A short account of hazards faced in court

The greatest jeopardy I have faced to date in Court was when I argued an appeal in front of Brewer J. The other side didn’t turn up but that promising start evaporated when the first words out of his Honour’s mouth were that he didn’t see how I was “getting home on this one”. I ventured 15 minutes of submissions into a fraught judicial headwind and the decision was reserved. My sense of deflation persisted the two weeks it took for judgment to be delivered – a judgment that found for my client but took time to disagree with every legal point I had made. At the time I didn’t know whether to laugh or cry. Experience has taught me that is often a symptom of encountering justice.

Still, all very pedestrian for modern legal practice where the day-to-day risks usually only involve having a metaphorical book thrown at one. 

I can’t remember where I saw it first, but I read a story about a New Zealand courthouse ceiling collapsing on someone once. Fiat justitia ruat caelum. Let justice be done, though the heavens fall. That’s danger. 

But then I read another story about a courthouse ceiling collapsing on someone. And I thought: “how many bloody ceilings have collapsed in New Zealand?”.

As it turns out, many. 

Non-sticking plaster

On 22 May 1935, a “large piece of decorative plaster work” fell from the ceiling of the Invercargill Supreme Court lobby, striking and “temporarily stunn[ing]” a lawyer called Gordon Reed. Contemporaneous reports record that when “Mr Justice Kennedy was about to make fixtures, a few minutes later, Mr Reed, with his hand to his head, from which blood was trickling, put in a belated appearance and apologised to the court for having to seek leave to seek a doctor”.

Today, that would be band three of Taueki – four aggravating factors being present – serious injury, use of a weapon, attacking the head, and perverting the course of justice (if you accept my optimistic submission for the Crown that Reed was prevented from making legal submissions). But in 1935, the courthouse seemed to avoid immediate official sanction. A grand jury recommended a new courthouse ought to be constructed (Kennedy J quoted in “Invercargill’s New Court-House” (1942) 18 NZLJ 65 at 65). Work began in 1938 and it was opened in 1942. At the opening, the several speakers described how uncomfortable and unsuitable the old courthouse was. Only Kennedy J mentioned that it once almost did for a member of the bar. 

Gordon Reed outlived the courthouse, just. The picture below is from the New Zealand Law Journal and shows him at the opening of the new courthouse ((1942) 18 NZLJ 65 at 67). He died suddenly in 1945, age 49, when he dropped dead on a golf course.

Reed2

Although the incident was possibly the first time in history that both bench and bar were in agreement as to which was acting like they’d just sustained a serious blow to the head, it was not the only instance of collapsing ceilings. 

Part of a plaster ceiling collapsed in the Lyttelton Resident Magistrates Court in 1884. It missed the participants “though some of the fragments sprinkled the heads of a few of the occupants of the gallery”. The same year, the South Canterbury Times warned that the ceiling in the courthouse at Timaru “is now showing signs of disintegration, and any of the public is liable at any moment to be smitten on the head with a descending lump”. Perhaps, as the issue only affected the part of the ceiling over the public gallery, it was not thought to be so pressing, although the South Canterbury Times was not impressed. It was sure to note in its report that the ceiling over the head of “the presiding genius” was holding up well. 

That was not the only near miss. The Wanganui Courthouse ceiling nearly collapsed in an earthquake in 1929. In 1927, a bailiff at the Christchurch Magistrates Court had a piece of paper knocked from his hand when a piece of plaster measuring three feet by two feet crashed from the ceiling of the court clerk’s office. And the Invercargill Magistrates Court – in the same building as the Supreme Court that nearly took out Gordon Reed – joined in again in 1938 when “a great mass of plaster and cement had become detached from the ceiling over the public stairway to the Supreme Court and had fallen on the stairs”

In 1951 in Dunedin “during a sitting of the Supreme Court a large portion of the ceiling gave way and substantial portions of plaster fell about the dignified figure of James Ward” (Iain Gallaway “The First Hundred Years 1879-1979” in Jim Sullivan (ed) Occupied Lawfully – Otago District Law Society 1979-2004 (ODLS, Dunedin, 2006) at 16). Gallaway records Ward was unharmed but died 11 years later when he was sent a parcel bomb at his law office – a crime that is still unsolved, and a reminder that a few falling chunks of internal masonry have to be kept in perspective. 

