The New Zealand Law Society has released background information on the operation of high profile trials, in preparation for the trial of the alleged killer in the Christchurch mosques massacre, which saw 50 people killed on March 15.
The ‘backgrounder’ includes details around those defendants who chose to represent themselves at trial, as the offender in the mosques massacre has indicated he will do.
The accused has appeared in court to face one charge of murder, however Police say more charges are likely. The accused has been remanded in custody without plea until 5 April when he will appear in the High Court in Christchurch.
The Law Society’s Criminal Law Committee has prepared a backgrounder as a guide for media who are likely to cover further court appearances by the accused.
“We recognise that there is great interest in this case, including interest in how a trial might proceed if the accused elected to self-represent. The conduct of the trial is in the control of the presiding Judge who’ll regulate the proceedings according to New Zealand law and practice. We hope that this background document will provide answers to some of the key questions that are being asked by media organisations,” says committee member and Christchurch barrister, Simon Shamy.
How are trial judges selected?
Usually the trial Judge will be the Judge rostered to preside at trials for a certain period in a court in a particular location. In certain cases, the Executive Judge of a certain region will allocate a file to a trial Judge to manage all the way to trial. If for some reason the rostered Judge is not able to preside at the trial, another Judge can be rostered on to deal with it.
How is the venue of a trial selected?
A criminal proceeding is commenced by filing a charging document in the office of the District Court that is either nearest to where the offence is alleged to have been committed, or nearest to where the person filing the charging document believes the defendant can be found (section 14 of the Criminal Procedure Act 2011)
The trial venue depends on the location of the District Court where the charging document was filed. For category 4 offences such as murder, section 74 of the Criminal Procedure Act 2011 provides that the trial will be in the High Court nearest to the District Court where the charging document was filed. In this particular case, the trial will be at the Christchurch High Court Registry.
If there are problems around the venue of a trial, how can it be changed?
An application to change venue can be made by the prosecutor, the defendant, or on the Court’s own motion, under section 157 of the Criminal Procedure Act 2011. For a change to be ordered, the Court must be satisfied that it is in the interests of justice to do so. One of the most common grounds is that the defendant will not receive a fair trial in a particular area.
What powers does a judge have to suppress reporting of what happens in a trial?
Section 205 of the Criminal Procedure Act 2011 provides that a judge can make an order forbidding publication of any report or account of the whole or any part of the evidence or submissions, if the judge is satisfied that publication would be likely to:
- Cause undue hardship to any victim of the offence; or
- Create a real risk of prejudice to a fair trial; or
- Endanger the safety of any person; or
- Lead to the identification of a person whose name is supressed; or
- Prejudice the maintenance of the law, including the prevention, investigation and detection of offences; or
- Prejudice the security or defence of New Zealand.
Exclusion from the courtroom
In limited circumstances, the judge can also exclude certain parties from the courtroom.
Members of the public can be excluded from the courtroom under sections 196 and 197 of the Criminal Procedure Act 2011 if the judge is satisfied that it is necessary to avoid any of the following risks, and that a suppression order would not be sufficient to avoid that risk:
- Undue disruption to the proceedings; or
- Prejudice to the security and defence of New Zealand; or
- A real risk of prejudice to a fair trial; or
- Endangering the safety of any person; or
- Prejudicing the maintenance of the law, including the prevention, investigation and detection of offences, and
- Members of the media can only be excluded on the grounds of risk to prejudice to the security and defence of New Zealand.
What are the rules around self-represented defendants in a criminal trial? Are they able to say anything they like? What control does the judge have?
Section 7 of the Evidence Act 2006 provides that only evidence which is relevant to the proceedings can be presented in Court.
If a defendant decides to represent him or herself, the Court also has power to appoint a standby counsel to assist with their defence, and to ensure that the defendant has a fair trial. Standby counsel can also be appointed where there is cause to suspect that a defendant may be disruptive.
Under section 117(2) and 118(2) (b) of the Criminal Procedure Act 2011, the judge can remove the defendant from the Court for interrupting a hearing or trial if it is not practical to continue with the defendant present. For example, this occurred in the 2016 trial of Russel John Tully, who was convicted of the murder of two WINZ workers. Following his attempts to disrupt proceedings he was removed from the Courtroom and spent most of the trial in a separate room, and was able to listen to evidence via a live video feed.
The judge may rule that a self-represented defendant cannot cross-examine a witness personally for a number of reasons (such as age of witness or the nature of proceeding), pursuant to section 95(2) Evidence Act 2006.
What is the longest sentence imposed by the New Zealand Courts for murder?
William Bell has the longest sentence for murder in NZ, which is life with a minimum non-parole period of 30 years. That sentence was for three charges of murder, attempted murder, and aggravated robbery.
Who is the longest-serving prisoner in New Zealand?
Alfred Thomas Vincent is New Zealand’s longest serving inmate. He was sentenced to preventative detention in 1968 for indecent assaults on 5 boys. He was last refused parole in November 2018 and will be seen again by the parole board in May 2019.