Together with venereal disease and measles, the judicial system of New Zealand was brought to this country by pakeha colonists. In common with every other similarly transplanted institution the judicial system was introduced to this multiracial society with no effort made towards modifying it to suit the needs, mores and cultural values of all the people it was to serve. To the present day it has been operated almost exclusively by pakehas and very largely for the benefit of pakehas. As the past Minister of Justice Sir Roy Jack so aptly put it "We have the best of British Justice for all"¹. But, unfortunately for Sir Roy Jack perhaps, we are not a country of British people, but rather a country of many people among whom no one group can claim absolute authority on the matter of the dispensation of justice within the society.

Nevertheless, with the arrogance typical of their race, white New Zealanders have ensured that we have a monocultural judicial system in our multicultural society. The criteria upon which judgements of what is right and what is wrong are made, and the criteria used to decide what is just and what is unjust are wholly pakeha criteria. They are today and they always have been. At no time since the coming of the pakeha have Maori people had a meaningful opportunity to help formulate the laws of their land, nor to participate in the planning of the administration of justice. Not surprisingly, Maoris are grossly under-represented in the police force, the probation service, the court system and on the bench.

Our organization rejects the assumption that the British judicial system has any rightful place in New Zealand. We would like to see vast changes in the whole judicial process and in the laws of the country to make them responsive to all the people of New Zealand and to serve fully the needs of all members of this society. But at the same time we recognize that these are long-term aims and that there is an immediate need to help those who at present do not receive a semblance of British or anyone's justice in [unclear: our courts] As Jeremy Pope, Editor of the [unclear: some oof the nal] has stated "Every day, as the [unclear: interests of ession] well knows, defendants [unclear: focus for ty] to offences which they did not [unclear: commit].

When we first considered this matter over a year ago a number of facts suggested that Maoris and other non-pakehas were less likely to receive justice in the courts than were pakehas. Firstly, Justice Department statistics for 1968, 1969, 1970 indicated that the conviction rate for Maoris was consistently higher than for non-Maoris. A possible reason for this was given by the Justice Department itself in a study of offenders committing serious crimes³. It was shown that twice as many non-Maori offenders had lawyers (86.7%) as did Maoris (44.3%). Correspondingly, Maoris tended to plead guilty more often and the author concluded "With a greater proportion of Maoris pleading guilty, and fewer having representation there is, of course, a greater likelihood of Maoris being convicted".

Secondly, the Justice Department's statistics for the same three years also showed that the imprisonment rate for Maoris was significantly greater each year than it was for non-Maoris. Furthermore, in the Children's Court, where "the very great majority appear without legal advice or representation"², there is an even greater discrepancy in sentencing. A Maori child offender is twice as likely to be sentenced to a penal institution as a non-Maori, while the non-Maori child is more likely to be fined, or simply admonished and discharged⁴. It has been claimed that these discrepancies in sentencing are due both to Maori offenders committing "a different type of offence"⁵ and to "Maori offenders having far longer records of convictions for offences than Europeans"⁵. Whether either claim has any substance is doubtful, but certainly there is no proof that these factors account for the considerably higher imprisonment rate for Maori offenders. Indeed, there is now some evidence to the contrary (see below).

Several reasons may account for these facts. Negative racial stereo-typing of Maoris is undoubtedly an important factor. On the part of police this may be manifest as a greater suspicion of Maoris, a more ready assumption of guilt, and a correspondingly higher arrest rate. Similar racist attitudes on the part of some court officials, child welfare officers, probation officers, and magistrates further compound the problem for the Maori offender. At the same time, our experience has been that Maoris are less knowledgeable of their rights and in this pakeha-dominated society do not assert those rights as strongly as do pakehas. In court Maoris speak less forth rightly on their own behalf, and very often say nothing at all. The Maori offender is probably less well-educated than his pakeha counterpart and his knowledge of English may not be good. Although these characteristics of Maori offenders are well known to anyone with any court experience, the Department has never attempted to modify court procedure to accommodate these ethnic differences. Instead the offender is penalised for them.

