All Black cuts deal to get off charge

Sam Tuitupou

All Black Sam Tuitupou had a criminal charge against him dropped after cutting a private deal with the police.

Tuitupou was charged with fighting in a public place, but the charge was withdrawn after he agreed to pay $100 to charity.

The arrangement remained secret until police were ordered to disclose details to the Weekend Herald.

His lawyer, Richard Earwaker, says the arrangement was a pragmatic solution to what he said was a minor matter tying up court time - Tuitupou strongly denied the allegation, and the case seemed destined for a defended hearing before a judge.

Other lawyers spoken to say the deal is an example of an unorthodox stream of justice which has developed, and say it raises questions about status hearings, district court hearings implemented in 1995 to improve the efficiency of the court system.

Tuitupou was arrested in August 2003 following a brawl outside an Auckland waterfront bar. He said he was there as the sober driver, and was attempting to break up the fight.

Charges against him were dropped in January 2004, but police refused on the grounds of privacy to say why.

Following a lengthy investigation, Chief Ombudsman John Belgrave ordered the police to release a statement about the outcome to the Weekend Herald, saying it was important the public had confidence in the principle of equality before the law.

"In my view there is a public interest in the police being accountable for their decision not to proceed with the charge and it seems to me that this interest is strengthened in cases which involve persons of high public profile," he wrote.

In a statement released by police headquarters, legal adviser Carolyn Richardson said Tuitupou had been offered diversion, but declined to accept it because he disputed the charge.

When the circumstances were explained to the judge at a status hearing, the parties agreed that a "practicable resolution" was for Tuitupou to pay $100 to charity and for the police to withdraw the charge, she said.

Ms Richardson told the Weekend Herald she did not know why police had simply not withdrawn the charge and why the donation had been paid.

Mr Earwaker said the arrangement had nothing to do with Tuitupou's All Black status.

"In fact I think it counted against him being who he was because I think the police would have been a lot more willing to withdraw had it not been who he was," he said.

"It had nothing to do with him - it's something I've done many times before in all sorts of situations. It's just recognising that the justice system shouldn't be clogged up with a whole lot of [cases] that don't actually matter in that sense because they are of a minor nature."

But another defence lawyer, Chris Comesky, said he was worried that status hearings were undermining the tenets of justice.

"Nowadays, convictions have become a judicial commodity," he said. "It's a wink and a nod."

Chief District Court Judge Russell Johnson would not comment on the Tuitupou case specifically, but said he had not had experience of cases where charges were withdrawn in exchange for a donation to charity.

He said he was confident judges were ensuring defendants were being fairly treated, and that their rights were being protected.

"I'm sure my fellow judges are doing that. Where human beings are involved, things can go wrong, of course, but that's the aim."

The Weekend Herald's initial interest in the proceedings was because it was one of a number of cases involving All Blacks appearing before the courts. In the past few years a number of All Blacks have appeared before the courts:

* A former All Black with name suppression is convicted in May 2002 of five breaches of a protection order sought by his ex-partner.

* Troy Flavell pleads guilty in July 2004 to assaulting an Auckland bar patron.

* Ma'a Nonu accepts police diversion in October 2004 after being charged with disorderly behaviour following scuffles outside a Wellington bar.

* Another All Black, who also has name suppression, receives a discharge without conviction after pleading guilty in December 2004 to assaulting his wife.

* Norm Maxwell apologises and pays $700 to charity as part of the police diversion scheme in May 2005 after being charged with assaulting a bar doorman.

* Sione Lauaki admits assaulting a security officer while on a night out in January. He accepts police diversion. Tuitupou was with Lauaki at the time but was not involved in the incident.