For me, being a child refugee was to live very deliberately thereafter. My mother told me growing up that I could be prime minister one day. That annoyed me, because I wanted to be a psychologist like her. What she meant was that I had no limits to my dreams. While the glass ceiling was tangible to us as migrants, she felt that the sacrifice she had made meant her daughter was that free. I was the child of an ambitious woman who had been stifled by oppression, who had given up every ounce of comfort in her life to fight one murderous regime after the next, then had fled for good with almost nothing. Being a child refugee is to be the child of refugees, knowing that others have given up everything to grant you freedom, and that others still do not have that freedom. I worked single-mindedly to fulfil the promise of that freedom, like someone with not a lot of time left, because in the end I was making up for the lost time of the two lives placed on hold for me. Being a child refugee means taking every opportunity, and even creating opportunities that don’t currently exist, no matter how far-flung or challenge-filled. It means thinking carefully about the change I want to make in this world, so other people may have those same opportunities. Fairly or not, I knew that is what was always expected of me.
In a converse way, this also gave me the freedom to think very carefully about what I wanted to do with my life. That’s what you’re meant to do with freedom, what people who’ve always had it forget. What my parents worked so hard to give me, was options that they never had. I am acutely aware that not everyone gets that privilege. I had the freedom never to settle for any job I didn’t absolutely love or value, because money and security weren’t the drivers. Living deliberately gives you that gift too. That is the ethos and urgency with which I walked out of law school.
Of course I’d never wanted to be a lawyer. The whole law degree was tacked onto my Bachelor of Arts to calm my parents about future job prospects and respectability. I came out of law school with still no interest in legal practice. At that time, the University of Auckland prided itself in servicing the giant commercial law firms in ‘our nation’s financial capital’. The thought of that life mostly gave me hives. Those law firm recruitment events we were all invited to were my nightmare. My friend Nicola, the only AGGS girl from my year who ended up at the same law school, and I went to one for the free wine and canapés, then stood to the side staring at everyone working the room. We were handed brochures with pictures of our entire life laid out in glossy print. Here’s the gym you’ll go to. Here’s your unborn children’s creche. This is the chef who’ll make all the meals you’ll eat at your desk. There’s your prized retirement plan. It was the life we were all meant to want. But I didn’t relate.
By the time university was winding up, I still didn’t know what I wanted to do, other than that I didn’t want to go corporate. I knew I wanted to work in human rights and eventually as an academic. Besides law, I was graduating with a much more interesting history degree focused on sex and gender. When I later asked for an academic reference, the head of department, Barry Rae, noted my degree title as ‘History (Sex)’. So technically I studied sex history, though that didn’t really seem like it would enhance my employability. I asked the career counsellor at law school how I might start a career in human rights law. She said I should look in the Yellow Pages. It was hard to know whether to laugh or cry. I left and looked up Amnesty International — not in the phone book, though, because even in the vintage year of 2004 the internet did exist.
One winter afternoon, I walked to the Amnesty office, then in an obscure part of town, hardly signposted and up a steep staircase. I spotted a small woman bent over some campaign material, tugging at her enormous red mane as she explained something to a mesmerised group of volunteers. This was Margaret Taylor, Amnesty New Zealand’s long-time, legendary activism coordinator. I told her I was about to finish law school and was looking for work, quickly adding that I could work part time for free since I had a waitressing job. I just wanted a start. About forty minutes later, after hashing out our respective interests in activism and Iranian human rights, I walked out as the brand-new Amnesty International refugee intern. That title sounds hilariously problematic now, but the internship programme was split thematically into ‘media’ and ‘refugees’. Maybe it was fate.
By happy coincidence, my work at Amnesty was mostly about a court case. The Ahmed Zaoui case was about the right to fair process for refugees in the age of War on Terror hysteria. At that time, New Zealand was grappling with the realities of our alliance with the United States post-9/11, with two illegal wars waging in the Middle East. It turned out that Helen Clark’s Labour Party government, desperate to build relations with Bush Jr’s America after declining to participate in those wars, had passed a law giving our security agency sweeping powers to detain people based on ‘national security’ allegations. Unbeknown to the general population of rights-loving Kiwis, the law effectively allowed indefinite detention without disclosure of evidence or any semblance of a trial. Our courts, I’m proud to say, did not let that stand.
