Duty of care
It was once normal for people who couldn’t afford a lawyer to go through the courts without one, even children. An activist and researcher tells Skara Bohny about the fight for a national duty solicitors scheme.
It is January 1973. There is a void inside Ray*. He has been picked up by police for being ‘‘idle and disorderly’’. Homeless for about a year, he is made by the officers who arrest him to walk to the police station – they say he smells too bad to get in their car.
At the station, they strip him and make him take a shower.
While in the shower, he is shown a weapon by one of the arresting officers and asked who it belongs to. The officer ‘‘prods’’ him, hurting him in ways that leave no mark, until eventually Ray says the weapon is his.
Without legal representation, while naked in a shower, Ray has confessed to a crime he did not commit. He will be sentenced to two years’ probation.
Ray is 16 years old. His experience is part of the historical account of why people appearing in court now get free legal representation.
It is Ray’s story, and the story of the tens of thousands of children, aged eight to 18, who were put through the courts without legal or even parental guidance before the duty solicitor scheme came into effect.
Duty solicitors and the Nelson Ma¯ ori Committee
It is now taken for granted that when you are called before the courts, if you cannot afford a lawyer of your own, you will be assigned a duty solicitor to represent you.
This was not always the case. Anyone appearing before the courts with a duty solicitor can thank the dedicated work of the Nelson Ma¯ ori Committee and other activists in the early 1970s.
Many of those who did the mahi have since died, but Oliver Sutherland, secretary of the committee in the early 70s, remembers the struggle.
‘‘It was based on the Justice Department’s own statistics, and the research that we did in Nelson,’’ Sutherland says as he recalls the fight.
‘‘We knew something rotten was going on, because the Justice Department’s own statistics showed how many Ma¯ ori children were in the courts. Pa¯ keha¯ as well, but Ma¯ ori children always came out worse.’’
Sutherland was recruited as Nelson Ma¯ ori Committee secretary by its chair at the time, John Te One Hippolite.
‘‘We could see, the more we investigated, the experience of Ma¯ ori in the justice system, and especially Ma¯ ori children. We could see grave injustices, and we wanted to do something about it,’’ Sutherland says.
‘‘One of the things that showed up immediately was that most Ma¯ ori had no lawyer. That was even more evident for the children: hardly any of them did, and if children did have a lawyer they were Pa¯ keha¯ .’’
Last year Sutherland published a book, Justice & Race. He says it was in large part his testimony and evidence for the royal commission into state abuse of children in its care. It also details his perspective on the journey to establishing the national duty solicitor scheme.
Hippolite and Sutherland approached lawyers in Nelson and asked them to represent people appearing in Nelson District Court for free, in what Sutherland describes as a ‘‘do-it-yourself duty solicitor scheme’’.
The official aim of the scheme at the time was to see every Ma¯ ori and Pasifika person coming before the Nelson Magistrates’ Court have legal representation, and as many children as possible. ‘‘Eight- or nineyear-olds were being charged with being ‘idle and disorderly’ . . . and they were getting no assistance. Many of those children were state wards.’’
Ray was one of those children.
Ray’s story – the void
These days Ray lives rurally, close enough to Nelson that he can go in if he needs to, but far enough away that he doesn’t feel hemmed in.
The way Ray remembers the 1973 arrest is this: he had been sleeping in a derelict house, having moved from the tunnel of a model railway.
He was arrested for being idle and disorderly with no fixed abode.
Ray was kept in jail for four days before the police contacted Sutherland, who helped him get a free lawyer.
With the lawyer’s help, Ray tried to change his testimony.
‘‘I told the judge . . . the reason I’m changing it is because [the arresting officer] was hitting me. The judge said ‘is this true?’, and he [the arresting officer] said ‘no, he’s lying’.’’
Ray says that afterwards Sutherland managed to track down three people – one who had made the weapon, one who was given it, and another who had it removed from his car by police. ‘‘He proved it never even came near me.’’
Ray doesn’t blame the arrest for what was to come. He doesn’t even blame it for the void he feels inside himself – that came earlier.
The arrest wasn’t the first time Ray encountered the police. When he was 14, he stole $20 from a neighbour’s house, but was caught and taken in by police and ‘‘beaten up until I confessed’’.
His parents’ marriage dissolved and his father left. Ray and his siblings were eventually picked up by the state after his mother was deemed unfit, and his siblings were sent to a Salvation Army children’s home in Temuka, ‘‘where they were all sexually abused’’.
He was sent to a dairy farm as a state ward, but eventually ran away.
He was homeless for about a year before his arrest.
In the years after his arrest, he continued to live in ways that clashed with police – he started using drugs and alcohol, became involved in gangs, and continued a life of what he described as ‘‘petty’’ criminal activity.
Ray says those years of addiction and crime were trying to answer an unanswerable question.
‘‘If you’re brought up in a dysfunctional family, that’s what keeps it going – the dysfunction. It’s cyclical. No-one’s looking for the answer, because there isn’t one.
‘‘Children who grow up like me grow up with a void inside them . . . I was trying to fill that void, but unfortunately, it can’t be filled. This is the failure of the system: it just makes the whole thing worse.’’
