The New Zealand Court of Appeal is this week hearing a case that is unusual in a number of respects. AUT Law professor Kris Gledhill explains how and why the mosque killer is seeking to reopen his conviction and sentence.
The person bringing it is Brenton Harrison Tarrant, the 35-year-old Australian man convicted and sentenced for the murder of 51 people in Christchurch in March 2019.
Tarrant – who earlier pleaded guilty to those murders, along with attempting to murder 40 others and committing the acts as terrorism – is seeking to reopen his conviction and sentence.
At first glance, this might seem baffling: how can a person who earlier admitted to serious crimes – and who was sentenced years ago – be trying to appeal? The answer lies in some important rules that illustrate how New Zealand’s legal system works.
Terrorist was sentenced five years ago. How can he appeal now?
Legal systems have to balance competing principles. One principle is that decisions by criminal courts should be final, so that those affected can move on.
At the same time, it is important the decision is the right one, since an incorrect finding by a criminal court is problematic.
The Court of Appeal has been hearing from the Christchurch mosque terrorist's former lawyers. (Source: 1News)
As a result, those convicted have a right to appeal, but the Criminal Procedure Act 2011 gives them 20 days to file their application. Additionally, the Appeal Court can extend that time limit if there are good reasons to override the need for finality.
So, the hearing now before the court is actually an application for an extension of time. The terrorist's notice of appeal against conviction and sentence was filed in November 2022: it should have been filed in September 2020, as he was sentenced in August 2020. So the application is to extend time by over two years.
If the Court of Appeal is not persuaded there are good reasons to extend the time limit, the judges will refuse the application to extend time. There is one final avenue then, which is an application to the Supreme Court.
But he pleaded guilty. How can he appeal that?
A second part of the application Tarrant has made is to set aside his guilty pleas. This can happen for various reasons. The central argument he has raised is that he was acting irrationally when he pleaded guilty because of mental health issues caused by prison conditions.
An admission of guilt, which in this case led to the severest sentence available in our legal system – life without parole – has to be an informed decision. The legal system has processes for when people are not fit to stand trial.
If it is a temporary problem, trials can be adjourned until the person is well enough. If it is a more long-term problem, there can be a modified trial that looks at whether the person did the acts charged without looking at whether they had a criminal state of mind.
That is why the evidence before the Court of Appeal includes him, his trial lawyers and experts. This will allow an assessment of the reliability of the pleas that were entered.
The man responsible for the worst act of terrorism in NZ history is seeking leave to appeal his convictions that were entered five years ago. (Source: 1News)
This is the real issue for the Court of Appeal. If the guilty pleas can’t be relied on, that might be a good reason to extend time. However, that is not automatic. The legal test is whether there has been a miscarriage of justice.
This allows the Court of Appeal to consider whether the evidence available showed guilt beyond a reasonable doubt in any event. An admission of guilt and a finding of guilt by a court weighing the evidence lead to the same verdict.
Why don’t we know the names of his lawyers?
Another unusual feature of this case is that we don’t know the names of his lawyers. This is because, in a judgment in November 2024, the Court of Appeal allowed them to be anonymous. This rested on evidence of concerns for their safety.
The Supreme Court declined to hear a further appeal against this ruling. This is why the appeal is being heard in a closed court but with a delayed video link.
This reveals that some people misunderstand the role of defence lawyers. The legal system only works if lawyers are willing to represent unpopular people and present their case in a professional manner.
This does not mean the lawyer believes in or otherwise supports the person they are representing. Rather, they are doing a job that is necessary for the legal system to work properly.
But wasn’t the evidence clear?
Most people charged by the police plead guilty or are found guilty; and most appeals are unsuccessful. But in a minority of situations, police and prosecutors or trial courts don’t get it right.
There have been past instances where people have made confessions to things they did not actually do or did not do with a criminal state of mind.
No-one benefits from an incorrect guilty verdict. That is why we have appeals, including appeals out of time, and a Criminal Cases Review Commission.
Particularly for such a uniquely horrible event, and when the sentence imposed is the most severe one our system can impose, it is important to be sure it was correct. That is what is being assessed. It is also why the Court of Appeal has appointed a lawyer to be on stand-by in case the lawyers for the defence are sacked.
Something similar happened at the sentencing hearing: the trial judge appointed a lawyer to make arguments at the sentencing hearing because the terrorist seemingly accepted the sentence of life without parole and told his lawyers not to argue against it.
The resilience of the victims and their families is again on display. For them in particular, but also for New Zealand more generally, we should remember that court judgments are also important historical records.
Judges give reasoned findings into significant events. The three judges of the Court of Appeal are playing this important role, with the assistance of all the lawyers involved.
Kris Gledhill is a Professor of Law at Auckland University of Technology, and was currently working on a criminal sentencing project funded by the Borrin Foundation.
This article is republished from The Conversation under a Creative Commons licence.
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