The Zaoui case revealed this law and all that was wrong with it. It was an awakening for me, a moment when I realised that the world was really changed, and New Zealand was not immune. Our nation woke up one day to the Kafkaesque nightmare of an Algerian refugee being held in solitary confinement, without charge or trial, in one of our maximum-security prisons. Ahmed Zaoui had been an opposition politician democratically elected to office before his political party was abruptly outlawed by the repressive Algerian regime. He was forced into exile. He claimed political asylum at the border in Auckland, and was thoroughly investigated for allegations of militancy by the Refugee Appeals Authority, which declared those allegations politically motivated. But New Zealand’s intelligence agency got involved to trigger his detention pursuant to an obscure new law, passed quietly, to make New Zealand amenable to our allies. The allegation against Zaoui wasn’t even ‘terror’ — ‘national security’ could encompass a threat to New Zealand’s economic interests. This, I knew, could happen to any one of us born in the wrong place, at the wrong time. It was personally chilling.
For two years, politicians played political football with Zaoui’s life.
National Party member Sir Bill English put out a statement on his website referencing the case, calling refugees ‘leftovers from terrorist nations’ and calling for a ‘red light’ at our borders. I guess ‘build a wall’ isn’t a cry for island-nation xenophobes. That statement remained on the website well after Sir Bill was our prime minister, and was only taken down after negative media attention leading up to the 2017 election. At least public and press tolerance had turned. That is not to forget that while Ahmed sat languishing in prison, the office of our then prime minister, Helen Clark, told the public he had links to al Qaeda. That allegation was later withdrawn, the PM saying they ‘had probably gone too far in making the link’. That type of casual, unthinking overstep was rife at the time and continues today, locking up hundreds in Guantanamo Bay for a start.
Less offensive but also dangerously misleading were the politicians who claimed Zaoui was in ‘a three-walled cell’. The idea was that he could go back to Algeria or Malaysia, where his family were in hiding. He couldn’t. It was a callous lie, a version of which is still touted now, particularly when people discuss Australia’s offshore detention facilities. If you are a refugee, you have escaped harm akin to torture or death for your political beliefs, race, ethnicity, sexual orientation, or religion. That is why the law does not allow your forcible return. It remains a legal and practical fiction to say that refugees can ‘go back to where they came from’, or stay in a country like Malaysia, where the Refugee Convention does not apply — unless what is being suggested is that we can go back and face that torture or be executed.
If you are like the Zaoui family circa 2004, or one of the hundreds of people New Zealand still actively prevents from leaving a place like Indonesia or Malaysia to stop their legitimate asylum claims reaching our shores, you live in an indefinite limbo. ‘Go back to Malaysia’ equated to telling Zaoui and his family to live a life where at any moment they could be deported to face torture or death.
Zaoui’s case was formative for me not just as a lawyer or human rights activist, but as an eventual politician in a world where Muslim New Zealanders are shot to death by white supremacists who believe anti-immigration rhetoric espoused by opportunistic politicians. I knew when I stood in Parliament to deliver my maiden speech, with some of those same politicians sitting across the aisles from me, that I had to remind them of the Zaoui case. Those of us bearing the brunt of their populist politics did not have the luxury to forget.
What I will also never forget is that the Green Party were the only political party who stood up for human rights and spoke of prejudice in the Zaoui case. I remember, so vividly, Keith Locke, then Green spokesperson on immigration and foreign affairs, standing with us at town-hall meetings and protests, speaking softly but with determination, and everyone listening. I feel the urgency to uphold his legacy, to live up to the moral and intellectual integrity of that lone politician, who stood up to Islamophobia against popular politicians in both major parties, against the fear and division among the general population. It meant the world to me as a young activist.
