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The Grind of Criminal Defence Work

I recently received a call from Police. Someone was being arrested and charged with significant sexual offending. I felt the weight on my chest knowing the enormous stress and long hours that lay ahead if I were to represent them; the pressure that would rest on my shoulders as they placed their future in my hands. 

I went down to the cells at the station to see them. As they spoke I realised I could not act as I was potentially conflicted, as I may know a witness. I approached 12 other defence lawyers, before I could find one, prepared to take the case on. The message was almost the same, "I have had enough of doing this, it is not worth it, I want my life back."

Just how the state really views lawyers who undertake legal aid work can be seen from the following story. Sometime around 2017 the Ministry of Justice prepared a paper for Treasury requesting an increase in legal aid rates, which had been effectively frozen for close on 15 years. The gulf between what lawyers receive for private work compared with legal aid rates was growing wider and wider and it was time to address the gap. I am advised that this was scotched, the prime reason being that the bean-counters felt that criminal trial lawyers' sense of professional obligation and social conscience, meant that they would still keep "some skin in the legal aid scheme".  This view is corrosive of the wellbeing of practitioners, who have to work increasingly long hours to make ends meet, and explains the policy behind the systemic underfunding of the legal aid scheme.

Mechanics are now billing labour at between $100 - $140 per hour. Further, when a mechanic finishes work, it does not follow them home and keep them awake in the small hours. The new rules in relation to fast tracking pre-recorded evidence from complainants, and the increasing burdens placed on defence counsel combined with the low rates of remuneration mean that senior counsel are now leaving criminal defence work. 

I was reminded of this when I attended a "Sexual Violence Legislation Forum" run by the Law Society. A Judge and a giggling academic gave their prepared talks about the changes and how they would help "victims." Bullet points and graphs were displayed. Despite sending in several questions about how this would impact trial processes in reality, these issues were ignored. 

Again Parliament, has foisted wholesale changes upon the criminal trial process, with no understanding of how the changes will impact. These changes will see criminal barristers who represent defendants in sexual violences cases doing a whole lot of extra work with practically no increase in fees. While I and other more experienced practitioners told the Select Committee how their proposals would be corrosive to fair trial rights, it was as if MPs conducted open heart surgery on the failing body of justice while  having their their ears blocked and eyes shut as to the reality of how criminal trials would be impacted in the criminal courts. You can’t keep introducing extra processes with extra work for barristers without proper funding.

Since the loss of depositions, and the log-jam in cases that this change created, delay from arrest, charge and trial has ballooned. Delay has become even worse  post-Covid. A person may be charged today and it will be well over a year before their case actually comes to trial.

In sexual violence cases in order to avoid the stress to 'complainants', which the system now refers to as  "victims," despite the presumption of innocence,  their evidence must be pre-recorded, often a year in advance, very early in proceedings. While the case itself might be listed for trial in a year’s time,  the barrister will have to prepare the case again when it comes to trial for no extra money, but at the front end of the case, they have to get ready to cross-examine a complainant  at the outset.

Worse, before recording the evidence barristers have to attend a “ground rules” hearing and must submit questions for the complainant to be vetted by a Judge in advance.  The reality is that at the start of a case all the disclosure is not available. Often the Crown and or Police are providing disclosure - that is the evidence that informs the case, often right up until the night before the trial gets underway. Now not only does the Crown, with its larger resources, such as staff, Police and forensic evidence face off against a defendant and a sole lawyer lawyer, the defence must now flag their defence at the start of the process, giving the Crown with its greater resources and rates of remuneration time to plug the holes, eroding a defendant's right to silence, and the traditional right to keep their defence under wraps until the trial gets underway in front of a jury.

Nobody wants to cause undue stress to complainants in sexual offending cases. But why is it that complainants in these types of cases are effectively regarded as being inherently more truthful than complainants in other cases, such that their evidence must be pre-recorded months or a year in advance?

