Into the Darklands (14 page)

When it was dark they made their way to a telephone box where one of the young women placed an order: four pizzas, two large bottles of soft drink and two large side orders. In total it came to $47.95. The young woman gave a street address at the end of the block from the house they were using as a base and said they would meet the delivery person at the end of the drive because there was a large dog on the property. Then they went to the address and hid in the darkness of the driveway.

When Michael drove up some time later he was met by a young woman and a boy standing in the driveway in the dark. They talked with him for a few moments as the young woman appeared to search for change. Then suddenly the young boy called out, ‘Go, Alex.’

Another older accomplice sprang up from behind the car and swung a baseball bat at Michael Choy’s head. Michael dropped to
the ground unconscious with a fractured skull. There was a frantic burst of activity as a group of eight young people scrambled to grab the food, drinks and change. They left Michael Choy lying severely injured on the ground.

Back at the house the pizzas and soft drinks were consumed by the group. They then became concerned that if the police came to the area they would smell pizza and sprayed deodorant and fragrances in the house.

Meanwhile back out on the street Michael had regained consciousness. Despite the fact that the initial blow had shattered the left-hand side of his skull, he somehow managed to stagger to his feet and began to walk down the street.

And this is perhaps one of the worst aspects of what these young people did. When they saw Michael walking down the street, three members of the group went back outside and tried to remove his money belt. When they couldn’t find the clip, one of them—the same one who had swung the baseball bat—cut the belt using a kitchen knife, and left him.

Michael staggered down the road and went to the door of a house. He lay on the doorstep and banged on the door, calling out for help. The elderly couple inside became frightened and called the police, thinking he was drunk. Unfortunately, by the time the police arrived, Michael had left. He walked several hundred metres down a busy road, trying to get home. Incredibly, even with the severity of his injuries, he managed to make it to the doorstep of his parents’ house, where he collapsed and lapsed into a coma. He was found unconscious early the next morning by his family. Michael was rushed to hospital but his injuries were too severe. As Michael lay in hospital that Thursday morning, his attackers went out and spent the bulk of the money they’d stolen on food and arcade games.

In the early evening of Thursday 13 September, when it became clear that Michael would not recover, his family made the decision to turn off his life-support machine. And this quiet, gentle, kind-hearted man died as the rest of us watched endless replays of planes crashing into buildings.

Within three days the police had caught the group of young people responsible for this awful crime. Within hours they started ratting on each other and the whole sorry story came out.

Police photos would later show the pizza boxes sitting in the rubbish bin at the house the group had gone to after attacking Michael. There were also photographs of the soft-drink bottles and garlic bread. I remember looking at the photographs of those half-chewed pieces of pizza and crumpled greasy boxes for a long time. In some ways they were worse than the autopsy photos.

Those kids killed Michael Choy for pizza and change.

I look at that sentence, and I just feel lost for words. I simply don’t know what to say about it. Even all this time later, it still has the same numbing effect on me.

It was so unbelievably pointless.

SPENDING A DAY IN the witness box in the High Court being questioned by seven criminal barristers, two Crown lawyers, two corporate lawyers acting for the television networks and an experienced and extremely intelligent High Court Justice is not my idea of a relaxing day. Especially when everything you say is recorded for posterity. Any stupid things you say can be picked on by any one of a number of clever people.

The trial of the seven young people charged in the death of Michael Choy was being held in the largest High Court room in Auckland. It had to be large to accommodate all the lawyers, the young accused, the media and the public.

This particular day was before the start of the trial proper and was a closed session so that Justice Fisher, the presiding judge, could hear the various pretrial motions from all the lawyers. This would be the day when I’d find out how successful I’d been in convincing everybody my role was nonpartisan. If I’d managed to convince them I really was solely concerned with the issue of how the trial process might accommodate the needs of the young accused, rather
than issues of guilt or innocence, then it probably wouldn’t be
too
stressful a day. If I hadn’t then there were more than enough clever people in the room to make for a hellish few hours.

I put my hand on the
Bible
and promised everyone I would tell the truth (actually, whenever a registrar asks me if I promise to tell the truth, I’ve always wanted to reply ‘it depends’, but I don’t think a judge would ever be amused by that). So I duly promised, took a slow deep breath, and we began.

At such moments we should all say a little prayer to the Patron Saint of Psychologists.

Before we get on to what happened with my recommendations however, we probably need to talk first about why these young people’s needs should even have been considered in the first place. Why should a formal High Court trial be changed to suit a bunch of scruffy kids accused of such a callous attack? Why should they get any special consideration?