The Supreme Court building at Auckland was similarly plagued. In 1924 the Herald recorded: “A portion of the plaster ceiling in a new lavatory in the Supreme Court fell yesterday, fortunately without injuring anyone. Some few months ago another part of the ceiling came down, and prior to that one of the massive upstairs windows was blown in. It has frequently happened that the rain penetrates to the inside, and on one occasion the Judge’s desk in the Arbitration Court was deluged with water”. The Herald recorded a further fall of a ceiling a few weeks later and recorded that “no active steps ha[d] been taken to effect repairs” since the earlier collapse. Those are the incidents I could find in a Saturday afternoon of searching, but the phenomenon seems to have been so common in Auckland that it was the subject of an 1883 cartoon in the Auckland-based Observer:

Observer ceiling cartoon

Dr Jane Adams offers a scholarly take on the history and design of New Zealand courthouses, including their shortcomings (for a start you might like to read her article “Majesty and modernity” [2018] NZLJ 99). But the impact of near-death ceiling collapse on at least two generations of lawyers has yet to receive proper scholarly attention. That is something I hope this piece will begin to remedy. As has been remarked, “There is no doubt that among the allies of fraud and crime can be numbered unsuitable Court Houses” (Anonymous “Court houses and other things and persons” (1926) Butterworths Fortnightly Notes 451 at 452). As for the causes of the ceiling collapse phenomenon, well, contemporaneous reports on courthouses were headlined “timbers affected by borer”, but the articles that followed were silent as to which particular judge was to blame. Plainly, further investigation is needed.

Cheating death

The risk of instant skylight-creation wasn’t the only jeopardy facing practitioners in the first hundred odd years of colonial legal practice in New Zealand. Courtrooms were interrupted by fights, including one where “a small man was chased through the court-room by his big wife”. The criminal proceeding that followed included “an exhibit of hair alleged to have been from the head of one of the men”. Drunkards shouted from the public gallery, including one man described so well by the Victorian-era Evening Star as “an inebriated auditor of the proceedings”.

Returning to Invercargill, which we can now recognise as the most perilous site of justice in the country, in 1926 a steam stove exploded in a magistrate’s courtroom only 45 minutes before court was due to start. It effectively destroyed the entire room. The explosion broke every window, upended counsel’s table and the press bench, and embedded metal shrapnel from the stove in every wall. The consensus was it would have been unsurvivable if the room had been occupied at the time. Reports also relate that “plaster had been knocked down from the corner of the ceiling”, though in the circumstances it seems churlish to add that to our list of ceiling-specific failures. 

Incredibly, that is not the only instance in New Zealand of a courtroom being blown up. An aggrieved litigant blew up the Murchison Courthouse in 1905, injuring several but fatalitising only himself.

And that isn’t even the only intentional courthouse bombing in the country. In an event that seems to have disappeared down collective memory-holes, the Supreme Court at Auckland was “seriously damaged” by a bomb in January 1972 (see Sir Alfred North “Dissent and the Rule of Law” [1973] NZLJ 1 at 1). The event falls into the lacuna of internet-accessible history: it predates internet news stories and postdates Papers Past coverage, so as soon as I’m lawfully allowed into a library newspaper archive I want to find out more.

That’s about all I’ve got before we get to more modern examples. So I leave this short account of hazards with the following excerpt from the Otago Daily Times from 1938. It is a thing of understated beauty, and no more perfect thing has ever been written. In the meantime, stay safe in your bubble, and keep an eye on the ceilings when you are next at Court. 

Fire

 

Strictly Obiter Alert Level 4 Quiz – Friday 27 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

1. What is the (excellent) name of the earliest United Kingdom Act of Parliament to mention New Zealand?

2. North Shore and Nelson = 4.

New Plymouth, Gisborne, Napier, Whanganui and Invercargill = 3.

Kaikohe, Hastings, Hutt Valley and Timaru = 2.

What comes next?