Present efforts to advise Magistrate Court defendants of their rights are pathetic. Firstly, only those placed in custody are told of their right to see a solicitor, not those released on bail or summonsed to appear. Secondly, prisoners are 'told' by means of a form, written only in English, which the police now require them to sign. Thirdly, it is assumed that the prisoner knows what a solicitor is, and how he can help him. In our legal aid programme of the past year we have interviewed over 70 Maori offenders. Of these, only 6 had ever heard of the official offenders Legal Aid Scheme. Few of the remainder realized that a lawyer could help them. Of the 50 who had duly signed the police form, only two requested a lawyer, and one of these believed that having signed the form a lawyer would automatically be called for him. Several did not know the meaning of the word "solicitor".

The Nelson Legal AID Scheme

In view of the arbitrary manner in which justice is apparently dispensed in the Magistrate's courts, and given that Maoris receive justice less often than pakehas, it became quite clear to us that we must initiate a legal aid programme since in order to obtain the best one can of British justice, representation by counsel is absolutely essential.

For a year it has been our aim to obtain legal representation for every Maori or Polynesian appearing before the Nelson Magistrate's Court on a criminal charge. We had two main objectives in view when we undertook the programme. Firstly, to help the defendant in his understanding of court procedure, to ensure that he was fairly treated by the police and by the court, to provide him with sympathetic company in the intimidating atmosphere of the court, and to do our best to ensure that he felt that he had had a 'fair go', within the limitations of the present inadequate system. Secondly, we wanted to see what effect representation by counsel could have on the result of the court hearing. Our lawyers were chosen because they were prepared to allow us to assure each alleged offender that he would not be charged at all for the services provided by his lawyer. In fact, more than 95% of these offenders have received legal aid under the Offenders Legal Aid Scheme.

In most cases we contacted defendants before their first court appearance and they were able to take advantage of the advice of counsel with regard to questioning and to plea. Nevertheless, a few defendants did not come to our notice until after their first court appearance at which they had entered a plea. In these cases our lawyers were limited to pleading in mitigation of penalty, although three such defendants changed earlier pleas of guilty to Not Guilty, on the advice of counsel. In one instance where a plea of Guilty and a conviction had already been entered before our contacting the defendant, an application for a rehearing of the case and a change of plea was granted on the ground of new evidence.

In order to assess the results of this programme we have completed a study which, we believe, has not previously been undertaken for a court in New Zealand. We have analysed approximately 14,000 individual files from the Nelson Magistrate's Court for 1972, the year during which our programme operated and, for comparison, 1970 and 1971, two 'normal' years. Initially we eliminated all files concerning traffic offences. The remaining files, which included police summons and police arrest cases, were then separated into Maori and non-Maori groups. Details of each charge, plea, representation by counsel, and details of the decision of the court and sentence were recorded for every defendant.

Representation by Counsel

In the 'normal' years 1970 and 1971, 18.5% and 17.7% of all Maori offenders in Nelson were presented by counsel whereas about twice as many non-Maori offenders engaged lawyers (Table 1). To our knowledge there are no comparable national figures for representation by counsel of defendants in the Magistrates Court. However, the ratio of 1:2 which we found in Nelson corresponds very closely with the national figures previously reported for Maoris and non-Maoris charged with serious offences⁶. In 1972, 79% of all Maoris appearing in the Nelson Magistrate's Court were represented by counsel. From the routine questioning regularly undertaken with each offender we determined that, as in the two previous years, approximately 19% would have obtained counsel themselves had our scheme not been operating.

Offences' Convictions and Sentences

As is clear from the data given in Table 2, Maori offenders in Nelson committed much the same type of offences in 1970, 1971 and 1972. Similarly, the offences of non-Maoris in Nelson did not differ significantly over the three year survey period. Comparing Maori and non-Maori offenders directly it can be seen that Maori offenders tended to commit somewhat fewer crimes against the person, and more against justice administration, but overall the differences were not great.

