A Stuff Circuit video investigation

Tim Morrison has just woken up after an overnight shift as an ambulance paramedic. He’s tired but there’s exhilaration in his voice.

It’s like there’s no more refreshing splash of water to the face than plotting to take on one of the gnarliest problems confronting New Zealand.

“I’m past being angry at people,” he says. “What I’m after is change.”

He’s come a long way. This one-time gang member, former prisoner, a man who was once charged with killing a man, now practices meditation and is on a mission to change the course of history for all Māori: he wants to tackle the way police deal with Māori.

But he wants to go about it the right way, not in a vengeful way for wrongs he believes he - and many other young Māori - have faced.

“The thing is, I've grown up with a very difficult life from day one, and what I've come to understand is that if I use this as a form of trying to exact revenge it’s not going to help anyone,” says the 51-year-old.

And so, he has filed a Waitangi Tribunal claim, and brought on board a powerful legal team, one which has already taken the taiaha to the Corrections Department in a landmark case.

“I want to address this problem so Māori who come after me shouldn’t have to be put through it.”

“Wai 2608: The Prosecution of Māori Offenders (Morrison) Claim”, in the name of Timothy Aperehama Morrison, was first lodged with the Waitangi Tribunal ii 2016.

In it, Morrison alleges that, in “breach of the Treaty of Waitangi, the justice system is institutionally biased and disproportionately targets Māori. Māori suffer prejudice as a result.”

Last year, the claim was given “kaupapa status”, meaning that it is considered an issue of national significance, but, since then, it hasn’t progressed.

But Morrison has now teamed up with Roimata Smail, a lawyer who led the claim against Corrections taken by retired senior probation officer Tom Hemopo.

In the Corrections case, the tribunal found that the Crown was in breach of its Treaty obligations by failing to reduce Māori reoffending rates.

She will soon file a fresh statement of claim on behalf of Morrison, and is asking for his case to be heard urgently.

While Smail saw the Corrections claim as an attempt to deal with the ambulance at the bottom of the cliff - Morrison’s claim is about trying to build a fence to stop people falling off in the first place.

“The police are the gateway to the criminal justice system - police decisions are sending more Māori into it than any other group,” says Smail.

She wants to shine a light on decisions that police make every day away from public scrutiny.

“The police make lots of decisions which build up to a choice about who to prosecute in court for criminal offences, and all of those decisions seem to come out worse for Māori.”

Those decisions include where to place staff (it’s axiomatic that if you live in an area with more police, you’re more likely to come to the attention of police in the first place), who to arrest, who to give pre-charge warnings to, who to give diversion to, and then, who to prosecute.

Once a prosecution is taken, it is subject to the scrutiny of the courts and the public, given our open justice system. But before that, says Smail, the decisions happen in the dark.

That’s what she wants to change.

Police refused to be interviewed for this story, and in a statement said it would be inappropriate to comment on a claim before the Waitangi Tribunal.

Despite that reluctance to talk, it’s fair to say that, over the past two decades in particular, there has been a growing understanding of the disproportionate representation of Māori in the criminal justice system.

Various Government agencies, from the Ministry of Justice down, have acknowledged the problem and implemented policies. So, it begs the question, why launch a Waitangi Tribunal claim now?

“Policies and strategies are all well and good but if you can't be held accountable for them, if you continue to be allowed to make decisions about who to prosecute away from public view, then the policies don't have any teeth,” says Smail.

Advertisement

Khylee Quince, of Auckland University of Technology, has taught and researched criminal law for the past 20 years, practised it before that, and will be an expert witness when the claim is heard.

She agrees the time has come to tackle the issue, and says it’s extraordinary to think it has continued for so long.

“[The idea of] Māori criminality has become so normalised in this country.”

Quince also thinks that, politically, now is the perfect environment to think differently.

“There’s a convergence of interests between a Government operating on a political philosophy that actually wants to look at rehabilitation and doing alternative things...and on the right [politicians] saying, ‘well, actually this has become so expensive, we can’t afford it’.

