Into the Darklands

by Nigel Latta

  So we’d signed off on the bits of paper which gave all young people the right to have their age taken into account in any criminal proceedings. Like it or not, that’s how it is.

  As a result the lawyer’s question was about the ability of these young people to participate in the highly formal structure of a High Court trial in light of their respective ages. Following on from this he also wanted me to make any suggestions for changing the manner in which the trial was conducted that might assist the young accused to participate in the process more fully. ‘No one’s ever looked at this stuff before,’ he said. ‘It’s ground-breaking.’

  Now, when lawyers start talking about breaking new ground, I start to get a little nervous. In the dog-eat-psychologist world of the witness box, you can get turned into shrink paté as quick as a blink. The adversarial nature of the legal process means the other side is always trying to make you look like an idiot. In this case there would be something like 17 lawyers in there, all of them working their own agendas, and me somewhere in the middle. That’s a lot of people trying to poke holes in what I might be saying.

  ‘OK,’ I finally said, after we’d talked through the details for an hour, ‘but I just want to be clear that you might not like what I have to say.’

  ‘Good,’ he said, ‘that’s what I want, an independent opinion. If there’s nothing here, I want to know that. At least then we can say we’ve looked at it.’

  He actually meant it. He really wanted the truth, which was a refreshing surprise. One lawyer I worked with on a different case—who incidentally is one of the rudest, most unpleasant people I’ve ever met—did everything short of putting a gun to my head to try and get me to say what he wanted. In the end we agreed to disagree and I don’t think that particular report ever made it to court, mostly because I said in my roundabout psychologist way that I thought the lawyer’s client was as guilty as sin.

  So, with my car loaded up with videos of police interviews, evidence books and about three tonnes of documents, I set off. Time was pressing, I had about a week to interview eight defendants spread throughout the length and breadth of the country at various juvenile holding facilities, and write what was sure to be an extensive report.

  Fortunately for me, legal strategy started to kick in. I fairly quickly circulated a document amongst all counsel, including the Crown and police, outlining what I understood my brief to be, and the process of how I would propose to go about completing the report. In my opinion it was important to the integrity of the report that everyone was on board with what I was doing. Unless I was seen as walking a neutral line, it would be a waste of my time.

  I wasn’t concerned with issues of guilt or innocence, but rather of trying to ensure that the young accused had the best opportunity to participate in their own defence, and to create conditions which would allow them to give the best evidence. This seemed to me to be in everyone’s interests, both the Crown and the defence. As a result I said that I would also circulate copies of a draft report to everybody for comment before I submitted a final version to the court.

  A number of the lawyers for the defendants quickly indicated they didn’t want me to interview their clients. Ostensibly they didn’t want their clients assessed by a psychologist who could later be summonsed by the Crown to give evidence on some other matter that might prejudice their case. I suspect the defence lawyers didn’t want me giving evidence on the ability of the various young accused to understand the difference between right and wrong.

  ‘I don’t see how you can work for both sides in this matter,’ one of the lawyers said.

  ‘I’m not on any side,’ was my slightly quizzical reply. ‘There is only the question and the answer, which shouldn’t change as a result of which side asked the question.’

  He didn’t buy that. In the space of about eight hours I went from having seven defendants to three. BJ’s lawyer had been one of the first to pull his client since, as the youngest defendant, his grasp of right and wrong might well prove crucial to his defence strategy. Unfortunately the three remaining defendants were in juvenile holding facilities in Auckland, Palmerston North and Christchurch. Nothing is ever easy.

  The process of completing this report, and my subsequent participation over the course of the trial, was a unique education in the workings of our justice system. Usually as a psychologist you are called in for a specific part of a trial to give evidence on a specific issue. You come, do your thing and go. This time I was required to sit through the whole trial from beginning to end, including the ‘in chambers’ sessions where the public and jury are excluded so the lawyers can argue over all manner of things.

  And my, how they argued.

  At one point I was sitting up the back of the court with two senior detectives. The official in-chambers session was finished, and the lawyers were still bickering. We sat there watching them fight for a while and then I leaned over to the cops. ‘This’d be so much easier if we got rid of all the lawyers,’ I said.

  ‘Play nice, children,’ the detective called out to the gaggle of bickering barristers.

  No one listened. I don’t think lawyers like playing nice. After all, they’re professional arguers, that’s what they do best. They’re only having fun when they’re trying to prove some point or other. It’s all about who’s right and who’s wrong.

  Perhaps the most frightening thing of all about this case is how unremarkable this group of young people were. They weren’t particularly monstrous. Except for BJ, they hadn’t been involved in a string of serious offences before the night of 12 September 2001. In fact they were pretty typical of a large number of young people I’ve worked with over the years. Nothing in their histories would have predicted they would have behaved in this way.

  As I watched the video interviews I felt an overwhelming sense of déjà vu. The faces and names were different, but I’d seen this type of kid day after day for years. Usually it was because they’d stolen a car, burgled a house or beaten some other kid up.

