courts, lawyers and judges (reform and lawyers role in criminal law)

What does the Lawyers and Conveyancers Act 2008 set out?

sets out in the preface what a lawyer must do in behaviour, in chapter 2 states that a lawyer is obliged to uphold the rule of law and to facilitate the administration of justice, a lawyer must not assist in crime. Chapter 13: lawyers have an overriding duty to the court first then lays out duties of prosecution lawyer and defence lawyers

Why have defence lawyers (3)

Everyone has the right to a lawyer and to be defended/represented and case put during sentencing.
Protects fundamental rights of all accused and ensures courts compliance with the rule of law
Criminal defence lawyers are integral to a functioning democratic society and to a robust and fair criminal justice system

How do people access a defence lawyer? (5)

PDLA (Police detention legal assistance)

Duty solicitor (helps people for 1st court appearance, can help file paperwork but not represent them for trial)
Public defence scheme (form of legal aid)
Legal aid
Privately paid

Lawyers duty in criminal justice

Uphold the rule of law and to facilitate the administration of justice

officer of the court first and foremost thus they must not mislead the court. 

Acts/other things that govern prosecution

lawyers & conveyancers Act 
Prosecutions guidelines
Judicial oversight

Conduct and client care rules 13.12

13.12: Must act fairly and impartially at all times

disclosure requirements (of evidence - tells the defence what it is)
Professional detachment and avoid unduly emotive language (Stay quite unemotive - can be firm and persausive but don’t overstep the line to draw the jury into emotive)

Role of the Prosecution

its not about securing a conviction at all costs (its a consequence not the purpose)
NZ Prosecution guidelines - always protect the right to a fair trial, subject to that requirement the prosecution may act as strong advocates in the adversarial process and may prosecute their case forcefully in a firm and vigorous manner whilst avoiding inflammatory language
must not strain for a conviction or adopt tactics that involve an appeal to prejudice or emotional attack on accused

defence lawyers role

Client care rules 13.13 includes:
- putting the prosecution to proof - onus on prosecution.
- Belief as to innocence or guilt is irrelevant to the lawyer (judge/jury decide that)
Safeguard they must not mislead court
Can defend if there is a confession - limitations on type of defence

defence lawyers and the Rule of law and access to justice - perceptions of them

defence lawyers often get a bad rep but they are playing an important role, should not be identified with their client, they are essential to the integrity of the process’

‘few love a spokesman for the despised and damned; - Clarence Darrow

Te Matakahi (Defence lawyers association)

Generally advocates for reform as it sees the system as broken
eg with Systemic racism, over-incarceration, reduced access to justice, unfair trial practices and excessive and unconstitutional exercise of power by state agents

Mental health issues causing incarceration why

head injuries
fetal alcohol spectrum disorder

• affects 3-5% of the population

• 50% of children in care

• Prone to confabulation (can appear as lying but it is really their memory filling in gaps)

an example of Fetal Alcohol Spectrum Disorder causing incarceration

Teina Pora:

1993 Teina Pora, (17 years, Mongrel Mob prospect) falsely confessed to being involved in the rape and murder of Susan Burdett, in 1992
Motivated by $20,000 reward - interviewed for over 14 hours without a lawyer present
had FASD - mental age of 9 or 10. this vulnerability made him highly suggestible and prone to giving a false confession
Confession had numerous inconsistencies and factual inaccuracies (eg not being able to identify Burdetts house)
No physical evidence on crime scene to link him
1996 - DNA evidence identifies Malcolm Rewa as person who raped burdett = 2000 pora was tried and convicted again with prosection arguing he acted alongside rewa (he was known to operate alone)
PC 2015 squashed his convictions on unreliability of his confession and the strength of the DNA evidence pointing to Rewa

what are some structural problems in our system?

statistics of māori: 
- overrepresented at every stage in the criminal justice system

• māori are 37% of people proceeded against the police, 45% of people convicted and 52% of people in prison despite only being approximately 15% of the NZ population

• 6-7x more likely to be imprisoned than non-maori, more likely to be re-imprisoned
  
  Our reoffending rates are high - 56.5% of people with previous convictions are reconvicted within 2 years following release from prison (shows that our current system is not working)

alot of people have experienced abuse eg 53% of women with SA

77% have experienced violence

offender profile

male 24-49 years of age

likely to be a reoffender

Māori disproportionately represented

severe socioeconomic deprivation in his life, violence and sexual violence

experienced a traumatic brain injury, mental health problems, addictions or have other health issues

broadly illiterate, smoker, long-term welfare recipients/ experienced poverty, family adversity, school problems, deviant peer affiliation, living in an area of high deprivation

NZ Context - overrepresentation of māori (reasons why)

māori offenders - greater risk of conviction than others of similar socio-economic background, concern the same is true of pacific peoples.  

