Into the Darklands

by Nigel Latta

  I made the recommendations I did because I believe a key component of a criminal trial is to hold people accountable for their actions. I wanted these kids to understand what people were saying during the trial. A man was dead, and they needed to understand the full implications of what that meant. In short, they needed to understand what they had (at that stage allegedly) done.

  One of the first things I did was to get a particularly clever postgraduate psychology student to find all the relevant research in this area. It turned out there wasn’t a lot. Until relatively recently the concept of the juvenile defendant didn’t exist in international research literature. There had been a lot of work on the juvenile witness and also on the juvenile offender, but very few people have looked at the issue of kids as defendants.

  This was very good for me because it meant that if some smarty-pants lawyer asked me if I was an expert in this field I could confidently reply that I was not, and that indeed there were currently no experts in this field. (In fact the lawyer for one of the television networks did put this question to me, in the form of several statements implying I didn’t know what I was talking about. Still, it didn’t do him any good because they didn’t get their cameras into court until the very end.)

  A thorough going-over of the existing research told me we don’t know a whole lot about juvenile defendants. Instead I was forced to try to extrapolate the findings on research looking at child witnesses. Most of this research came from children giving evidence in child-abuse cases but some of it was still relevant. In particular people have looked at how children can be assisted to give the best possible evidence. In general this research shows (surprise, surprise) that the less stressed children are, the better they are able to participate in the court process. Factors such as minimising delays, having ‘child-friendly’ waiting areas, the presence of a support person and providing education on the court process all decrease stress and increase the quality of children’s participation.

  In addition to this there were some obvious developmental factors to be considered, namely the fact that the young accused were all adolescents. As a result there was a good chance they would quickly become bored and start to fool around. Obviously this would look very bad to a jury, but it would nonetheless be quite normal for most groups of teenagers in such a formal setting.

  On top of all that were the particular issues facing the three defendants I had interviewed. An edited version of that report was eventually released to the media, and here is the section of the report which detailed the conclusions I reached following these interviews:

  Upon consideration of the available evidence the report writer has the following conclusions to respectfully offer to the Court:

  The defendants each appear to have a basic understanding of the charges they face and the possible consequences if convicted.

  The defendants, whilst having differing degrees of understanding, all appear able to grasp relatively complex concepts if these are explained adequately.

  This said, the defendants as a group have a very limited understanding of the legal process to date. They have described feeling variously nervous, lost and bored in the hearings to date.

  The defendants also appear to have a very limited ability to ask questions about what is happening. In my opinion this ability will be even less when in the midst of a formal High Court trial. This is likely to be further exacerbated by the structural arrangement of the defendants appearing in the box and being separated from their Counsel.

  All three defendants stated that it would cause them distress to see the autopsy photographs. Whilst this in itself is not a reason for them not to see the photographs, the timing of this in connection with their giving evidence may be important.

  Based on the defendants’ statements, and observed responses, it is probable that the presence of television cameras in Court would significantly increase the stress levels of all three defendants. This in turn is likely to decrease the quality of their evidence and to further impede their ability to participate in the trial process.

  In summary it would be my considered professional opinion that, in light of the defendants’ ages and individual psychological issues, if the High Court trial was conducted without regard for their current developmental functioning then the defendants would likely comprehend little of what was happening, would likely not be able to adequately instruct Counsel, and the quality of their evidence might well be lessened.

  So that was where I got to after speaking to the three kids I was eventually allowed to interview: they just weren’t going to get it. This left me with the most important dilemma, and again it was one of pragmatics. It was my belief—and that of all the lawyers and police officers I spoke to—that probably most adult defendants in High Court don’t understand much of what happens either. It can be enormously technical, and at times terribly boring. There were times when even my attention couldn’t weather the extended legal arguments. If this is the case then it was pretty unlikely a bunch of adolescents were going to understand all of what was happening regardless of what you did to help them. As a result it would be easy to become very precious about the whole thing and make a slew of recommendations that were idealistic, impractical and unworkable.

  There had to be some sensible middle ground between idealistic preciousness over their age and the other extreme of simply ignoring their particular developmental needs.

  Having spent some considerable time thinking about all this, I sat down and wrote out a list of 16 separate recommendations as to how the court might adjust the process for these particular defendants. Which brings us back to where we came in, standing in the box waiting to see how the report would be received.

  The mantra that goes through my head in such moments is this: Stay calm, because even if you say or do something really, really stupid, they probably won’t put you in jail for it. No one ever died from looking like an idiot.

  I should point out that I never set out to look like an idiot in court, but it’s good to be prepared for such an eventuality just the same. We all say dumb things, it’s just that when you say it in front of a roomful of lawyers whose job it is to try and cast doubt on anything you say, someone is bound to notice. And if they get you on their hook, God help you.

