.
Tell the Justice Committee what you think
Make a submission on the bill by 1pm on Wednesday 25 June 2025.
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Newsroom
13-06-2025
- Newsroom
The legal underpinnings of coroner's findings in Lachie case
The coronial jurisdiction The three purposes of a coronial inquiry are set out in s 57 of the Coroners Act 2006. The first purpose is to establish factual matters about the death including the cause of death and the circumstances of death. The second purpose is to make recommendations or comments which might prevent further deaths in similar circumstances. The third purpose is to determine if the public interest would be served by other authorities investigating the death. A coronial inquiry is not conducted to determine civil, criminal or disciplinary liability and so is not about making determinations of liability or censuring individuals or organisations. However, this does not restrict me from making observations in the fact-finding process which might be interpreted as finding fault in the non-legal sense1 or which are unfavourable to reputation. To the extent that such fact findings are made, they are relevant only to gaining a proper appreciation of my findings in respect of the inquest issues. Outside of that sphere, this inquest does not, and has no jurisdiction to, explore the root causes of such deficiencies. Put another way, the inquest does not establish liability, but it may establish facts or raise issues for other entities, with liability-finding powers, to consider in due course. The coronial jurisdiction is inquisitorial and not adversarial. This reflects the inquiry's fact-finding nature. However, in a case like here where there are multiple parties each advocating for a particular version of events, an adversarial atmosphere inevitably develops as each party tries to establish their version as more likely and the other versions as less likely. Nevertheless, the 'inquisitorial not adversarial' principle is a useful reminder that, unlike proceedings in civil courts, the inquiry is not about anointing a 'winner'. It is about finding out what happened. It may be that, despite best efforts, the evidence is insufficient to support a finding of fact on one or more of the inquest issues. Such 'open' findings are permissible, and sometimes legally inevitable, conclusions in coronial inquiries: It is no reflection on coroners if they find themselves compelled to return an open verdict. It does not suggest that they are not doing their job properly or are insufficiently perceptive. There are many, many cases where there is real doubt as to the cause of death and where an open verdict is right, and where anything else is unjust to the family of the deceased. A coronial inquiry is conducted in public. As a result, sensitive and quite often private matters are publicly ventilated. This is an unavoidable consequence of the operation of justice. Senior courts have emphasised that it is an essential feature of the Coroners Court that it work in public so that the community is fully informed of the circumstances of the death. Coronial investigations and role of the police Following an unexplained death which has been referred to the coroner, investigations are required to obtain the necessary evidence and to enable the coroner to discharge his or her fact-finding duty. Some of this evidence is medical and will come from the deceased through the post-mortem examination. Other evidence will come from witness testimony or other documentary record. Under the Coroners Act, the police act on behalf of the coroner to investigate and obtain that non-medical evidence. Here, concerns about the conduct of both the post-mortem examination and the police investigations have been raised. As to the latter, the local Gore police completed an initial investigation in 2019. A regional Detective Inspector led a second investigation in 2021. Section 17(1) of the Coroners Act provides that if a death has been reported to the Coroner, the police must make all necessary investigations to help to achieve the purpose of the Coroners Act or as directed by the responsible coroner. Absent direct police involvement in the circumstances of a death, the police's contribution to most coronial inquiries is confined to being the coroner's agent in this regard. The police's connection here, however, is somewhat more tangled. This is because the conclusion they originally presented to the coroner, that Lachie had accidentally drowned and no other person was involved in his death, has been criticised and the thoroughness of their investigation has been questioned. Although the Coroners Court is not focused on apportioning blame, I think it was inevitable that, at times, the police's inquest presentation of their investigative fruits blurred with their natural interest in defending their quality of work. I repeat again that this inquest is not tasked with determining whether any of the investigations undertaken into Lachie's death were performed to the standard expected of a competent professional in that field of expertise. It is necessary to examine the quality of the investigations because that will affect the extent to which I can safely rely on the conclusions which those investigations drew. However, if I do conclude that any of those investigations fall short of producing safely reliable evidence, it is for someone else to determine what, if any, disciplinary or other consequences should result. Standard of proof The standard of proof that applies in the coronial jurisdiction is balance of probabilities – that is, whether something is more likely than not. It is less onerous than the criminal standard of beyond reasonable doubt. The balance of probabilities standard applies even where the Coroners Court finding might establish a criminal offence, such as a finding of unlawful killing. However, in such cases, where serious allegations are in play, there is a natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard. According to the oft-quoted Briginshaw principle: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. A proposition is established on the balance of probabilities if it is made out to 'the reasonable satisfaction' of the fact finder. Briginshaw went on: But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. The Briginshaw principle has sometimes been referred to, in my view unhelpfully, as a 'flexible' standard of