Good questions, and ones I also had to grapple with.

There are a number of reasons why this trial was important, if not the least of which is the fact that there are increasing numbers of young people committing serious crimes. I don’t know what all the official statistics say, and mostly I don’t care. One week some report says juvenile offending is increasing, then two days later some politician produces more statistics to show it’s decreasing. All I know is that down at the coalface we’re seeing more and more kids doing more and more serious things. We
will
see more trials of young people under the age of 16 who have committed the most serious kinds of offences. BJ may currently hold the record for being our youngest killer, but he probably won’t hold it for all that long, so we’re going to have to start thinking about what will happen with the kids who commit these crimes.

One approach would be to say ‘Screw ‘em. Don’t give them
any special treatment. Try them exactly the same as adults.’ Whilst this may be a fairly popular sentiment, it isn’t very well thought through. There are quite a few reasons, both legal and pragmatic, which count against this view.

First off, New Zealand and Australia have signed international agreements, via the United Nations, which guarantee certain rights to young people. One of those rights is the right to participate in their own defence. Now, it could be argued that no one listens to what the UN says anyway (is that oil I can smell burning?) but for the sake of the present discussion I’m going to assume that in this part of the world we are concerned with the International Rule of Law. Obviously I can’t argue all the legal ins and outs of the relative UN conventions and our respective obligations, but nevertheless we
have
signed them and some obligation would appear to exist.

In addition s 25(i) of the Bill of Rights Act sets out that everyone charged with an offence in New Zealand has certain minimum rights which, in the case of children, also includes the right to be dealt with in a manner that takes account of their age.

It would seem then that there are laws both domestic and international saying we
must
take account of the special needs of juvenile defendants. Because these rights are enshrined in the Bill of Rights we have as much choice about that as we do about paying taxes. If you don’t like it write a letter to your MP asking them to change s 25(i), because unless we change it we
have
to take account of the age of juvenile defendants.

All this legal stuff aside, there are lots of very pragmatic reasons for treating kids who commit serious crimes differently to adults. Apparently there was quite a spark on the talkback shows at the time over the fact that these young hoods were being given ‘special treatment’. There seemed to be a collective belief that the liberals were once again getting out of hand. I’m actually sorry I didn’t
hear any of it because I’m sure that would be my record for the most people I’ve ever pissed off at one time. There must have been thousands of people steaming all around the country, which is quite an achievement, even for me.

I can assure you it was nothing about liberalism or feeling sorry for these poor fragile little bunnies. Like I said at the very start, at heart I’m a dyed-in-the-wool pragmatist and my concerns were entirely pragmatic in nature.

I made the recommendations I did because I believe a key component of a criminal trial is to hold people accountable for their actions. I
wanted
these kids to understand what people were saying during the trial. A man was dead, and they needed to understand the full implications of what that meant. In short, they needed to understand what they had (at that stage allegedly) done.

One of the first things I did was to get a particularly clever postgraduate psychology student to find all the relevant research in this area. It turned out there wasn’t a lot. Until relatively recently the concept of the juvenile
defendant
didn’t exist in international research literature. There had been a lot of work on the juvenile
witness
and also on the juvenile
offender,
but very few people have looked at the issue of kids as
defendants.

This was very good for me because it meant that if some smarty-pants lawyer asked me if I was an expert in this field I could confidently reply that I was not, and that indeed there were currently
no
experts in this field. (In fact the lawyer for one of the television networks did put this question to me, in the form of several statements implying I didn’t know what I was talking about. Still, it didn’t do him any good because they didn’t get their cameras into court until the very end.)

A thorough going-over of the existing research told me we don’t know a whole lot about juvenile defendants. Instead I was forced to
try to extrapolate the findings on research looking at child witnesses. Most of this research came from children giving evidence in child-abuse cases but some of it was still relevant. In particular people have looked at how children can be assisted to give the best possible evidence. In general this research shows (surprise, surprise) that the less stressed children are, the better they are able to participate in the court process. Factors such as minimising delays, having ‘child-friendly’ waiting areas, the presence of a support person and providing education on the court process all decrease stress and increase the quality of children’s participation.

In addition to this there were some obvious developmental factors to be considered, namely the fact that the young accused were all adolescents. As a result there was a good chance they would quickly become bored and start to fool around. Obviously this would look very bad to a jury, but it would nonetheless be quite normal for most groups of teenagers in such a formal setting.