The research that ‘‘blew people away’’
‘‘Ma¯ ori always got the heavier
sentence. Pa¯ keha tended to get the lighter sentences,’’ Sutherland says. ‘‘That happened year after year, so we made a fuss.’’
The ‘‘fuss’’ started locally, but it didn’t end there.
‘‘We realised what we saw in Nelson was just a microcosm of what was happening nationally.’’
He says their local scheme started with lawyers Warwick Reid and Brian Smythe acting for Ma¯ ori defendants.
After a year of running the scheme in Nelson, Sutherland and co-authors John Hippolite, Ross Galbreath and Ann Smith produced a research paper based on their results, Justice and Race: A Monocultural System in A
Multicultural Society. This looked at the years before and after the local ‘‘DIY duty solicitor’’ scheme kicked in.
The numbers were stark.
In 1970 and 1971, with no legal aid scheme, 18.5 per cent of Ma¯ ori appearing in Nelson’s court had legal representation. In 1972, after the scheme came into play, 79.2 per cent did.
Penalties changed, too. In 1970 and 1971 combined, before the legal aid programme, 34.4 per cent of Ma¯ ori offenders were imprisoned, 16.9 per cent put on probation, and 38.5 per cent received a fine.
In 1972, with legal aid, 19.8 per cent were imprisoned, 4.9 per cent put on probation, and 60.5 per cent were given the more minor punishment of a fine.
‘‘It was proof; we knew what was happening, but people always wanted proof. Here we had the government’s own statistics.
‘‘It was the same magistrate, same court, the only thing that had changed was the legal representation.’’
The research team released their paper at a meeting of the New Zealand Race Relations Council in February 1973.
‘‘It blew people away,’’ Sutherland says. ‘‘People had no idea, a lot of people didn’t. A lot of Ma¯ ori knew things weren’t right at the courts, but this was the evidence.’’
He says the publication of their paper lit a fire under their efforts, with major headlines and a full-on year of meetings, talks, and groups elsewhere in the country setting up their own legal aid programmes while a national programme dragged its way through government policy development.
Official secrets, ‘mild blackmail’, and the launch of the national duty solicitor scheme
Ray’s case in 1973 was just one on a much longer journey towards equity in the justice system for Oliver Sutherland.
That year was a whirlwind of travelling the country, giving talks, helping groups set up local duty solicitor schemes, and putting pressure on the government to get a move on establishing a national programme.
‘‘Various law societies started their own duty solicitor schemes, they didn’t wait for the national scheme because the national scheme wasn’t coming.’’
Sutherland says by 1973 the fight was ‘‘a whole campaign around the country’’. Despite the mounting pressure, though, the government was still dragging its feet.
‘‘1973 came and went and still no duty solicitor scheme . . .’’
Sutherland and other activists set up the Auckland Committee on Racism and Discrimination, joining voices with groups like Nga¯ Tamatoa and the Polynesian Panthers.
It was in 1974 that Sutherland had a breakthrough – someone leaked a Cabinet paper on the proposed national duty solicitor scheme to him.
‘‘We told [then-minister of justice] Martyn Finlay that we had it, and we weren’t happy with the proposal and had some ideas for changes, or we’d make the whole thing public.’’
Sutherland says he supposes it was a ‘‘mild sort of blackmail’’, and afterwards the ‘‘s... really hit the fan’’.
‘‘At that stage the Official Secrets Act was a draconian piece of legislation, every public servant was bound by it. This sort of leak was a huge breach, and by receiving and holding it, action could be taken against me.’’
Sutherland’s home was searched, and the police interrogated him. He called his lawyer David Lange, who under the act could also face charges if he advised Sutherland in relation to the search.
Refusing to answer questions or lying were punishable offences.
Sutherland says the experience ‘‘was pretty frightening’’ even though in the end no charges were laid, but it may have been the final push the government needed to get the legislation put into law.
‘‘In the end, that was in May of ‘74, and in July of ‘74 a national scheme got off the ground, and that’s the end of that story.’’
Ray’s story – 50 years on, waiting for change
Since his arrest in 1973, Ray has had a full life. He lived overseas for a while before coming back to New Zealand, has children and grandchildren, and lives with his dogs in a good house where he feels comfortable.
He has been free of drugs and alcohol for years now, having realised at age 40 that if he didn’t sort his life out he’d be dead by 55.
‘‘I checked into rehab, and that’s where I learned what it’s all about – that was a turning point. I wanted to get respect not through intimidation, but respect because ‘he’s a good guy’.’’
Fifty years on from when Sutherland first came into his life and offered him help, no strings attached, Ray looked him up and reached out.
It was with the encouragement and support of Sutherland that Ray felt comfortable giving his own testimony to the royal commission.
‘‘He was there supporting me 50 years ago, and he was still there. He’s still doing it. He needs a medal.’’
Ray says the royal commission was the first time in his life that a justice system process he was involved in actually felt like it was about him in a positive way.
‘‘It’s the beginning of the tide of change that we need in the New Zealand justice system. That’s all I want from this. I don’t want money, I don’t want to stand in front of a court of people, I just want change.’’
*Not his real name.