By Elizabeth Hall and Christopher Stevenson
The new organisation for those doing ‘uniquely challenging work’
Cicero, the masterful Roman orator and defence lawyer once uttered during an address: “But I must stop now. I can no longer speak for tears”. Almost two millennia later the acclaimed defence lawyer Clarence Darrow, battling excessive sentencing, racism, and public vitriol through a trilogy of famous trials, described “little rest by day and but little rest by night” and exhausting all the strength he could summon.
More recently, Sir Peter Williams QC, the compassionate and brilliant defence lawyer said: “The river of injustice has flowed since the beginning of time and will continue to flow after you and I have gone. Your job will be to reduce its number of victims.”
Last month defence lawyers in New Zealand launched the Defence Lawyers Association of New Zealand (DLANZ). DLANZ was founded by Christopher Stevenson and Elizabeth Hall. The Association is committed to providing support and advocacy for defence lawyers in the uniquely challenging work they do, specialised training to ensure a high-quality defence bar, protecting the innocent from conviction, ensuring fair trials, and advocating for policy and legislative reform to eradicate inequalities within the criminal justice system.
The inaugural steering committee includes Christopher Stevenson (Co-Chair), Elizabeth Hall (Co-Chair), Judith Ablett-Kerr QC, Robert Lithgow QC, Marie Dyhrberg QC, Ron Mansfield, Nick Chisnall, Echo Haronga, Rob Stevens, Ngaroma Tahana, Debbie Goodlet, Julia Spelman, Kerry Cook, and Emily Blincoe (Secretary/Treasurer).
Support and advocacy
The role of defence counsel has a long and noble history. Yet it remains uniquely and exquisitely difficult. It requires great courage – dealing with challenging issues, complex law, often damaged individuals, and standing alone between the citizen and the power of the state.
The DLANZ aims to provide a support network for defence counsel – where members can talk frankly about their experiences, seek confidential guidance, ask questions, get ideas and share what is happening in New Zealand’s courts with other defence counsel.
Specialised training to ensure high-quality defence bar
Specialist defence counsel undertake literally thousands of witness actions and hundreds of judge-alone and jury trials. But too often the accrued wisdom and knowledge is self-contained. Younger lawyers can struggle to connect with more experienced defence counsel. Meaningful training for defence counsel is not widely available. DLANZ aims to provide high-quality defence-specific training for all defence lawyers. Affiliations with international defence lawyers’ associations and attendance at international defence lawyer training seminars demonstrates the scope for highly effective local training and knowledge sharing by, and for, defence counsel.
Addressing the United Nations last year, Justice Minister Andrew Little said: “Our justice system is broken”.
A recent review confirmed that criminal justice system is in need of desperate change. A unified voice from the defence bar is critical as these challenges are confronted.
Judith Ablett-Kerr QC welcomes the establishment of DLANZ, saying: “It has a significant contribution to make to the administration of justice. As a defence-focused voice the Association will be able to provide an informed perspective as the justice system adapts to accommodate the inevitable changes that face both society and the profession. I do not refer merely to the changes associated with the current COVID-19 crisis, although some of the issues they raise are troubling, but in particular I have in mind the need to address the inequalities that exist in access to justice and the need to ensure that the rule of law is not eroded for the sake of convenience.”
Robert Lithgow QC, who is also on the steering committee, agrees: “There are serious wrongs to be righted and work to be done. The defence perspective and the promise of equality before the law needs to not just be listened to politely, but be heard and made to work for the people of New Zealand.”
Rob Stevens, Public Defender Northern (PDS) observes: “An organisation focused on, and capable of effectively advocating for, the particular interests and needs of defence lawyers and our clients is long overdue in the New Zealand criminal justice sector.”
Innocence and miscarriages of justice
One goal of DLANZ is to tighten the accuracy of the criminal justice system. Historically, the dominant reaction to the system’s accuracy problems has been denial. Yet, the ghost of the innocent man convicted is not “an unreal dream” (Justice Learned Hand in United States v Garsson, 291 F. 646, District Court for the Southern District of New York (1923)). Exonerations have revealed that criminal justice systems, including ours, have serious accuracy problems. The “innocence revolution”, founded in countless miscarriages of justice here and internationally, tells us the system keeps getting the same things wrong. The causes are multi-variate, but familiar across jurisdictions, including New Zealand.
International estimates suggest as many as 3-5% of those convicted are factually innocent.