Working at Amnesty on the Zaoui case is when I realised that human rights are made effective by the courts. I needed to learn how to do that. I knew that at Amnesty they thought of me as a lawyer because I had a law degree. The truth is that law graduates know very little about legal advocacy, let alone the machinery of the justice system. I realised that if I cared enough about human rights, if this endeavour was about making those rights effective, rather than about me having my dream job, I needed to learn how to be a lawyer.
So I spent a lunch break scribbling down a plan on bits of printing paper. Everything from ‘get courtroom experience’ to ‘United Nations internships’ to ‘international Master’s degree’ was in that plan. I bookmarked the website for the Oxford Masters in International Human Rights Law programme and looked at it often.
I wasn’t driven by an ambition to climb any kind of ladder, but rather the deathly fear of waking up eight years into a solid corporate job and realising I was further away from working in human rights than when I started. I had a vague idea of the pressure that would come to measure success by status-quo indicators; to stay in a job for that next promotion, for the next mortgage payment, until I’d spent ten years of being mildly unhappy for things none of us necessarily want to begin with. I didn’t want to let my feet sit in that wet cement.
To the outside world, it looked like I took a few detours. I took the winding route of becoming a barrister working in the chaos of courts and prisons with all the frustrations of legal aid. To everyone’s amusement, I then gave up my place in a great barristers’ chambers to go off, at first to take unpaid jobs or short-term contract work with the United Nations (UN) in Africa and The Hague. Somewhere in between those stints with the UN, I did a Master’s at Oxford University, just as I had planned. Not in a practical area like tax or contracts or even criminal justice, but in human rights law. As everyone got ahead on the corporate ladder, fixed mortgages and had big white weddings, I was still taking every adventuring opportunity that came my way.
It was all incredibly rewarding, but sometimes the doubts crept in. Sometimes I wondered if it was time to be more responsible, so to speak. When I was deciding whether to go off one more time to work in yet another UN mission station, this time to prosecute the Khmer Rouge in Cambodia, I shared these doubts with my friend Kate. We knew each other from our time working at different UN courts in The Hague. She had herself dropped out of law to become a political scientist.
After listening calmly to my panicky rant, she put down her drink, and said, ‘But can you think of anyone whose work or life you really covet, who you think is really amazing, dead or alive, who took the straight path they were meant to take?’ And there was my answer.
To rewind, my path after Amnesty began with a life-changing foray into the criminal law. I was in my mother’s little gift shop in Mount Eden village. She sold pretty soaps and candles and acted as the resident psychologist to the community, dishing out advice over the counter as she wrapped gifts. Mum and I were discussing a dilemma I was having. I had just passed the Bar exams and I was putting together the papers for my admission ceremony, but we didn’t know any lawyers to move my admission.
Out of nowhere, a voice from behind the greeting card stand called, ‘I’m a lawyer.’ Jo Wickliffe, tiny with jet-black hair and a bright-red smile, suddenly materialised. ‘I would be honoured to move your admission.’
We had never met before, but she was a regular customer. She was Māori, a solo mum, who had put herself through law school while she raised her daughter. Now, she was a criminal defence barrister. Jo gave us that breathless rundown on the spot and I was awestruck.
Then, ever empowering of other women as she is, Jo put the rest of my life right with, ‘You should come work in criminal law. My friend Lester needs a junior barrister.’
Knowing people, and having access to mentors and jobs that are rarely advertised is everything in a field with so few openings. My family didn’t have enough connections to know a single lawyer in our personal circles, so what Jo did for me meant a great deal.
A week later, I met Lester and my life’s work began. He was warm and animated, perpetually on the brink of righteous indignation or boisterous laughter. As it turned out, he was the son of an Italian Jewish mother whose family moved to New Zealand before the Holocaust, but lost their extended family in the genocide. He had grown up working class in Kawerau, a small mining town. This, I learned quickly, is a very rare profile for successful practising lawyers. We spent the hour drinking black coffee and talking fast about justice as a poverty issue, as a race issue, and about the role of defence lawyers in a fair trial. I was sold. We didn’t talk about the job for more than a brief minute, but soon we were walking back to his chambers so I could see where I would be working. Lester and I were fast friends and still are today. He said later that he knew I would get the job when he saw Amnesty International on my résumé. He wanted to know the person he worked with was interested in more than just getting through every case and billing it. He wanted us to understand our work as essential to people’s rights.
