Into the Darklands (13 page)

I WOKE UP ON THE morning of 12 September 2001 to find that the whole world had changed.

‘The World Trade Centre’s collapsed,’ my wife said as I walked into the living room just before 7 a.m. ‘Look.’

I turned to the television. The scene was incredible. I watched smoke pour from the tower for a few moments, and at first I thought she meant a
piece
of the tower had collapsed, but then the whole thing slid down into that huge dust cloud. I’d been to New York a couple of times and seen the World Trade Centre. It was a
big
hunk of steel.

It was an unreal moment. For the next few days I watched the drama being played out on CNN. It didn’t matter how many times they replayed the shots of those planes crashing, of the towers falling, it just didn’t seem real. Even then I knew the world was going to change forever as a result. It felt like a 21st-century Pearl Harbour.

During the blur of those first few days I have a vague memory of a small piece on the news the next day about the death of a pizza-delivery
man in South Auckland, but that’s all. Just like the rest of the world, my eyes were on New York. The death of Michael Choy, or ‘the pizza man’ as he became known during the trial, couldn’t compete with the global spectacle of the destruction of the World Trade Centre.

It was only later that the case started to attract media attention. Once the dust in New York settled, it was always going to be a headline grabber, because Michael Choy was killed by a bunch of kids, the youngest of whom, Bailey ‘BJ’ Kurariki, was aged only 12 at the time. Six co-offenders were charged with the aggravated robbery and murder of Michael Choy: BJ aged 12, a 14-year-old boy, two 15-year-old boys, a 16-year-old boy, and a young woman who turned 17 on the day of the crime.

It wasn’t until June 2002 that the case entered my world. I was contacted by the lawyer for a 14-year-old who had been charged with the other six defendants for the attempted aggravated robbery of a Kentucky Fried Chicken delivery driver three nights before Michael Choy was attacked. His client was allegedly part of this group but didn’t participate in the subsequent attack on Michael Choy. The trials for the two separate incidents would be conducted simultaneously. I have to confess that my first reaction on learning he was a defence lawyer was a guarded caution. Some lawyers push hard to get you to present their client in the most favourable light. For some, it’s all about winning the game.

In this case though, the lawyer was very engaging. He was straight up and didn’t waste time with bullshit. A lot of lawyers, like a lot of psychologists, speak with an odd stuffy formality when you first meet them. But not this guy. I liked him pretty much from the beginning. More importantly I believed he didn’t want a hire-a-shrink.

And he was interested in an important question. Essentially he
explained that under the UN Convention regarding the Rights of the Child (1989), New Zealand had an obligation to ensure young people received a fair trial. In this case, given the age of the defendants, he wanted to know if they would be able to adequately participate in their own defence, given that the trial would be held in the High Court and not the Youth Court.

The lawyer had raised the question after reading a judgement from the European Court of Human Rights against the United Kingdom after the trial of the two 10-year-olds who murdered two-year-old Jamie Bulger in Liverpool in 1994. The pair had taken the toddler from a shopping mall, battered him to death and left him on a railway track to be run over. Essentially the European Court found the two young accused had not received a fair trial because they were not able to adequately participate in their defence. The UK court was criticised for various aspects of the way the trial was conducted, including the fact that the boys were subjected to heckling from a large and angry crowd when being transported to and from court, they were seated in a raised dock and thus were ‘on display’ to both the court and the public gallery, and they were generally traumatised by the trial and were thus unable to comprehend what was happening to them.

The relevance of this to the present case was that New Zealand was a signatory to the same UN conventions, which guaranteed the young person certain rights. Specifically Article 3 s 1 of the UN Convention states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative, authoritative, or legislative bodies,
the best interest of the child
shall be a primary consideration.

In addition Article 40 provides:

State parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner…
which takes account of the child’s age
and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

So we’d signed off on the bits of paper which gave all young people the right to have their age taken into account in any criminal proceedings. Like it or not, that’s how it is.

As a result the lawyer’s question was about the ability of these young people to participate in the highly formal structure of a High Court trial in light of their respective ages. Following on from this he also wanted me to make any suggestions for changing the manner in which the trial was conducted that might assist the young accused to participate in the process more fully. ‘No one’s ever looked at this stuff before,’ he said. ‘It’s ground-breaking.’

Now, when lawyers start talking about breaking new ground, I start to get a little nervous. In the dog-eat-psychologist world of the witness box, you can get turned into shrink paté as quick as a blink. The adversarial nature of the legal process means the other side is always trying to make you look like an idiot. In this case there would be something like 17 lawyers in there, all of them working their own agendas, and me somewhere in the middle. That’s a lot of people trying to poke holes in what I might be saying.

‘OK,’ I finally said, after we’d talked through the details for an hour, ‘but I just want to be clear that you might not like what I have to say.’

‘Good,’ he said, ‘that’s what I want, an independent opinion. If
there’s nothing here, I want to know that. At least then we can say we’ve looked at it.’

He actually meant it. He really wanted the truth, which was a refreshing surprise. One lawyer I worked with on a different case—who incidentally is one of the rudest, most unpleasant people I’ve ever met—did everything short of putting a gun to my head to try and get me to say what he wanted. In the end we agreed to disagree and I don’t think that particular report ever made it to court, mostly because I said in my roundabout psychologist way that I thought the lawyer’s client was as guilty as sin.

So, with my car loaded up with videos of police interviews, evidence books and about three tonnes of documents, I set off. Time was pressing, I had about a week to interview eight defendants spread throughout the length and breadth of the country at various juvenile holding facilities, and write what was sure to be an extensive report.

