Guest Post: David Garrett – Plea Bargaining in New Zealand – a primer

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Introduction

The murder – and that is undoubtedly what it was – of three year old Moko Rangitoheriri has dragged the system of state initiated plea bargaining into the light. Over a period of weeks, Tania Shailer and her boyfriend David Haerewa bashed, stomped, strangled and kicked little Moko to death. His injuries were so bad that his mother had trouble recognizing him, and the pathologist had difficulty determining which of his many life threatening injuries had actually killed the little boy.

Shailer and her scumbag boyfriend were quite rightly charged with murder under a section of the Crimes Act which deems intent to kill  to be present  where life threatening injuries have been inflicted, and the defendants are reckless as to whether death will result.  Inexplicably, a sleazy plea bargaining deal was done under which the charges against Moko’s killers were reduced from murder to manslaughter. How could that have happened?

History

Although it has never been publicized, plea bargaining has been a reality in New Zealand for at least the last 25 years or so.  The major change in recent times is that the initiative for the negotiations aimed at agreeing on a lesser charge a defendant will plead guilty to may now come from the Crown as well as from  the defence. Some defence barristers are of the view that the Crown now has, because of funding changes, (see below) an incentive to initiate these kinds of deals, whereas in the past,  they resisted them.

Historically,  plea bargaining negotiations were initiated by the defence. Let’s consider a fact situation from a real case which I am familiar with. Two men hired a taxi, ostensibly to take them from one town in Taranaki to another. Once the cab was out of town, the men demanded that the driver hand over his money, and give them the car. He resisted both demands. One offender then produced a hammer, and while saying “I’m gunna kill you, you cunt”, bashed the driver until the cab ran off the road. The men severely beat the driver, stole the cab, and left the driver for dead. They were quickly apprehended, and charged  inter alia with attempted murder. 

Once lawyers had been instructed, negotiations were initiated with the police and Crown Solicitor. I am told that attempted murder is a difficult charge to prove (the element of intent being the difficulty) even when, as in this case, clear threats to kill had been made by at least one offender. In the event, the attempted murder charges against the pair were withdrawn, and both pleaded guilty to  lesser charges.

It is important – and perhaps not easy – for lay people to understand that when the defence  attempts to get charges reduced, they are simply doing the job which ethics demands of them. Lawyers who do criminal defence work are committed to getting the best possible deal for their clients – both in terms of charge and sentence – and to testing the police/Crown case thoroughly. Although many may find it distasteful, it is wrong to criticize defence lawyers for initiating these discussions. They are simply doing their job.

Funding of prosecutions

Traditionally, the Crown solicitor in any particular area of the country had complete discretion whether to proceed with a prosecution of the original charge he had laid, or to negotiate with the defence, if they  proposed a lesser charge to which the defendant(s) would plead guilty. This system created an incentive for prosecutors to take cases to trial – they were paid per day  of court time. Perhaps this also partly explains why murder trials which fifty years ago would be completed in a week, now take three or four, or even longer. The Crown didn’t care how long the trial took – they got paid for every day of the trial.

As a result of the above system, having the Crown Warrant for any particular area was widely seen as a licence to print money – crime is always going to be with us, and a hard arse prosecutor could theoretically take every case to trial, even when it was likely that  the evidence would not support the charge being prosecuted. Given that most serious offenders are on legal aid, the result of the old system was an ever growing blowout in the legal aid bill.

Changes to the sytem were introduced three years ago. The main change was that rather than the Crown Solicitor – and his or her juniors – being paid for every day they spent in court, they are now “bulk funded.” In other words, every Crown Solicitor is given a sum of taxpayers money annually which they spend on the prosecutions in their district. The amount they are paid remains the same, whether 100% of cases go to trial or only 10%, with the other 90% resulting in  negotiated guilty pleas to a lesser charge or charges.

This has apparently created a reverse incentive from the old system: it is now very much in the Crown’s interest to “plead down” cases, and save the $1-5 million that a major trial may cost. That means that for those cases which do  proceed to trial, the Crown Solicitor is effectively getting a much higher hourly rate than if he or she had taken every case – or even most of them – to trial.

In addition to bulk funding, the second major change is that plea bargain negotiations may now be initiated either  by the defence or  the Crown. It appears that in Moko’s case, the negotiations were initiated by the Crown Solicitor at Rotorua, although I am unable to confirm that. As we will see, experienced defence barristers cannot understand why this case was plead down.

Reform

It is acknowledged that the old  system – under which Crown Solicitors could take any and every case to trial –  created an incentive to try more cases for longer than perhaps justice would demand. It now seems clear however, that we have created the opposite incentive – one that rewards Crown Solicitors for disposing of cases by way of plea bargain where they feel so inclined – regardless of the legal merits or the justice of the outcome.

I have spoken to two senior defence barristers about this present case. Both are bewildered by the decision to downgrade the charges – one said that if the reported facts are correct, he would not even have bothered trying to get the charges reduced for these two killers.

It is clear that the reform of the system which had led to the legal aid budget blowout has created the unintended consequence of giving Crown lawyers an incentive to avoid trials where justice demands that a trial ought to have taken place, and therefore  allow  a  jury to  decide whether the facts support a verdict of murder or manslaughter. As with my criminal barrister colleagues, I am very firmly of the view that this case is one where the defendants were properly charged with murder, and where no plea bargain ought to have been made.

That said, it is clearly not an option to simply revert to the old system which reversed the incentive, and gave Crown Solicitors a licence to print money.  One simple and effective solution would perhaps be  to require Judges to approve plea bargaining deals  which involved murder –  either all murders, or just those where children are victims. That is the arrangement in a number of American jurisdictions – if the Judge doesn’t like the deal, there is a trial on the originally laid charge.

It is important to understand that cases like this will be happening all over the country every day. It is only due to good fortune – and in fairness some good journalism – which has led to this particular case, and the system which has allowed it to happen, to be dragged into the light.

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