2.2 Prosecutions and convictions
Once an individual has been apprehended for an offence (alleged or suspected), Police must decide on whether to initiate a formal criminal prosecution. Such decisions are based on a number of considerations: the seriousness of the offence, the adequacy of evidence to be presented to the court, the number and type of associated offences for which the person may also have been arrested on that occasion, previous offending history, and so on. In some cases, evidence may be more than adequate for prosecution, but the remaining considerations militate against prosecution, and the offender is subjected to Police Diversion 1. When prosecution proceeds, the resulting criminal justice processes typically lead either to conviction 2 or acquittal.
Some important research in the 1970s illustrated significant differences in Māori experience in court proceedings. O’Malley’s (1973) analysis of Magistrates’ Court data found similar rates of granting of bail and “demand for surety” for Māori and
non-Māori, but experience then diverged: Māori were less likely to arrange surety for bail (possibly for financial reasons) and this reduced their ability to obtain legal advice. They were only half as likely to have legal representation, and more likely to plead guilty - which O’Malley attributed to different attitudes and, again, lack of legal representation 3 .
Between 1981 and 1999, 24.6% of all charges against Europeans in the lower (Magistrates, District) courts were acquitted, while the figure for Māori was 20.4%. The high rates of conviction for Māori are almost certainly influenced by Māori being more likely to plead guilty if prosecuted, which may in turn reflect some systemic problem with the availability or quality of legal representation.
Based on an analysis of all cases prosecuted in 2001, Paulin 4 claimed that 80% of Māori pleaded guilty, compared to 73% of non-Māori. Not-guilty pleas were entered by 9% of Māori, and 10% of non-Māori. Of those who entered not guilty pleas, 24% of Māori, and 21% of non-Māori, were nevertheless convicted. The outcome of all the cases were that 79% of Māori were convicted, compared to 70% on non-Māori.
The initial plea was the factor most strongly related to eventual conviction. Paulin’s analysis also identified additional factors that were significantly related to the likelihood of conviction: the type of offence (particularly traffic offences), number of previous convictions, and the age of the defendant. Of those who pleaded guilty, considerably fewer Māori were first offenders (17%, vs. 29% of all non-Māori). Also, importantly, more Māori (37%) than non-Māori (31%) were apprehended for offences of medium to high seriousness.
Her conclusion was that there was little evidence of a significant difference in the probability of conviction, once prosecution proceeds, which could be attributed to ethnicity alone. This does leave open a question as to the significant differences in initial pleadings. The underlying analysis on which this unpublished note was based was not available for the present report, but one detail given by Paulin (but not commented on) is that no plea was recorded for 11% of Māori, but 18% of non-Māori. This difference again quite possibly reflects differing access to, or quality of, legal advice available to Māori accused or defendants.
Table 1 5 below shows the percentage of Māori and Europeans whose apprehension for criminal offences then led on to a formal prosecution by Police. Across each of the last ten years, and over most offence classes, Māori were subjected to a moderately higher rate of prosecution than were Europeans - usually by about six - seven percentage points.
Table 1: Apprehensions resulting in prosecution 1996-2005 by ethnicity (%) 6
When different categories of offence are examined over the same time period, pronounced differences can be observed between Māori and European New Zealanders, as seen in Table 2 below.
Table 2: Prosecutions undertaken in 2004 by offence class and ethnicity (% of all prosecutions) 7
A similar degree of the ethnic skewing of proportions that is evident in the prosecutions data is apparent also in the numbers of offenders convicted of the offences for which they were charged.
Figure 2: Convictions 1996-2004 by ethnicity (%)
Ministry of Justice (2006) Conviction and Sentencing of Offenders in New Zealand:
Total convictions of Māori rose from 1996 to 2004. Convictions of Māori accounted for between 41% and 43% of all convictions in the period, on average about five percent less than convictions of Europeans over the same time. This is a smaller difference than for apprehensions. When offence categories are examined some variations emerge.