We worked in a beautiful old building in Auckland’s legal district, equidistant between the High Court and the District Court. I did a lot of running around between those courts, and almost from my first day started to appear before judges on minor hearings. It began with scheduling cases and attending bail hearings where police weren’t opposing the release, then moved quickly to sentencing and opposed bails, the things advocacy could really affect. What was truly wild was preparing trials, and then appearing as junior counsel. Most chambers’ juniors didn’t get to do that. I was lucky to be able to see the whole process through. It was exhilarating. It was also incredibly stressful. There’s nothing more real than justice being administered in real time. Evidence being delivered and changing. Legal challenges won and lost. The booming closing addresses to juries. Then the wait for verdicts. The slow-motion turning of our heads, the nervous breaths, before the words that change lives are uttered into that space: ‘guilty’ or ‘not guilty’.
The front line of any criminal justice system is the most human place in the world. Every day I met people having the worst day of their lives. Every day I met victims who were also perpetrators, met cops who bent the rules, even broke the law, even as they believed themselves the guardians of it. We were wading through the fog of the human condition where there is no black or white. The courts are dirty and chaotic. Prisons are grim places to visit. There’s no air in those meeting rooms, even the nice ones for lawyers. You’re sometimes there for hours with a client, writing their account down with pen and paper like it’s 1972. Everyone looks perpetually sleep-deprived. Everyone is trying desperately to have her voice heard.
People always ask what you do as a defence lawyer ‘when you know your client is guilty’. I always answer with the question, ‘How would I know that?’ The reality is that once you get up close to any human situation, let alone one where conflict and deviancy is involved, you find doubt. There are a million sides to every story. And the job of counsel is to ensure the accused person has their case heard as fairly as possible. Most cases don’t even end up in a trial. Most of the time you’re making sure your client hasn’t been charged with things they didn’t do, or anything more serious than they did do, then arguing for a fair sentence. Either way, something terrible has almost always happened. Even when it’s not so bad, it’s often part of a continuum of bad things that have happened in a life you only glimpse for a moment.
For the record: when you know your client is guilty, you advise them to plead guilty, while still looking after their rights and their dignity. None of us have rights because we are good, but because we are human.
I started going into prisons to interview clients almost immediately. Lester’s practice was mostly relatively senior-level trials: violence, sexual assaults, and Class-A drugs. It wasn’t easy work. The subject matter of the evidence was often disturbing.
As lawyers we had to read everything, to go over everything with our clients repeatedly before a trial. From the start, I knew it was important not to let any ounce of judgement show or I would lose my client’s trust. Knowing your lawyer doesn’t like you could breach a person’s right to proper legal assistance, as well as their right to be presumed innocent. So it felt important not to avoid eye contact, not to wince at anything that came out in those meetings. If what came out was criminal, it was still important to work through it, to communicate the legal position and the process clearly, respectfully. More often than not, what came out was trauma, terrible circumstances, a series of awful decisions made in those circumstances, decisions that might breach various moral or social codes. It was important to ask questions and make space for information to be shared safely. The humanity in my work was what I cherished. It’s something I realised good barristers prided themselves in understanding — even as our friends and family told us they didn’t know why we would help ‘those people’.
I was aware that I was interacting in this world as a young woman, most often vastly different in cultural background and life experience from my clients, and likely every lawyer they had ever had. Most of our clients were Māori or Pasifika men. Most of the lawyers were Pākehā men, though the Bar is far more gender-diverse now. This was an environment where at first blush I might be deemed an interloper, not easily trusted or respected. I had to be aware of my demeanour, both to command the respect and authority I needed to do my job well, and to communicate my own respect and empathy. I drew on my own experiences of integrating into the divergent socio-economic and cultural contexts of my schools, and of my parents’ language challenges that meant people talked down to them. I would adjust my language and demeanour between client meetings, dealings with cops, the prescribed manner of the court, and the smoky rooms where barristers drank, talked shop and made crude jokes. It was all an education, one with which most women in male-dominated professions will be familiar, except I guess most don’t move between male-dominated spaces so vastly different in race and class demographics within their day.