3. List the five constituent parts of the Realm of New Zealand (at least in terms of those listed in Clause I of the Letters Patent).

4. Where did the first Court of Appeal sit in New Zealand (not including the “Court of Appeals” established by the Supreme Court Amendment Ordinance 1846 (Sess. VII, No. 3) that constituted the Governor and the Executive Council to sit as a Court of Appeals; I mean the first proper court of record)?

5. Which Supreme Court judge, earlier a prosecutor in the Hulme-Parker murder trials, delivered one of New Zealand’s most famous legal lines (famous not just in law but in public consciousness)? The line itself is in iambic pentameter.

6. What was the name of the forerunner of the New Zealand Law Journal?

7. Plenty of good fake law firm names – Dewey, Cheatum and Howe etc. – but the best (or my favourite at least) is Peabody, Peabody, Peabody, Hoots, Toots, and Peabody. Which author invented Peabody et al?

8. “I have often observed that when a man says he has acted on principle he has generally done something mean.” So spoke a late 19th and early 20th century Supreme Court judge. He sentenced Minnie Dean to death. And he was the first New Zealander to sit in the Judicial Committee of the Privy Council. Who was he?

9. As part of the group Aotearoa, what is the name of Williams J’s hit song from the 1980s?

10. Name New Zealand’s first female law professor.

Answers:

1: The Murders Abroad Act 1817. 2: Porirua and Papakura = 1. This is the number of judges assigned to locations in decreasing order, according to the District Court site. 3: New Zealand, Cook Islands, Niue, Tokelau, and the Ross Dependency. 4: Christchurch (in 1863). 5: This was Mahon J (and the line was “an orchestrated litany of lies”). 6: Butterworth’s Fortnightly Notes – if you go back to the earliest editions of the New Zealand Law Journal in Lexis Advance you’ll see they actually have that title. 7: PG Wodehouse, my fave. 8: This was Sir Joshua Strange Williams. 9: Maranga Ake Ai. 10: Shirley Smith.

That’s all for the daily quizzes for a while I think. I’ve got a hearing set down urgently next week that will consume some time, plus Auckland sounds like it’s going to be in alert level 4 for at least two more weeks (and I ain’t got that many questions!!). Thanks for playing along. If I can be bothered, this might come back weekly. Stay safe!

Strictly Obiter Alert Level 4 Quiz – Thursday 26 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent). (Let’s see if I actually remember to write ten today.)

1. Which former judge, while the Governor-General and therefore exempt from paying taxes, imported two Mercedes Benz cars to New Zealand for a personal tax benefit of $85,000 (having avoided import duties)?

2. Who was counsel for the respondent in the Privy Council hearing of Tukino v Aotea District Maori Land Board [1941] AC 308 (PC)?

3. In a case appearing at [1973] 1 NZLR 1, a tale of defamation is recorded and an unsuccessful attempt at invoking qualified privilege plays out. The judgment includes the amusingly quaint description of audiovisual technology from Haslam J that I’ve screenshotted below. Give it a few years and the defendant would have power and infamy, but in 1973 he was being stung $5000 for defaming someone. Who was the defendant?

NZBC

4. What links a legal database; the 27th Attorney-General of New Zealand, who held the position from 2 November 1990 to 5 December 1997; the second President of the Court of Appeal; and one of the founding members of the Waitangi Tribunal, whose daughter is a current Family Court judge?

5. What is the northernmost District Court in New Zealand?

6. Whose appointment as a Supreme Court judge was held to be invalid by the Privy Council?

7. Which New Zealand head of bench had a former career as a flight attendant with Air New Zealand?

8. Whenever I hear the term “a ‘but for’ test” I think of the quote from A Man For All Seasons: “It profits a man nothing to give his soul for the whole world … but for _______?” What is the missing word from the quote?

9. Who is hiding in Honduras, a desperate man?

10. What was the last year to have a single volume of NZLRs published?

Answers:

1: Sir David Beattie. 2: Denning KC. 3: It was Muldoon, a sort of spiritual prequel to Fitzgerald v Muldoon. 4: The answers are Westlaw, Paul East, Sir Alfred North, and Laurie Southwick. 5: Kaitaia District Court. 6: That was Edwards J (Sir Worley Bassett Edwards) in Buckley v Edwards [1892] AC 387 (PC). 7: Chief Coroner Judge Deborah Marshall. 8: Wales! But for Wales? 9: Warren Zevon, in the song Lawyers, Guns and Money. 10: 1983.