• Could be due to bias or other unintended consequences of discretion within the criminal justice system

• Leaky funnel concept - offenders leak out the sides through pre-charge, warnings, diversion etc. Māori tend not to 'leak out' to the same extent
  

• Significant discretion at every stage of the criminal justice process

  • Basically Māori who offend are subject to different probabilities of discharge from, or continuation within the criminal justice system - thus = more māori

larger problems

too many people who have been harmed by crime feel unheard, misunderstood and re-victimised

Maori overrepresented

Violence
too focused on punishment and neglects prevention, rehabilitation and reconciliation
Whanau feel unsupported and disempowered by the system 

people experiencing mental distress lack the support they need 

Victims role in the criminal justice system

Historically had no role except being a witness

improvements have been made: 

• victims information service

• Court Victim Advisor [updates on what is happening in court]

• Victim support officer (non-govt)

• Victim impact statement (Victims Rights Act 2002)

• Role in restorative justice conferences

Restorative justice conferences

• first introduced into nz in the form of Family Group conferences for young offenders - became formal program for adult offenders after reforms in 2002 [nationally 2013]

• Occurs pre-sentencing - offenders must admit guilt to participate

• The fact that this process has occurred must be taken into account in sentencing

• special guidelines for restorative justice in response to family or sexual violence

• Restorative justice draws from tikanga - repairing relationships (whanaungatanga) and ideas from indigenous knowledge that can create something more responsive for the people caught up in the system (weaving together systems)

• Everyone must consent to do it [kinda like mediation]

• work before hand eg meeting with each party

• gives people legal ability to talk and apologies [go forward with a better sense of repairing relationship]

• Project restore [sexual violence, often children of sexual abuse]

• Giving the victim a sense of power, giving them both an opportunity to tell them the story from each side.

thinking about restorative justice pros/cons

Benefits:

• approach place victims at the centre

• offering healing to all involved

• put responsibility for crime on those who commit it

Cons:

• the cost of the programme

• varying levels of victim satisfaction *80% being fairly satisfied [sometimes they may feel pressured]

• Idea of the offenders using it as a means to get a lower sentence due to when it takes place

Examples of therapeutic justice

Youth justice, Rangatahi courts, AODT, Te Ao Mārama

Youth justice initiatives

aim: helping stop crimes when young to avoid starting the cycle and getting caught in the system

Established because young people were being incarcerated at staggering rates [removal from whānau and communities]

NZ is a trail blazer in this regard of justice
Oranga Tamariki Act 1989 - Youth court is governed by it.

Deals with offending that is too serious to be dealt with in the community by the police

Age of criminal responsibility in NZ is 10 yrs old

YC more serious offending up to 17 years old

Cases like murder and manslaughter are dealt with in the high court

Youth court defendants (therapeutic justice)

Background of Care and Protection proceedings in the family court

‘seriously at risk’ - neurological disability disorders eg Foetal Alcohol Spectrum Disorder, intellectual disability and dyslexia. Also mental illness
Low school attendance
80% have been victims of family violence

principle of the youth court (therapeutic justice)

• Diversion away from formal court settings where possible and keep them out of prison ‘crime factories’

• The current system does nothing for rehabilitation because they are all congregating in the same place and does nothing to address the underlying issues

• Solution focused approach aimed at addressing underlying causes of offending eg what has caused this person to come to court and this point in life? 

• multidisciplinary

• emphasis on plain language, bringing whānau into the process, giving victims a voice

• People are funnelled out and then the continuous offenders get more support and are well known. 

Rangatahi & Pasifika courts (therapeutic justice)

based in tikanga, held on the marae, begins with pōwhiri, young person must learn and deliver a pepeha. 
AIM: connect young offenders who admit their offending to a better sense of who they are, the idea is they have more respect for themselves, heritage and others in the community

principle youth court judge walker: 

• giving people the feeling of being heard not just processing them through the system

• māori feature disproportionately in all our social indicators particulary in the criminal justice system. 

Adult spaces: AODT [alcohol and other drug treatment court]/ Te Whare whakapiki wairua

• therapeutic justice

• Deals with people who have addiction as the driver of their offending - provides broader context to offending than just the offence

• Uses the threat of imprisionment as an incentive to get clean and stop the cycle of offending [ after guilty plea but before sentencing is diverted into a rehab program]

• Humanising and non-adversarial - communication, informality, understandable language

• Life long commitment

• blend tikanga - adressing people as people starting with a karakia

Intended outcomes of AODT Court are: … some critques

reduce reoffending

AOD consumption and dependancy

reduce the use of imprisonment

Positively impact health and wellbeing and more cost effective

Critiques: 

• Judges are not well-placed to oversee the recovery program

• contentious whether we should use the criminal system for therapeutic justice

• Post code justice or injustice
  
  

what is Te Ao Mārama? and its pros

trying to blend these therapeutic justice systems into one to become available to everyone

Solution focused approach

infuses tikanga and te reo helps people feel more connected and grounded.

ensures people feel like they’ve been involved in a fair process eg talking in plain language, toning down formalities, involving everyone

• enhancing connections with local communities

• improving the quality of information judicial officers get to inform their decisions

• improving processes for victims and complainants

• encouraging people to be heard

• alternative court room layouts to make it more inclusive

The roll out of Te Ao Mārama

starts in the Family court and the youth court

only active so far in 8 district courts which are all in the north island

nationally consistent aspects in the framework, parts of the framework relevant and appropriate for particular court because of local circumstances may be irrelevant for another court with different circumstances

road blocks of te ao mārama

• Lawyers cooperating and supporting it? - not really a problem - its promising to them

• Judges are all independent - will all support? - yes

• Kaupapa Māori approach mainstreamed will this encounter pakeha resistance? - adding another layer of ritual into a ritual area it has worked well

• Regional variation - will this cause critique?

• The traditional layout of the courtroom is fixed in most courtrooms- might be difficult to implement

• TJ approaches plus regional variation might create inconsistencies that undermine the rule of law - different rules of different people

key ideas of therapeutic justice to think about.

• What are trying to achieve

• What are we trying to fix

• What are their shortcomings

• What do you think about them