The man accused of the massacre in Christchurch shared a manifesto claiming he plans to plead not guilty in a trial.
It’s also been reported he intends to represent himself in court.
Questions are already being raised about what this means and whether witnesses could be re-traumatised, or if he will use the trial as an opportunity to further spread his ideals.
Civil and criminal barrister Jonathan Krebs has practised law for 30 years and been involved in some of New Zealand’s biggest criminal cases, including overturning Teina Pora’s wrongful conviction.
He spoke to Newsroom, in general terms, about the legal process once a charge of murder has been laid.
While unprepared to go into specifics about the Christchurch case, Krebs’ explanation of the process give some indication of how New Zealand’s court system might manage some of the potential risks.
The Ministry of Justice website describes what someone representing themselves in a murder case may do. This includes jury selection, the option to give an opening statement, making objections, cross examining witnesses, calling witnesses to testify, testifying themselves, and giving a closing address.
There is a chance a “standby counsel” will be appointed by the court. These are sometimes used when a defendant chooses to represent themselves and there’s a risk it could prevent a fair trial.
The plea
Once a charge or group of charges has been laid, the defendant is given the opportunity to enter a plea. A guilty plea means there’s no trial and the next court date is a sentencing date.
For those who plead not guilty, it means the prosecution then has to prove the defendant committed the offence.
As part of a ‘not guilty’ there’s sometimes the opportunity for the defendant to choose whether they have a jury trial, or a trial with just a judge.
“In the case of murder, there’s no choice. It has to go in front of a jury trial,” said Krebs.
The process is the same regardless of whether accused gunman Brenton Tarrant is charged under the Terrorism Suppression Act or the Crimes Act.
Pre-trial hearing
A case review hearing is then held. Krebs describes this as a “sorting day”. Some charges may be dropped, but in Krebs’ experience he said often this hearing is adjourned with nothing happening.
A trial call-over then occurs in the trial court. For murder charges, trials occur in the High Court. The trial is scheduled, and arrangements are made about pretrial matters which may arise.
“Often there’s legal arguments which have to take place before a trial about the manner by which witnesses might give evidence. They might give you evidence behind a screen, for instance, or from a different room videoed into the courtroom.”
Pre-trial hearings can also address what evidence is admissible. Krebs said this is governed by the Evidence Act.
“One of the important overarching principles is that any evidence given in court or that people want to give the court, must be relevant. Relevance is measured by whether it relates to an issue in question in the trial.”
Jury selection
Jury members are randomly selected and there is limited opportunity to request to be excused from the civic duty of serving.
The prosecution and defence are given basic details about the potential jurors based on information on the electoral roll. This information is not allowed to be kept and is returned to court staff as soon as the process is complete.
Both sides are allowed to challenge up to four jurors. There’s no need to give a reason for the challenge.
The trial
The Ministry of Justice website describes the steps in a trial where a person is representing themselves.
After the judge and prosecution gives opening statement the witnesses for the prosecution are called and question by the prosecution.
A defendant representing themselves has the opportunity to ask the witness questions, however, any questions must be relevant to the trial.
The defendant then has to give evidence themselves or call others to give evidence on their behalf. Giving evidence is not a requirement of pleading not guilty, as it’s the prosecutor’s role to prove guilt.
There’s the option to make an opening statement, and then to testify and call witnesses.
Documents can be given as evidence, if they are deemed admissible.
A closing address can also be given by the defendant, the closing address is not considered evidence.
The judge does have the option to remove the accused from court during the proceedings and continue hearing the case.
“It has been used before, not from time to time. If a defendant plays up, they can be taken from the courtroom and the court can continue in that person’s absence.”
Appeal
Krebs said everybody has the right to an appeal and these are very different to trials.
“First of all, they are in front of the court of appeal judges. And secondly, they are on some legal point. Usually you don’t, you don’t call witnesses generally.”
There are situations where a second appeal can be made. Unlike a first appeal, a second appeal is not a right.
“If they didn’t like what the Court of Appeal says, then either party, including the crown, can apply to the Supreme Court for permission to go to the Supreme Court. The Supreme Court might say no. It’s a reasonably significant test and has to be a matter of general public importance.”
Insanity
Section 23 of the Crimes Act covers insanity. Everybody is considered sane unless they prove otherwise. If found insane a person cannot be convicted of an offence.
Definitions of insanity include not having the ability to understand what was done, or not understanding what was done was morally wrong.
It also covers insane delusions, which might make a person not responsible for what was done at the time.
If the judge, prosecution and defence all agree, insanity can mean a trial is not held. There is the chance a person could spend the rest of their lives in a mental health institution if they are considered to be dangerous to others.
Sentencing
For murder in New Zealand, courts are required to impose life imprisonment, however, what’s important is the minimum period of imprisonment.
This is the length of time which must be served before parole can be applied for. Generally if there are aggravating factors the minimum period of imprisonment is 17 years.
William Bell, who murdered three people at the Panmure RSA, is currently serving a sentence of 30 years before parole can be applied for.
New Zealand’s Sentencing Act allows for life imprisonment without parole in circumstances where life imprisonment would protect the community by stopping the offender committing the same, or a similar offence.
Jail
University of Cantebury senior lecturer Jarrod Gilbert has spent several years researching crime and has written about the history of gangs in New Zealand.
He said it’s likely any time the man accused of the Christchurch massacre spends in prison will be fraught.
“His issue will not be finding allies; it will be fighting enemies.”
Gilbert said there were few white supremacists in jail, but were plenty of other gangs who won’t look kindly on the man.
“Black Power, Mongrel Mob, Hell’s Angels, the King Cobras and The Tribesmen have all come out in support of the victims.”
The likelihood is he will need to be kept in isolation for his own safety. This can mean just one hour a day outside of a cell.
“Loneliness and isolation will define his existence for many years. He’s in for a very miserable time.”
