It is January 1973. There is a void inside Ray*.

He has been picked up by the police for being “idle and disorderly”.

Homeless for about a year, the police officers who arrest him make him walk to the station, saying he smells too bad to get in their car.

When he gets to the station, they strip him out of his clothes and make him take a shower.

While in the shower, one of the arresting officers shows Ray a weapon and asks who it belongs to. He “prods” him, hurting him in ways that leave no mark, until eventually Ray says the weapon is his.

Without legal representation, while naked in a shower, Ray has confessed to a crime he did not commit. He will be sentenced to two years’ probation.

Ray is 16 years old.

His experience is part of the historical account of why people appearing in court now get free legal representation.

It is Ray’s story, and the story of the tens of thousands of children, ages eight to 18, who were put through the courts without legal or even parental guidance before the duty solicitor scheme came into effect.

Duty solicitors and the Nelson Māori Committee

It is now taken for granted that when you are called before the courts, if you cannot afford a lawyer of your own, you will be assigned a duty solicitor to represent you.

This was not always the case.

Anyone appearing before the courts with a duty solicitor can thank the dedicated work of the Nelson Māori Committee and other activists in the early 70s.

Many of those who did the mahi have since passed away, but Oliver Sutherland, the secretary of the Nelson Māori Committee during the early 70s, remembers the struggle.

BRADEN FASTIER / STUFF/Nelson Mail

Oliver Sutherland was one of many fighting for equity in the justice system from the early 70s, many of his contemporaries have since passed away. He still has original copies of pamphlets and research he helped produce.

“It was based on the Justice Department’s own statistics, and the research that we did in Nelson,” Sutherland says as he recalls the fight.

“We knew something rotten was going on, because the Justice Department’s own statistics showed how many Māori children were in the courts. Pākehā as well, but Māori children always came out worse.”

Sutherland was recruited into his role as Nelson Māori Committee secretary by its chair at the time, John Te One Hippolite.

“We could see, the more we investigated, the experience of Māori in the justice system, and especially Māori children. We could see grave injustices, and we wanted to do something about it.

“One of the things that showed up immediately was that most Māori had no lawyer. That was even more evident for the children: hardly any of them did, and if children did have a lawyer they were Pākehā.”

In 2020 Sutherland published a book, Justice & Race. He said the book was his testimony and evidence for the Royal Commission into State Abuse of children in its care. It also details his perspective on the journey to establishing the national duty solicitor scheme.

MARTIN DE RUYTER

Sutherland wrote his book on experiences campaigning against institutional racism and child abuse in the judicial and social welfare systems in part as his testimony to the Royal Commission.

Hippolite and Sutherland approached lawyers in Nelson and asked them to represent people appearing in Nelson District Court for free, in what Sutherland describes as a “do-it-yourself duty solicitor scheme”.

The official aim of the scheme at the time was to see every Māori and Pasifika person coming before the Nelson Magistrate’s Court to have legal representation, and as many children as possible.

“Eight- or nine-year-olds were being charged with being ‘idle and disorderly’ … and they were getting no assistance. Many of those children were state wards.”

Ray was one of those children.

Ray’s story: The arrest

These days Ray lives rurally, close enough to Nelson that he can go in if he needs to, but far enough away that he doesn’t feel hemmed in.

The way he remembers the ‘73 arrest is this: he had been sleeping in a derelict house, having moved from the tunnel of a model railway. He had already been homeless for about a year.

He was arrested for being idle and disorderly with no fixed abode. He walked to the police station after being told he was too dirty to get in the patrol car.

Ray had been sleeping in the tunnel of the local model railway, but moved into an abandoned house. He was arrested a little after he moved into the derelict house and made to walk to the police station.

Once there, he was told to have a shower, but while he did he said one of the arresting officers came into the room with a makeshift weapon and asked whose it was.

