Litigation means ‘a legal proceeding in a court of law’ there are two main types of litigation: Civil litigation and Criminal litigation. In the case of Lisa and Alex Wood i believe that criminal litigation is best suited. In criminal litigation the defendant faces a court trial to establish a suitable sentence for the accused. The participants in the trial are:
Judge- The judge will make a sentencing decision and if there is not a jury will decide if the defendant is guilty or not.
Court reporter- The court reporter records the judge’s decision and the evidence of the witness and the victims
Witness- A witness is a person who saw or were in some way associated with the crime. They are questioned by the council during the case.
Court Registrar- The court registrar opens court and swears in witnesses passes documents to the judge and oversees the running of the court
Counsel- There are 2 counsels (lawyers)- counsel for the crown (prosecution) and counsel for the defendant. Counsel for the crown argues that the defendant committed the crime. Counsel for the defendant did not commit the crime.
Jury- The jury consists of 12 members of public who are randomly selected, listen to the evidence presented by the counsel and then come to a decision about it.
Defendant- the defendant is the person who is charged with the crime
The criminal litigation process is altered to the level of the crime. There are 5 categories of crime, 5 being the worst. An example of a category 1 crime is driving while intoxicated and a category 5 crime is murder. The case of Lisa and Alex Wood is a category 3 offence meaning it is a serious crime. The process of a level 3 offence involves 4 steps: Admin, Review, Trial, and sentencing.
The admin stage is when the charging document is filed at the court, the defendant makes their first appearance (the first to hear the charges before them and the second to enter a plea) Because this is a category 3 crime the defendant will also chose if they would like a judge or jury trial. This means they are given the option as to if they want a judge or jury to decide whether they are guilty although the judge will still be left with the sentencing decision of the defendant. After the defendant has decided the case moves into the review stage. The review stage is where the court review whether the defendant has pleaded guilty or not. If a not guilty plea has been made the case will enter case review stage. This stage only applies to category 2,3, and 4 offences. As the case of Lisa and Alex Wood is a category 3 crime it will go to case review. In case review the details of the trial and possible sentencings are discussed and and decided on. The defendant may change their plea at this stage. After the case review the case will then move into the trial unless the defendant has plead guilty to the offence. In the trial the defendant is required to answer questions asked by the counsel for the defence and counsel for the crown or prosecution. The witness will also take part in the trial to provide any details or evidence, they will also be asked questions by the counsel of the defence and crown. At the end of the trial the judge or jury depending on what the defendant has elected will reach a verdict. The defendant will either be pronounced guilty or not guilty. If the defendant is found not guilty they are allowed to leave the court unless they are charged with other offences. Sentencing only occurs in cases where the defendant has been found or pleaded guilty. Sentencing takes place after a pre-sentence report has been produced. The report is produced by a probation officer and provides details of the offenders background and a recommendation of a suitable penalty they should receive. A victim impact statement will also be prepared that highlights the effect that the crime has had on the victim the judge will take these documents into account when making the sentence. A sentence hearing will then take place at the hearing both the counsel of the prosecution and offender will give oral submissions in order to convince the judge about what the sentence should be. The judge will give and explain the sentence he has imposed.
There are two possible outcomes in criminal litigation. Guilty- it is believed beyond reasonable doubt that the defendant committed the crime. Not Guilty- it is believed the defendant did not commit the crime. In some cases the jury may result in a ‘hung jury” meaning they could not decide whether the defendant was guilty or not guilty, in these cases the case is retried by a different set of jurors.
Strengths and weaknesses of criminal litigation. Like every form of litigation criminal litigation has strengths and weaknesses for the defendants and the prosecution. One of the strengths of criminal litigation in New Zealand is that its impartial. Specific details of the case are looked into in relation to the law. The judge or jury then make a decision about the case from these details. They can not base their decision on their personal opinions or what they have read or seen about the defendant. An example of this is in the case of Crown v MacDonald where the jury was moved from McDonalds hometown of palmerston north to wellington as the court believed that MacDonald was a well known citizen of Palmerston north therefore it would be difficult to create a jury that could be completely impartial in the case. Criminal litigation is also good as it promotes safer communities. Generally in New Zealand we can be assured that dangerous criminals will be put in jail and given the rehabilitation they are required to be placed back into communities. The system is able to establish which cases are dangerous such as category 3 and 4 cases and they make sure the defendants are tried fairly, resulting in an appropriate amount of time imprisonment. However the criminal litigation system does have some weaknesses. One weakness of the process is that it is extremely costly. The process is not only expensive for the participants but also the New Zealand taxpayer. The high cost places strain on the New Zealand economy. Another weakness is the delays. The average wait time for a jury trial in Hamilton district court is 329 days. However the new criminal procedure act that came into force in july aims to speed up the process. More cases will now be heard in district court rather than high court and many low level cases can be dealt with by a justice of the peace magistra. One of the other weakness of criminal litigation is the culture. New zealand traditionally follows the british legal system and has failed to take into account the cultural practises of maori. As treaty partners the maori believe they should have a say in the operation of the legal systems of the country. Many citizen believe that the system would produce better outcomes for maori victims if they implemented a more culturally suitable process. New Zealand is working on this and for example the Hamilton Rangatahi court. This court allows maori youth to hear cases relating to them at the marae with maori elders as a judge.
There are 4 types of dispute resolution that could be used in the case of Tasty treats v Better farms the two types of dispute resolution best suited are mediation and arbitration. I believe that arbitration is best suited though as it is legally binding and will result in a definitive outcome for both parties while not costing as much as civil litigation. Arbitration is like a court outside of the courts. An arbitrator hears over the case then makes a legally binding decision it is setting is similar to litigation although less formal. Arbitration in NZ is governed by the Arbitration Act 1996. People who would partake in the arbitration are: Tasty treats, the lawyer fro tasty treats, Better farms, the lawyer for Better Farms, and the Arbitrator. There are 4 key steps in the process of arbitration. First is the agreement to arbitrate. Before two parties can enter an arbitration they must have an agreement to arbitrate. Many agreements between parties specify that arbitration is the form of dispute resolution chose to resolve the case. Next step is to select an arbitrator. The agreement between the parties will specify how they will decide on an arbitrator. In some cases the parties will not choose to meet the arbitrator for a hearing, they just supply the documents and the arbitrator makes a decision from there. Then is the arbitration meeting. It will be held in a semi formal neutral setting. Both parties will have the opportunity to provide evdence and witnesses for their case. The arbitrator ay ask questions to help them reach their final decision