  To aid my little mantra I also imagine all the lawyers as law students. I’d flatted with some when I was at university and known many more. I always remind myself that even though right now they all look very austere and grown up in their suits and gowns, they probably would have got shit-faced drunk and thrown up in gutters and gardens just like the rest of us. All I have to do is imagine the most intimidating-looking lawyer vomiting in a grotty student toilet and I relax right away.

  Fortunately, I didn’t need my ‘positive visualisations’, because it all went pretty well. There was no real dispute over the basis of the report or the validity of the conclusions. Instead the day was spent trying to collectively determine the best way in which the trial could proceed.

  This process was greatly aided by the trial judge, Justice Fisher, who is in my humble opinion a very intelligent and wise man. I have to admit to being in some awe of Justice Fisher’s ability to manage this hugely technical process. Over the course of that day, and indeed all the days of the trial, there were multiple demands and competing positions. In essence, the lawyers constantly squabbled to get the best deal for their respective clients. Justice Fisher had to listen to each legal argument, and the inevitable counter-argument, and then make a decision about what should happen. His decision was then dictated on the spot. If you ever think judges get paid too much, spend a day watching someone like Justice Fisher at work.

  Once again I have reproduced the section of the report dealing with the recommendations. I thought it might be helpful, given the stink on the talkback shows, for people to see what the original recommendations actually were:

  As described in section 4 of the present report there is currently no direct empirically derived psychological
evidence on which to base recommendations as to how a High Court trial might be adapted to enable juvenile defendants to adequately participate in the process for the purposes of giving evidence and assisting in their own defence. The following recommendations should therefore not be viewed as either definitive, comprehensive or in any way presumptive, but rather as informed suggestions for the Court, the Crown, and respective Counsel to consider:

  In the first instance the Court may like to consider some form of structured pretrial education for the defendants to increase their understanding and give them the opportunity to ask any questions they may have about the process. Whilst research suggests this approach may have limited value it certainly does not appear to have a detrimental effect.

  There might also be merit in considering shorter days to better match the school day. The logistical issues involved in the present trial may make it more practicable to start at the usual time (ie 10 a.m.) but finish slightly earlier (ie 4—4.30 p.m.).

  In addition frequent breaks with opportunities for the defendants to exercise and ‘burn off’ some energy may assist the defendants to attend more closely to the proceedings. The timing of breaks might need to change from day to day depending on the state of the defendants. There is also the dilemma of increased time for breaks resulting in a longer trial.

  Whilst wigs are no longer worn in High Court there may also be some merit in considering the idea that Counsel do not wear gowns in order to make them appear more ‘approachable’ and less intimidating.

  There might also be an advantage, if logistic-ally possible, in having ‘A’ and ‘B’ moved to Auckland to enable them to have more frequent contact with their Counsel. The stronger the relationship they have with their Counsel the more they are likely to be able to interact with them in a constructive manner during the trial.

  There would appear to be a case for seating the defendants next to Counsel. This would both increase the likelihood of interaction with Counsel, and decrease the possibilities of inappropriate (albeit developmentally appropriate) behaviour if the defendants were seated as a group. It has been pointed out to the report writer by the Crown that this may not be appropriate when some of the prosecution witnesses are giving their evidence, particularly the child witnesses who will be using screens.

  In addition there might also be some merit in appointing a ‘minder’ for each defendant (i.e. an appropriately qualified youth worker/social worker). This person’s role might include ‘translating’ the process, monitoring the defendants’ attention levels, and assisting in managing their behaviour in Court. Clearly the minder would also need to be seated beside the defendants. This would in my opinion also increase the likelihood of constructive interaction between the defendants and their Counsel.

  This said, this would mean a further increase in the number of persons in Court (potentially up to 32 in total including defendants, Counsel, second Counsel and the Crown) and it is acknowledged that there may well be practical/spatial constraints. If space requirements make this impracticable then, in my opinion it might be better for the defendants to be seated next to their ‘minder’ than next to Counsel. Obviously this would be highly influenced by the quality of each defendant’s relationship with their Counsel and would need to be considered individually for each defendant.

  Some thought might be given to counselling before the trial begins to assist the defendants to manage their stress levels and to begin to address some of the issues touched on earlier in the present report.

  The Court may want to consider the use of screening from the public gallery if/when the defendants are giving evidence as a way to decrease stress and distractibility problems.

  Similarly the presence of television cameras in Court would, in my opinion, compromise the defendants’ ability to attend to the trial, interact with Counsel and give evidence. Even if the Court should direct that the defendants themselves not be shown, in my opinion the very presence of cameras would be counterproductive as outlined above.