Juries, will now no longer see a complainant present their evidence in Court, live. Rather they will receive advice about stress etc. But behind all this is the fact that fair trial rights are being poorly served as a political agenda trumps the reality of how Courts actually work. Lawyers are now  being expected to have locked in trial strategy for defending a client presumed innocent, before they have all the disclosure and before they have had the opportunity to read and consider all the evidence and only after doing that question the complainant. 

I recently was involved in a case of an inmate who had only known a life of extreme violence. When he was a baby feeding at his mother's breast, his father slapped him, out of her arms onto the floor. Growing up as a boy, when he was entitled to feel safe in his family home, he was subjected to what one relative called, "man hidings." Thereafter he was subjected through his developmental years to physical and sexual abuse, which so damaged him, that by the time he was 17 he was in a mainstream adult prison.

He was facing serious fresh charges He had gone through 3 previous lawyers. the trial date was fast approaching. As I reviewed the evidence, it was clear that there was no defence. Around two weeks before trial I had to tell him the bad news - there was no defence. He didn't take it very well. Somehow, my honesty meant that I was an agent for the Crown - taking the easy way out. I subsequently discovered that a "jail house lawyer" had gotten into his ear and had made him suspicious of everyone. This jail house lawyer had self-represented in his own  case, after having been assigned and sacked 21 lawyers. 

Prisons and society are increasingly populated by people who think they know about the law and are more effective that actual lawyers. Often such people believe that law is like some Harry Potter incantation type exercise - you utter some Latin sounding phrases and bars melt, or people will see their point. Anyway, my client asked me to listen to his cell-mate. I then received a 20 minute peroration from someone I didn't know, who had self-represented which such success that he had just himself sentenced to a lengthy term. I was told "you have to  be aware of like - "disclosures" and "double jeopardy" etc. He told me he believed my client innocent and that "if he went down for something he didn't do, some powerful men are going to come down and see me ....". This again is another joy that defence counsel endure. Not only are we attacked in the media for our work, we also face threats from friends of and  sometimes our own clients.

Most lawyers have experienced the bbq or social drinks where some slightly pissed boor will come up, having learned you are a lawyer, suddenly wrestling with an issue that has nagged them for years, will be emboldened, with a sense of excitement, as if they had discovered the Philosopher's Stone only to ask: "How can you defend someone you know to be guilty?" In reality such people often do not want an answer, they really want a launching pad for their views about how lawyers are as bad as their clients and how prison is too soft. Other times, you are asked for free advice on issues ranging from the latest high profile murder, to fencing disputes, employment issues and the like. I once was in a supermarket when I was even approached by an old dear who wanted advice about returning an overdue library book!

In my time at the bar I have seen colleagues burn through their lives as they tirelessly represent clients. I have had friends suicide, drop dead with heart attacks or have break downs. Our professional organisations talk about, "Practising Well", while the pressures of criminal defence work, in terms of compliance measures, timetabling and process obligations increase almost proportionally to the erosion of fair trial rights.

Our criminal defence bar deserves gratitude, not condemnation. The men and women who represent accused people, without regard to economic station or racial, ethnic, or national background, render a vital service to us all. Unfortunately, we often lose sight of the burdens that criminal lawyers have to bear. Without such people we will have a justice system where 'fair trial rights' become increasingly elusive concepts meriting lip service while 'justice' becomes atrophied. It is no wonder that many senior practitioners are voting with their feet already.

AIR NEW ZEALAND AND "COMPUTER SAYS NO"

Air New Zealand has a unique way of measuring success when it comes to customer service. I recount, for example, my experience from earlier this week.