On top of all that were the particular issues facing the three defendants I had interviewed. An edited version of that report was eventually released to the media, and here is the section of the report which detailed the conclusions I reached following these interviews:

Upon consideration of the available evidence the report writer has the following conclusions to respectfully offer to the Court:

1. The defendants each appear to have a basic understanding of the charges they face and the possible consequences if convicted.
   
2. The defendants, whilst having differing degrees of understanding, all appear able to grasp relatively complex concepts if these are explained adequately.
   
3. This said, the defendants as a group have a very limited understanding of the legal process to date. They have described feeling variously nervous, lost and bored in the hearings to date.
   
4. The defendants also appear to have a very limited ability to ask questions about what is happening. In my opinion this ability will be even less when in the midst of a formal High Court trial. This is likely to be further exacerbated by the structural arrangement of the defendants appearing in the box and being separated from their Counsel.
   
5. All three defendants stated that it would cause them distress to see the autopsy photographs. Whilst this in itself is not a reason for them not to see the photographs, the timing of this in connection with their giving evidence may be important.
   
6. Based on the defendants’ statements, and observed responses, it is probable that the presence of television cameras in Court would significantly increase the stress levels of all three defendants. This in turn is likely to decrease the quality of their evidence and to further impede their ability to participate in the trial process.
   

In summary it would be my considered professional opinion that, in light of the defendants’ ages and individual psychological issues, if the High Court trial was conducted without regard for their current developmental functioning then the defendants would likely comprehend little of what was happening, would likely not be able to adequately instruct Counsel, and the quality of their evidence might well be lessened.

So that was where I got to after speaking to the three kids I was eventually allowed to interview: they just weren’t going to get it. This left me with the most important dilemma, and again it was one of pragmatics. It was my belief—and that of all the lawyers and police officers I spoke to—that probably most adult defendants in High Court don’t understand much of what happens either. It can be enormously technical, and at times terribly boring. There were times when even
my
attention couldn’t weather the extended legal arguments. If this is the case then it was pretty unlikely a bunch of adolescents were going to understand all of what was happening regardless of what you did to help them. As a result it would be easy to become very precious about the whole thing and make a slew of recommendations that were idealistic, impractical and unworkable.

There had to be some sensible middle ground between idealistic preciousness over their age and the other extreme of simply ignoring their particular developmental needs.

Having spent some considerable time thinking about all this, I sat down and wrote out a list of 16 separate recommendations as to how the court might adjust the process for these particular defendants. Which brings us back to where we came in, standing in the box waiting to see how the report would be received.

The mantra that goes through my head in such moments is this:
Stay calm, because even if you say or do something really, really stupid, they probably won’t put you in jail for it. No one ever died from looking like an idiot.

I should point out that I never set out to look like an idiot in court, but it’s good to be prepared for such an eventuality just the same. We all say dumb things, it’s just that when you say it in front of a roomful of lawyers whose job it is to try and cast doubt on anything you say, someone is bound to notice. And if they get you on their hook, God help you.

To aid my little mantra I also imagine all the lawyers as law students. I’d flatted with some when I was at university and known many more. I always remind myself that even though right now they all look very austere and grown up in their suits and gowns, they probably would have got shit-faced drunk and thrown up in gutters and gardens just like the rest of us. All I have to do is imagine the most intimidating-looking lawyer vomiting in a grotty student toilet and I relax right away.

Fortunately, I didn’t need my ‘positive visualisations’, because it all went pretty well. There was no real dispute over the basis of the report or the validity of the conclusions. Instead the day was spent trying to collectively determine the best way in which the trial could proceed.

This process was greatly aided by the trial judge, Justice Fisher, who is in my humble opinion a very intelligent and wise man. I have to admit to being in some awe of Justice Fisher’s ability to manage this hugely technical process. Over the course of that day, and indeed all the days of the trial, there were multiple demands and competing positions. In essence, the lawyers constantly squabbled to get the best deal for their respective clients. Justice Fisher had to listen to each legal argument, and the inevitable counter-argument, and then make a decision about what should happen. His decision was then dictated on the spot. If you ever think judges get paid too much, spend a day watching someone like Justice Fisher at work.

