Meredith Connell is a long-established firm of solicitors which holds the Crown Warrant to prosecute offences on behalf of the police in the Auckland region, although it boasts a commercial property department as well. Prosecutors are also instructed regularly, in criminal matters, by such diverse agencies as the Serious Fraud Office, the Occupational Safety and Health service, the N.Z. Customs Service, the Civil Aviation Authority, the Land Transport Safety Authority, the Ministry of Agriculture and Forestry and the Department of Internal Affairs Censorship Compliance Unit, on a case-by-case basis.
The criminal department is headed by the Crown Solicitor and has more than a dozen partners and around forty solicitors. Ultimately, the Crown Solicitor answers to the Solicitor-General , though, in practice, contact with the Crown Law Office tends to be limited to issues relating to serious and complex matters such as murder trials, appeals and consents to prosecute, as I was to find out during my week in Wellington. The department is divided into teams which consist of one or more partners and a range of solicitors, with legal secretaries in support. There are few paralegals and no caseworkers as such.
The prosecutors practice in the Auckland High Court and four main District Courts which are spread across the region, though other District and High Courts are visited from time to time. There is a branch office in Manukau City, South Auckland, where crime rates are disproportionately high. Prosecutors tend to be instructed in an indictable case following the depositions hearing (the equivalent of a committal) but may become involved at an earlier stage if a case is particularly complex or sensitive or if there are no police prosecutors available.
The first week saw me in the High Court - across the road from my studio flat in the Central Business District. New Zealand has two jury court jurisdictions. The High Court deals with the most serious and complex cases - murders, rapes, conspiracies, high-value frauds and so on - whilst the District Court deals with the more run-of-the-mill indictable cases such as burglaries, child abuse, assaults and deceptions. High Court judges also hear civil matters and appeals from the District Court whilst District Court judges also preside over summary trials and small claims.
The High Court is a neo-gothic building, dating back to 1868, with a modern wing. Court 1, the oldest and most ornate court, has been taken out of everyday use and is now used only for ceremonial occasions. The remaining courtrooms are well-equipped with facilities on hand for an "electronic courtroom". Meredith Connell has its own suite, not dissimilar to the Treasury Counsel rooms at the Old Bailey. Several solicitors are stationed there full-time, along with a police officer and support staff, and there is plenty of space for other prosecutors to gather with their officers for conferences and preparation.
I was introduced to the three prosecutors who would be running a methamphetamine production trial. Methamphetamine - also known as "P" - is the drug of choice for a growing number of New Zealanders from all sections of society. It is manufactured in clandestine laboratories from such household ingredients as pseudoephedrine (found in Sudafed), iodine, lithium (from batteries) and red phosphorus (extracted from the heads of matchsticks). These "clanlabs" may be located in spare rooms, light industrial units or smart city-centre apartment blocks and are often set up by gangs. They are shut down after lengthy police operations involving the interception of mobile telephone calls and text messages. This evidence forms the core of the prosecution case, together with evidence obtained during searches of the laboratories.
The trial was scheduled to last for eight weeks and involved a dozen defendants, all separately represented. Unsurprisingly, the case did not begin on time and various legal issues were thrown up. I was interested to hear legal submissions being made which were founded on a House of Lords authority.
Once the legal arguments were settled, it was time for a jury to be selected. A panel of over a hundred potential jurors had attended at the beginning of the week but, by Friday, a significant number had failed to return. This was a cause for some considerable concern on the part of Crown counsel due to the system of challenging which has been retained in New Zealand. Each defendant has the right to challenge six jurors whilst the Crown has twelve vetoes where there are two or more defendants indicted, giving a total of 72 challenges in the case in question.
The tactics involved in the process were fascinating. All legal teams are provided with the names, addresses and occupations of potential jurors whilst the Crown also has access to their criminal records. Although members of the public are ineligible for jury service once they have been convicted of certain offences, some slip through and so fall to be challenged by the Crown. The Crown is under a duty to exercise their veto in a principled fashion generally. The leading prosecutor tended to challenge only the obviously reluctant members of the panel. Not so the defence.
From my front row seat, it soon became apparent that the defence would challenge every panel member called who appeared to be even vaguely Pakeha (European), Asian (Oriental), liberal, educated or even just strong-minded. Counsel would tend to wait until the panellist was about to sit down in the jury box before challenging, often with comic effect. This would ensure that he did not waste his challenge if the potential juror were about to be rejected by a colleague. The defendants themselves (in this case, a mix of Maori and Pakeha) were keen to exercise their challenges from the dock when defence counsel were restrained.
Once a number of people had been excused from jury service by the judge, the remaining challenges outnumbered the remaining jury panellists. A jury of eight men and women had been selected but there was no hope of filling the other four seats. The defendants had sabotaged the trial and it was adjourned for a further eight months. A remand in custody is relatively rare in New Zealand and so most of the defendants hoped to spend that time at liberty.