Ray has read Sutherland’s book – he also features in it, in a paragraph detailing his confession under duress. Sutherland describes Ray’s treatment as being “prodded” with a police baton, but Ray says it was more.

“He knew exactly what he was doing with that baton. He knew where to prod and hit without leaving a mark. So I said [the weapon] was mine.”

Ray was kept in jail for four days before the police contacted Sutherland, who helped him get a free lawyer.

With the lawyer’s help, Ray tried to change his testimony.

“I told the judge … the reason I’m changing it is because [the arresting officer] was hitting me. The Judge said ‘is this true?’, and he [the arresting officer] said ‘no, he’s lying’.”

Ray said afterwards, Sutherland managed to track down three people – one who had made the weapon, one who was given it, and another who had it removed from his car by the police.

“He proved it never even came near me.”

The research that ‘blew people away’

“Māori always got the heavier sentence. Pākehā tended to get the lighter sentences,” Sutherland says. “That happened year after year, so we made a fuss.”

The “fuss” started locally, but it didn’t end there.

“We realised what we saw in Nelson was just a microcosm of what was happening nationally.”

He said their local scheme started with lawyers Warwick Reid and Brian Smythe acting for Māori defendants.

Brian Smythe was just a junior lawyer when he agreed to donate his time to children and adult Māori appearing in courts without lawyers.

“Oliver had a bee in his bonnet about what he saw as the unfair treatment of Māori offenders,” Smythe recalls.

“He wanted us to stand by and fast track normal legal services to Māori coming before the court … there was no provision in the law for destitute, poverty-stricken or poor unfortunates.”

ROSS GIBLIN/STUFF

Retired lawyer, Brian Smythe, recalls his time as one of the first duty solicitors in New Zealand.

Despite not being “directly involved” with Sutherland’s activism, just being named in his pamphlets was enough to land Smythe in hot water.

“I have vivid memories of standing up for a Māori chap [in court] … and Judge Watts said ‘Mr Smythe, I have a pamphlet here saying my court is a racist court, and it has your name appended to it. I will not hear you unless you renounce the document’.”

Smythe, his first loyalty being to his client, “contemplated” the decision for a moment, then told the judge he had “very little to do with the writing of the pamphlet”.

Sutherland says he and other campaigners were very careful to never name any specific judge or other individual as racist – it was the system, which they set out to prove with research.

After a year of running the scheme in Nelson, Sutherland and co-authors John Hippolite, Ross Galbreath and Ann Smith produced a research paper based on their results, Justice and Race: A Monocultural System in A Multicultural Society, looking at the years before and after the local “DIY Duty Solicitor” scheme kicked in.

The numbers were stark.

In 1970 and 71, with no legal aid scheme, 18.5 per cent of Māori appearing in Nelson’s court had legal representation. In 1972, after the scheme came into play, 79.2 per cent did.

Penalties changed, too. In 1970 and 71 combined, before the legal aid programme, 34.4 per cent of Māori offenders were imprisoned, 16.9 per cent put on probation, and 38.5 per cent received a fine.

In 1972, with legal aid, 19.8 per cent were imprisoned, 4.9 per cent put on probation, and 60.5 per cent were given the more minor punishment of a fine.

“It was proof; we knew what was happening, but people always wanted proof. Here we had the Government’s own statistics.

“It was the same magistrate, same court, the only thing that had changed was the legal representation.”

The research team released their paper at a February meeting of the New Zealand Race Relations Council in 1973.

MARTIN DE RUYTER/Stuff

Nelson District Court in the 1970s, then known as Nelson Magistrate’s Court, had just one sitting judge. The data produced showed it was not the bias of the judge affecting outcomes for Māori, but lack of legal representation.

“It blew people away,” Sutherland says.

“People had no idea, a lot of people didn’t. A lot of Māori knew things weren’t right at the courts, but this was the evidence.”

He said the publication of their paper lit a fire under their efforts, with major headlines and a full-on year of meetings, talks, and groups around the country setting up their own legal aid programmes while a national programme dragged its way through Government policy development.