“When you have that and you have [former National leader] Bill English calling prisons a moral and fiscal failure, for different reasons you have an interest convergence around the same thing.”

It means, she believes, it’s the time to act.

In the winter of 2012, Tim Morrison was working an overnight shift at a night shelter for a Salvation Army rehabilitation programme in Mt Eden, Auckland, supervising clients.

The part-time work suited him while he studied to be a paramedic.

But his life was tipped upside down after an encounter with an Australian-born 47-year-old chronic alcoholic.

The man was known to police, and had a long criminal history. He had recently received a pre-charge warning for being drunk and disorderly, in other words, the police exercised their discretion and decided against charging him.

On this night, around 5.30pm, he went to a liquor store and launched into an altercation with staff, making threats. One staff member raised his hand to push him away - a portent of what was to come.

The man eventually left the liquor store with a four-pack of bourbon and cola, walked down the road and kept drinking.

About 3am, he staggered along the deserted road towards the centre where Morrison worked, shouting abuse at no one in particular.

When he reached the centre, he kicked a glass door and smashed it.

By the time Morrison came outside, the man was across the road continuing to swear and shout. Morrison approached him.

The police version of what happened next, as recorded in a summary of facts, was that Morrison punched the man with a closed fist, he fell and his head struck the ground, and he later died.

But no witnesses saw Morrison punch the man with a closed fist. A witness police relied on, who had been drinking for 12 hours, said he was across the road when he saw Morrison strike the man - but in court he said he hadn’t seen Morrison use his fist.

Several witnesses, including ambulance officers, say Morrison said he “punched” the man.

But here’s the thing: Morrison says he never used the word “punched”, though he’s never disputed the fact he did hit him.

Context is everything.

In a police station just hours after the incident, Morrison was taken in for questioning. An officer who was observing him at the police station notes: “Morrison is relaxed and compliant. He appears willing to assist as much as possible.”

He had nothing to hide because he had done nothing wrong.

And so, in the video interview, he tells police about what happened when he approached the man: “He just starts swearing at me...and I’m about this far away from [him] and then he just steps in and I think he’s going to hit me so...I hit him and he falls on the ground.”

He never said he punched the man.

Morrison later told us: "My instinct is to push him away [and] I catch him on the side of the face he falls down, hits his head on the ground."

He’d used an open palm.

For the second time that night, someone had pushed the man away when he started making threats. But this time, the consequences would be far more dire, for everyone.

Immediately afterwards, Morrison called an ambulance, and went with the police when they asked him.

Think about it: if he’d really intended to assault the guy, or kill him, would he have called an ambulance, gone with the police and spoken to them without a lawyer, and be, as that one officer noted, “willing to assist as much as possible”? And Morrison is a solid guy, weighing 120 kg at the time - if he’d wanted to assault the man, he could have done some serious damage. Apart from the damage caused by his head hitting the ground, the only injury on the man was a 1cm cut to his lip.

A month after the man died, Morrison was charged with manslaughter. In a statement, police said Morrison’s ethnicity was not a factor in him being charged.

On the formal charge sheet, police misspelled his middle name as “Aprehana”.  

It seems a small thing, but it also seems telling. Put it this way: they didn’t misspell “Timothy”.

If we go back to that ambulance at the bottom of the cliff that Roimata Smail drew attention to with the Treaty claim against Corrections, we can quickly see the scale of the problem.

While Māori make up 15 per cent of the population, in prisons 50 per cent are Māori.

And when you look up the cliff, you can see disparity too, when police are able to exercise discretion.

For cannabis offences, for instance - for which police and the courts are able to make a judgment call about who to arrest, charge, convict and imprison - police and justice figures from 2010-2014 show Māori made up 51 per cent of prison sentences, 40 per cent of prosecutions and convictions.

Over the same period, Māori were given pre-charge warnings or offered diversion at a far lower rate than Pākehā.

So at all of those points where decisions get made, Māori come out worse off.

