Barrister Marie Dyhrberg spoke to RNZ on the repercussions of Mosque massacre Accused Brenton Tarrant’s firing of his lawyers and what it means – apart from obvious grandstanding by Tarrant and concern for the victims – in the wake of the decision.
Tarrant had previously been represented by Auckland barristers Shane Tait and Jonathan Hudson (left).
Brenton Tarrant’s former lawyers have said they’re “not disappointed” at losing the chance to finish out the defence for their client. Mr Tarrant plans to represent himself moving forward, they said.
Barrister Jonathan Hudson said to the New Zealand Herald after the hearing that they were not disappointed by Tarrant’s decision.
“There has been no conflict or relationship breakdown.”
He said Tarrant has a right to represent himself in court “and has chosen to do so”.
Tarrant has already been convicted on all charges including 40 counts of attempted murder, and one count of engaging in a terrorist act laid under the Terrorism Suppression Act 2002.
Tarrant’s sentencing was delayed by the coronavirus pandemic and the official sentencing date of August 24 was confirmed last week. The sentencing could take up to three or more days.
“As with any sentencing, the judges will be very much alert to the fact that whatever is going to be said by any of the parties has to be relevant, cannot be outrageous, and has to be within the bounds of what is available in terms of sentencing,” Dyhrberg said.
“. . in this case, it may well be that the defendant may not want to file written submissions and you cannot force that to happen. A judge will then have to decide ‘well, does that mean he has forfeited his right to make submissions in response?’
The Tarrant ‘Manifesto’
She noted that Tarrant would be permitted to speak within the bounds of what is appropriate at sentencing. Concerns have been expressed that Tarrant would be using the Court as a platform for his views on Islam and other matters as expressed in his ‘manifesto’.
“You can jump pretty quickly where you can silence someone. And it may be that there’s speakers in the court and the judge may well be able to control the speaker. There may be technology to be considered because the court may well think ‘is this more appropriate to have the sentencing by audio-visual – by remote?’
“Now, the general feeling is that sentencing is so important to anybody facing the court and access to justice that sentencing, the default position is that you are there in person. But it may be that there are different considerations here and that the sentencing may take place with the defendant remotely and a feed being on the camera.
“That is something the judge may decide. The defendant will be able to argue against that because of course they must have a view and the Crown will have a view as well. But that is one potential way of dealing with keeping somebody under control.”
Have you seen many cases where someone is sentenced on a charge so serious via an audio-visual link?
“I personally haven’t and as I say, it would be rare. Normally, if someone is entitled and wants to appear in person but they are determined that they won’t it is generally for witnesses because they need to be safe… so it is a very big step to deny a defendant access to the public courtroom.”
Victims can make victim impact statements to the court. Will he get access to that sensitive information?
“Yes he will and he must. But already just in the general body of law there are very, very strict rules around the use of victim impact statements.
“How it works just generally at the moment, say myself as counsel, I receive a victim impact statement from the Crown, I do that on the undertaking that I will not copy it, I will not give it to anyone else, I will not let anyone else look at it or be within hearing unless they are the defendant, perhaps a court-appointed interpreter, perhaps, and that is all.
“I then sit with the defendant, I hand the victim impact statement over, the defendant reads it, I take it back. At the end of the hearing, I hand it back to the Crown and they take it back into their custody. Or, I read the victim impact statement out to the client.
“Sometimes, clients don’t want to listen, they don’t want to hear, but at least they have been given the opportunity.
“Victim impact statements, 100 percent in our current law, are very carefully guarded and monitored so that they do not get into the wrong hands.”
In lieu of a lawyer, presumably he will access those statements himself?
“I doubt that.
“I think there would be an order that a lawyer would be appointed by the court for the purpose of assisting the defendant and that lawyer would be the person who is given that statements and has control of those statements and reads them out or may hand them to him then take them back.
“Keep in mind there will be security officers very close by so that if a defendant refuses to hand a victim impact statement back, then it can obviously be taken from them… he will not get it directly because no defendant will receive it directly, even if you are self-represented. There are ways and procedures in place where they do not have control over a victim impact statement.”
How does the court manage the situation like this whereby an individual like this may get some satisfaction or glee from involving himself in the proceedings along with victims?
“There are always going to be people who want to do that. There are going to be defendants, generally, who want to go all the way, who are going to want people to read statements at court that should be accepted as evidence and you cannot control that because the system says you are entitled to that.
“Unfortunately, if the sentencing is going to be a prolonged one as a result of the victims who wish their statements to be read out in court, then that is the way it will be an I would think that there will be a lot of time set aside to ensure that this sentencing starts and this sentencing finishes.
“There will be a lot of logistics that will need to be considered in terms of who can access the court in terms of the public because the public arena is not huge in any courtroom in New Zealand. All sorts of identification. How are submissions presented, how people are kept under control – and that’s for everybody in the court so the decorum of the court is maintained and… plan a, plan b, plan c, they will all be in place and ready to be put into effect should certain things happen.
“It will be a very well prepared sentencing with all potential circumstances taken into account and what the response will be.”
What are the options for sentencing? Is there an upper cap on the potential sentence that this man could get?
“No. And there is a misconception unfortunately where people read in the paper that ‘oh yes, that somebody has 13 years or 15 years’. When somebody is convicted of murder they get sentenced to life imprisonment and it means just that, you are in prison for life. Where the numbers come into play is that there is then an option having a minimum parole sentence put in place and you cannot apply for parole before that time is up.
“In New Zealand, unless there are extreme circumstances and there is a lesser period of minimum non-parole, anyone convicted of murder, they have a minimum non-parole period of 10 years and they cannot apply for parole until that 10 years is up.
“In other circumstances, that term can be increased. So what you read when you read figures, it is to do with parole only. This person has pleaded guilty to murder, has been convicted of it a number of times but anybody who is convicted of murder gets life imprisonment and it means you can stay there for your life.”
How do you manage those coming to support the victims and perhaps those coming to support the man being sentenced?
“I would anticipate that you would have the courtroom – and it may well be that you have those in the courtroom will be those who are given some sort of priority for either side.
“There will then be other courtrooms I can anticipate that will be set up with audio visual facilities so members of the public or other support people can watch the proceedings, but they are not actually in the courtroom… then whether or not there is something set up outside the courtroom for people to watch, I don’t know.
“Of course, the media will be there and they will be able to record the proceedings themselves.”
Will this be the tightest sentencing that this country has ever seen?
“I would think that it would be one of the tightest.
“Where there might have been previous sentences where there would have been real risks to a defendant, maybe to disorder, then there would have been very tight security put in place. But this is a sentencing that has to go smoothly for everybody, not just the defendant himself and his supporters – if there are any – but for everybody involved.
“So, there will be a lot of steps taken to ensure security, access to justice, that everything is prepared ahead of time and that sufficient time is put aside for any eventuality that might crop up – that can happen with any sentencing – but there will definitely be a great will for this to start and finish and not be derailed for any reason.
“So a lot of planning and we have a lot of very experienced court staff and a lot of very experienced judges and prosecutors as well. They will all have input how to ensure everybody’s rights are respected because [that is] something that must be maintained when there is a very unpopular defendant.”