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Home / New Zealand

Christchurch terror sentencing: Defending the indefensible - why Tarrant deserved a fair trial

Anna Leask
By Anna Leask
Senior Journalist - crime and justice·NZ Herald·
27 Aug, 2020 06:56 AM7 mins to read

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It's not simply the judge's decision - the sentencing act 2002, pre-sentence reports and victim impact statements all have a role in determining the sentence imposed for murder in NZ.

Brenton Tarrant stormed two Christchurch mosques and opened fire indiscriminately on worshippers, gunning down men, women, children.

He planned it.

He filmed it, livestreamed it.

He enjoyed it.

But even this mass murderer and terrorist - the worst offender ever prosecuted in New Zealand - was entitled to and deserved a just court process.

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He had a right to a lawyer, to a fair trial.

Why though?

And who on earth would put their hand up to defend something so vile?

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In Tarrant's case he had Auckland-based lawyers Shane Tait and Jonathan Hudson, assigned to him after his first appearance in court the day after the mosque massacre.

He initially pleaded not guilty to his offending but later changed his tune and admitted 51 charges of murder, 40 counts of attempted murder and one of engaging in a terrorist act, laid under the Terrorism Suppression Act 2002.

Brenton Tarrant at his first court appearance the day after the Christchurch terror attack. Photo / Mark Mitchell
Brenton Tarrant at his first court appearance the day after the Christchurch terror attack. Photo / Mark Mitchell

He then sacked Tait and Hudson, electing to represent himself at sentencing.

Whatever had unfolded with Tarrant though, he was entitled to full legal representation throughout his court process - leading many to question what kind of lawyer would defend the "indefensible".

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Auckland defence lawyer Maria Pecotic has defended many people whose crimes have made us cringe and baulk.

Recent cases Pecotic has taken on include a teenage girl who was at the house of horrors where Dimetrius Pairama was tortured and killed in July 2018.

She was ultimately declared unfit to take part in the trial after initially being charged with the murder alongside two others.

Pecotic also represented a teen found guilty of killing West Auckland shopkeeper Arun Kumar.

The then-14-year-old boy stabbed Kumar in the neck at the Railside Dairy in Henderson in June 2014.

He was found not guilty of murder but guilty of manslaughter and was jailed for six years.

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She also defended one of five people charged over the brutal assault of a 19-year-old woman who was left for dead in Dome Valley north of Auckland in May 2016.

The victim was kidnapped twice in two weeks, tortured, sexually violated then abandoned - severely injured - on the side of the road.

The attack was sparked by rumours the victim had slept with an ex-boyfriend of one of the defendants.

Pecotic understood the harsh public opinion on serious offenders - particularly when cases were high profile because they involved violence or harm to innocent victims.

"There are always cases where the offence in the eyes of the public is regarded and described as repugnant," she said.

"As a defence lawyer my role is not to judge my client - that is the job of either a judge or jury - nor is it my job to impose sentence on my client.

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"My role is to represent to the best of my ability and skill the person who has committed the offence.

Police outside the Al Noor Mosque shortly after the March 15 attack in 2019. Photo / AP
Police outside the Al Noor Mosque shortly after the March 15 attack in 2019. Photo / AP

"Defence lawyers are an integral part of the criminal justice system.

"The rule of law requires balance, and true justice cannot be achieved without each party playing its role: the Crown, the defence and the judge."

Pecotic said it was important to compartmentalise the offender and their offence.

"As hard as it sometimes can be, I separate the person from the crime,"' she explained.

"It is after all the behaviour that is to be punished.

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"The consequence of that bad behaviour is what the person must own and accept.

"If someone has pleaded guilty to the offence then they have taken responsibility for their actions and accepted the gravity of their situation."

Last year after the Christchurch massacre, the Law Society said any time that a lawyer was criticised - directly or indirectly - for defending someone was "a regrettable attack on the rule of law".

"With two lawyers having been engaged by the person accused of the Christchurch mosque killings, it is a good time to point out that the justice system depends upon lawyers being available to defend anyone charged with a crime, no matter how disturbing it is," said Law Society President Tiana Epati.

"It is a fundamental principle of our criminal justice system that someone prosecuted for a crime must be proven to have committed that crime.

"The defence lawyer must put the prosecution to proving it to the satisfaction of the court.

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"Their personal view of their client's guilt or innocence does not come into it."

Epati said that when it was implied a lawyer should not defend someone, or should be ashamed of doing their job, they were "really questioning the foundation of the system of justice here in New Zealand and internationally".

"Our law requires lawyers to uphold the rule of law and to facilitate the administration of justice in New Zealand," she said.

"Lawyers are required in accordance with the oath they take to be available to act for anyone who wants their services.

"Unless there is very good cause, they may not refuse to be instructed by a particular client."

Maria Pecotic has defended high-profile cases over the years and says it is not her job to judge offenders, just to help them navigate the justice system. Photo / NZ Herald
Maria Pecotic has defended high-profile cases over the years and says it is not her job to judge offenders, just to help them navigate the justice system. Photo / NZ Herald

Under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, every lawyer - as a professional person- must be available to the public and must not without good cause "refuse to accept instructions from any client or prospective client for services" within areas of work that are within their specific field of practice

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"Good cause to refuse to accept instructions includes a lack of available time, the instructions falling outside the lawyer's normal field of practice, instructions that could require the lawyer to breach any professional obligation, and the unwillingness or inability of the prospective client to pay the normal fee of the lawyer concerned for the relevant work," the legislation states.

As such lawyers cannot refuse to take on a case based on any personal attributes of the prospective client or the merits of the matter - for example a criminal prosecution - upon which the lawyer is consulted.

They also cannot decline to take on a case based on any grounds that could be considered discriminatory under the Human Rights Act 1961.

However they can decline to take on a case if it will conflict with a current client.

"A lawyer who declines instructions must give reasonable assistance to the person concerned to find another lawyer," the rules state.

Epati said criminal lawyers in New Zealand were a "dedicated group of people who are an essential part of our justice system".

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"Any attack or criticism of their motives is really an attack on our fundamental values," she said.

The mosque under police guard following the terror attack. Photo / Mark Mitchell
The mosque under police guard following the terror attack. Photo / Mark Mitchell

Pecotic said people needed to consider what was behind the offending and how the person charged came to be in that situation.

She said even in the worst cases the offender always had someone supporting them and belonged - like all of us - to a family and community of some sort.

"The person who behaved in that way will always have at least one person who describes them in glowing terms," said Pecotic.

"Often it can be difficult to reconcile this person from the crime they commit - they are after all someone's son, daughter, mother, father, sibling, relative, friend or colleague."

At the same time, defence lawyers had to look at how the family and community an offender was brought up in had impacted on their life and choices.

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"It must be remembered that the so-called 'indefensible person' is the product of the family and community they have been raised in," Pecotic explained.

"The experiences that people have mould them into the human being that we see, and everyone reacts and responds in different ways.

"However, there are always those offenders who have mental illnesses or intellectual deficiencies or such an anti-social wiring of their psyche that the gravity of the situation they find themselves in may take years for them to fully appreciate."

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