Questions are being asked about the possible use of an anti-terrorism law passed in 2002 and also about the number of murder charges which could be laid against one person following the attacks on two mosques in Christchurch last Friday that left 50 people dead.
The man accused of carrying out the Christchurch mosque attacks 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 Judicial Office for Senior Courts has released a backgrounder on the New Zealand Court Process for Murder Charges in response to a growing number of inquiries and speculation about the trial process.
The Terrorism Suppression Act 2002 (TSA) was introduced in 2001. After the terrorist attacks on 11 September 2001, the profile of the bill was altered to enact counter-terrorism measures required by resolution 1373 of the UN Security Council.
Could the Terrorism Suppression Act be used?
Auckland University law professor Bill Hodge says it would be risky for the Crown to attempt to use terrorism laws to try the accused, and he instead expects them to pursue multiple murder charges.
“I don’t think the Terrorism Suppression Act 2002 is fit for this purpose. The TSA is mostly about assisting an organisation, with funding, money and materials, recruiting, etc, and was aimed at offences and things done overseas. The real concern of the TSA is fundraising/recruiting here. And the prosecution here for things done overseas. So, for example, the Kiwi in custody in Syria could be prosecuted here [under the Act] when and if he gets back.
“The Suppression of Terrorism Act 2002, although it covers bombings, is not really relevant to a deliberate killing in New Zealand.”
Crimes Act 1961 – Single or multiple charges
Where an individual is accused of the murder of more than one person, Professor Hodge thinks that charging under the Crimes Act 1961 is sufficient.
“I think the Crimes Act 1961 is fit for purpose and a single charge of murder is sufficient, as the judge has discretion, after the 10-year minimum in s 103 of the Sentencing Act, to give a lengthy non-parole period. Justice in New Zealand is robust and fair and the Crimes Act is the appropriate statute for the prosecution of an individual who is accused of deliberately killing another person.
“There could be multiple charges in any case, but you only need one conviction for murder. On occasions multiple charges might be laid just in case there is a hiccup of some sort, but I think that multiple charges are not necessary, given that following a conviction for murder, the outcome will be a life sentence and the only question is the non-parole period - for example, William Bell.”
William Bell killed three people during an armed robbery at the Panmure RSA in December 2001. He was jailed for life, and on appeal his minimum non-parole period was reduced from 33 years to 30 years.
AUT law Professor Warren Brookbanks (right) is unsure about the laying of a single charge. He says one murder charge is usually a holding charge to get the accused in custody and before the court while the Police strategise about what additional charges they will bring – such as whether charges are laid under the Arms Act 1983, Crimes Act or Terrorism Suppression Act.
“That will be a decision made by prosecutors in consultation with Crown Law. I imagine it will take some time as they work through the issues. As to what they will do, I really can’t say, as it is such an unprecedented event.
“We are in new territory. He will be tried on account of the 50 people that have been shot and killed. Whether the police lay separate indictments for each murder - which of course would mean a hugely lengthy trial process - or whether they decide in this situation to lay representative charges, so they just take a selection of the homicides; whether he is convicted of one or 50, the penalty is likely to be the same – that is life without parole.”
Public interest and symbolic factor
While it appears that one charge or representative charges might have the same outcome as 50 separate charges, Professor Brookbanks says the public interest is an important consideration.
“However, there is always the public interest, as this is so serious, that he should be tried in respect of every count. It would be a huge and very lengthy trial process.
“It may be considered in the public interest, because the main consideration for charging is the likelihood of getting a conviction. The Terrorism Suppression Act 2002 would not impose any greater penalty than would be available under the Sentencing Act 2002, but it may be used for symbolic reasons. These decisions will be made in consultation with specialists from Crown Law as they will want to get it right.”
The accused has indicated that he intends to represent himself in court.
That has led to speculation as to how the mainstream media would cover the proceedings because of concerns that he would use the opportunity as a platform to promote his extreme views.
New Zealand’s leading media organisations such as Radio New Zealand have this week begun discussing how they would treat the content of the likely trial.
What does the law say in relation to self-representation?
New Zealand Law Society Criminal Law Committee Convenor Steve Bonnar QC says that a defendant in New Zealand has a right to self-represent if they choose to do so. However, courts also have power to regulate their own procedures and, for example, might prevent a self-represented defendant from personally cross-examining particular witnesses in the interests of justice (i.e. requiring such cross-examination to be conducted through a lawyer).
The principles concerning self-representation and the appointment of standby counsel were recently discussed in the Court of Appeal case in R v Fahey  NZCA 596. The court also has power to appoint a standby counsel in circumstances where a defendant is disruptive and to remove a disruptive defendant from the courtroom. The court has further power to suppress the reporting of evidence and/or submissions in certain circumstances (see s 205 Criminal Procedure Act 2011).
Finally, the Evidence Act 2006 provides that only evidence which is relevant to the proceedings can be presented in court. It is therefore potentially open to a court to remove a defendant from the courtroom if he or she acted in such a way or made statements which were not relevant to the issues before the court and thereby disrupted the court’s processes. Similarly, the court might consider ordering the non-publication of irrelevant and disruptive statements or submissions.