- Violent offences. Although there are more apprehensions (in absolute numbers) of Europeans than Māori for violent offences, more Māori (again in absolute numbers) are convicted, and they make up the greatest proportion of convictions of this type (47% of convictions were of Māori and 38% are of Europeans in 2004; Appendix: Figure 3.1). The importance of this is that while violence is not the largest offence category, the sentences imposed are more likely to be custodial, and longer than for other offences, resulting in impacts on the prison muster.
- Dishonesty. Though there are similar numbers of apprehensions of Māori and Europeans, more Māori are prosecuted than are Europeans.
- Property damage and property abuse. Although Police apprehensions for property damage and property abuse offences are higher for Europeans than Māori, Māori are convicted in greater numbers (Appendix: Figure 3.2).
- Drug offences. While outnumbered by Europeans in convictions for drug offences, at 40% of convictions, Māori are over-represented throughout the period (Appendix: Figure 3.3).
- Traffic offences. While Europeans make up the greatest proportion of traffic convictions, Māori are still over-represented in this category of offence (Appendix: Figure 3.4).
- Offences against good order. Convictions in this category show a steeper rise for Māori than Europeans and others from 1998-2003, when there is a sharp reduction for all groups. Māori are over-represented throughout the decade (Appendix: Figure 3.5).
- Offences against justice 8. Māori outnumber Europeans and comprise the greatest proportion of convictions for offences against justice (Appendix: Figure 3.6).
To summarise, arrested Māori are moderately more likely than Europeans to be prosecuted. Māori defendants are prosecuted in greater numbers also than the numbers of apprehensions might suggest.
With respect to the decision to prosecute, already noted above are the range of considerations that affect such decisions 9 . Perhaps the most important are the seriousness of the current offence, and any offending history. Unusually high numbers of prosecutions of Māori offenders could of course be a consequence of those processes, rather than ethnic bias per se.
Data from the Christchurch longitudinal study has been analysed with respect to this issue. Fergusson and his colleagues analysed officially recorded convictions and self-reported offending data 10. They found apparent bias in the arrest and conviction process for Māori relative to non-Māori offenders with a similar offending history and socio-economic background. However, an acknowledged limitation of this analysis was that seriousness of offending – potentially an important variable – was not taken into account. A Ministry of Social Development report however indicated that Māori young people were more likely to come to the attention of the justice system even when the offences were of low seriousness; once identified by the Police, they were also more likely to be referred to the Youth Court than to family group conferences 11 .
1 As is noted later, Maori are less likely to receive Diversion - see Paulin, J. (2002) Ministerial Correspondence, Ministry of Justice.
2Some offenders are convicted but subsequently “discharged without conviction”.
3 O'Malley, P. (1973a) The Amplification of Maori Crime: Cultural and Economic Barriers to Equal Justice in New Zealand. Race, Vol. 15, No. 1, July, pp. 47-57.
4 Paulin, Judy (2002) Ministerial Correspondence, Ministry of Justice
5 The Ministry of Justice (MoJ) Case Management System (CMS) has its own nomenclature, so there is some difficulty in attempting to compare apprehensions and prosecutions (Police data) with convictions. MoJ reports on cases by offender whereas NZ Police statistics are based on offences. Once offences go to prosecution, they become 'cases'. Generally, charges for which proceedings against the person start or finish on the same day(s) are combined to form a case. Police data does capture some demographic information, but the number of apprehensions per person is not given. In comparing prosecution figures to conviction figures the analysis is limited by these differences. Ministry of Justice published data will be used in this section, with some reference back to apprehensions data where this is useful.
6 Chi square analysis indicates differences are statistically significant for each of the ten years analysed.
7 Appendices 2.1 - 2.7 give the rates of prosecution by offence class for each of the last ten years.
8 Includes failure to answer bail.
9 Determining whether Police are more likely to decide to prosecute when the suspected offender is Maori, has not been possible from the available data.
10 Fergusson DM, Horwood LJ, & Swain-Campbell N (2003b) Ethnicity and criminal convictions: results of a 21-year longitudinal study. The Australian and New Zealand Journal of Criminology, 36 (3) 354-367.
11 Maxwell Gabriel, Robertson Jeremy, Kingi Venezia, Morris Allison & Cunningham Chris (2004) Achieving Effective Outcomes in Youth Justice: an Overview of Findings Ministry of Social Development, Wellington.