Just a month after Ray’s arrest, the national fight for fair and free representation called Sutherland away from Nelson.

Ray’s story – the void

Ray doesn’t blame his arrest, that night in 1973, for what was to come. He doesn’t even blame it for the void he feels inside himself – that came earlier.

He doesn’t make excuses either, but says his life can be explained, at least in part, by the shaky foundations it was built on.

His parents had a troubled relationship.

He never made friends because he moved from school to school, and so only had his siblings for company – but even those relationships were unpredictable, with his parents frequently adopting new children into the family with no warning.

The arrest in ’73 wasn’t the first time Ray encountered the police. When he was 14, he stole $20 from a neighbour’s house, but was caught and taken in by the police, and “beaten up until I confessed”.

His parents’ marriage dissolved and his father left. Ray and his siblings were eventually picked up by the state after his mother was deemed unfit, and his siblings were sent to a Salvation Army children’s home in Temuka “where they were all sexually abused” he claims.

Marjory Cook/Stuff

Ray counts himself lucky despite his experiences with the justice system, since he knows his siblings and other children went into state care facilities like the Salvation Army Bramwell Booth Home where they were sexually abused. (File photo)

Despite his experiences, Ray counts himself lucky.

He was sent to a dairy farm as a state ward, but he eventually ran away.

He was homeless for about a year before his arrest, unwilling to go to his mother, who he hated for his family falling apart, unable to find his father, who he hated for leaving.

In the years after his arrest, he continued to live in ways that clashed with the police – he started using drugs and alcohol, he got involved in gangs, and continued a life of what he described as “petty” criminal activity.

Ray says those years of addiction and crime were trying to answer an unanswerable question.

“If you’re brought up in a dysfunctional family, that’s what keeps it going – the dysfunction. It’s cyclical. No one’s looking for the answer, because there isn’t one.

“Children who grow up like me grow up with a void inside them … I was trying to fill that void, but unfortunately, it can’t be filled. This is the failure of the system: it just makes the whole thing worse.”

Ray says he can never know what his life would have looked like if his first, fundamental experiences of family life or the justice and welfare system were positive, but he can’t help but wonder.

“If I had been sent to a good family home, and just been normal, it would have been different.

“My biggest thing has been trust issues, and it still is now.”

Official secrets, ‘mild blackmail’, and the launch of the national duty solicitor scheme

Ray’s case in 1973 was just one on a much longer journey towards equity in the justice system for Oliver Sutherland.

That year was a whirlwind of travelling the country, giving talks, helping groups set up local duty solicitor schemes, and putting pressure on the Government to get a move-on establishing a national programme.

“Various law societies started their own duty solicitor schemes, they didn’t wait for the national scheme because the national scheme wasn’t coming.”

Sutherland says by ‘73 the fight was “a whole campaign around the country”. Despite the mounting pressure, though, the Government was still dragging its feet.

BRADEN FASTIER / STUFF

Sutherland still has the newspaper clippings from the early 70s when the duty solicitor scheme was slowly working its way through the Government process of becoming law.

Sutherland and other activists set up the Auckland Committee on Racism and Discrimination group, joining voices with groups like Ngā Tamatoa and the Polynesian Panthers.

It was in 1974 that Sutherland had a breakthrough – someone leaked a cabinet paper on the proposed national duty solicitor scheme to him.

“We told [then-Minister of Justice] Martyn Finlay that we had it, and we weren’t happy with the proposal and had some ideas for changes, or we’d make the whole thing public.”

Sutherland says he supposes it was a “mild sort of blackmail”, and afterwards “s… really hit the fan”.

“At that stage the Official Secrets Act was a draconian piece of legislation, every public servant was bound by it. This sort of leak was a huge breach, and by receiving and holding it, action could be taken against me.”

