How do you defend a child killer?

Chris Wilkinson-Smith has led the defence in trials involving murder, attempted murder, and manslaughter. with him about the job.

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 investigation show manslaughter charges have a .

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,’’ Wilkinson-Smith 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 eyewitnesses, 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

‘‘If you’re a defence lawyer and your client says they haven’t done something, then those are your instructions that you work with.’’ Chris Wilkinson-Smith ‘‘‘‘It takes a lot of skill to present [evidence] in a way that’s understandable . . . For a jury to make sense of who is right . . . is very difficult.’’ Wilkinson-Smith

[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.

‘‘In some overseas jurisdictions, some of the criminal barristers do half and half and I think that’s a really positive thing . . . 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.’’