Attorney-General Chris Finlayson took the unusual step on Monday of explaining the Crown's decision to reduce the charge for the killing of Moko Rangitoheriri from murder to manslaughter. He had waited until after the sentencing of Tania Shailer and David Haerewa to comment on the case which has attracted considerable criticism since the pair pleaded guilty to manslaughter. The facts then given to the court suggested to many that if they did not intend to kill Moko, they were at least reckless as to whether death was likely to occur as a result of their actions, which is a definition of murder in law.
Mr Finlayson explained that the lesser charge of manslaughter was brought because, "without the guilty pleas, the full details set out in the [prosecution's] Statement of Facts may not have otherwise come to light". There was a "significant risk", he said, that without guilty pleas and admitted facts, the pair could have escaped convictions. "Based on the evidence available for trial, there was a substantial risk that one or both the defendants would not be convicted of murder or manslaughter."
Despite the shocking injuries inflicted on the toddler, he might have survived them with prompt medical attention. That would have been the complicating factor for the prosecution if it had to prove murderous intent beyond reasonable doubt. If the jury had instead found them guilty of manslaughter based on their failure to get medical attention to the little boy, this would not have "adequately reflected the defendants' role in inflicting the injuries which killed Moko", Mr Finlayson said.
That explanation has not convinced a retired District Court judge, Roy Wade, who wrote in the Herald that on the bare facts of the case he considered a murder conviction would have been certain against Shailer, who stomped on the child sufficiently hard to rupture his bowel, and possibly also against Haerewa who saw what she was doing and did not intervene.
Underlying the criticism of the charge brought in this case is a wider concern about the arrival of plea bargaining in our justice system. Mr Finlayson declared, "The cost of prosecuting this trial was not a factor taken into account in approving the manslaughter charge," and he added categorically, "Nor is plea bargaining a feature of the New Zealand justice system."
Former Judge Wade calls that assurance "plain wrong". Courts are overloaded with cases awaiting trial, he says, and prosecutors know the only way to manage the load is to reduce some charges in exchange for a guilty plea.
Perhaps all that can be said for certain is that if this case was a plea bargain, it was not much of a "bargain" for Shailer and Haerewa, especially if without their admissions the prosecution case was as weak as Mr Finlayson suggests. Prison terms of 17 years, with no prospect of parole for nine years, are almost certainly no lighter than they would have received on conviction for murder. The charge matters much less than the punishment. Justice was done in the end.