Sasha Borissenko: A look at self-representation and closing the justice gap

The right to self-representation is a long standing and important principle. Photo / Getty Images

COMMENT:

Mosque shooter Brenton Tarrant was sentenced to life in prison without parole for the killing of 51 people in March 2019. He chose to represent himself in last week's sentencing.

Otago University's Bridgette Toy-Cronin said there was a nervousness over whether he might use the court for collateral purposes, to air his white supremacist beliefs, but that did not happen. If anything it makes sense that Tarrant opted for self-representation as he did not speak at the sentencing hearing.

The right to self-representation is a long standing and important principle. In a criminal context it is the state who is prosecuting you, and to be forced to have a state-funded lawyer as well raises questions about independence, Toy-Cronin says. In the US questions have also been raised as to how much service you would expect to get from someone who is paid very little.

Which raises the issue of access to justice. "To be clear, self-representation is not a problem in and of itself, it is a right. If you do not want to represent yourself, but you are forced to for financial reasons, that is an issue. In the case of the mosque shooter, it was not an issue of access to justice, however, he was offered funded representation (and) he chose not to take it."

Self-representation high in civil cases

Official Information Act figures dating back to 2019 showed nearly 13,500 civil cases in 2018 included self-represented litigants - 56 per cent of all cases. That compared to 51 per cent in 2017, and 47 per cent in 2016. Self-representation tends to occur mostly in civil cases, Toy-Cronin says. Ministry of Justice 2009 research showed just 1 to 7 per cent of criminal cases included self-representation, for example.

"It is a symptom of market failure. In a civil context legal costs are substantially more expensive. People either walk away from a case, self-represent, or instruct counsel."

Problems with self-represented litigants were highlighted in a NZ Law Commission paper in the early 2000s, where it was found that litigants demanded more time and resources from judges and court staff than those represented by lawyers; there could be issues relating to fairness insofar as one party could have counsel, while the other not; and cross examination could be hard on the self-represented litigant who lacked the skill to do so, not to mention the stress caused for witnesses.

How might New Zealand close the justice gap in civil cases? "If there was an easy answer someone would have done it by now," Toy-Cronin said.

Wage subsidy update

In other news, opportunity to opt for the wage subsidy is rearing its ugly head again, so let us see what firms have opted for it thus far:

Bell Gully opted for the subsidy where 260 employees were paid to the value of $1,810,718.40. The firm said they would pay the subsidy back. According to a spokesperson there have not been any restructures, redundancies or pay cuts arising from Covid-19.

Buddle Findlay did not opt for the subsidy, saying the "revenue performance of our business has not triggered eligibility for the wage subsidy at any time". The firm has not suffered any restructures, redundancies or disestablishments, instead: "we continue to focus on the wellbeing and engagement of our people".

DLA Piper's Managing partner Martin Wiseman said: "We looked at the wage subsidy, were not and are not lawfully entitled to claim it, and wouldn't take it even if we were. We don't think the wage subsidy was meant for a business like ours. It's really that simple. We simply just weren't prepared to take it." The firm has not had any redundancies.

Duncan Cotterill applied for the wage subsidy (to the value of $1,488,727.20) because its goal was to get through Covid-19 with all of its people onboard and business intact, and because its forecasts were for significant decline in revenue.

"The Government's wage subsidy gave us the confidence to keep our team intact throughout this period and we are grateful for this support and the certainty it provided," chief executive Pete Boyle said.

"We then found ourselves in the fortunate position where the performance of the firm exceeded our initial expectations. This positive development meant we were able to pay the wage subsidy back. We initiated this full repayment before the end of the first wage subsidy and have not applied for any wage subsidies since."

Harmos Horton Lusk had not at any time sought a wage subsidy. "As a privately-owned organisation we do not comment on the operation of our business," director Andrew Harmos said.

Hasketh Henry also did not opt for the subsidy. There had been a small level of staff turnover, but less than what was usual for a firm of its size, general manager Kerry Browne said.

Russell McVeagh did not apply for the subsidy, and had no Covid-19 redundancies in the last six months.

Simpson Grierson opted for the subsidy (to the value of $2,335,108.80), echoing similar sentiments to Duncan Cotterill's Pete Boyle. It has since repaid the subsidy in early March and has not suffered any job losses.

Tompkins Wake did not apply for the subsidy; instead partners elected to reduce their drawings to ensure it could preserve its workforce on full working hours and salaries. One role had been disestablished as a result of Covid-19. Five new staff started during alert level 4, and three more senior lawyers are to join the firm on September 1.