At the time I was also juggling my life with my boyfriend, Nick, a design student. We flatted, went out for dumplings and wine with our friends, had potluck dinner parties, and saved hard to go on a budget trip to Vietnam at the end of my first year of lawyering. Eating fancy dinners with Criminal Bar Association people sat in bold contrast to my own social life. But I felt comfortable among the barristers. I’ve always been a good drinker — that helped. Those smoky bars and nice restaurants were places to let off steam after the high pressure of our work, where everyone understood the subject matter, and no one flinched when you talked about the gory details of a case.
Most people we represented had trouble reading the documents on their file. It meant always asking, in a casual, passing way, if a client wanted us to read the Police Summary of Facts out loud to them before they took it. Anyone who could read and write would return a puzzled look and take their papers. But many nodded gratefully. The justice system largely deals with people with severe learning disabilities, brain injuries and undiagnosed mental illnesses. That includes many with a lifelong diagnosis of post-traumatic stress disorder. To say these people have gone through life without a lot of opportunities is a truism that barely touches on the enormity of society’s failures at every juncture before we lock them up. That’s not to say everyone who commits crimes suffers from brain injury or mental illness. Or that everyone who suffers from a severe learning disability or serious trauma commits crime. But the connections between these factors are overwhelmingly clear at the coalface of our justice system. I understood our clients to be socially disconnected, and dealing with intergenerational trauma and criminalisation.
My prison visits were mostly to Mount Eden Prison, a high-security, crowded facility in Auckland. The old prison building is shut down now. The new prison visitation area for lawyers, airless as it still is, has shatterproof glass separating prisoners and lawyers. There’s built-in panic buttons on the wall. But when I started, the legal visits in the old medieval-looking stone building took place in a space above the family visitation area. You had to go through a locked door, up winding narrow stairs, and into one of five rooms connected by a balcony corridor overlooking the open space below. The guards stayed downstairs and locked the door at the base of the stairs after you. There was nothing separating lawyers and clients in the little rooms. There was nothing stopping you being thrown off the balcony. In fact, if anything happened, the guard had to first find the key, unlock the door, and run up the staircase before they could intervene. They offered some of us a portable panic button. It was for the female lawyers, I assumed, because Lester was never offered one. I never indulged in a button, because I felt it would undermine a client’s trust if they had to stare at a physical embodiment of how dangerous I suspected him to be. In the end, I never once felt unsafe or disrespected with a client. They were grateful and desperate for information. We were their lifelines.
The only clients who ever alluded to my age or gender, either to undermine my expertise or in being too familiar, were white-collar criminals. They were always older, wealthier men who had committed premeditated financial crimes, often against very vulnerable people.
We talk a lot now about the overrepresentation of Māori in our prison systems. We don’t talk enough about the causes of offending. We know that Māori have far worse health outcomes and education outcomes, that Māori children are far more likely to be taken into state care. But we don’t speak about the systemic marginalisation, the systematic alienation from resources, including public services, which has led to these outcomes across the Pacific since colonial first contact. Mostly, we don’t say enough that Māori are disproportionately targeted by our system of justice.
The right to a fair trial itself is an acknowledgement that prejudice exists. It is the acknowledgement that unless we legally protect the right to be presumed innocent, to have competent defence counsel, and to have equal time and facilities to present a defence, the justice system could be weaponised against the poor and the marginalised. The admission that human rights law is about securing the safety and welfare of the powerless is at the forefront of the ideal of justice. To me, being able to look past the allegations and put a case forward on behalf of the accused, no matter the charges they face, is about holding power structures to account. The fairness of a trial is about balancing out the unfairness in the world — though that may in the end be impossible to do from the inside of a courtroom built within that world and peopled with juries, judges and lawyers bringing our misplaced prejudices and sympathies to it.
