Mama Hooch appeal: Rapist Christchurch brothers' lawyer says trial judge ‘biased' and ‘justice not done'

NZ Herald

2 days ago

Danny and Roberto Jaz were convicted of 69 charges between them, including rape, sexual violation, indecent assault, stupefying, disabling, making intimate recordings of women without their knowledge or consent and supplying illicit drugs. The offending took place at Mama Hooch and nearby Venuti - a bar and restaurant owned and run by the Jaz family in central Christchurch.
Danny was sentenced to 16-and-a-half years in prison for drugging and or violating 19 women.
Roberto Jaz was sentenced to 17 years behind bars for offending against eight women.
Both men were ordered to serve a minimum of half of their sentences before they are eligible for parole.
The Australian-born brothers were described by Judge Paul Mabey - who presided over their trial and sentencing - as 'arrogant' and 'entitled'.
'The level of your offending is unknown in this country ... you helped yourself to young women with callous disregard for their rights and their dignity,' he said at the time.
'You should both be of no doubt that you've severely damaged all of your victims by your predatory and heartless offending, driven by arrogance, misguided self-belief, and a complete lack of respect for the rights of those you've offended against.
Judge Paul Mabey KC. Photo / George Heard
'Neither of you showed any remorse… you are sexual predators. Perhaps misogynistic attitudes and the patriarchal approach to life within your family may have engendered an unhealthy attitude to women.
'You make conscious decisions to exploit and abuse your victims… You were men in your 30s… what occurred was a continuous course of conduct over a period of three-and-a-half years.'
Both men are now appealing some of their convictions and sentences.
Both pleaded guilty to a number of offences at the start of their trial. They are not disputing those counts.
Defence - judge biased, made errors
The appeal was heard yesterday by Justice Cameron Mander.
The Jaz brothers are currently represented by high-profile Auckland defence lawyer Ron Mansfield KC.
Mansfield's most notable recent case was the prosecution of Philip Polkinghorne, the Auckland eye surgeon accused and acquitted of murdering his wife, Pauline Hanna.
Ron Mansfield KC appearing in the High Court at Auckland during the Polkinghorn trial. Photo / Michael Craig
Yesterday, Mansfield laid out the grounds for the appeal.
He said the prosecution of the brothers was 'substantial' - from the number of charges to the number of complainants, witnesses and information before the trial judge, including 1947 pages of notes of evidence and many hours of video
'(The offenders) did not get a fair hearing in the lower court and there was a significant miscarriage of justice,' he said.
'In effect, the judge simplistically ran roughshod over the defence cases… Beyond that, he failed to consider all relevant evidence related to identified charges resulting independently in miscarriages of justice in relation to those specific charges.'
Mansfield said the charges, trial and appeal were 'complex'. The trial began in early February 2023 and finished on April 4. Judge Mabey then delivered his verdicts on April 21.
He outlined a number of issues with the way the trial was handled including Judge Mabey 'shutting down' evidence and not allowing the defence or Crown to deliver closing statements.
'This was a long, complex trial involving a number of defendants, a very large number of alleged victims or complainants, and a significantly large number of charges.
'For the judge not to allow counsel… to deliver closing arguments and in fact also not to permit the crown to do so rendered the trial unfair.
Danny Jaz in the dock at sentencing. Photo / George Heard
'As the court will know, justice must be done. And in my submission, justice can only be done if ordinary principles of natural justice are applied so that both parties have the opportunity to present their defences in court and to ensure that the trial of those charges has an opportunity to fully understand what they say in relation to each of those charges.
'There's also optical and procedural aspects to this concern - because as the Court knows, justice needs to be seen to be done.
'The primary principle for this appeal was that justice wasn't done, nor was it seen to be done - and principally because the trial judge for efficiency, namely the need to conclude this trial quickly.'
Mansfield said there was no doubt Judge Mabey understood the defence cases generally - but he 'didn't give himself the chance to understand them in granular detail'.
Thus, he could not possibly deliver 'a reasoned and balanced judgment' that took into account both the Crown and defence cases.
Roberto Jaz in court at sentencing. Photo / George Heard
He said the judge showed 'predetermination and bias' well before the end of the trial, which was 'improper'.
'He repeatedly oversimplified points and failed to consider others,' Mansfield submitted.
'He also shut down the section 147 applications without argument.'
Section 147 of the New Zealand Criminal Procedure Act 2011 allows a court to dismiss a criminal charge before or during a trial, but before a verdict or guilty plea.
Mansfield also took exception to the opening address delivered at the District Court trial by Crown prosecutor Andrew McRae.
