Kurt Bayer is a Herald reporter based in Christchurch

Winz shootings: Trial of Russell John Tully 'probably a judge's worst nightmare'

The trial of cold-blooded Ashburton Winz shooter Russell John Tully, largely held without him being present in court, is believed to have been a legal first for New Zealand and was "probably a judge's worst nightmare", law experts say.

Tully refused to cooperate with at least six lawyers ahead of his High Court double-murder trial, including several experienced defence counsel and two Queen's Counsel, before sacking them, the Herald understands.

He felt they were working for the Crown rather than in his best interests, it's believed.

Tully, found guilty today (Wednesday) at the High Court in Christchurch of murdering Ashburton Winz receptionist Peggy Noble, 67, and case manager Susan Leigh Cleveland, 55, inside the Cass St government building on September 1, 2014, was first due to stand trial in May last year.

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The trial date was abandoned by Justice Cameron Mander - a former highly experienced and much-respected Crown prosecutor - after Tully refused to take counsel from his lawyer.

He further claimed that he had not received proper disclosure of the Crown case against him.

Russell John Tully in the High Court at Christchurch. Photo / Dean Kozanic / FairfaxNZ
Russell John Tully in the High Court at Christchurch. Photo / Dean Kozanic / FairfaxNZ

Tully also embarked on several hunger strikes.

A new trial date was set down for last November.

But at the eleventh hour, he again sacked his legal team, forcing Justice Mander to again abandon the trial date.

A third and final trial beginning on February 22 this year was agreed upon, after Tully gave assurances that he would cooperate with lawyers James Rapley and Phil Shamy.
But again relations broke down.

The trial still proceeded, with both Mr Rapley and Mr Shamy appointed amicus curiae, or friends of the court, in order to assist the court with the running of the trial and to cross-examine witnesses for Tully.

However, when the trial began, Tully was not present in court.

When the jury was selected, no accused person was present in the dock.

When Tully was due to be arraigned - with the serious charges put to him - he was not in the courtroom, and so the court's default position was to record not guilty pleas.

The trial began with the Crown outlining its case against Tully. He was still not there.

It wasn't until the morning of day two that Tully made his first appearance before the jury.

But as the Crown announced its first witness, Tully interjected: "Excuse me your honour, what am I actually doing here?"

Tully, restrained in a wheelchair, said he needed to "lie down" and claimed he was not fit to stand trial.

Justice Mander repeatedly asked him to be quiet before instructing Corrections prison wardens to remove Tully from the courtroom.

The judge - who later told the jury that it was his decision to proceed without the accused present in court and one that was not taken lightly - then directed the jury to ignore the "pantomime" and to simply concentrate on the evidence.

Justice Mander also told the court that Tully had been afforded the possibility of legal representation "but as events transpired, regrettably he is not legally represented".

Tully's second appearance a few days later resulted in a similar short-lived outburst.
Tully remained in court for the last day of the Crown's evidence.

The Herald understands that while there is provision within New Zealand law for a trial in absentia, there is no legal precedent for a major criminal trial here beginning without the accused being in court.

Law clerks at the Ministry of Justice are understood to have been scouring British and Commonwealth records for any legal precedent, but haven't been able to find any similar cases.

Nigel Hampton QC, one of New Zealand's most experienced defence lawyers who has conducted more than 100 murder trials, said he has "never ever come across anything like this".

"It must have been a helluva dilemma for the trial judge," he said.

"This judge, who I know to be a patient man, will have done his very best to ensure a fair trial.

"But it really troubles me that this was a trial with the accused ostensibly self-represented and he was not in court and not playing a part in the trial."

Mr Hampton doubts the jury would have been able to meet the judge's directions of ignoring Tully's in-court behaviour.

"At a visceral, emotional level, it must have some impact, and some lasting impact, on people who witness this sort of kerfuffle. And I am concerned by that," Mr Hampton said.

"It certainly makes a bit of a mockery of the process."

Under British law, trials in absentia were until 2001 banned and are still extremely rare.
Criminal law expert Professor Chris Gallavin isn't aware of a trial of such magnitude being conducted in absentia in New Zealand.

"This was probably a judge's worst nightmare," said Prof. Gallavin, Deputy Pro Vice-Chancellor for the College of Humanities and Social Sciences at Massey University.

"This would have been an incredible headache for the judge and counsel. For everybody involved, it's incredibly fraught.

"The court has had to walk the tight-rope of ensuring that he gets a fair trial, that he doesn't prejudice himself to the jury, and also hence the kids glove approach by the judge to him."

EXAMPLES OF PEOPLE CONVICTED IN ABSENTIA

• Charles I of England was removed from his trial due to his disruptive behavior, and sentenced to death by beheading without being in the room.
• Martin Bormann, Nazi official and Hitler's private secretary, convicted of war crimes and crimes against humanity and sentenced to death by hanging at the Nuremberg war crimes trials. (Disappeared on May 2, 1945, his remains were uncovered in late 1972 in West Berlin, and conclusively identified as those of Bormann in 1998.)
• Ahmed Chalabi, former Iraqi oil minister, convicted in Jordan for bank fraud.
• Charles de Gaulle, sentenced first to four years in prison and later to death in 1940 for treason against the Vichy regime.
• Bernardo Provenzano, Sicilian Mafia boss convicted of numerous murders during his 42 years as a fugitive.
• Arkady Shevchenko, high ranking SVR official of the USSR, sentenced to death in Moscow in absentia after defecting to the United States.
• Alexander Poteyev, ex-colonel of the Russian intelligence agency SVR, was sentenced in absentia to 25 years of imprisonment on the charge of high treason by Moscow court in 2011. His whereabouts are unknown; presumably he lives in the United States under protection of the US government.
• Amanda Knox, tried in absentia and convicted in 2013, for the 2007 murder of Meredith Kercher.

- Source: Wikipedia

- NZ Herald

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