I’ll never forget the first time I got to see real corruption play out in a courtroom. They say bad cases make bad law. That means where exceptionally horrendous crimes are alleged, judges succumb to the human urge to to punish the crime, even if that means allowing procedural shortcuts and forcing unsafe interpretations of the law. They leave bad precedents.
The case was Williams & Others. It was a big High Court drug operation. There were thirteen accused of allegedly colluding to manufacture and supply meth. The Williams brothers were the leaders of this operation, according to police. We were representing one of them, Shane Williams. At some point during the multi-week trial, the lawyer defending Shane’s brother Dale, Kelly Ann Stoikoff, noticed something unusual in her cross-examination of the senior sergeant in charge of the case. She raised a challenge to the police search warrant of the first address. This was a case where a number of searches were conducted as a result of that one search that incriminated her client. We stopped the trial and went into a special hearing with Justice Paul Heath, who was presiding. All the officers connected with that search were cross-examined separately.
It transpired that police were there with a warrant to recover a stolen car — what information this initial warrant was based on was unclear, though, as the police couldn’t show the car had even been reported lost. What was clear is that the police went to the address and immediately searched every inch of the unit, including his fridge, where they found evidence. Not all of the officers were intentionally overreaching; they were mostly following the sergeant’s lead, and their understanding was they were there to find drugs. But without evidence to back his warrant, the sergeant was breaking the law.
The defence case by then was that police lied on the warrant. This was a huge call. It’s one thing to walk through an open gate or poke your head inside a car window when questioning the driver. Those types of technically unlawful searches happen all the time. But police dishonestly swearing affidavits in support of search warrants, and lying under oath in a High Court trial, undermines the court’s ability to administer justice — which is why we have a system with rules and search warrants and defence lawyers in the first place.
The sergeant’s disregard for the law was extraordinary to me as a baby lawyer in that courtroom. I had always assumed we were all essentially on the same side: police, prosecutors, and us. We were doing our jobs to get a fair outcome, not to win at all costs.
We waited a day for Justice Heath to make his decision. He found that the first warrant was obtained in bad faith, legalese for ‘they deliberately lied to get the warrant’. It was moving for me to see, at least for a moment, that maybe no one was above the law. The case was ultimately appealed and the Court of Appeal overturned Justice Heath’s decision — not based on the facts, but on the notion that police dishonesty did not make the evidence necessarily inadmissible. They found that even the worst police violations in search and seizure are just ‘factors’ to weigh against the ability of police and prosecutors to get a conviction in any given case. The government soon legislated to make the appeal case law. The moral and legal conflicts in that case have stayed with me.
The reason bad cases make bad law is that they focus on the Williamses of a trial. But if police have the court’s blessing to unlawfully shake down the public, those targeted will be the marginalised. This law likely resulted in countless degrading and unlawful searches of anyone police happened to see as a criminal. Where evidence is found, it has a good chance of staying in the case, despite the violation. Where they find nothing, people have no real recourse to complain. So if we know the justice system disproportionately targets Māori and Pasifika men, how many innocent people are enduring this degradation in those communities? How much internalised self-hate is this generating among young people, who are stopped constantly because they look ‘bad’, ‘wrong’, ‘criminal’? How much justifiable resentment for authority figures and the law is bred?
The most frightening thing I’ve seen in almost a decade of acting as a criminal lawyer was the sight of a fourteen-year-old boy sitting behind a very large table, awaiting the start of his trial for murder at the Auckland High Court. I was working as Lester’s junior in chambers, and we had been called in to defend the boy by youth advocate Claire Bennett, who was fighting to keep him from life imprisonment. He had thrown a piece of concrete over a motorway overbridge at night, which tragically broke through the windscreen of his victim’s car, crushed the victim’s ribcage and caused his death.
Our client was tried as an adult, because that is what our law requires. I’ve wondered since then about the origins of what seems like a total lapse of logic in our criminal justice system.