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On the other hand, the conviction rate and the sentences for Maoris compared with non-Maoris in Nelson in the two 'normal' years present a different picture. Although the rate of conviction and the penalties imposed on all offenders were much the same in 1970 and 1971, it is clear that in both years a greater proportion of Maori offenders were convicted, and those convicted were more severely punished. Thus in 1970, 3.5% of cases against Maoris were dismissed or withdrawn, compared with 11.8% for non-Maoris; and in 1971 the figures were 1.2% for Maoris and 5.1% for non-Maoris. Comparing the penalties, it can he seen that in 1970 36.5% of all Maori offenders in Nelson were imprisoned compared with 27.4% of all nonMaori offenders. This pattern was repeated in 1971 when 31.2%.of all Maori offenders were imprisoned compared with 24.6% of all non-Maori offenders.

In order to show whether these figures for Nelson differ from the national average, we have included the figures for all Magistrates' courts of New Zealand for 1970 in Tabic 3. These are comparable with our Nelson (Table 2) figures as we have used the same categories for offences as the Department of Justice in their publications. Overall, the figures for Nelson follow those for the combined courts of New Zealand, but it should be noted that the conviction rate and the imprisonment rate in Nelson for both Maori and non-Maori offenders are considerably higher than the national averages.

The same discrepancies in sentencing between Maoris and non-Maoris are found in the national statistics (Table 3) as in those for Nelson alone (Table 2). Unlike sentences imposed in the Children's Court, those imposed on Maoris and non-Maoris in the Magistrate's courts cannot easily be compared. A number of factors, particularly the magnitude of the offence, the previous record of the offender, and his work record will have a bearing on the sentence. Nevertheless, we tend to the view that strictly racial criteria can influence sentencing and that the presence or absence of counsel may contribute to much of the discrepancy in sentencing of these defendants.

In order to test these proposals, we have compared the statistics for Maori offenders in Nelson for 1970 and 1971 on the one hand, and those for Maori offenders in 1972 on the other (Table 4). As was shown in Table 2, Maoris offenders in the three years committed much of the same sort of crimes' Any significant differences in penalty could not, therefore, be attributed to differences in the types of offences committed. In addition, 69% of the Maori offenders in 1972 had a previous criminal record compared with 74% in 1970.

In 1972 we were able to ensure that 79% of all Maori offenders appearing on criminal charges before the Magistrate's court in Nelson were represented by counsel. A comparison of the pleas, conviction rates and penalties imposed on these offenders, and the corresponding figures for Maori offenders in the two previous years, most of whom were not represented, indicates marked differences. In 1972 there was a significant increase in the number of pleas of Not Guilty and for the first time in the survey period cases against Maori defendants were dismissed — previously none had been. Imprisonments of Maoris in 1972 were down by over one third (34% to 19%). Sentences to probation were even more drastically reduced from 17% in 1970/71 to 5% in 1972. There was a corresponding rise in the proportion of Maori offenders who were fined from 38% in 1970/71 to 60% in 1972.

Furthermore, if the 1972 figures for Maori offenders are compared with those for non-Maori offenders in Nelson in the same year it will be seen that in Nelson in 1972 there was an imprisonment rate for Maoris which was actually tower than that for non-Maoris (Table 2). We are unaware that this has ever been true of any other court in New Zealand before.

The implications of these figures are startling. The so-called "Maori crime rate", often assessed by the number of Maoris in jail, now begins to look very different. For if representation by counsel has a similar effect on sentencing in courts elsewhere in New Zealand as it has in Nelson, then at least one of every three Maoris at present in prison should not be there. The reason for the high percentage of Maoris in our penal institutions may now become clearer. Many of them are behind bars not because they are particularly bad offenders, but because we have a particularly bad judicial system. The punishment does not so much fit the crime, but rather fits the version of it which the Magistrate hears or wishes to hear. In the case of most Maori offenders that is the police version because they have no lawyer to present adequately their side of the case. This is also true for some pakehas, but as our figures show they obtain counsel much more often and tend to speak more confidently on their own behalf in what is usually a wholly pakeha-occupied courtroom.