For Khylee Quince, there’s another figure which is even more alarming, and it comes from the police Youth Aid section.

Overall, the apprehension rates of young people have been dropping over the past 10 years.

For Māori, though, the rate is five times that of Pākehā.

“So the 5-to-1 disparity for young people, that's the thing that for me is the standout statistic.”

Quince points out too that for “status offences” - crimes such as underage drinking that are only crimes because of the age or other status of the person - Māori come out worse off too.

“They are really aimed at effectively the social control of...groups who are seen to be a public nuisance; young brown people, young males in particular.

“Unfortunately I’m guilty of this myself, but we talk about it in a quite a light fashion, the idea of driving while brown, driving while young, male and brown.

“You know, the tail-light specious pull-over by police. Those ones are really, really difficult to unpack the bias.”

Quince says these situations are referred to as “the fruit of the poisoned tree” cases.

Someone gets pulled over for a broken tail light, which leads to a search that uncovers drugs or an allegation of resisting arrest.

“So it's one tiny thing which snowballs into a number of other relatively small offences - they almost always inevitably involve young brown men in this country.”

Morrison has tasted that fruit. His 47 convictions are littered with examples of situations where he’s ended up in trouble for things which have really been nothing.

He has two convictions for being underage in a bar. Another for littering.

How many Pākehā have been underage in a bar, or littered, and not been charged?

The difference, he says, is that he’s Māori.

His criminal record dates back to 1981, when he was aged 14 and went to court for burglary and theft.

He was sentenced to spells of corrective training and by 1985 had been sentenced to prison for a weapons offence.

There’s a big gap in his history, from 1988 to 2006. He’d been turning his life around, getting himself on track, when he had a car accident in 2005.

He was charged with careless driving, and, even though he says it wasn’t anything of the sort, he pleaded guilty.

“I was coming back from visiting my cousin up north. All the evidence said right speed, wearing seatbelt, everything right, hit an oil patch, spun out, ended up in a ditch. They charged me with careless driving. But I just wanted it to go away so I pleaded guilty.

“And a lot of Māori do that so it just perpetuates the myth that Māori do what they do.”

Advertisement

Pleading guilty was something that he never contemplated when it came to the manslaughter charge.

He pleaded not guilty, and when it came time for the trial, he was found not guilty.

But in emails from his lawyer before the trial, he was encouraged to think about admitting fault.

“In my view the evidence that you punched the deceased is strong,” his lawyer wrote.

“It is my duty...to remind you that if you change your plea to guilty, you will receive a discount in respect of your sentence.”

If he’d taken that advice, he would have gone to prison for about three years.

Instead, Morrison fought back, sending his lawyer emails picking apart the evidence, pointing out to the person in the system whose job it was to defend him how he hadn’t done the thing he was accused of.

Quince says Morrison’s situation - particularly pleading guilty to the careless driving charge - does not sound unusual to her, among Māori.

That’s particularly so, she says, for people who feel they don’t have a reputation to protect because they already have a record, even if it is for those status offences.

The attitude is: “I’ll just take my medicine and go.”

Also, she says, Māori are often represented by Legal Aid lawyers. “We know from the cutbacks in the past five years they’ve had a huge impact on not only the quality of advice, but certainly the amount of time that is allocated to files.”

But again, it’s hard to prove how things like this are skewed against Māori.

Because when it comes to data, there are significant blind spots.

For instance, since 2012, police have had powers under the Search and Surveillance Act to stop and search people without first applying for a warrant from the courts.

There have been more than 50,000 searches over the past five years, including 10,250 last year.

But it is impossible to know how many of those involved Māori - police do not collect ethnicity data, they told Stuff Circuit, in response to an Official Information Act request.

Even for areas that we do know hit Māori more than Pākehā, how do you prove the system is racist? Or is it, as Police Commissioner Mike Bush has said, unconscious bias?

For Roimata Smail, the effect is the same.

“If the police are prosecuting Māori more because of unconscious bias, the effect of that on those who are being prosecuted more, is a racist effect,” she says. “It doesn't really matter why it's happened.