Strictly Obiter Alert Level 4 Quiz – Wednesday 25 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

1. Have you been following constitutional developments in Samoa? The (currently suspended) Samoan Attorney-General shares a name with a seminal case about injunctions. What is the name?

2. Appointed King’s Counsel in 1947, then appointed to the Legislative Council in 1950 as part of the Suicide Squad, this barrister with the first names Oswald Chettle is (perhaps) remembered today for chairing the Special Committee on Moral Delinquency in Children and Adolescents. The report of that committee became colloquially named after him. What was his surname?

3. Name a New Zealand Attorney-General that has not been a lawyer.

4. He combined arts and law, completing a BA in political science in 1893 at Canterbury College of the University of New Zealand. He shifted to Auckland, where he was articled to the solicitors Devore and Cooper, and completed his LLB in 1896. He was the first Māori person to complete a degree at a New Zealand university. Who was he?

6. Which Court has an incorrect (or, rather, incomplete) te reo Māori interpretation in its intituling?

7. What was the name of the boat in R v Dudley and Stephens?

8. What links Timothy Cleary, Ethel Benjamin, Jack Northey and Rex Mason?

9. Name as many judgments as you can that have a sitting or former Prime Minister as a party. I can get at least five modern PMs, I think.

10. The cartoon below was published in the New Zealand Observer on 6 September 1913. It depicts Edwards J peeking out of his blindfold of justice at a comely witness and was published with the caption  “Justice is not blind”. Was it a criminal contempt of court?

Justice is not blind

 

 

 

 

 

Answers

1: Savalenoa Mareva Betham Annandale. 2: Mazengarb – the Mazengarb Report. 3: Michael Cullen wasn’t a lawyer. Neither apparently was George Forbes. 4: He was Sir Āpirana Ngata, more recently of $50 note fame. Dammit I should have made the question name a lawyer on New Zealand money. Ah well. 5: It is at this stage that I realise I appear not to have asked a question 5… Oh dear. The wheels are coming off. Well, let’s think of one now. Who served as Attorney-General and, in that role, had the disparaging nickname Necessity (because Necessity knows no law). Answer: William Downie Stewart, according to Jack Marshall’s Memoirs volume 1. 6: The Supreme Court. The English says “In the Supreme Court of New Zealand” but the Māori wording on the intituling doesn’t have an “O Aotearoa” like the other courts have. 7: The Mignonette. 8: They all have modern-day prizes named after them. 9: So, Mainzeal has Jenny Shipley in it. Then there was those habeas challenges to alert level 4 in A v ArdernLange v Atkinson was David Lange. I think there was a Taylor v Key (or at least some Graham McCready-based litigation). And Fitzgerald v Muldoon. 10: It’s not criminal contempt. I have a half-written essay about this cartoon and the backstory, but you could read the decision of Attorney-General v Blomfield (1913) 33 NZLR 545 (SC).

 

Strictly Obiter Alert Level 4 Quiz – Tuesday 24 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

1. Name a country that currently appoints King’s Counsel.

2. What links buzz, quarter, top, and attraction?

3. Find something unusual about Terpstra v Police available here: http://www.nzlii.org/nz/cases/NZHC/1988/2263.pdf

4. Which current QC played a central role in the establishment and first decades of The Capital Letter?

5. Name an organisation with the acronym NZBA that appears higher up the list of Google results than the New Zealand Bar Association.

6. William, George, James, Robert. Who’s next?

7. There are two Justices France, and one Justice French. But which President of the Court of Appeal had Parris for a middle name?

8. Where does the Chief Justice rank in New Zealand’s order of precedence?

9. What song features the following?

(1) An electric guitar plays staccato (short, precisely articulated) chords.

(2) It plays at a moderate tempo of approximately 84 quarter notes (crotchets) to the minute.