It was a devastating case, given the deeply heartbreaking loss of life. A wonderful 21-year-old man had been killed. His loved ones were in the courtroom each day. His young partner gave evidence that she had lunged from the passenger seat to protect his head from hitting the windscreen before the car finally crashed. She wept uncontrollably throughout her account in that huge, silent courtroom. After that day, our young client said he wanted to write a letter of apology to the victim’s loved ones, but needed help writing it. A volunteer youth support person helped him draft a note, for the first time openly expressing his sadness and remorse.
In the years after that trial, I became involved in drafting New Zealand’s child rights report to the United Nations. In that process, I came to realise our youth justice breaches are the most overt and long-standing human rights breaches in our system. We bring children into our criminal system far too young, as young as ten years old. Far too often, we treat them as adults rather than allowing for child-appropriate court processes. We openly reserve the right to mix ages in our places of detention, incarcerating children alongside adults, and though in 2018 the government finally committed to ending that, it is a fight we are still fighting.
The case of that fourteen-year-old boy on trial for murder all those years ago is demonstrative of all the grave concerns raised by a value system that prioritises punishment over both the rights of children and the fair administration of justice.
As lawyers entrusted with his defence, the weight of responsibility was crushing. None of us had ever worked harder on a case. But there was nothing we could do to protect our child-client from the untold stress and trauma of the two-week trial (held in the same courtroom as some of New Zealand’s most notorious criminal trials), from the intense media attention, from the police cells where adult offenders were also held, or from the nightmare of a lost future at fourteen.
In practical terms, we had trouble communicating with our young client to ensure that he understood his rights and that we had all the information we needed to formulate his defence. This difficulty was worsened by the fact that we no longer had Claire’s expertise in youth advocacy — not all cases involving children have a youth advocate involved once they go up to the adult courts. Like most children entering the criminal justice system, he suffered from mental health issues and learning difficulties, exacerbated by regular school changes as his family struggled to find affordable housing. He and his siblings were known to Child Youth and Family Services, for all the kinds of concerns that usually lead teachers and neighbours to alert authorities about the welfare of children. Those files made for grim reading.
Our youth justice system provides specialised lawyers, judges, and police teams, and tries to divert children from formal criminal justice systems, because the science of cognition says that’s appropriate. But when the accusations are more serious, we legally strip young people of their status and rights as children. So while brain development continues to attach to the child’s age rather than the consequences of their actions, children are suddenly presumed capable of assessing risks when they swing a bat or act as a lookout for older mates, and of knowing the permanence of death. That was very much at issue in our trial. Young Crown witnesses came along to our trial and talked of all the nights spent throwing rocks over that bridge onto the motorway. On this one tragic night, in a show of dumb bravado, one of them had thrown a much heavier ‘rock’ into the darkness below. It all happened in a matter of seconds. There’s no way an adult would miss the incredible risk to life, but did a fourteen-year-old child think about that risk and deliberately take it? In light of the science that says our brains don’t fully develop risk assessment mechanisms until years later, why would we put that question to a jury in a trial applying adult rules and standards?
The second problem is that the trial itself is unlikely to be fair without processes that effectively meet the needs of children. While in the youth justice context we admit that trained professionals and different processes are needed to ensure children are able to engage with information and communicate according to their developmental needs, we routinely rely on verdicts against children resulting from an adult process where these safeguards are missing. If our client can’t concentrate on the witness evidence because of the language and setting of the court, which research tells us is probable, did he exercise his right to instruct counsel? This might be the only instance in our justice system where standards designed to produce fair and reliable verdicts are actually lowered when an accused faces more serious charges.
That we are so willing to set aside science and procedural safeguards suggests that deeper socio-political or cultural forces are at play. It seems to reflect an almost vengeful need to punish these children, even by the act of stripping them of their status as young people. We seem to revert to the basic principle of ‘an eye for an eye’. In the case of the young murder-accused I assisted, the Crown had repeatedly refused to accept a guilty plea for manslaughter, which Claire had tried to enter from the offset. That means the young person accepted that he had committed an unlawful act resulting in a death. But the Crown felt he should go to trial for a more serious, more intentionally harmful crime, one that would result in him being held in prison well into his adult life. High Court trials are very expensive gambles, one the Crown lost in that case.