It will be recalled that a major aim of our programme was to help ensure that each defendant felt that he had had a 'fair go' within the limitations of the present system. It is impossible to measure our success in this regard quantitatively. Nevertheless, as we have taken a close interest in every case handled by our lawyers, and as we have spoken at length with many of the defendants, some recurrent altitudes have become apparent. There was often initially a lack of concern among the offenders about their situation, their plea and the nature of the charges brought against them: a feeling of hopelessness in the face of the system was common. When the matter was raised, many offenders were highly cynical about the possibility of ever having a fair trial and took the attitude of "I might as well plead guilty and get it over with—"I'm going to be convicted anyway". (This attitude was occasionally reinforced by police officers, mainly CIB, who in some cases strenuously urged alleged offenders to plead guilty, and in other cases actually warned offenders against the cost of representation by counsel). However, an increased interest in the progress of their own hearing was often apparent once counsel was assigned, and we found many defendants surprised and even pleased at the outcome of their hearings. This was not always true. On two occasions convictions were entered against defendants in the face of considerable evidence indicating their innocence. Their scepticism regarding justice for Maoris in New Zealand was reinforced.

Results

It is quite clear from our results that there are two standards of justice in the courts of New Zealand. The defendant who has counsel is at a distinct advantage over the defendant who has not For this reason therefore, quite apart from any other, Maori offenders are at a disadvantage in the courts, and in the main do not receive just and fair treatment. This situation has existed ever since British-style justice was brought here, and the blame for its perpetuation to the present day rests solely with the Department of Justice. The gross discrepancies in the dispensation of justice to Maoris and to non-Maoris have always been ovious. And if pakeha administrators have in the past been unable to see them, then they cannot be excused for failing to listen to generations of Maoris who have pointed out the inequalities. The Department has done nothing beyond advising that legal and is available to those who will ask, and increase the fees paid to the few lawyers who will take these cases. The Department of Justice has always looked at the offenders to find the reasons for the considerable differences in conviction rates and sentencing, and has never considered that it might be responsible itself The administrators of Justice in New Zealand will have to recognize that in this regard they themselves, rather than the Maori offenders, are the problem.

Duty Solicitor Scheme

Our results provide an undeniable [unclear: ca] for the immediate introduction of a fully comprehensive, nation-wide duty solicitor scheme The claim has been made by the previous Minister of Justice and by the permanent Secretary for Justice. Mr E.A. Missen, that a duty solicitor scheme covering every court in the country would he too expensive to operate. However, there can he doubt that holding about 33% more people in prison than need be there is vastly more expensive, both economically and socially. The cost to the community of an increase in number of people with a deep grudge again its system of justice is frightening.

The Magistrate of Nelson, Mr J.W.P. Watts, S.M., has been quoted as slating, in reference to legal representation in court, that "He had yet to find that counsel for a defendant had much to add to a probation officer's report"⁷. Fortunately for defendants in Nelson, Mr Watts' own judgements in the past year do not support his statement. The effect of representation on sentencing in Mr Watt's own court in 1972 is quite clear. Further statistical analysis of the data indicates that legal representation halved the likelihood of any defendant being sentenced to imprisonment. We believe that this would be true of any other court in New Zealand and call on the Government to institute such a nation-wide scheme without delay.

It would be naive to assume that simply by providing lawyers for defendants in the courts discriminatory practices against Maori offenders will cease. Racist attitudes on the part of those administering justice will not vanish immediately, and will still ensure that the non-pakeha defendant is at a disadvantage in the police stations, court and prisons. The judicial system will continue to he a racist system until such time as all members of the community participate equally in its planning, its administration and its benefits. The inequalities will persist until such time as this and all other pakeha-dominated institutions in New Zealand are demolished and a new society, created jointly by and serving the needs of all ethnic groups in the community, is achieved.

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