(3) There is a steady duple metre.

(4) A four-measure (four-bar) harmonic template is established that runs unchangingly throughout the song. This template consists of two measures of D minor, followed by two measures of G minor (first inversion). The precise notes in the chords vary slightly, but the chords themselves do not – they are always D minor and G minor – and the note D appears in every chord, functioning as a sort of pedal point or drone, a constant bass to the music.

(5) At the end of each round of four measures, there is a thirty-second note (demisemiquaver) chord of A7 (in fact D/E/G, the A is not sounded), a flick of an upbeat propelling the music back to the tonic D minor.

10. Why does a flame pay for its own ticket to a popular play?

Answers:

1: Tonga does – other answers accepted. 2: These are all synonyms for types of court: High, District, Supreme, Appeal. 3: A decision from the erstwhile Tokoroa Registry of the High Court – appearing once and never again? 4: Jack Hodder QC. 5: The New Zealand Bankers Association and the New Zealand Breastfeeding Alliance. 6: Charles: Charles Skerrett, the fifth Chief Justice of New Zealand. As long as you can remember MAPSS MOB WDEE (pronounced maps mob wuh-deeee!) you can remember the CJs. But then you have to know their first names too, I guess. 7: Clifford Parris Richmond – photo below from this source: https://natlib.govt.nz/records/22425569 8: Fifth, behind the Sovereign, the Governor-General, the Prime Minister and the Speaker. 9: Lose Yourself, as described by a witness and quoted by Cull J in Eight Mile Style LLC v New Zealand National Party [2017] NZHC 2603. 10: Because you can’t shout fire in a crowded theatre.

CA1

Strictly Obiter Alert Level 4 Quiz – Monday 23 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

1. In a song made popular by Willie Nelson and Waylon Jennings, mothers were advised that they should let their babies grow up to be “lawyers instead”.  What career were they advised against?

2. What was the longest running (in terms of hearing time) civil case in New Zealand? And what was the longest running criminal case?

3. Name a currently sitting New Zealand judge who was present at the Oxford Union when David Lange made his “I can smell the uranium” speech.

4. Name someone who served as Dean of a New Zealand Faculty of Law who then served as a Supreme/High Court Judge.

5. Who served as the New Zealand judge on the International Military Tribunal for the Far East, responsible for trying war crimes allegedly committed by Japanese forces during World War 2?

6. Which of these were ancient English legal concepts, and which have I made up? Chiefage, essoin, infangthief, advowson, monition.

7. Name Asimov’s Laws of Robotics. (Yes, the Zeroth Law as well.)

8. In his autobiography, “Not Entirely Legal” Leonard Leary QC relates his defence of Thomas Hayr in a1952 prosecution for murder. In retrospect, the defence advanced the first successful instance of a particular defence in the common law world, even though said defence did not exist in law at the time. Leary was forced to argue the defence under the M’Naghten Rules, and succeeded. But what would the defence come to be known as?

9. 6.02214076×1023 gives a clue to the location of certain courts. Name one.

10. What links Jan McCartney, Simon Moore, Sir Geoffrey Palmer and Jack Hodder?

 

Previous entries are:

Strictly Obiter Alert Level 4 Quiz – Friday 20 August 2021

Strictly Obiter Alert Level 4 Quiz – Thursday 19 August 2021

Strictly Obiter Alert Level 4 Quiz – Wednesday 18 August 2021

 

 

 

Answers:

1: Mamas don’t let your babies grow up to be cowboys. 2: Equiticorp for civil. Pretty sure it’s R v Bublitz for criminal. 3: Kós P was, as related in this speech: https://www.courtsofnz.govt.nz/assets/speechpapers/2hjk2.pdf but an Arthur Tompkins figures in the story so perhaps two. 4: Callan J served as the Dean of the University of Otago Law Faculty. Hammond J served as Dean of Auckland and Waikato. Palmer J was Dean of Vic. There may be more – message me on Twitter if you thought of another. 5: Northcroft J. 6: All five are real. What a system! Most have Wikipedia pages if you’re curious. 7: Did you get them? https://en.wikipedia.org/wiki/Three_Laws_of_Robotics I love Asimov’s robots stories. 8: Sane automatism – the claim to being the first comes from Leary’s entry in the Dictionary of New Zealand Biography. The M’Naghten Rules required a disease of the mind, which wasn’t really Hayr’s situation but they succeeded anyway. 9: 6.02214076×1023 is one mole’s worth. So you can take your pick of courts on Molesworth St: the Wellington High Court or the Court of Appeal. 10: They were all appointed Senior Counsel and only later reverted to Queen’s Counsel. 

