“Deal or no deal?” Plea bargaining in the justice system

When Tania Shailer and David Haerewa were charged with the manslaughter of toddler Moko Rangitoheriri, the public was outraged. For some, the decision was seen as a mockery of the justice system, and many protested “Justice for Moko” in its wake. The Equal Justice Project (EJP) sought to bring these concerns to the forefront and delve deeper into the mechanisms at play.

EJP

The EJP Access team recently hosted a public symposium regarding the current practice of plea bargaining in New Zealand. The panel comprised four highly esteemed speakers: Jock Jamieson (SST), Denise Wallwork (Liberty Law), Gareth Kayes (Kayes Fletcher Walker) and the Hon David Parker (MP for Labour). Kris Gledhill (AUT) moderated the event. Each speaker brought their own element of expertise to the table and provoked a highly informative debate.

Gareth Kayes began on the note that he preferred the use of terms such as “plea negotiations”, or “plea discussions”. He suggested that to “bargain” alludes to an event where you pay less for something and where someone is often “ripped off”. He said that this did not properly reflect the idea that plea bargaining concerns evidential sufficiency and realistic likelihood of certain convictions.

The Hon David Parker expressed no issues with the practice of plea bargaining in general. Instead, he voiced concerns about cases where such bargains are driven by fiscal savings instead of principle, although acknowledging that costs will inevitably be an operating factor.

Jock Jamieson said many shared the concerns of the Sensible Sentencing Trust and summarised what he sees as the public perception – that plea bargaining is “a weakened form of justice” and “shouldn’t happen”.

Mr Kayes reminded the audience that it is essential that all parties participate in such discussions. He further suggested that, in some cases, a simpler and faster resolution was within the victim’s wishes.

Denise Wallwork reiterated the point that counsel are unable to change a charge without the consent of the victim, and that it is not a process that happens in secrecy.

In discussing the Moko case, Mr Kayes pointed out the technical difficulties the Crown faced in securing a murder conviction, in particular that they were unable to point to an isolated injury causing death, nor requisite intent.

Expressing that she is a strong defender of the jury system, Ms Wallwork set out her views on why such forums are the best place to judge serious crimes. She said that in order to achieve “justice”, we have to allow the community themselves to decide what justice is in a given case.

Mr Jamieson also favoured the jury approach in the interests of the public. He raised concerns that Moko’s case would set a dangerous precedent for similar violent cases in the future. In response, Mr Kayes reminded the audience that the public are not always accepting of jury verdicts either, and worried that this increased risks of returning a “not guilty” verdict.

On future developments, Mr Parker noted that our judiciary is one of the least corrupt in the world. Although he was dissatisfied with the particular decision in the Moko case, he did not feel that radical reform needed to be undertaken.

Mr Kayes and Ms Wallwork expressed similar sentiments, with Ms Wallwork advocating for more jury trials in such cases and Mr Kayes noting that this is just a case of people “disagreeing with a difficult decision”.

Mr Jamieson maintained that the system is “broken”, and proposed that judges should be required to analyse and sign off on any plea bargains in the future.

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