proof. In Z v Dental Complaints Assessment Committee the New Zealand Supreme Court emphasised that no intermediate standard of proof exists between the criminal and civil standards. Balance of probabilities still means more probable than not. Rather, the reference to flexibility means only that the quality of the evidence required to meet that fixed standard of proof may differ in cogency depending on what is at stake. It reflects the reality of what a fact finder must do when considering the nature and quality of the evidence and deciding whether an issue has been proven. The idea that the seriousness of the allegation is linked to the inherent unlikelihood of the conduct, and therefore requiring more cogent proof, was concisely summarised by Baroness Hale in Braganza v BP Shipping: (a) Common sense, not law, requires that regard should be had to inherent probabilities in deciding whether something is more probable than not. (b) Some things are inherently a great deal less likely than others. The more unlikely something is, the more cogent the evidence must be to persuade the decision maker that it has happened. (c) It is not the seriousness of the consequences of a finding which demands that there be cogent evidence to support it, but its inherent improbability. The principle can also be described through a mathematical lens: Whilst it is important not to approach the civil standard in an excessively arithmetical way in terms of numeric probabilities it can be useful to do so to illustrate some consequences in a circumstantial case where multiple hypotheses are in competition with each other. For example, where there are only two competing hypotheses and one is more probable than the other then it must follow that the more likely one is more likely than not. (More formally: if 𝑃(𝐴) > 𝑃(𝐵), then since 𝑃(𝐴) + 𝑃(𝐵) = 1 then one may validly infer that 𝑃(𝐴) > 1 2 ⁄ .) But the logic of this breaks down where there are three or more competing hypotheses. If 𝑃(𝐴) > 𝑃(𝐵) > 𝑃(𝐶) then the fact that 𝑃(𝐴) + 𝑃(𝐵) + 𝑃(𝐶) = 1 does not warrant the conclusion that 𝑃(𝐴) > 1 2 ⁄ as will be seen if 𝑃(𝐴) = 45%, 𝑃(𝐵) = 30% and 𝑃(𝐶) = 25%. Thus the court will only be satisfied that a fact is established if the hypothesis supporting it is more likely than all of the others considered together (i.e. 𝑃(𝐴) > (𝑃(𝐵) + 𝑃(𝐶)). In particular, the mere fact that one of the hypotheses emerges as more likely than each of the others will not suffice, it must be more likely than all of them. Assessment of likelihood is not, however, a strict mathematical exercise. Each competing hypothesis can range, sometimes significantly, in likelihood of occurrence. A finding on the balance of probabilities, therefore, requires me to be satisfied both that the evidence before me establishes that the proposition is likely, and also that the other alternatives are unlikely. The standard does not require me to absolutely exclude the possibility of all other events happening, but simply be satisfied that one hypothesis is more likely on the balance of probabilities. It is probable that someone drawing a playing card from a deck will draw a numbered card rather than a joker, but the improbability of drawing a joker does not make that scenario impossible. Approach to fact finding I conducted a site visit to Lachie's home at Salford Street and the oxidation ponds at 8pm on 26 January 2024. I deliberately scheduled the visit for this date and time to, as closely as possible, replicate the conditions on the night that Lachie died. The visit ended up being conducted in cool temperatures under overcast skies culminating in a torrential downpour, in stark contrast to the hot and sunny weather five years earlier. Notwithstanding the reminder that nature cares little for coroners' intentions, the visit was useful, providing an appreciation of the size and scale of the area that is difficult to divine from maps and photographs alone. The central pieces of evidence on which I relied came from two sources. Witnesses gave oral evidence at inquest. Additionally, documentary evidence such as photographs, text messages, phone records, reports and other data provided what was often a useful and independent anchor of the oral evidence. I assessed each piece of evidence for reliability and its probative value in determining the issues before me. I put to one side evidence which I considered as inherently unlikely or, in some cases, as unreliable or untruthful. I have exercised particular caution where answers to critical events depend on the recollection of one witness, or witnesses who have an aligned interest. My assessment of credibility and reliability had regard to the following principles. Demeanour A person who gives evidence at inquest does so on oath and can be crossexamined. This is consistent with s 83 of the Evidence Act 2006, which provides that the usual method of giving evidence is orally. These principles derive from both the importance of open justice as part of preserving public confidence in the courts, and the acknowledgement that demeanour can assist in conveying meaning and so a fact finder is likely to benefit from seeing and hearing a witness give evidence in person. As the Court of Appeal stated in R v Munro, the manner in which a witness says something can be just as important as the words which they say: Tone of voice is important in conveying meaning and this cannot be captured in a written transcript. For example, the concession 'it's possible' could, depending on the tone, have a meaning ranging from 'that's quite likely' to 'yes, but pigs might fly'. Pauses can be significant and are rarely shown in a transcript. Gestures and facial expressions can also add to meaning. Where caution needs to be exercised, however, is using demeanour as a primary gauge of whether a witness is being truthful. Several studies and senior courts have warned against the danger of this, for the following reasons: (a) Giving evidence in a courtroom setting is an artificial process and impede the ability of witnesses to tell their stories in their own way. (b) Behavioural cues which are commonly believed to indicate when a person is lying, such as hesitation or eye or body movements indicating shiftiness, have been shown to be an inaccurate predictor of truth telling. (c) Appearance can influence credibility assessments: people perceived as unattractive or unsavoury are less likely to be believed, and vice