Another member of the new organisation, and a senior defence practitioner, also welcomes formation of DLANZ, saying experience has made it clear that absent accountability for breach of rights nothing changes, and a defence-focused body is best equipped to advocate for change.
Marie Dyhrberg QC, speaking in support of the formation of the Association, says: “Without fair trials for those accused, trust in government and the rule of law collapses.”
DLANZ intends to aggressively tackle systemic issues contributing to miscarriages of justice and conviction of the innocent.
New Zealand has the second-highest incarceration rate in the Western world per capita, with at least 30% of people in prison there on remand and presumed innocent. Many will never be convicted of any crime. Many wrongly plead guilty as a way of getting out of prison earlier. Jail has a serious criminogenic and intergenerational effect.
As Professor Peter Gluckman, former Chief Science Adviser to the Prime Minster, said in his report, Using evidence to build a better justice system: The challenge of rising prison costs (Report of the Office of the Prime Minister’s Chief Science Advisor, 29 March 2018), tough on crime rhetoric has pervaded the New Zealand criminal justice system, resulting in disproportionate incarceration and cost, with no evidence of an associated increase in public safety. Defence lawyers see the terrible human cost of the mass incarceration failure for New Zealanders, and the normalisation of jail for deprivation, dislocation, mental illness and addiction. DLANZ will bring a unified voice to this issue.
Māori in the criminal justice system
As has been regularly observed, the enduring impact of colonisation is seen especially starkly in the criminal justice system. About half of all prisoners are Māori – the “entrenched asymmetry of Māori in prisons” as Justice Whata put it in Heta (Solicitor-General v Heta  NZHC 2453 at  per Whata J). The asymmetry is apparent in police charging, in comparative conviction and incarceration rates. Māori women are said to be the most incarcerated indigenous women in the world. One Aotearoa iwi is the most incarcerated indigenous tribe in the world. If Māori had the same proportion of their population in prison as non-Māori, there would be only around 700 Māori in prison, not 5,500 as there are now.
Ngaroma Tahana, Echo Haronga and Julia Spelman, members of the steering committee have jointly commented: “Given the long-standing issue of over-representation of Māori in the criminal justice system, DLANZ recognises the importance of training for all defence lawyers in this area. The opportunity to provide culturally competent and inclusive professional development and networking in the criminal field is a hugely exciting feature of the work programme for the steering committee.
“In addition, attracting higher numbers of Māori lawyers to criminal defence work, and the professional development and retention of those currently in practice, will also be on the work programme. A strong, representative defence bar is needed in every region including rural settings.
“Māori lawyers are leading the advancement of tikanga arguments not just to the benefit of individual clients, but also to inform the development of criminal case law, as tikanga forms part of the unique and special context of the common law of Aotearoa, widening the scope of argument available for all clients.”
This has been evident in the recent jurisprudence surrounding s 27 of the Sentencing Act 2002, and in Zhang v R  NZCA 507,  3 NZLR 648.
Greg King Scholarship
DLANZ is especially proud to announce the establishment of the Greg King Scholarship. The scholarship will be awarded to a promising defence lawyer who embodies the mission and ethos of DLANZ. The lawyer will be given opportunity to work with top New Zealand defence lawyers and provided with junioring positions in trials.
Support from the profession
Tiana Epati, President of the New Zealand Law Society | Te Kāhui Ture o Aotearoa, and herself a senior defence lawyer, welcomes the formation of the Association.
The establishment of DLANZ is also warmly welcomed by Kate Davenport QC, president of the New Zealand Bar Association, who says: “We welcome the contribution and advocacy in this area. The more voices that are heard, the stronger the response will be.”
Te Hunga Rōia Māori o Aotearoa – the Māori Law Society, advocates on issues affecting Māori and the law, including as an intervenor in the Zhang case. Te Hunga Rōia Māori is supportive of the new association. “Any rōpū (group) which brings a focus on criminal justice issues which disproportionately affect Māori, has our firm tautoko. We look forward to building and developing our relationship,” says Marcia Murray, Tumuaki Wahine.
The influx of membership applications for the Association demonstrates the real need felt by defence lawyers for DLANZ. The resounding feedback from defence lawyers has been “excellent” and “about time”.
Defence lawyers may join via the website. Support networks, knowledge sharing, training, and reform initiatives are commencing in the coming months.
Christopher Stevenson and Elizabeth Hall are senior criminal defence lawyers with over 40 years’ combined experience.