I spent the following week in the Auckland District Court, observing a child sexual abuse trial. Although the section numbers and statute titles were different, I had no difficulty following the proceedings. The court set-up was also similar with young and vulnerable witnesses benefiting from special measures. The screen used, though, was more sophisticated than any I had seen before: a panel of smoked glass was placed in front of the defendant in the dock and a light switched on at the front of it. This had the effect of obscuring the defendant from the witness' view whilst allowing the defendant to see the witness - his daughter.
The case did, however, teach me a little more about the New Zealand jury system. When the judge came to sum up, he merely recapped the closing speeches, adding legal directions. There was no review of the evidence heard, as a transcript of the case was provided to the jury. Such transcripts are available in all jury trials and are compiled remotely by transcribers in Hamilton (New Zealand's largest inshore town) via a live-feed. Every half an hour, the printer would shudder into action and churn out a few more pages of transcript which would then be distributed by the court taker (usher) to the parties. There was no need for solicitor's clerks to take a note, disagreements were resolved speedily and the tapes only needed to be played when there was a problem with the interpreter. Once the transcript had been checked by the parties, it could be distributed to the jury.
The jury retired to consider their verdict after lunch on the Friday. They continued to deliberate until late into the evening with dinner provided by the court. Had they not reached a unanimous verdict that evening, they would have been taken to a hotel for the night before returning to court on the Saturday morning to continue their deliberations. This in an increasingly unpopular system, which is expected to be the subject of reform in the near future, although the lawyers did not object to their extended working hours.
On my return to the office, I was placed with the sexual offences team, which is overseen by Phil Hamlin, a solicitor who has worked for the Crown for nearly twenty years. The whole team made me feel very welcome and many were as curious about the English legal system as I was about the jurisdiction in which I found myself. I also met a number of former Pegasus scholars from New Zealand (who had spent time in London and Cambridge as students) local lawyers who had spent their gap years working for London Borough Councils and a couple of ex-pat barristers. All were keen to swap tales of life at the English bar.
I was soon installed behind a desk, fully stocked with stationery - a real luxury - in an office which I was to share with a newly qualified solicitor. And in no time at all I had enough work to keep me occupied for weeks! To my surprise and delight though, there were secretaries to whom I could delegate any photocopying so that I could concentrate on the serious work.
Kiwi prosecutors seem to do a lot more legal research and written work than their English counterparts - if only because they do it in the office, during normal working hours. Issues of admissibility are regularly raised and are resolved at Pre-Trial Hearings with skeleton arguments and authorities served beforehand. As a result, my new colleagues tended to spend more time at their desks than I was used to and less time in court - a day out of court is not unusual.
Sentencing also involves written submissions. The Crown serves a document setting out the maximum penalties for the relevant offences, the tariff and a list of any aggravating or mitigating features which apply, as defined by the surprisingly detailed Sentencing Act 2002. The submissions conclude with a recommendation as to the appropriate starting point for sentence. The document as a whole is not dissimilar to an Attorney-General's sentencing reference. The defence then have a right to reply.
I had my first attempt at drafting sentencing submissions in New Zealand's first computer hacking case under a new, more rigorous legislative scheme. A disgruntled former employee had sabotaged his old company's computer system in the run up to Christmas - their busiest time - causing hundreds of thousands of dollars' worth of economic loss. There were no decided cases in New Zealand, either under the new or the repealed legislation, and so I was obliged to look further afield for guidance. The American authorities have compiled a database of cases, which proved to be a very valuable resource, and I was also able to find a handful of English, Canadian and Australian cases. I then had the difficult task of deciding on the appropriate starting point in the instant case within the framework which I had established. The case has yet to be concluded so I do not yet know whether the judge concurred with my final submissions!
The next piece of sentencing research assigned to me was even more unusual. The verdicts in the Pitcairn Island sex abuse trials were due any day and the team of prosecutors on the island needed to know what approach an English court would take in sentencing. Thanks to the new Court of Appeal guideline judgment for rape (R v Millberry (2002) EWCA Crim 2891, (2003) 1 Cr App R 396), I was able to provide very detailed notes on the appropriate sentences. I was also obliged to advise the prosecutors on the English way of conducting a sentencing hearing, that is, the hands-off approach dictated by the Code of Conduct. When the majority of the Pitcairn defendants were convicted, the three New Zealand judges took the English authorities into account and adjusted the sentences which they imposed to reflect the highly exceptional context to the cases.
From time to time, I made more court visits, watching three murder trials at the High Court including one re-trial where the first jury had failed to reach a unanimous verdict - majority verdicts are not permitted in New Zealand courts. I also observed the Court of Appeal on circuit, hearing a series of criminal appeals at Auckland High Court - effectively bringing justice home.
