How do you defend a child killer?

Chris Wilkinson-Smith has led the defence in trials involving murder, attempted murder, and manslaughter. Katie Kenny spoke with him about the job for the Faces of Innocents series.

If a person accused of killing a child says they’re innocent, defence lawyer Chris WilkinsonSmith takes that at face value and tries to defend them.

That’s his job, he says. It’s not his job to believe his client – ‘‘that’s a task for a jury or a judge’’.

‘‘If you’re a defence lawyer and your client says they haven’t done something then those are your instructions that you work with.’’

Following the violent death of Moko Rangitoheriri at the hands of Tania Shailer and David Haerewa there was public outrage at the downgrading of charges from murder to manslaughter. Statistics from Stuff’s Faces of Innocents investigation show manslaughter charges have a much higher rate of conviction than murder charges.

Wilkinson-Smith wasn’t involved in Moko’s case, but it highlights the public pressure on defence lawyers, he says.

He and his wife Michele – another leading criminal defence lawyer – are based at their central Auckland chambers. Between them, the couple have been lead counsel for the defence in trials for murder, attempted murder, manslaughter, grievous bodily harm, rape, Class A drugs, white collar crimes – the list goes on.

‘‘If you’re acting for the defence and your client is convicted of doing something really horrendous ... then just by association the public are not very keen on defence lawyers,’’ WilkinsonSmith says.

During cases, he avoids social media where ‘‘people start turning on the family of the defendant or the lawyer of the defendant and say some pretty unpleasant things’’. Even after 20 years’ experience in criminal defence and prosecution, direct threats are ‘‘fairly infrequent’’. His measured language reflects an emotional detachment he brings to all his work.

‘‘My personal view is you shouldn’t try and reach some belief about the guilt or innocence of a defendant whether you’re prosecuting or defending, that’s not necessary and arguably I’d say it could get in the way of doing your job properly.’’

In the majority of cases, a client will ‘‘invariably claim they’re innocent’’. If a client does admit wrongdoing, ‘‘that very much restricts what a defence lawyer is allowed to do for them, anyway’’.

Child homicide cases are notoriously difficult, he says. As well as fewer eye-witnesses, the expert evidence tends to be extremely complicated.

While the science is improving, trying to draw a conclusion on the cause of an injury, the timing, whether it was a one-off or part of a pattern, is still ‘‘really difficult’’.

‘‘It takes a lot of skill to present [evidence] in a way that’s understandable ... and then what will happen is you get the doctor for the prosecution and the doctor for the defence disagreeing. For a jury to make sense of who is right ... is very difficult.’’

The ‘‘Mahomed case’’ exemplifies these difficulties.

Baby Tahani Mahomed died of severe head injuries on New Year’s Day, 2008. Her father Azees Mahomed was charged with her brutal murder. His wife Tabbasum Mahomed was found guilty of one charge of failing to provide the necessaries of life. Both parents – who sat side by side in the dock – denied all charges.

Representing Azees Mahomed, Wilkinson-Smith in his closing submission said: ‘‘Whatever you think about the Azees Mahomed’s parenting, it’s not going to get you any closer to answering the real question of who harmed Tahani.’’

Tabbasum Mahomed was more likely to be responsible for the 11-week-old infant’s death than her husband, as she spent a lot more time with her baby, he said.

Police had bugged the family’s home after the incident, and the intercepted taped conversations were played to the jury during the trial.

Now, Wilkinson-Smith says there are a ‘‘very complicated set of facts’’ which may one day be the subject of a further appeal. The taped conversations were ‘‘arguably ambiguous’’.

Regardless of the outcome of cases, there is often a ‘‘lingering question mark’’ over whether the jury got it right.

Despite his matter-of-fact tone, it’s not in his interest to become cynical.

While he has been doing defence work for the last 10 years, for more than a decade before that he was a prosecutor. His current ratio of defence to prosecution is about 80:20 but his ideal would be 50:50.