versa. Instead, assessment of a witness's credibility and reliability should be broadly based and take into account the evidence as a whole and other relevant factors of which demeanour is only one. Those factors include: (a) The consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred. (b) The internal consistency of the witness's evidence. (c) Consistency with what the witness has said on other occasions. (d) The credit of the witness on matters not germane to the issues before the Court. (e) The inherent plausibility of the witness's evidence: does it make sense? (f) Consistency of the witness's evidence with any contemporaneous documentary evidence. I have tried to avoid making unnecessary comments about the character or truthfulness of witnesses. Inevitably, and especially in relation to the testimony of central witnesses on whose evidence the account of events primarily rested, I have had to address credibility and reliability to discharge my fact-finding duty. Contemporaneous representations People's memories fade. Contemporaneous representations are useful because records or notes taken at the time are more likely to accurately capture events than if they are recalled later. Contemporaneous representations can also assist witnesses with recall – provided, of course, that they were accurately recorded in the first place. One issue that became apparent during the inquest was the degree to which some witnesses were relying on the police statements which were taken during the first investigation, and the safety of that reliance. I found that many material statements taken during the first investigation (and which I will address as they arise in the narrative) suffered from one or more of the following: (a) excessive brevity and consequent omission of relevant information; (b) inaccurate recording by police officers of the evidence which the witness was actually giving; and (c) delays in taking contemporaneous statements increasing the risk that memory had been diluted or corrupted by the time the statement was taken. For any given inconsistency or implausibility that arose in inquest testimony, it was not always easy for me to determine whether that inconsistency or implausibility arose because of diluted memory recall, memory-refreshing reliance on inaccurate origin statements, unreliability or actual untruthfulness. Ultimately, I did not feel able to rely on the contents of the first investigation statements on their own. It was not enough that the witness re-affirmed the contents of those statements at inquest: the risk remained that the witness was, in 2024, mistakenly adopting what she or he thought was an accurate capture of information in 2019. In many cases, I considered the first investigation statements to be, at most, an indicative aide memoire. My assessment of the first investigation statements' accuracy or completeness ultimately depended on my assessment of all the evidence including what the witness said in the witness box and how they said it. False in one thing does not mean false in everything. Nobody is completely accurate all the time. The reasons for this can range from genuine mistaken recollection, carelessness, indifference or recklessness as to the truth, or because the witness is telling deliberate lies. It is well established that, when it comes to fact finding, a witness's evidence may be accepted in part but not others: false in one thing does not mean false in everything. As the Federal Court of Australia put it: People sometimes tell lies when giving evidence. What is significant is not the mere fact of the untruthfulness, but its relevance to the issues in dispute. A finding that a witness has lied about a matter need not lead to the rejection of all of the evidence of that witness, but may affect the degree of satisfaction of the existence or otherwise of a fact in issue to which the witness's evidence was directed. Relatedly, disbelief of one witness's account does not automatically mean belief in a contrary, competing, account. Lies and inferences A witness's proven lies may be relevant to my assessment of their credibility and reliability. This is common sense. However, lying does not automatically mean guilt. People lie for many innocent reasons such as to avoid wrongly directed suspicion, because the truth is embarrassing, or to avoid implication in unrelated wrongdoing. Some people also lie because, having impulsively told an untruth, they persist in the lie for fear of being labelled an unreliable prevaricator. In the civil jurisdiction, a proven lie relevant to the issues before the court may be accepted as an admission of guilt if that is the more probable inference to be drawn.20 This requires a determination that the lie is more consistent with guilt than innocence in that it suggests no other innocent explanation can be given. Circumstantial evidence The established approach to circumstantial evidence requires that circumstances must be considered together, with the resulting conclusion developed to the required standard of proof: It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope comprised of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be of quite sufficient strength. The fact finder is entitled to assemble circumstantial evidence both from facts stablished by direct evidence and from logical inferences arising out of proven facts. Direct evidence usually takes two forms: documents and witness testimony. Documentary evidence is generally regarded as reliable absent any allegation of it having been fraudulently manufactured or manipulated. In contrast, the accuracy of witness evidence is objectively less than independent documentary record. First, and perhaps obviously, there are issues of credibility: people might lie. Second, there are issues of reliability: even if people are endeavouring to recall things as best that they can and to tell the truth, what they are remembering might not in fact be accurate. Witness reliability can be affected by factors such as: (a) stress and emotion; (b) the general ability of the witness to observe and recall events with accuracy – some people remember things well and some people do not; (c) the effect of time on memory; and (d) the degree to which the evidence reflects the witness's actual memory as opposed to being the product of what they have discussed with others. All of this is to say that careful and nuanced examination of the evidence is needed.