Colin Smith/Stuff

Oliver Sutherland, photographed here in 2009 with newspaper cuttings from 1974 when police raided his home. Sutherland says the media heat from the raid might have been enough to push the Government into action.

Sutherland’s home was searched, and he was interrogated by the police. He called his lawyer David Lange, who under the act could also face charges if he advised Sutherland in relation to the search.

Refusing to answer questions or lying were punishable offences.

Sutherland says the experience “was pretty frightening” even though in the end no charges were laid, but it may have been the final push the Government needed to get the legislation put into law.

“In the end, that was in May of ‘74, and in July of ‘74 a national scheme got off the ground, and that’s the end of that story.”

Ray’s story – 50 years on, waiting for change

Since his arrest in ‘73, Ray has lived a full life.

He lived overseas for a while before coming back to New Zealand, has children and grandchildren, and lives with his dogs in a good house where he feels comfortable.

He has been free from drugs and alcohol for years now, having realised at age 40 that if he didn’t sort his life out he’d be dead by 55.

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“I checked into rehab, and that’s where I learned what it’s all about, that was a turning point. I wanted to get respect not through intimidation, but respect because ‘he’s a good guy’.”

Fifty years on from when Sutherland first came into his life and offered him help, no strings attached, Ray looked him up and reached out. It was with the encouragement and support of Sutherland that Ray felt comfortable giving his own testimony to the Royal Commission.

“He was there supporting me 50 years ago, and he was still there. He’s still doing it. He needs a medal.”

LAWRENCE SMITH/Stuff

Ray was one of hundreds who gave the Royal Commission testimony on their experiences of abuse while in state care. He said Oliver Sutherland’s support helped him feel comfortable giving his testimony.

Ray says the Royal Commission was the first time in his life that a justice system process he was involved in actually felt like it was about him in a positive way.

“It’s the beginning of the tide of change that we need in the New Zealand justice system. That’s all I want from this. I don’t want money, I don’t want to stand in front of a court of people, I just want change.”

*Not his real name.

The timeline

DECEMBER 1971: John Hippolite and Oliver Sutherland plan a legal aid programme with police and lawyers willing to help.

JANUARY 1972: Nelson legal aid programme starts, a first in New Zealand history.

APRIL 1972: Campaigners demand mandatory legal representation for children, and mandatory lawyer presence any time Police question children.

JULY 1972: Hippolite and Sutherland meet with then-minister for justice Sir Roy Jack. They demand legal representation for all children charged with a criminal offence, and for all people charged with imprisonable offences.

OCTOBER 1972: Sutherland is sponsored to go to the United States for training in anti- racism and equal-justice legal aid schemes

NOVEMBER 1972: Sir Roy Jack establishes an interdepartmental committee to report on criminal legal aid and a potential duty solicitor scheme

JANUARY 1973: Members of Nelson Race Relations Action Group, including Sutherland and Hippolite, are invited by then-Minister of Justice Dr Martyn Finlay to make submissions on the proposals. Ray is arrested for being idle and disorderly and given two years’ probation.

FEBRUARY 1973: Sutherland and his co-authors publish their study, “Justice and Race: A Monocultural System in a Multicultural Society”, including statistics of children’s sentences before and after legal aid programme in Nelson.

FEB-JUL 1973: Sutherland and Hippolite give talks around the country on their paper. Ngā Tamatoa ask for and receive assistance in setting up a Wellington-based legal aid scheme.

AUGUST 1973: Sutherland, Galbreath and Smith move to Auckland and establish ACORD. Hippolite moves to Te Awamutu. Nelson legal aid scheme ends after 18 months. Ngā Tamatoa establish Auckland legal aid scheme.

JAN-JUN 1974: “All hell breaks loose”. After being leaked parliamentary documents and attempting to make submissions based on them, Sutherland’s house is searched by Police under the Official Secrets Bill.

JULY 1974: The national duty solicitor scheme is launched – in some areas.