Fortunately for me, legal strategy started to kick in. I fairly quickly circulated a document amongst all counsel, including the Crown and police, outlining what I understood my brief to be, and the process of how I would propose to go about completing the report. In my opinion it was important to the integrity of the report that everyone was on board with what I was doing. Unless I was seen as walking a neutral line, it would be a waste of my time.

I wasn’t concerned with issues of guilt or innocence, but rather of trying to ensure that the young accused had the best opportunity to participate in their own defence, and to create conditions which would allow them to give the best evidence. This seemed to me to be in everyone’s interests, both the Crown and the defence. As a result I said that I would also circulate copies of a draft report to everybody for comment before I submitted a final version to the court.

A number of the lawyers for the defendants quickly indicated they didn’t want me to interview their clients. Ostensibly they didn’t want their clients assessed by a psychologist who could later be summonsed by the Crown to give evidence on some other matter that might prejudice their case. I suspect the defence lawyers didn’t want me giving evidence on the ability of the various young accused to understand the difference between right and wrong.

‘I don’t see how you can work for both sides in this matter,’ one of the lawyers said.

‘I’m not on any side,’ was my slightly quizzical reply. ‘There is only the question and the answer, which shouldn’t change as a result of which side asked the question.’

He didn’t buy that. In the space of about eight hours I went from having seven defendants to three. BJ’s lawyer had been one of the first to pull his client since, as the youngest defendant, his grasp of right and wrong might well prove crucial to his defence strategy. Unfortunately the three remaining defendants were in juvenile holding facilities in Auckland, Palmerston North and Christchurch. Nothing is ever easy.

The process of completing this report, and my subsequent participation over the course of the trial, was a unique education in the workings of our justice system. Usually as a psychologist you are called in for a specific part of a trial to give evidence on a specific issue. You come, do your thing and go. This time I was required to sit through the whole trial from beginning to end, including the ‘in chambers’ sessions where the public and jury are excluded so the lawyers can argue over all manner of things.

And my, how they argued.

At one point I was sitting up the back of the court with two senior detectives. The official in-chambers session was finished, and the lawyers were still bickering. We sat there watching them fight
for a while and then I leaned over to the cops. ‘This’d be so much easier if we got rid of all the lawyers,’ I said.

‘Play nice, children,’ the detective called out to the gaggle of bickering barristers.

No one listened. I don’t think lawyers like playing nice. After all, they’re professional arguers, that’s what they do best. They’re only having fun when they’re trying to prove some point or other. It’s all about who’s right and who’s wrong.

Perhaps the most frightening thing of all about this case is how unremarkable this group of young people were. They weren’t particularly monstrous. Except for BJ, they hadn’t been involved in a string of serious offences before the night of 12 September 2001. In fact they were pretty typical of a large number of young people I’ve worked with over the years. Nothing in their histories would have predicted they would have behaved in this way.

As I watched the video interviews I felt an overwhelming sense of
déjà
vu. The faces and names were different, but I’d seen this type of kid day after day for years. Usually it was because they’d stolen a car, burgled a house or beaten some other kid up.

In many ways juvenile crime is part of ‘normal’ development. Most studies conducted around the world have shown that something like 90 percent of boys and 60—70 percent of girls will have committed one unlawful act before the age of 18. I myself started at 11, when I pinched a necklace from a shop for my mum for Mother’s Day. I then spent the next three months worrying that she would go back to the shop wearing it, and be arrested for shoplifting.

So a little bit of crime is normal, but a lot of crime is definitely not. In New Zealand and Australia something like 5—7 percent of adolescents commit 50 percent of juvenile crimes. Each arrest also puts adolescents at a higher risk of subsequent arrest. One
Australian study found that by the time a teenager has been arrested five times the likelihood of further arrest was 90 percent, and my clinical experience in New Zealand would suggest the rates are very similar. In addition, we also know that teenagers tend to offend in groups, rather than acting as individuals, and that the vast majority of adolescent offending typically involves property crime.

This time however, a man was dead.

As I watched the video interviews I started forming my own ideas about the kinds of histories these kids might have, all the usual cliches that are invariably correct.

The next step was to fly off round the country and interview the three kids I was going to be assessing. Obviously the content of those interviews is privileged, and so I’m not going to disclose anything about what the individual kids said. What I can say is that, in general, it was pretty sad. Pretty much what I expected, and pretty sad.

The histories these kids described were the same old same old. There was nothing outstandingly terrible about their lives, at least nothing over and above the usual background level of terrible. In many ways they were pretty typical of the kids I work with every day.

With all the interviews done, surrounded by all my bits of paper, I sat down to write the report, but the whole time the same three words kept running through my head:
pizza and change.

Some crimes are so unbelievably callous, so utterly tragic, they almost defy belief. Some crimes make you wonder if the whole damn thing isn’t sliding off the edge. So it was with the death of Michael Choy.

On the evening of 12 September 2001, while the rest of us were coming to grips with the events in New York thousands of
kilometres away, Michael Choy was making a few extra bucks delivering pizzas. He was a gentle, kind man, from a loving and respected family, and that particular night he was filling in for a co-worker at a local Pizza Hutt in Papakura, in South Auckland. Unbeknown to Michael, a bunch of kids had spent the day planning to rob him.

They’d tried a couple of nights previously with a KFC delivery driver. The plan was simple: put in a call for a delivery and when the driver arrived, hit him with a baseball bat, take the food, take the money and run.

A simple plan. Except the driver had been a woman so they’d called it off at the last minute. Michael wasn’t going to be so lucky. Three of the kids talked about it that afternoon, the youngest of whom was just 12 years old. During the early evening more young people turned up at the address they were using as their base. They drank alcohol and waited for nightfall.