  It is also likely that the lifting of name suppression would increase the stress/anxiety levels of the defendants. This would in my opinion be less of an issue than the presence of cameras in Court; however the impact of the lifting of name suppression is more difficult to predict other than to say it would likely result in more stress/anxiety.

  In the report writer’s opinion it might also be prudent to ensure that the defendants are protected from any adverse public reaction on their way into Court. Exposure to adverse displays would inevitably serve only to increase their anxiety and consequently decrease both their participation in their defence and also their ability to give evidence.

  Some thought might also be given, wherever possible and if appropriate, to excusing the defendants from sessions where their presence is not necessary.

  Given the complex nature of the questions at issue in the present report, and the lack of an empirically validated basis on which to suggest accommodations that the Court may choose to make in light of the ages of the defendants, there may be some worth in an ongoing assessment of the defendants during the trial itself. The report writer has endeavoured to make informed predictions regarding how the defendants may fare during the trial, but clearly this is impossible to know until the defendants are actually in that highly specific context. Some form of ongoing assessment might assist the Court in determining more accurately the defendants’ functioning as the trial proceeds. This might be particularly useful with regards to determinations of the length of each day and the necessity/timing of breaks.

  The writer hopes that this report will be of some assistance to the Court.

  OK, so right now I’m sure a bunch of people are spinning mad after reading this. I can hear the howls of protest now: Shorter days? Counselling? Making the lawyers less intimidating? A minder to hold their hand?

  My guess is the outrage comes from the idea that a bunch of kids who kill someone shouldn’t get special treatment. They shouldn’t get the soft option from some liberal shrink.

  I agree. But you have to remember they hadn’t been found guilty yet. At this point, in the eyes of the law, they are innocent. The burden of proof rests with the Crown, who must prove beyond a reasonable doubt that their intention was to murder Michael Choy. What happens to them after they’ve been found guilty is a whole other question. At this stage though, the law says that we must afford young people the chance to adequately participate in their own defence. This is the fundamental basis of our current adversarial system of justice.

  Don’t blame me, I didn’t make the rules. I don’t even agree with the adversarial system, but those were the rules I had to play by. The recommendations were about increasing the level of their participation, but they were also about how the trial might be run so that the young accused would have the best shot at gaining some understanding of what they’d done, of the impact of their offending. Everyone is always up in arms about making kids accountable, which was exactly the point of my recommendations.

  You cannot be held accountable if you don’t understand what people are talking about. You cannot be held accountable if you are so scared of being seen on television that you stare at the floor the whole time. You cannot be made accountable if you’re goofing off with your friends in the dock because you’re bored and there’s no adult there to tell you to shut up and pay attention. You cannot be held accountable if you are recovering from trying to hang yourself in your cell.

  Let me be clear: I believed it was important for these young people to participate in the trial if for no other reason than to understand what they’d really done. A man was dead. This was no exercise in liberal excuse-making; I wanted them to listen, to see, to understand.

  In the end, thanks in large part to the wisdom of Justice Fisher, decisions were made which counterbalanced the competing needs of our obligations under law, the trial routine, the defendants and the Crown in as fair a manner as was possible.

  The young accused would be allowed to sit at a table
with a nominated minder. They would also be given paper and pens so they could take notes. The days would run for the normal length but with more frequent breaks. There would be some pretrial education to explain what happened during a trial. Name suppression would be continued till after the verdict. The television cameras would be barred until summing up, by which time the participation of the young accused would be all but over. Justice Fisher also gave counsel leeway to ask for their respective clients to be excused when their presence was not required.

  Most importantly for me, I would be required to monitor the wellbeing of all the young accused over the course of the trial. This would take the form of monitoring their demeanour in court as well as brief interviews every couple of days in the holding cells below the court. At that point the trial was set down for six weeks, and I knew that being involved at such an intense level was going to play havoc with my schedule for the next couple of months.

  Still, when a High Court Justice asks, what can you say? You nod politely and reply, ‘Yes, Sir.’

  Which is exactly what I did.

  It didn’t bother me at first, but as time went on it started to grate on me more and more; everybody called him ‘the Pizza Man’.

  The trial had been going for just over four weeks, and I’d been coming and going, mostly towards the end of the day, monitoring how the young accused were doing. My observations of them in court indicated they were handling it about as well you could expect. Mostly they just looked bored.

  The older members of the group paid attention to almost everything, but the younger ones pretty much appeared to be doodling on paper the whole time. The spread of attentional ability was distributed much as I would have expected with the oldest doing the best and then panning down to what appeared to be only marginal ability for the younger members.

  As the trial progressed I suggested to the court that I conduct less frequent interviews since there weren’t any pressing issues and this would mean a faster conclusion to the trial.