Arriving at Wellington Aerodrome, having checked-in online I found myself standing in the queue to check my bags in with 10 clear minutes before the time to check your luggage in  expired. Unbelievably, the few staff at the booths, all engaged in animated, and it appeared deeply interesting enjoyable conversations with the few customers ahead of me. "Oh, yes, Queenstown is beautiful this time of year……, Yes…… No way…… Brilliant...."  and on and on and on. Next door, a couple who had been married, it appears since Seddon became Prime Minister, were in front, talking animatedly with another staff member for around seven minutes while she struggled to locate hearing aid batteries from somewhere within the depths of a shoulder bag, "Oh, they are so small nowadays," she said, while he  allowed  his dentures  to make clacking sounds  in his open mouth while he reminisced,"I remember when pennies were made of wood… You could buy a house for a pound  back then… clackle, clackle...."

Eventually, I came to the front of the queue, "sorry, you're five minutes late" intoned, the smiling uniform with silken tones. "Yes, but I wouldn't have been, had you not been shooting the breeze with so many people." "Sorry, there's nothing I can do. Tell you what I'll take you over to re-ticketing" she said. I foolishly allowed myself some small glimmer of hope as there was still a good half hour to departure time.  She escorted me across the carpet, over to a booth behind which stood a short fat man, his belly straining to be contained behind a richly embroidered koru decorated waistcoat come corset. "Not another queue", I exclaimed as in front of me was a large German woman who had suffered a similar fate to myself. The silver waistcoat or vizier, as I came to call him, calmly explained, with a degree of sadistic pleasure, that he couldn't help her, but suggested, she rebook on another flight on another day. She muttered that she had never experienced  this in Hamburg or any of the other international airports she had  gone through previously. With what must have been the extent of the vizier's's daily exercise, shrugged his shoulders and walked her over to another counter to purchase a fresh ticket before coming back to me.

My story is retold by the smiling  staffer, who having played her part in what I guess is now a regular farce  walked away, smiling inwardly at my fate. "There's nothing I can do, you were late!" the waistcoated vizier intoned. "But I wouldn't have been, if your organisation actually did their job and checked people in, rather than having detailed lengthy conversations with everyone". "I can't help that" he unhelpfully replied. "But I have a flexi-fare, can't you book me on a later flight to Rotorua today?" I said as I flash my ticket. "No, I can book you a flight for tomorrow morning", he replied all the helpfulness, his I don't give a flying  shit attitude would allow. He didn't even looking at his computer screen while doing this. Unknown to me, there was in fact, another flight, leaving 40 minutes later, that would have seen me land in Rotorua at around 5 pm via Auckland -  there were even spare seats. Yet, he didn't even try ......  "Oh, you are still here, can I help you any more?" "No, you have been completely useless. Air New Zealand could in fact save money by making you redundant and replacing you with a sign that says 'fuck off', it would lead to the same result, but  would be nowhere near as annoying." 

Upon reflection, this waistcoated spokesman for Air New Zealand was a refined version of Little Britain's Carol Beer. I say 'refined' because 'Carol' would at least make the effort of tapping into a computer before telling you, "Computer says no." Air New Zealand has simply refined the process cutting out the  pretence of even looking on a screen, as they focus on communicating a deliberate unhelpfulness and general contempt for the public.

Waka Kotahi's Road to Zero Paved With Bullshit

Waka Kotahi are an opaque bureaucracy that use “consultation” in a way that would make George Orwell the writer of 1984, rub his eyes. Their recent “consultation” over speed limits of State Highway 2, brought back memories of an Uber driver I once represented. This driver had made the mistake of buying some pushbikes off Trade Me and Facebook Marketplace, that subsequently turned out to be stolen. He was a hardworking young man, and the sole income provider for his young family (a wife and three young children). He did this through working as a driver and buying bikes and other things cheap, repairing and on selling them. Anyway Police initially charged him with receiving stolen property. Eventually the matter was resolved, and he was not convicted. In the  meanwhile Waka Kotahi for reasons they maintained of ‘public safety’ moved to suspend the passenger endorsement on his licence. He could of course, ‘consult’ with them over their decision.