Once again I have reproduced the section of the report dealing with the recommendations. I thought it might be helpful, given the stink on the talkback shows, for people to see what the original recommendations actually were:

As described in section 4 of the present report there is currently no direct empirically derived psychological
evidence on which to base recommendations as to how a High Court trial might be adapted to enable juvenile defendants to adequately participate in the process for the purposes of giving evidence and assisting in their own defence. The following recommendations should therefore not be viewed as either definitive, comprehensive or in any way presumptive, but rather as informed suggestions for the Court, the Crown, and respective Counsel to consider:

1. In the first instance the Court may like to consider some form of structured pretrial education for the defendants to increase their understanding and give them the opportunity to ask any questions they may have about the process. Whilst research suggests this approach may have limited value it certainly does not appear to have a detrimental effect.
   
2. There might also be merit in considering shorter days to better match the school day. The logistical issues involved in the present trial may make it more practicable to start at the usual time (ie 10 a.m.) but finish slightly earlier (ie 4—4.30 p.m.).
   
3. In addition frequent breaks with opportunities for the defendants to exercise and ‘burn off’ some energy may assist the defendants to attend more closely to the proceedings. The timing of breaks might need to change from day to day depending on the state of the defendants. There is also the dilemma of increased time for breaks resulting in a longer trial.
   
4. Whilst wigs are no longer worn in High Court there may also be some merit in considering the idea that Counsel do not wear gowns in order to make them
   appear more ‘approachable’ and less intimidating.
   
5. There might also be an advantage, if logistic-ally possible, in having ‘A’ and ‘B’ moved to Auckland to enable them to have more frequent contact with their Counsel. The stronger the relationship they have with their Counsel the more they are likely to be able to interact with them in a constructive manner during the trial.
   
6. There would appear to be a case for seating the defendants next to Counsel. This would both increase the likelihood of interaction with Counsel, and decrease the possibilities of inappropriate (albeit developmentally appropriate) behaviour if the defendants were seated as a group. It has been pointed out to the report writer by the Crown that this may not be appropriate when some of the prosecution witnesses are giving their evidence, particularly the child witnesses who will be using screens.
   
7. In addition there might also be some merit in appointing a ‘minder’ for each defendant (i.e. an appropriately qualified youth worker/social worker). This person’s role might include ‘translating’ the process, monitoring the defendants’ attention levels, and assisting in managing their behaviour in Court. Clearly the minder would also need to be seated beside the defendants. This would in my opinion also increase the likelihood of constructive interaction between the defendants and their Counsel.
   
8. This said, this would mean a further increase in the
   number of persons in Court (potentially up to 32 in total including defendants, Counsel, second Counsel and the Crown) and it is acknowledged that there may well be practical/spatial constraints. If space requirements make this impracticable then, in my opinion it might be better for the defendants to be seated next to their ‘minder’ than next to Counsel. Obviously this would be highly influenced by the quality of each defendant’s relationship with their Counsel and would need to be considered individually for each defendant.
   
9. Some thought might be given to counselling before the trial begins to assist the defendants to manage their stress levels and to begin to address some of the issues touched on earlier in the present report.
   
10. The Court may want to consider the use of screening from the public gallery if/when the defendants are giving evidence as a way to decrease stress and distractibility problems.
    
11. Similarly the presence of television cameras in Court would, in my opinion, compromise the defendants’ ability to attend to the trial, interact with Counsel and give evidence. Even if the Court should direct that the defendants themselves not be shown, in my opinion the very presence of cameras would be counterproductive as outlined above.
    
12. It is also likely that the lifting of name suppression would increase the stress/anxiety levels of the defendants. This would in my opinion be less of an issue than the presence of cameras in Court; however the impact of the lifting of name suppression is more
    difficult to predict other than to say it would likely result in more stress/anxiety.
    
13. In the report writer’s opinion it might also be prudent to ensure that the defendants are protected from any adverse public reaction on their way into Court. Exposure to adverse displays would inevitably serve only to increase their anxiety and consequently decrease both their participation in their defence and also their ability to give evidence.
    
14. Some thought might also be given, wherever possible and if appropriate, to excusing the defendants from sessions where their presence is not necessary.
    
15. Given the complex nature of the questions at issue in the present report, and the lack of an empirically validated basis on which to suggest accommodations that the Court may choose to make in light of the ages of the defendants, there may be some worth in an ongoing assessment of the defendants during the trial itself. The report writer has endeavoured to make informed predictions regarding how the defendants may fare during the trial, but clearly this is impossible to know until the defendants are actually in that highly specific context. Some form of ongoing assessment might assist the Court in determining more accurately the defendants’ functioning as the trial proceeds. This might be particularly useful with regards to determinations of the length of each day and the necessity/timing of breaks.
    

The writer hopes that this report will be of some assistance to the Court.