A piece in the NZ Herald on 27 September 2023 reported that the legal aid bill incurred for the defence of the “Mama Hooch” rapists was almost $900,000, and climbing.
The article pointed out the gulf in public funding for the defence compared with the financial compensation and assistance for the victims. It quotes victim advocate Ruth Money who acknowledges that everyone is entitled to a fair defence, as she was bound to do, but turned that around by suggesting the bill was “absolutely obscene”.
Although the article focusses upon the lack of financial support for victims, the clear subtext is that the legal costs of the defence, funded by legal aid, were excessive. It is highly likely that there would be public concern that nearly $900,000 of public money had been expended defending two prolific and predatory offenders who were charged with serious sexual offending. But that initial concern overlooks some important factors.
The first is that whatever the outcome of the trial for the offenders, they were, as is everyone charged by the State with criminal offending, entitled to the presumption of innocence. That is a given but that fundamental proposition is often misunderstood by a large segment of the population who consider those found not guilty after trial “got off” or had a “smart lawyer”. The implication of those statements is clear.
The second issue relates to another fundamental principle of the criminal law: that the prosecution must prove the charge – every element of it – beyond a reasonable doubt. The State points the finger. The State has to prove the charge. Beyond a reasonable doubt.
There were a large number of charges in the “Mama Hooch” case. It took some years to get to trial. There were several preliminary hearings. The trial went on for weeks. Each of the defendants had a defence team. They were obliged to take every available point and strenuously challenge the prosecution evidence. They had a duty to do the best by their clients and it seems from the disbursements that were incurred and listed in the article that they did just that. Private investigators were briefed, as were toxicologists, psychiatrists and social media analysts.
Putting to one side the disbursements and looking at the reported hours spent by the lawyers for one of the accused, a back-of-the-envelope calculation of the hourly rate was $184.52 and for the other was $160 – hardly obscene charge-out rates in today’s climate.
Sense of duty
It is not well known by the public that the rate of remuneration on legal aid is not high. There have been constant concerns expressed by the profession and by the Criminal Bar Association at the level of legal aid remuneration. Those lawyers who do criminal legal aid work, along with those who work at the Public Defence Service, do so out of a sense of duty and commitment to the principles of the presumption of innocence and the guarantee in s 24(f) of the New Zealand Bill of Rights Act that a person charged has a right to receive legal assistance without cost.
It is inconceivable that a person charged with a crime should be tried without a lawyer because he or she could not afford one. Our legal aid system, flawed as it might be, coupled with the provisions of the New Zealand Bill of Rights Act, ensure that those who cannot afford a lawyer will have representation.
The fact that the costs of representation of the “Mama Hooch” rapists were approaching $900,000 is immaterial to the principles that underly the right to a competent defence. The Herald article provided details of other high-profile cases where legal aid had been granted. The inference to be drawn from those cases was that either they were more complex and therefore more expensive or that they were not and came in under the amount incurred in the “Mama Hooch” case.
In addition, in a snide aside, it is pointed out that a further $20,000 of public money was expended because the “Mama Hooch” brothers changed their election from trial by jury to trial by judge alone. The inference in that aside is that these remorseless villains were cynically gaming the system and costing the taxpayer a fortune.
However, that ignores the fact that s 53 of the Criminal Procedure Act 2011 states that a defendant may not withdraw an election of jury trial without the leave of the court. It wasn’t as though they asked and therefore received. The judge had to consider whether or not the application should be granted.
The “Mama Hooch” rapists have been tried and sentenced. The Crown proved its case beyond a reasonable doubt and thereby rebutted the presumption of innocence. We may deplore what they did. We may feel sympathy for the victims.
But in so doing we should never forget that people are not automatically guilty because they are charged, no matter what offences are alleged, that they have a right to be presumed innocent until proven guilty, that they are entitled to a competent and vigorous defence and representation by a lawyer without cost if they can’t afford one and that they have a right to a fair trial according to law.
If we put those fundamentals to one side because we think it costs too much, the rule of law is in trouble. ■
David Harvey is a retired District Court Judge and a member of Sangro Chambers in Auckland ■