I wrote to the agency asking how could the purchasing in good faith of bicycles, had anything to do with ‘public safety’, especially when he was not convicted and as it turned out, never would be. In short  their  concern was a nonsense. Further, the result of a suspension  would be economic ruin for this vulnerable family. The response I got back, betrayed the level of discretion and compassion of a Dalek. I was told that the ‘fact’ of being charged was enough, and that met their criteria. Having “consulted” they suspended him. I obtained an injunction and had the suspension quashed. Prior to my proceeding with a review, Waka Kotahi sensing defeat, reversed their ‘final’ decision.

 

Waka Kotahi’s bizarre logic can be seen again over their moves to lower the speed limits on State Highway 2 in the Wairarapa. In  late July 2021 Waka Kotahi announced a period  of ‘public consultation’ over proposed speed restrictions in specified zones on the state highway between Featherston and Masterton. The reason promulgated was that in 9 years there have been 488 crashes in which 4 people had died. No further information was provided. The inference being that crashes are bad and people dying is even worse, so therefore the entire population, will henceforth travel at the rate of motorised snails. We are left in the dark as to rate of accident versus the number of commuter trips. Further we are not told about the particular breakdown of what each of the 488 crashes relates to by type of accident. For example a  reversing accident, would have little to do with speed on an open road and would have more to do with visibility and or driver error. Similarly, a driver could suffer a medical event and lose consciousness. Speed limits has little to do with those crashes. 

Waka Kotahi has now issued its decision, again devoid of analysis or perspective (DomPost 13/02/23). To understand the causes of accidents in the specified zones between Featherston to Masterton that occurred over the nine year period it is important to consider the following. As it stands over nine years (Jan 2010 - Dec 2019) to have four fatalities out of 488 crashes is a fatality rate of 0.82%. If there is an average of say 6100 trips per day between Featherston and Masterton, over nine years that amounts to 20,038,500 commuter trips. Which means over that nine year timeframe only 0.002% of trips result in crashes. What does Waka Kotahi’s definition of “crashes” capture, and how does the crash rate compare to other highways? 

 

Obviously, artificially slowing vehicles means less crashes, but it also means less pressure to spend money improving and repairing roads. Anyone driving between Masterton and Carterton over the past two years would have seen the phalanxes of road cones and signs slowing traffic. Driving conditions might actually be safer if Waka Kotahi were to spend a greater portion of their road cone budget on actual road repairs. Many people believe that they are being forced to travel at ridiculously slow speeds just so bureaucrats can  achieve this “Road to Zero” policy goal on the cheap.

 

No doubt the earnest folk at Waka Kotahi mean well, but In the absence of any serious analysis, will the people comply with the changes, or will frustration, propel, more dangerous, driving, behaviour, and yet more crashes?

Trump and "Shit-Hole Countries"

During his presidency Trump referred to certain 3rd world countries as "shit-hole countries." This was ironic. If one looks at these countries, they all have authoritarian leaders, with officials who are appointed based upon their fealty to the leader. These countries have no transparency, crumbling infrastructure, non-existent social welfare and dysfunctional to non-existent health care. They have no genuine open, free and fair elections and lack judicial independence. Science and 'reality' are ignored, with the 'party-line' being preferred. In short the "shit-hole countries" represent the very 'qualities' that Trump sought to impose on America.

The Tory Party has Become the Snake that Eats Its Own Tail

The idea of leadership as service for the good of the majority and the betterment of society appears lost on the Tory Party. 12 years of Tory misrule has seen the growth of toxic nationalism, fuelled by economic disparities, tax cuts for the wealthy and the cruel freezing or underspending on the UK's poorest. This pain was falsely attributed to EU membership and immigration. This led to Brexit, which was promoted as the cure for Britain's woes.

In reality Brexit was the gun to the head of the UK, and the Tories in pursuit of power for its own sake pulled the trigger. Brexit is leading to the evisceration of the UK economy as it now lacks the protections and market influence that the EU membership affords its members. Britain also lost its as of right easy access, to its biggest export market - Europe.

