The Umpire Judge vs the Judge as Inquisitor: The Role of the Judge in New Zealand's Criminal Justice System and Room for Improvement?

Abstract

While it is clear that the Judge is an integral “player” in the “game” of criminal justice in New Zealand, what do we precisely expect the Judge’s role in such proceedings to be? New Zealand employs an adversary criminal justice system where the Judge is traditionally viewed as an umpire; a neutral, disinterested and unbiased figure, which allows the parties to lead the proceedings, determine the issues of the case and decide which witnesses will be put forward. This conception of the Judge is a foundational aspect of our criminal justice system and defines the powers relations and roles of other key players including the parties and the jury. The rules of the game are clearly stated and the role of the Judge may seem to be clearly defined, but the question of how much judicial intervention in a trial is too much, remains open. Some Judges may be quicker to intervene than others, and this raises the question: how exactly can the role of the Judge in New Zealand be characterised? The purpose of this paper is to compare the traditional conception of the umpire Judge in New Zealand with the activist Judge in inquisitorial models. In particular, three key questions will be explored: what exactly does the role of the “umpire” Judge entail and how does this compare with the inquisitorial Judge? What are the concerns or limitations of the umpire role? And, could the Judge’s role be broadened in order to address these concerns? ...