Scoop
10-06-2025
- Scoop
Major Changes To Proposed Anti-Stalking Law
Press Release – New Zealand Government This change better recognises patterns in stalking behaviour and time that can pass between incidents. For example, stalking that occurs around anniversaries would not be covered under the original 12-month period, Justice Minister Paul Goldsmith … Minister of Justice Justice Minister Paul Goldsmith is welcoming changes to toughen up the proposed anti-stalking law, including being triggered after two specified acts within 24 months. 'This change better recognises patterns in stalking behaviour and time that can pass between incidents. For example, stalking that occurs around anniversaries would not be covered under the original 12-month period,' Mr Goldsmith says. 'We've said from day one victims are our priority. Returning them to the heart of our justice system underpins all our work to restore law and order. 'Stalkers have been able to evade real consequences for their actions for far too long. As I announced in November, the offence will have a maximum penalty of five years imprisonment. 'This builds on our work already underway to restore real consequences for crime, with our sentencing reforms coming into effect at the end of this month. 'I want to thank those who made submissions during the select committee process. Your input has identified some important ways we can combat this insidious behaviour. 'The Justice Committee has now put forward a raft of recommendations, which government parties have agreed to. 'This includes strengthening the pattern of behaviour definition to only require two specified acts, and within a two-year period.' Other changes made to the Bill by the Committee to enhance its effectiveness include: Addressing the publishing of any statement or other material relating to the other person, or purporting to originate from that person (also known as doxing). Adding new sections to enable the disposal of any intimate visual recordings possessed by a person convicted of the new stalking and harassment offence. Adding the new offence to the Firearms Prohibition Orders regime, allowing those orders to be made when a person is convicted of the new offence. Clarifying the new aggravating factor relating to stalking by more clearly linking the associated stalking and harassment-type behaviours to the offence the person is charged with. Making it clear that restraining orders under the Harassment Act 1997 and orders under the Harmful Digital Communications Act 2015 can be made when a person is discharged without conviction in relation to the new offence.
Scoop
10-06-2025
- Scoop
Major Changes To Proposed Anti-Stalking Law
Minister of Justice Justice Minister Paul Goldsmith is welcoming changes to toughen up the proposed anti-stalking law, including being triggered after two specified acts within 24 months. 'This change better recognises patterns in stalking behaviour and time that can pass between incidents. For example, stalking that occurs around anniversaries would not be covered under the original 12-month period,' Mr Goldsmith says. 'We've said from day one victims are our priority. Returning them to the heart of our justice system underpins all our work to restore law and order. 'Stalkers have been able to evade real consequences for their actions for far too long. As I announced in November, the offence will have a maximum penalty of five years imprisonment. 'This builds on our work already underway to restore real consequences for crime, with our sentencing reforms coming into effect at the end of this month. 'I want to thank those who made submissions during the select committee process. Your input has identified some important ways we can combat this insidious behaviour. 'The Justice Committee has now put forward a raft of recommendations, which government parties have agreed to. 'This includes strengthening the pattern of behaviour definition to only require two specified acts, and within a two-year period.' Other changes made to the Bill by the Committee to enhance its effectiveness include: Addressing the publishing of any statement or other material relating to the other person, or purporting to originate from that person (also known as doxing). Adding new sections to enable the disposal of any intimate visual recordings possessed by a person convicted of the new stalking and harassment offence. Adding the new offence to the Firearms Prohibition Orders regime, allowing those orders to be made when a person is convicted of the new offence. Clarifying the new aggravating factor relating to stalking by more clearly linking the associated stalking and harassment-type behaviours to the offence the person is charged with. Making it clear that restraining orders under the Harassment Act 1997 and orders under the Harmful Digital Communications Act 2015 can be made when a person is discharged without conviction in relation to the new offence.