What a day! Sorry for the late answers. Time to go line up at my local Countdown – one of the few in Auckland not to have been a location of interest… yet.

Strictly Obiter Alert Level 4 Quiz – Friday 20 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

1. What links a Radio New Zealand Wallace, a Homer who is smiling politely, Kororareka, and the longest-serving current Associate Judge of the High Court?

2. Who is the author of this, the best signature in the New Zealand judiciary?

Screen Shot 2021-08-19 at 9.41.38 PM

3. Fountains of Wayne sang about an unusual specialisation in the law. The singer is “heading for the sun” and is “gonna become” what type of lawyer?

4. What is the “dustbin of laws”?

5. What chambers in New Zealand has the most Queen’s Counsel?

6. The name of the new model for the District Court – Te Ao Mārama – comes from the concept Te Pō Ki Te Ao Mārama. What is the English translation?

7. How many databases are there on NZLII today: 206, 216, 226?

8. Which President of the Supreme Court of the United Kingdom had a degree in chemistry?

9. Identify these cities by their High Court registry code: 404, 485, 409.

10. Why will the Supreme Court always grant leave to hear cases involving the Chief of the Defence Force?

Answers now below.

Previous rounds:

Strictly Obiter Alert Level 4 Quiz – Thursday 19 August 2021

Strictly Obiter Alert Level 4 Quiz – Wednesday 18 August 2021

Answers. 1: Wallace Chapman, Homer Simpson, Kororareka aka Russell, Associate Judge Bell (all first names of large corporate law firms). 2: Powell J, the John Hancock of New Zealand legal documents. 3: California Sex Lawyer. 4: The law of tort, according to Winfield and Jolowicz. 5: Shortland Chambers, I’m pretty sure. You can’t move for silk in there. 6: The transition from night to the enlightened world. 7: 206. 8: Lord Neuberger. 9: I was nice to you – they’re the big ones: Auckland, Wellington and Christchurch. Meaner questions about registry codes will follow in the future. 10: Why, because the Supreme Court will always grant leave to matters of General importance, of course.

A break over the weekend for all of us, but back for more questions on Monday. Stay safe!

Strictly Obiter Alert Level 4 Quiz – Thursday 19 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

 

1. Apart from, perhaps, LawFuel’s Power Lawyer List, the Order of New Zealand is New Zealand’s highest honour.  It is limited to only 20 living members (the ordinary members).  Over the years, some judges have been “additional members of the Order of New Zealand”: Lord Cooke of Thorndon and Sir Owen Woodhouse.  But only two judges have been full ordinary members.  One is a current member (still with us), and one is a former member (sadly no longer).  Name one.

2. What Dickens novel features the case of Jarndyce v Jarndyce?

3. Which composer worked at his country’s Ministry of Justice before going on to compose the 1812 Overture?

4. Who said (or wrote), when discussing the idea of common law measures of damages under NZBORA, “the private law tail should not be permitted to wag the public law dog”?

5. What number is in the title of the current Covid order that is creating this alert level 4 lockdown? Is it 7, 8, or 9?

6. Assume no change is made to the judicial retirement age. Of all the judges who have served or are currently serving in our modern Supreme Court, who has (or will) serve the longest on the Supreme Court bench? Possibly a less clunky way to ask this question would have been to ask who was the youngest to be appointed to the Supreme Court bench, which I think gives you the same answer, but there you go.

7. Which two High Court registries have the shortest straight line distance between them?

8. What links Justice Grant Powell, Justice Christine Gordon, and Justice Stephen Kós?

9. Which New Zealand Attorney-General appointed themselves to the High (at-the-time-Supreme) Court bench?

10. What was the name of the prerogative writ sought in Parsons v Burk – a 1971 attempt to prevent the All Blacks travelling to South Africa?