“I think people have the idea that racism is something that you do intentionally to be racist, joining the Klan or something.”

There’s another thing Stuff Circuit found out under the Official Information Act, and it related to Tim Morrison’s case and the way it was pursued.

Prosecution guidelines issued by Crown Law point out that many criminal investigations will require specialised legal advice from the earliest stages.

But in Morrison’s case, the first time the Crown Solicitor was contacted was after he had already been committed for trial.

There are no records of any contact before then, indicating police made the decision to prosecute him without getting advice from the Crown Solicitor.

And when it went to depositions - a stage in the criminal process when there is an opportunity to test the evidence to see if it should be going to trial - there was no hearing, as such. Evidence was handed up in written form - 27 pages which consisted of statements by the police.

Police would not be interviewed for this story but in a statement to Stuff Circuit, they said there was no requirement for them to consult the Crown Solicitor, and that it was “common practice” for them to lay charges without prior consultation.

Asked if there was any data upon which that comment was based, a spokesperson said: “There is no retrievable data on this specific matter, sorry.”

(Which is perhaps ironic, given it proves the point of the Waitangi Tribunal claim).

The Independent Police Conduct Authority had investigated the decision and accepted that it was reasonable.

But to Morrison and Smail, it highlights that these decisions are left to the police, without oversight. Why wouldn’t the police seek advice from the Crown Solicitor?

Quince agrees. “That seems unusual given both the seriousness of the charge per se but also given what they knew about the witnesses that were available at that time,” she says.

“You may well draw the inference that it may be because this was a young Māori man who was in those circumstances dealing with a charge of violence. So who knows. That’s the nature of trying to untangle or unpack decisions of bias.”

The point being: if police were required, as this claim proposes, to record ethnicity data for such decisions and thus to be accountable for them, they might be more inclined to take advice. And that might impact on whether the prosecution proceeds, at all.

In August, 2013, Crown v Morrison went to trial, and a jury found him not guilty.

Advertisement

Some people would have walked away at that point, got on with their lives. And Morrison sure has got on with his life.

When the trial was finished, he completed his studies and began work as a paramedic at St John.

But, driven by a desire to contribute more, he applied for medical school at Otago University. And recently, he was accepted. Next year, Morrison will begin studying to be a doctor.

But that doesn’t mean he wants to leave behind the experience of what happened to him. He wants to use it to create change.

But what change is needed?

There would be those who  say, “well, the system worked, he was found not guilty”.

But Khylee Quince says that ignores the “corollary consequences” - the impact being charged has in terms of employment, education, and emotionally, when a life is put on hold.

“Literally just coming into contact with the system is harmful and if coming into contact with the system is harmful and not applied equally to all citizens then that is discriminatory, that is prejudiced, and then that is potentially racist,” says Quince.

She hopes Morrison’s claim can be a circuit breaker, dealing with the problem before it’s too late. “I think talk about lowering the prison population is too late - you’re talking about people that have long offending histories, histories that could have been stopped in their tracks when people like Tim Morrison are done for drinking in public.”

The key is to stop the labelling of young people as criminals, and to stop them being filtered into the system in the first place, she says.

And to achieve that, Roimata Smail believes there needs to be accountability.

“All these decisions that police make along the way to a case coming before the court have a snowball effect,” she says. “And the result of it has a huge impact on individuals, whānau, communities and even generations.

“It's important that with each of those decisions the police are accountable for them.”

Morrison is happy to lead the way in this quest for change, even if that means exposing himself to public scrutiny.

“I can’t stand in the shadows and say, ‘this needs to happen but don’t look at me’,” he says. “Someone needs to stick up their hand and say, ‘I’ve come from this part of life, this part of society which the rest of society shuns, but I’ve achieved, I’ve realised my potential further on down the road’.”

Have you been the victim of bias in the criminal justice system? Get in touch with Stuff Circuit via email stuffcircuit@stuff.co.nz.