This reaction seems to signal our wilful blindness to the context in which serious child offending takes place, disproportionately involving children from a background of poverty, mental illness, and family upheaval or abuse. Added to those indicators are the ethnic demographics, which I think are telling. Children who are arrested and charged with serious crimes are disproportionately Māori or Pasifika.
In that context, it is interesting to note that in another area of our justice system we apply evidence of child cognition very differently. The law deems children incapable of consenting to sexual activity if they are below sixteen years old, so we accept that even fifteen-year-olds lack the necessary mental development to knowingly and intentionally engage in sexual acts. The suggestion that a ten-year-old could be anything but a victim in those circumstances is morally and legally obscene. But a ten-year-old can be held responsible as an adult for his actions as a perpetrator of violent crime or murder. This inconsistency requires a leap of logic. It raises questions about who we choose to protect and who we are happy to demonise, based on the demographics of the youth offending.
Lester made a moving closing address on the final day of that trial. He began by talking at length about the irreversible, tormenting, loss of a beloved young man. He spoke as a dad about a son lost to his family forever. Then he spoke about the other, young life, on the line in many ways. We were never asking for an acquittal. The whole trial was about the difference between doing an unlawful act that caused death, a thing accepted from the start by the young accused, and doing it with deliberate understanding that would make it murder. The verdict was what we asked for, manslaughter. It meant avoiding a sentence of life in imprisonment with at least a ten-year minimum sentence. We won, so to speak, and it was a relief, though no joy could come of it in the circumstances.
Working on that case forced me to answer some hard questions about the system I was servicing. Are children who are serious criminal offenders victims of institutional biases that see one group as inherent victims and another as perpetrators? Who see one group as deserving of protection and another as one that society needs to be protected against? Or worse, a lost cause? The answers to these questions are complex and should shake our understanding of our institutions and ourselves as fair and free from prejudice.
The focus can’t simply be on the harm done, even in the worst cases, because the way a society deals with deviancy is a reflection of the strength and goodness of its value system.
During the years I spent standing at the coalface of the criminal justice system, it was glaringly obvious that certain sectors of our society are stuck in cycles of victimhood and crime because they are excluded from mainstream pathways to success. It resonated with me, knowing what it was like to have my family assumed backward, unlikely to be educated or interested in things like politics or art or equality. It reminded me of the more marginalised outsider communities like the one on Karangahape Road, many of whom were constantly in and out of this justice system. Failure or crime was all that was expected of them, and most of what is provided for by the state is court and prison. Except it is clear and proven that prisons don’t mitigate crime all that effectively. If that is the core work of our system, then we need change.
We need to invest in all the other things that make society fair, which actually prevent crime. We have to invest in ending wealth inequality, in treating addiction, in providing mental healthcare. We need to end gender inequality before we can end gender-based violence. The justice system is necessary, as a form of just conflict resolution when the worst happens, but we know it can’t solve the underlying causes of crime or recidivism. In fact, unless we address all the other things that make our communities unsafe, unequal, and unstable, the justice system itself may only act as a contributing factor to inequality and instability, and in the end cause more harm.
What kept me committed as a lawyer is the fact that criminal law is one of the most pure areas of human rights law, precisely because of how flawed our system is. I couldn’t disengage, because, rightly or wrongly, people were coming through that system, and we needed to make it as fair as possible. Every day we applied the Bill of Rights Act, the Human Rights Act. We argued against unlawful detention, discrimination, and abuses of power. The courts stand between us as individuals and the mighty force of the state, so while we need to transform that system, to decolonise it, I couldn’t pretend there wasn’t a need every day for us to make it at least incrementally more fair.
It was a steep learning curve. It meant facing what was a deeply unsettling side of the world every single day. I found it felt better to acknowledge those terrible truths and engage with them, because, having seen what I had seen in my life before then, I couldn’t pretend the world was perfect anyway.