‘‘They don’t become cynical as either prosecutors or defence lawyers. We could do with a bit more of that here in New Zealand. Balance is good.’’ It had been a long delivery for Charlotte McSorley. Her family gathered at Wellington Hospital at 6am, where she was induced, but the birth had gone late into that night.

Grandmothers Sara McSorley and Clare Marler were there in the delivery room. Finally, GracieMay McSorley crowned with a mass of dark hair, and despite the tension and exhaustion, Sara McSorley looked at her new granddaughter and said ‘‘oh, it’s an alien’’.

There was an collective groan from family, but the tired new mum actually laughed out loud.

Marler took one look at her new granddaughter and thought she was lovely: a big, chubby, beautiful baby.

The question for Gracie-May’s family, one of the many, is how do you measure a lifetime’s absence? The dark mass of hair barely had time to turn golden blonde before Gracie-May was killed six months later.

In June, Gracie-May’s killer Michael Te Kouarehu Kereopa pleaded guilty in the High Court at Wellington to her manslaughter.

The day after watching Kereopa’s emotionless plea, Marler said it was hard to believe her granddaughter had been dead longer than she was alive.

‘‘She would be one and a half now, Jesus.’’

Marler and Sara McSorley spoke for their family about losing a baby: what she was like in her short life, and what she might have become.

Gracie-May was a mummy’s girl, a cry-baby, Big Gracie with her blonde hair.

Marler said Gracie-May’s legs ‘‘were the fattest legs I’d ever seen in my life’’. It was hard to hold her.

By the time she was six months old, Gracie-May was sharing her older sister’s clothes – and her sister was one and a half.

‘‘I used to say that she could be a foghorn for Red Rocks. She suffered really bad colic. Man she bellowed.’’

The colic was finally clearing in June 2015, Marler said, giving her a few weeks of quiet bonding with her granddaughter.

In July 2015, Kereopa, 32, had only recently started living with Charlotte McSorley, six-month-old Gracie-May, and her older sister at Marler’s home on the Kapiti Coast.

On July 6, Kereopa was alone with Gracie-May and a Crown summary, which was not disputed, said he lost his temper and lashed out, causing a severe head injury when he struck the right side of her head.

Her injury was not survivable. Life support was switched off the following evening and she died soon after.

Val Leveson, counsellor for the Grief Centre in Auckland, said there’s no such thing as closure for people who lose loved ones like children.

‘‘It’s something that you learn to live with, it’s not something you get over.’’

After all, Leveson said, grieving people would always have that person missing from their lives.

‘‘I would say that for most people it’s about learning to live with the fact that it’s happened, rather than getting over it.’’

She said grief makes you question everything you believe.

Robyn McGill, president of the New Zealand Association of Counsellors, said grief was a ‘‘lifelong process’’ that can become less painful but did not just stop.

‘‘Why would we think grief would just suddenly disappear when we would never stop regretting, or missing, or wanting? We will continue to do that in our lifetime because those people had meaning and significance, and were of immense importance in our lives.’’

Both said through. people can get Michael Te Kouarehu Kereopa

‘‘People can be very, very resilient,’’ Leveson said.

Clare Marler and Sara McSorley both agreed what their granddaughter would be like as she grew up.

As an adult she would be tall, and strong. ‘‘Six foot two’’, Marler said, and blonde, unlike her darkhaired, and smaller older sister.

Gracie-May would most likely end up like her big, tall aunty, a ‘‘fantastic horse person, her horsemanship is just out of this world’’.

As Gracie-May grew up she might be a bit of a mummy’s girl, but in the end she would grow into her own skills.

‘‘I reckon Gracie been like her aunty.’’

Kereopa was sentenced in the High Court at Wellington last week to eight years jail for the manslaughter.

Marler was glad the man who killed her granddaughter was locked up.

‘‘At least we’ve got six months of memories of her.’’ would’ve