Answers now below.

 

 

 

 

Answers: 1: Sir Kenneth Keith and Sir Thaddeus McCarthy, though neither are on the LawFuel Power List. 2: Bleak House (aka my place during Alert Level 4). 3: Tchaikovsky. 4: It sounds like it could be Kós P, but it was the judicial generation just before. A great Hammond J crack from Attorney-General v Udompun [2005] 3 NZLR 204, (2005) 7 HRNZ 811 (CA) at [206]. 5: It’s order number 9. 6: According to the dates on Wikipedia it’s Elias CJ. 7: Nelson and Blenheim. 8: They all use their middle names as their first names: Laurence Grant Powell, Judith Christine Gordon, John Stephen Kós. 9: Alexander Herdman, you can read about him here: https://teara.govt.nz/en/biographies/3h18/herdman-alexander-lawrence. 10: Ne exeat regno. Please enjoy this excerpt from Peter McKenzie “New Zealand’s First Chief Justice: The Rule of Law and the Treaty” (2012) 43 VUWLR 207 at 208 paying careful attention to footnote 5. Stay safe all.

Regno

Strictly Obiter Alert Level 4 Quiz – Wednesday 18 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

 

1. Who was the first President of the permanent Court of Appeal?

2. Is the classic case for recall Horowhenua County v Nash (No 2), (No 3), or (No 4)?

3. How many High Court registries are there in New Zealand?

4. Who is this Chief Justice?

Judge1

5. Do citations of the Criminal Reports of New Zealand use square brackets or round brackets?

6. What business did New Zealander Geoffrey Lee carry on before he was killed in a plane crash in 1956?

7. What is “Selden’s gibe”?

8. What links the person who has the most appearances as counsel in the New Zealand appellate courts, the guideline judgment for sentencing aggravated robbery, and Thomson Reuters’ resource management law product?

9. What other place is the Chief Justice of New Zealand also the Chief Justice of? (If you are Dame Helen Winkelmann you are not allowed to answer this question.)

10. Professor Peter Sim was Dean of the Otago Law Faculty from 1968 to 1980. About him it has been written that “He thought it best to ignore requests for information from the University Registry, reasoning that a prompt response would merely encourage them to make further demands and that if it was really important ‘they would send someone over’.” What still-used textbook did Professor Sim co-author?

Answers now below.

 

 

 

 

 

Answers: 1: Kenneth Gresson. 2: (No 2). 3: 19, I think, but tweet me to tell me I’m wrong. 4: Sir George Arney. 5: Round brackets. 6: He flew a topdressing plane – he was Mr Lee of Lee’s Air Farming, the case about corporate legal identity. 7: It’s the whole equity varies according to the length of the Chancellor’s foot carry-on. 8: John Pike, R v Mako, Salmon’s Resource Management Act – fish link them all. 9: Tokelau. 10: Hinde, McMorland and Sim’s Land Law in New Zealand.

The CJ and the CBA

1580445602119

 

The Criminal Bar Association conference was held at the University of Auckland Business School this weekend. I got a free ticket, so I’m not allowed to tell you the coffee was so-so and there was no free wifi. But I can tell you that, caffeine, internet, and the compromise of my independence aside, it was a well-run, well-curated conference that was a good time for this public-lawyer-by-nature who dreams of the occasional crime.

The conference had genuine News: the Minister of Justice announced that legislation to repeal three strikes would be introduced within a month, subject to Parliamentary business. There was also a Detective Inspector from the National Organised Crime Group warning everyone about money laundering while standing in the Fisher and Paykel Appliances Auditorium. Occasionally Robert Lithgow QC did his best Robert Lithgow QC impression.

One and a half days of conference was attended by 370 attentive lawyers plus one Wellington-based criminal practitioner a few seats away from me who spent most of Saturday working his way through Jared Savage’s Gangland, a copy of Private Eye, and every puzzle in this week’s Listener. Whoever signed his CPD verification form, you’ve been had.