I also paid visits to the lower courts and found that the District Court's summary division was not dissimilar to the Magistrates' Courts where I often find myself. There were queues of defendants and overworked and under-informed defence lawyers. There was, however, something of a role reversal - the police prosecutors are laymen (who benefit from a pragmatic approach, a good understanding of police methods and easy access to investigating officers) whilst the courts are usually presided over by full time District Court Judges. Lay magistrates tend to be used only for deposition hearings which are similar to old-style oral committals and which may be abolished soon. The District Court Judges rattled through the lists at a rate of knots - perhaps dispensing with eight summary trials in a day. I also noticed a more creative approach to sentencing. An indication may be given before a guilty plea is entered and first-time defendants may be discharged without conviction in return for voluntary work at the City Mission or a donation to an appropriate charity, giving them a second chance whilst marking the crime. Disqualified drivers may apply for a limited licence which will allow them to drive to work but prevent them from using their car at other times.
One of the most fascinating aspects of my scholarship was the "behind the scenes" access. I shadowed Phil Hamlin, the partner to whom I was assigned, during a number of inter-agency meetings. I sat in on a training session for Child Abuse Team detectives at the National Police College (where the officers were asked to be careful to collect evidence relating to the use of drugs to obtain consent, where such conduct was suspected) and met members of the Department of Internal Affairs and New Zealand Customs to discuss techniques for effective investigation and prosecution. At one of a series of seminars held in the office, a police officer attended from Auckland's Forensic Photography Section to bring prosecutors up-to-date with the new methods of presenting evidence. I also met the D.P.P., Ken MacDonald Q.C., and his Irish and New South Wales counterparts at a drinks party held during the International Bar Association conference in Auckland. Whilst visiting Wellington, I enjoyed lunch with the Honourable Justices McGrath and Goddard when I was able to pick their brains about such issues as media access to trials.
I found that the prosecutors tended to have an enviably close working relationship with their case officers - something which is perhaps a benefit of a system which operates on a much smaller scale. Further, I wished that I could have the opportunity to benefit from a similar exchange of ideas between agencies on a regular basis.
I also spent some time with members of Auckland's defence bar, two of whom had been colleagues of members of my chambers during their time in London. Although New Zealand has a fused profession, in as much as lawyers qualify as both solicitors and barristers, individuals tend to elect to work in either one role or the other. However, criminal solicitors instruct defence barristers only in a formal sense and play hardly any part in the preparation of a case. Barristers therefore find themselves representing their clients at all stages of the proceedings - from the police station to the Court of Appeal. Only small chambers seem to exist - with between two and twelve members - and with secretaries but no clerks, a system which intrigued many New Zealand lawyers to whom I mentioned it. Instead, barristers advertise on the radio, join duty solicitor rotas and rely on word of mouth for work. There is no obligation to serve a pupillage though many newly-qualified barristers act as a junior to more senior lawyers to gain experience and confidence first. Several of those juniors were envious of the pupillage system and the structured training and relative security which Bar Council regulation brings. In contrast, Meredith Connell has a strict hierarchy at the lower end of the firm, with advocacy training and careful monitoring of progress and work allocation by the partners.
Towards the end of my stay in Auckland, I was seconded to the Crown Law Office Criminal Team. There, several files were assigned to me for a first opinion. The first file concerned a request for consent to prosecute under the Aviation Crimes Act and the others were intended to be the equivalent of an Attorney-General's sentencing reference. Although I had the benefit of reading opinions written in similar cases, to ensure consistency of approach, and the assistance of the Solicitor-General's Prosecution Guidelines, I found it very difficult to exercise my judgment in what were essentially borderline cases. Fortunately, all such files are submitted for a second opinion before reaching court - and a third opinion if no consensus is reach - and so my decision was not final!
On my return to Auckland, I had more practice in making important decisions as I was asked to consider a couple of files where the police had decided not to press charges. I also wrote an application for witness immunity. I found the responsibility both challenging and stimulating - a real change from being instructed on a case, the shape of which has been pre-determined.
Overall, I found New Zealand to be an ambitious and enthusiastic nation, eager to resolve past mistakes and to achieve future goals. Although resources were often as stretched as in Britain, the system's smaller-scale (the population is just 4.08 million) seems to mean that there is less resistance to change and so many lessons can be learnt from the New Zealand criminal justice system. The lawyers and other professionals whom I met appeared to have a more international and open-minded outlook with many of them having spent time working overseas long before gap years became de rigueur in Britain. The Pegasus Scholarship allowed me to gain a similar experience.
The Kiwis as a people lived up to their reputation as friendly and welcoming and many went out of their way to make me feel at home. Thanks must go to all at the Crown Law Office and the Pegasus Trust (on both sides of the world) for making my trip possible and to Meredith Connell as a whole for making the placement worthwhile by finding me so much interesting work to do and so many fascinating cases to observe and for taking the time to explain the parts of the process which were alien to me. In particular, I am grateful to Phil Hamlin and all his team for looking after me both professionally and socially and to Tania and Leon Smith for welcoming me into their home during my visit to Wellington and for showing me some of the capital's sights. Finally, many thanks to Andrew Mitchell Q.C., my head of chambers, and to my clerks for encouraging me in my decision to take a break from chambers and to all who backed my application.
For those who wish to know more about my extra-curricular activities in Aotearoa, the land of the long white cloud, I kept a weblog and the relevant entries can be found in the archives for September 2004 - January 2005. A much-edited photo album can also be found online.