Roy Wade: Answers needed on Moko ruling

Moko's extreme injuries fulfil the criteria required to attract a murder charge.

Opinion

We must hear the reasons why charge was downgraded.

Roy Wade is a retired District Court judge.

The principle that "justice should not only be done but should manifestly and undoubtedly be seen to be done" is at the cornerstone of the New Zealand legal system. That is why whenever a judge makes a decision, that ruling is supported by reasons.

Yet on May 2 at Rotorua, without any explanation, a decision was made to withdraw a murder charge that shocked and appalled many observers. This was not the decision of the judge but that of either the Solicitor-General or the Crown Solicitor who was prosecuting. The public has not yet been told why.

David Haerewa and Tania Shailer are responsible for the unlawful killing of 3-year-old Moko Rangitoheriri. According to the summary of facts, little Moko, in the two months he was in the defendants' care, was treated with almost unbelievable savagery. During that time, he was kicked, thrown, dropped face-first on the floor, bitten, stomped on "really, really hard", had faeces rubbed on his face and was denied medical care.

The abuse came to light on August 10 last year when Shailer eventually called for an ambulance after Moko became unresponsive, having earlier refused to take him to hospital claiming he had merely fallen off a woodpile.

He arrived at hospital with swelling to his face so bad it was impossible to open his eyes. His abdomen was distended. He had bruising on his front and back. Multiple abrasions and wounds that appeared to be human bite marks were found on his face and arms.

He could not be revived and was pronounced dead at 10pm. Shailer asked hospital staff if Moko would have survived had medical attention been sought earlier, the summary of facts says. That demonstrates she was fully aware of the risk she was running by denying him medical help until it was too late.

It was difficult to determine the cause of death due to the number of injuries including a haemorrhage deep in the abdomen and a ruptured bowel.

So was it murder or manslaughter? Often the distinction is whether the offender intended that the victim should die or suffer really serious harm. But that is not the sole criterion. Our Crimes Act provides that it is murder and not manslaughter if it is proved that, "the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not".

Surely anyone knows that stomping hard on the body of an infant is likely to cause their death and that denying them medical attention is recklessness at its worst? So why was the charge downgraded to manslaughter? Why did the Crown not press on with the murder trial, content in the knowledge that if it failed to prove murder, a manslaughter verdict was inevitable?

A few years ago I defended Phillip Layton Edwards who killed interior designer and TV personality David McNee in his own home and the Crown was offered a plea to manslaughter well before the trial. The offer was rejected and the murder trial proceeded. That was plainly the correct decision as the public interest in the trial made it imperative that the full facts be aired. The result, however, was a verdict of manslaughter.

Although it is possible the jury may have reduced the charge against Edwards because of provocation (a provision in the Crimes Act now repealed), I feel a likelier explanation for the verdict is that the expert medical evidence showed the injuries inflicted were certainly survivable (there were no broken bones) had the unconscious Mr McNee simply been put into the recovery position and not left lying face-up before Edwards left the house. He was sentenced to nine years' imprisonment.

The Crown Solicitor and/or the Attorney-General who made the decision in the Moko case has not given any reasons.

In the UK when the Crown seeks to reduce the gravity of a charge it is usual for an explanation to be given as to why that should happen and for the judge to be invited to approve it.

When I first practised in New Zealand in the early 90s, plea bargaining and sentencing indications (basically saying "I am not prepared to admit what I did unless you assure me that nothing too bad will happen to me") were unknown. Now they are encouraged in order to save money by avoiding a trial. What price justice when it's all decided in chambers and the public is not told?

The difference between sentencing for manslaughter rather than murder is that although the judge can impose life imprisonment for manslaughter as well as for murder, there is a discretion to impose any lesser prison sentence or not send the offender to prison at all. Consequently, there is far more latitude for the judge who will find a wider range of sentencing for manslaughter than for any other crime.

A life sentence for manslaughter is very rare but the facts of the present case are so bad that it might well be justified. However, as we do not know the basis upon which the plea to manslaughter was accepted, nor if any sentencing indication has been given, we are in no position to say one way or the other.

If the legal principle means anything, then it is essential we be told.