Trial rules dictated that - unless the court directs otherwise - the Crown was allowed to make a 'short outline of the charge of charges the defendant faces' and 'a short outline of the issues at the trial'.
'Neither defendant at that point sought to make an opening statement… but the prosecutor, was permitted to make a very long and detailed opening statement,' he said.
McRae's statement was delivered over two days and but was 'reduced in a written form' for the court file.
Mansfield said given the length and detail of the Crown opening, it was 'incumbent' on Judge Mabey to ensure that there was an opportunity for the defence to respond.
'Their response would come… ordinarily by way of closing arguments or addresses. In a trial such as this, and especially when the Crown has an opportunity to address the court in such detail at the start of the trial, there must In the interests of natural justice, if nothing more, be the opportunity for the defendant to be able to respond and ensure that the judge understands their defence and identify the relevant or key principles and the relevant and key passages of evidence.
'He failed to properly grapple with points the defence would have made in a closing address. They could have assisted the judge with inconsistencies with evidence.'
Justice Cameron Mander. Photo / George Heard
Mansfield made a number of other claims about the 'improper' way Judge Mabey conducted the trial.
He acknowledged he was an experienced legal practitioner both as a lawyer and judge.
'But while that's true, he has also been appealed and overturned by the Court of Appeal for abandoning the neutrality required by a judge and effectively acting as a second prosecutor.
'Moreover, his experience is irrelevant to the obvious procedural unfairness of allowing the Crown to open, but denying the defence counsel any chance to meaningfully present their arguments at any stage.
'It was unfair for him to effectively focus on the ability of the Crown… over and above the defendant's right to a fair trial. There was a perceived lack of the judge being neutral… and that the (Jaz brothers') right to present their defences and to a fair trial took a backseat to the Crown's ability to present the strongest case against them.
'He did intervene a lot… both when the Crown were leading evidence and when the complainants were being cross-examined."
Mansfield went through a number of examples from the trial evidence where he believed Judge Mabey.
He said he was 'driven' by 'being efficient' and there was 'no explicable reason why' he made some of the decisions he did.
Crown - trial outcome solid
Senior Crown counsel Charlotte Brook disagreed with the defence appeal argument.
She submitted that Judge Mabey's process and final decision was sound and right.
She pointed out to the court that at no time during the trial did the offenders' lawyers raise the issues Mansfield has outlined at the appeal.
Brook said the Crown accepted that the decision not to allow closing addresses may have been erroneous.
Danny Jaz (L) and Roberto Jaz have been convicted of rape and a raft of other charges relating to the drugging and sexual assault of women at their family bar and restaurant Mama Hooch and Venuti in Christchurch. Photo / Pool
But she argued that the error did not give rise to a risk of a miscarriage of justice.
'(Judge Mabey) was certainly well aware of the defence case,' she said.
'He did frequently interject during the trial, but… he was the factfinder - he was entitled to ask questions.
'He was indeed well aware of the defence that was running on these charges.
'There wasn't strong opposition to the course chosen by the judge.'
Justice Mander has reserved his decision.
'Hard to hear'
Survivor Sophie Brown sat through yesterday's hearing, alongside other women assaulted by Danny and or Roberto Jaz, and spoke to the Herald afterwards.
Mama Hooch sexual assault survivor Sophie Brown. Photo / Joe Allison
She said the appeal grounds felt 'flimsy' and she was confident the offenders would not succeed.
'Some of it was hard to hear. A lot of it actually,' she said.
'I still felt pretty confident that their sentences aren't going anywhere. I said to the (Crown) lawyer afterwards, 'If that was the strongest argument they've got, I feel pretty confident that we're fine'.'
Brown was just 18 when Danny Jaz assaulted her in a bathroom at Mama Hooch in 2017.
While hearing details of her assault repeated in court was 'jarring', it was important for her to be there.
'While I have no bearing on whatever would happen (in court) I think being there, taking a stand, showing the judge, showing the lawyers that myself - along with other survivors - we care about this case, we care about keeping these men behind bars,' Brown said.
'If we decided that we didn't like the outcome, and we hadn't been here for the legal conversations... even if we don't like the outcome, just being informed makes a big difference.'
Anna Leask is a senior journalist who covers national crime and justice. She joined the Herald in 2008 and has worked as a journalist for 19 years with a particular focus on family and gender-based violence, child abuse, sexual violence, homicides, mental health and youth crime. She writes, hosts and produces the award-winning podcast A Moment In Crime, released monthly on nzherald.co.nz