And then late on Saturday afternoon the Chief Justice blew the doors off the place.

She spoke for about 20 minutes – she was sharing the hour long slot with Kós P and Thomas J, three Heads being better than one. The other two were good. The President was permitted a short victory lap for the Court of Appeal’s junior policy, then told everyone to make more filenotes. The Chief High Court Judge lamented problems with disclosure which, in front of the CBA, is the equivalent of passing round the Werther’s Originals at the rest home.

And the Chief Justice. There were several topics, including the role of the Supreme Court. But it’s the bit about the role of the Chief Justice which I think ought to be heard more widely. I didn’t record her words accurately enough to quote back to you at length now. There was an official recording, which might be made public. But the impression still resounds, despite being delivered in the typical Dame Helen matter-of-factness (that I haven’t found a way to parody in writing yet): the rule of law is core business for a Chief Justice. And her choice of expression took practical form. These are my vain ascriptions of motive to her words, but they matter: the description wasn’t “The Chief Justice is the head of the judiciary in New Zealand”. It was “I need to see what is going on in these kinds of areas because it’s my job”. She gave an example: she needs to know about whether prisoners lose their cell assignments if they come to court, in case that perversely incentivises non-appearances or pleas. The implication was clear: the CJ needs to know, in order to decide how the courts might respond – whether that’s by considering increasing or decreasing AVL, advocating for changes with other branches of government, or holding all hearings in Swedish if that had a chance at making a difference. If it touches on the practical administration of courts’ work and the rule of law then it’s her job.

Jargon offered a decorative ribbon; she was taking a “whole of courts” or system perspective. But it’s like trying to wrap a hockey stick as a Christmas present. You know what you’re going to get (and it’s also something the CJ can hit you with).

Then the payoff. Legal aid, a topic that had already had airings at the conference. As Fiona Guy Kidd QC had said earlier that day, “The reality is the hourly rates for legal aid have not increased in the entire time I’ve been doing legal aid work, since 2011.”

The CJ didn’t hold back. And this part, I did get the quote for:

I think our legal aid system is broken. It’s hard to imagine how it can be more broken but I don’t really want to utter those words because then it will be. … It is unbelievably inadequate. … I am about to start saying it in a much more angry way.

And later, “It is a system that is going to collapse if we don’t do anything about it.” Without meaningful legal assistance for parties, we risk meaningful justice. And without meaningful legal aid, we jeopardise that legal assistance.

If that set off alarm bells at the Department for the Separation of Powers, you couldn’t hear them over the CBA’s applause.

Her Honour’s remarks, I think, went further – far further – than Dame Sian in Blameless Babes, a speech that at worst was a Gerry Brownlee-style “just asking questions” outing about penal policy, and one that came with an express acknowledgement of the separation of powers (see [16] of the speech: “In the last 10 years especially, there has been a change to greater prescription by Parliament. That is entirely legitimate. Parliament through legislation sets down the framework.”).

It was the judiciary commenting on government policy, as contained in legislation that Parliament has seen fit to enact. It was the judiciary commenting on the use of the public purse.

But far from being an overreach, it was entirely consistent with the role of the Chief Justice she had taken time to set out. It was never said out loud, but the defusing of criticism message I thought was quite compelling. The preemptive response to the criticism of “stick to your job” is clear: “this is my bloody job”.

Perhaps I’m still high on the thrill of hearing the constitution miss a gear change. But it was a moment that was genuinely electric. You will laugh at me for being too over the top but ever since Saturday afternoon I go back to  McGrath J’s expression of concern at the proposed removal of the reference to the “rule of law” in the Judicature Modernisation Bill in what became the Senior Courts Act 2016. I think those references matter precisely for moments like these.

It all seems a bit gushing, though, doesn’t it? To say an unusual speech is evidence of a Chief Justice on a mission? To claim to see strategy, to see cunning, even, if the whole thing were not so clear-eyed. To say I’ve seen rock and roll future and its name is Bruce Springsteen? Then put this aside as some injudicious hero worship. I rather suspect that if you asked the CJ she’d say she was just getting on with the job. Quite right. But if I were you I wouldn’t get in her way.