Dialogue: When justice is too high a price to pay

A $1.1 million criminal legal aid bill highlights worrying discrepancies in the justice system, writes PATRICIA SCHNAUER*.

What price justice? Recently it cost taxpayers another $2.5 million. Why? To finance a six-month trial for a family of recidivist offenders.

This week it was announced that $1.1 million of this went to the defence lawyers through criminal legal aid. Prosecution and police costs accounted for the balance. The case raises serious issues. Should the taxpayer be spending such large sums on the defence of cases like this?

Certainly, criminal legal aid must be available in a democratic country such as New Zealand. Its purpose is to allow the accused to defend themselves when they have insufficient funds to do so.

But there is a fine line to be drawn between enabling the accused to plead not guilty and defend their rights, and wasting taxpayer money on a hopeless case.

Defence lawyers certainly have a role to play in deciding when to run a defence. Lawyers say they are bound by their clients' instructions - if their clients insist on pleading not guilty, lawyers are duty-bound to run the case and do their best for their clients.

This case suggests such an approach is unsatisfactory and causes waste of taxpayer money.

Seven family members faced 247 charges, mainly for burglary. Reports state that $447,000 worth of property was stolen. Further property of $104,000 was damaged during the burglaries.

The criminal trial lasted more than six months and involved 17 lawyers. It was New Zealand's longest and most costly trial.

The judge hearing the case said: "The evidence against the family on the vast majority of charges was overwhelming yet they [the accused] had chosen to contest the charges against the odds."

The evidence produced in court included bugged conversations and surveillance videos of the burglaries in progress.

The judge's comments suggest the charges were largely indefensible. The jury agreed. Of the 247 charges brought, 233 were proven - a 95 per cent conviction rate.

The record prison sentences of up to 12 1/2 years suggest the unproven charges were of no great significance.

The police officer in charge of the case said it was outrageous that the case went to trial in the form that it did, costing taxpayers $2.5 million.

This case highlights worrying discrepancies that are emerging between our criminal and civil justice systems.

Recently, users of the civil courts have been hit with huge increases in court fees. In the district court, or the people's court as it is colloquially called, filing fees have gone from $145 to $450.

Filing fees in the High Court have skyrocketed from $120 to $900. To set a matter down for hearing in the High Court now costs $2200; six months ago it was $650. Hearing fees for each half-day have jumped from $270 to $1100.

As a result of these increased court fees for civil cases, access to justice in the civil courts for people who do not qualify for legal aid has been put seriously at risk.

Arguably, there is something seriously out of kilter in our legal system. On the one hand, we have people who unfortunately find themselves in circumstances of having to take a civil court case against a fellow citizen to defend their rights being severely financially taxed by the state for doing so.

On the other hand, the Government has just spent $2.5 million on the trial of a family of recidivist criminals. And this on a case where the judge, the police and the jury clearly all felt the defence was largely a waste of time.

At the very least, the criminal legal aid system needs further review. The court hearing the case should have power to comment when it considers legal aid money has not been spent wisely, and the judge should have power to say that a defence proceedings was not justified.

In that event, the defence should not be paid for by taxpayers.

If criminal legal aid lawyers believe their remuneration is at risk if they are defending the indefensible, they may think twice about how they run their clients' cases.

Furthermore, defendants receiving criminal legal aid should have to pay something towards the costs of their defence.

In this case the family were convicted of stealing almost half a million dollars' worth of property. What is wrong with the court requiring these offenders to make a contribution to the public purse?

Even a small percentage of the total defence costs (say, 10 per cent in hardship cases) would make defendants think twice before embarking on futile defences.

This trial also raises questions about whether a public defender's office should be established, the effectiveness of plea-bargaining and similar issues.

There will always be opposition to these issues from some in the legal profession. They will argue it could result in defence standards being lowered and prejudice an accused's right to a fair trial. But with limited financing available, such issues need to be addressed.

Most important, this recent criminal trial suggests the criminal and civil arms of our courts are increasingly out of kilter.

It is simply wrong that decent paying members of the community using our civil courts are facing huge extra imposts by the Government while at the same time a criminal recidivist family can run up a $2.5 million bill for the taxpayer.

Something needs to be done urgently to remedy this imbalance.

* Patricia Schnauer is an Auckland lawyer.