  In many ways juvenile crime is part of ‘normal’ development. Most studies conducted around the world have shown that something like 90 percent of boys and 60—70 percent of girls will have committed one unlawful act before the age of 18. I myself started at 11, when I pinched a necklace from a shop for my mum for Mother’s Day. I then spent the next three months worrying that she would go back to the shop wearing it, and be arrested for shoplifting.

  So a little bit of crime is normal, but a lot of crime is definitely not. In New Zealand and Australia something like 5—7 percent of adolescents commit 50 percent of juvenile crimes. Each arrest also puts adolescents at a higher risk of subsequent arrest. One Australian study found that by the time a teenager has been arrested five times the likelihood of further arrest was 90 percent, and my clinical experience in New Zealand would suggest the rates are very similar. In addition, we also know that teenagers tend to offend in groups, rather than acting as individuals, and that the vast majority of adolescent offending typically involves property crime.

  This time however, a man was dead.

  As I watched the video interviews I started forming my own ideas about the kinds of histories these kids might have, all the usual cliches that are invariably correct.

  The next step was to fly off round the country and interview the three kids I was going to be assessing. Obviously the content of those interviews is privileged, and so I’m not going to disclose anything about what the individual kids said. What I can say is that, in general, it was pretty sad. Pretty much what I expected, and pretty sad.

  The histories these kids described were the same old same old. There was nothing outstandingly terrible about their lives, at least nothing over and above the usual background level of terrible. In many ways they were pretty typical of the kids I work with every day.

  With all the interviews done, surrounded by all my bits of paper, I sat down to write the report, but the whole time the same three words kept running through my head: pizza and
change.

  Some crimes are so unbelievably callous, so utterly tragic, they almost defy belief. Some crimes make you wonder if the whole damn thing isn’t sliding off the edge. So it was with the death of Michael Choy.

  On the evening of 12 September 2001, while the rest of us were coming to grips with the events in New York thousands of kilometres away, Michael Choy was making a few extra bucks delivering pizzas. He was a gentle, kind man, from a loving and respected family, and that particular night he was filling in for a co-worker at a local Pizza Hutt in Papakura, in South Auckland. Unbeknown to Michael, a bunch of kids had spent the day planning to rob him.

  They’d tried a couple of nights previously with a KFC delivery driver. The plan was simple: put in a call for a delivery and when the driver arrived, hit him with a baseball bat, take the food, take the money and run.

  A simple plan. Except the driver had been a woman so they’d called it off at the last minute. Michael wasn’t going to be so lucky. Three of the kids talked about it that afternoon, the youngest of whom was just 12 years old. During the early evening more young people turned up at the address they were using as their base. They drank alcohol and waited for nightfall.

  When it was dark they made their way to a telephone box where one of the young women placed an order: four pizzas, two large bottles of soft drink and two large side orders. In total it came to $47.95. The young woman gave a street address at the end of the block from the house they were using as a base and said they would meet the delivery person at the end of the drive because there was a large dog on the property. Then they went to the address and hid in the darkness of the driveway.

  When Michael drove up some time later he was met by a young woman and a boy standing in the driveway in the dark. They talked with him for a few moments as the young woman appeared to search for change. Then suddenly the young boy called out, ‘Go, Alex.’

  Another older accomplice sprang up from behind the car and swung a baseball bat at Michael Choy’s head. Michael dropped to the ground unconscious with a fractured skull. There was a frantic burst of activity as a group of eight young people scrambled to grab the food, drinks and change. They left Michael Choy lying severely injured on the ground.

  Back at the house the pizzas and soft drinks were consumed by the group. They then became concerned that if the police came to the area they would smell pizza and sprayed deodorant and fragrances in the house.

  Meanwhile back out on the street Michael had regained consciousness. Despite the fact that the initial blow had shattered the left-hand side of his skull, he somehow managed to stagger to his feet and began to walk down the street.

  And this is perhaps one of the worst aspects of what these young people did. When they saw Michael walking down the street, three members of the group went back outside and tried to remove his money belt. When they couldn’t find the clip, one of them—the same one who had swung the baseball bat—cut the belt using a kitchen knife, and left him.

  Michael staggered down the road and went to the door of a house. He lay on the doorstep and banged on the door, calling out for help. The elderly couple inside became frightened and called the police, thinking he was drunk. Unfortunately, by the time the police arrived, Michael had left. He walked several hundred metres down a busy road, trying to get home. Incredibly, even with the severity of his injuries, he managed to make it to the doorstep of his parents’ house, where he collapsed and lapsed into a coma. He was found unconscious early the next morning by his family. Michael was rushed to hospital but his injuries were too severe. As Michael lay in hospital that Thursday morning, his attackers went out and spent the bulk of the money they’d stolen on food and arcade games.

  In the early evening of Thursday 13 September, when it became clear that Michael would not recover, his family made the decision to turn off his life-support machine. And this quiet, gentle, kind-hearted man died as the rest of us watched endless replays of planes crashing into buildings.