Ironically Brexit, pitched as a sign of the independence of a dynamic UK is leading to the sundering of the UK as Scotland wishes to assert its independence and rejoin the EU. Meanwhile Northern Ireland, the site of years of bloodshed has seen the seeds of division grow again. Protestants remain loyal to the United Kingdom, while many Catholics favour a united Ireland. The sectarian divide is growing, as uncertainty about a hard border with EU member country the Republic of Ireland continues.

Economic deprivation continues to grow, leading to a shrinking of the middle class and driving more anger among those who suffer disproportionally the effects of deprivation. This inequality fuels the growth in extremism, upon which the right appears to feed. Bereft of a long term vision the Tory Party has become the snake that eats its own tail.

In a healthy legal system there has to be a popular respect for the rule of law. The population and its political leaders should ideally abide by the decisions that flow from its courts. 

One of the hallmarks of totalitarian regimes is that Judges are not independent of political leaders and the decisions they often issue in important cases, don't reflect constitutional norms, but rather the wishes of those who appointed them. In such cultures the wishes or the rights of citizens are either ignored or treated as subservient to the wishes of the leaders. In such cultures the population has little respect for the rule of law and judicial decisions are accepted with with a resigned sigh. Our own Court of Appeal recently commented upon the justice system in China, making the following observations (Kim v Minister of Justice [2019] 3 1 NZLR 173)

(i) The right to a hearing before an independent panel or public tribunal: 

Mr Kim has a right to be tried before a tribunal that decides cases on the evidence before it and free from political pressure. There was material before the Minister to suggest that political influence is pervasive in the PRC’s criminal justice system and this is how the system is designed to work. There was also material to suggest that the political influence prioritises social policy objectives over individual procedural protections. 

(ii) The right to legal representation, including the right to present a defence, receive legal assistance, adequately prepare a defence and to examine witnesses: 

there were a number issues in connection with this right including the discretionary nature of disclosure to the defence and the fact that witnesses for the prosecution rarely give evidence with trial mostly being conducted on the papers. More troubling is the position of the defence bar in the PRC. Defence counsel must be able to honestly and responsibly represent an accused person without fear of repercussion if the procedural right is to operate in accordance with its purpose. There was material before the Minister to suggest that defence counsel operate in an environment in which they fear persecution for their representation of their client. 

(iii) The right not to be compelled to testify or confess guilt: 

there was material before the Minister to suggest that Mr Kim could be interrogated for a period of months in the absence of a lawyer.

A justice system that lacks independence from the political process is corrosive of fair trial rights and the rule of law. Similarly a justice system where the results are an outcome of political patronage is similarly corrosive. For decisions to be respected by the population it is important that people understand why decisions are made and to a degree that outcomes accord with principles that the general population accept. 

Part of this also includes the fact that the senior judiciary is to a degree representative of the nation. If judges come to be seen as alien and non-reflective of the values of the nation it erodes public confidence in the courts. This is a legal, social and constitutional matter. 

As a matter of practice, if a potential court user does not have faith in the process, it's reasonable to expect that they will be less likely to bring a claim or come forward as a witness in a case, negatively affecting the administration of justice. 

That a non-representative judiciary is a hallmark of authoritarianism can be seen from our Court of Appeal's observations in Kim (above) 

The Supreme Court of the United States (SCOTUS) is rapidly finding itself winding up in this position now. Through political machinations the GOP are in the process of completing a extreme right-wing super majority in the nation's highest court. What is worrying about this, is that the Republican Party has only one the popular vote once out of the last seven presidential elections. SCOTUS is increasingly reflective in its decisions of extreme right wing views of the fringe of legal thinking. 

Barring a miracle, the court Trump is fashioning will be viewed for decades with anxiety and derision by the majority in a society that has traditionally looked to it as the ultimate bulwark against government oppression. That would be a shame for the court, but it will be a catastrophe for Americans whose liberties will be on the chopping block