  Within three days the police had caught the group of young people responsible for this awful crime. Within hours they started ratting on each other and the whole sorry story came out.

  Police photos would later show the pizza boxes sitting in the rubbish bin at the house the group had gone to after attacking Michael. There were also photographs of the soft-drink bottles and garlic bread. I remember looking at the photographs of those half-chewed pieces of pizza and crumpled greasy boxes for a long time. In some ways they were worse than the autopsy photos.

  Those kids killed Michael Choy for pizza and change.

  I look at that sentence, and I just feel lost for words. I simply don’t know what to say about it. Even all this time later, it still has the same numbing effect on me.

  It was so unbelievably pointless.

  THE YOUNG ACCUSED

  SPENDING A DAY IN the witness box in the High Court being questioned by seven criminal barristers, two Crown lawyers, two corporate lawyers acting for the television networks and an experienced and extremely intelligent High Court Justice is not my idea of a relaxing day. Especially when everything you say is recorded for posterity. Any stupid things you say can be picked on by any one of a number of clever people.

  The trial of the seven young people charged in the death of Michael Choy was being held in the largest High Court room in Auckland. It had to be large to accommodate all the lawyers, the young accused, the media and the public.

  This particular day was before the start of the trial proper and was a closed session so that Justice Fisher, the presiding judge, could hear the various pretrial motions from all the lawyers. This would be the day when I’d find out how successful I’d been in convincing everybody my role was nonpartisan. If I’d managed to convince them I really was solely concerned with the issue of how the trial process might accommodate the needs of the young accused, rather than issues of guilt or innocence, then it probably wouldn’t be too stressful a day. If I hadn’t then there were more than enough clever people in the room to make for a hellish few hours.

  I put my hand on the Bible and promised everyone I would tell the truth (actually, whenever a registrar asks me if I promise to tell the truth, I’ve always wanted to reply ‘it depends’, but I don’t think a judge would ever be amused by that). So I duly promised, took a slow deep breath, and we began.

  At such moments we should all say a little prayer to the Patron Saint of Psychologists.

  Before we get on to what happened with my recommendations however, we probably need to talk first about why these young people’s needs should even have been considered in the first place. Why should a formal High Court trial be changed to suit a bunch of scruffy kids accused of such a callous attack? Why should they get any special consideration?

  Good questions, and ones I also had to grapple with.

  There are a number of reasons why this trial was important, if not the least of which is the fact that there are increasing numbers of young people committing serious crimes. I don’t know what all the official statistics say, and mostly I don’t care. One week some report says juvenile offending is increasing, then two days later some politician produces more statistics to show it’s decreasing. All I know is that down at the coalface we’re seeing more and more kids doing more and more serious things. We will see more trials of young people under the age of 16 who have committed the most serious kinds of offences. BJ may currently hold the record for being our youngest killer, but he probably won’t hold it for all that long, so we’re going to have to start thinking about what will happen with the kids who commit these crimes.

  One approach would be to say ‘Screw ‘em. Don’t give them any special treatment. Try them exactly the same as adults.’ Whilst this may be a fairly popular sentiment, it isn’t very well thought through. There are quite a few reasons, both legal and pragmatic, which count against this view.

  First off, New Zealand and Australia have signed international agreements, via the United Nations, which guarantee certain rights
to young people. One of those rights is the right to participate in their own defence. Now, it could be argued that no one listens to what the UN says anyway (is that oil I can smell burning?) but for the sake of the present discussion I’m going to assume that in this part of the world we are concerned with the International Rule of Law. Obviously I can’t argue all the legal ins and outs of the relative UN conventions and our respective obligations, but nevertheless we have signed them and some obligation would appear to exist.

  In addition s 25(i) of the Bill of Rights Act sets out that everyone charged with an offence in New Zealand has certain minimum rights which, in the case of children, also includes the right to be dealt with in a manner that takes account of their age.

  It would seem then that there are laws both domestic and international saying we must take account of the special needs of juvenile defendants. Because these rights are enshrined in the Bill of Rights we have as much choice about that as we do about paying taxes. If you don’t like it write a letter to your MP asking them to change s 25(i), because unless we change it we have to take account of the age of juvenile defendants.

  All this legal stuff aside, there are lots of very pragmatic reasons for treating kids who commit serious crimes differently to adults. Apparently there was quite a spark on the talkback shows at the time over the fact that these young hoods were being given ‘special treatment’. There seemed to be a collective belief that the liberals were once again getting out of hand. I’m actually sorry I didn’t hear any of it because I’m sure that would be my record for the most people I’ve ever pissed off at one time. There must have been thousands of people steaming all around the country, which is quite an achievement, even for me.

  I can assure you it was nothing about liberalism or feeling sorry for these poor fragile little bunnies. Like I said at the very start, at heart I’m a dyed-in-the-wool pragmatist and my concerns were entirely pragmatic in nature.