You can only read this post if you promise to make a submission to the Rules Committee

The Rules Committee (like the Small Council if everyone was Mace Tyrell) has released a discussion paper called Improving Access to Civil Justice.  It is described as an initial consultation with the legal profession in which the Rules Committee seeks comment on four potential areas of reform it has identified in order to improve access to justice by reducing the costs associated with bringing a civil matter to court.

The Rules Committee can’t legislate.  The most it can do is modify the High Court Rules.  A cynic would say that trying to solve the problem of the excessive cost of civil litigation using the powers of the Rules Committee is like trying to stop a runaway car when all you’re allowed to press is the button for air conditioning.  But I’m not a cynic.  Rules changes are the best we can do until half the legal profession realises it doesn’t need to make as much money as it does and that paying, say, a 29 year old lawyer at a large law firm significantly more money per year than his, say, 60 year old maths teacher mother, isn’t an appropriate reflection of their respective contributions to society.

Anyway, a lot of good can probably be brought about by rules changes.  This present consultation is important because it’s the start of a process that *will* make changes.  There is a new Chief Justice at the head of the Committee, driving a topic she has spoken on a lot, there is momentum to do something (or at least as much momentum as you can get in a Committee that only meets four times a year), and there is presumably political (judicial?) capital in the bank.  The last seven or eight years are full of Minutes of Rules Committee meetings that read like this:

Screen Shot 2019-12-17 at 9.38.35 PM

Well, guess who’s in charge now?

The four options the Committee seeks feedback on are:

  1. Introducing a short trial process in the High Court and/or modifying the existing short trial process in the District Court.
  2. Introducing an inquisitorial process for the resolution of certain claim in the High and District Courts.
  3. Introducing a requirement that civil claims be commenced by a process akin to an application for summary judgment.  (Or, as I like to think of it, the elephant-trap-just-inside-the-front-door option.)
  4. Streamlining current trial processes by making rule changes intended to reduce the complexity and length of civil proceedings, such as by replacing briefs of evidence with “will say” statements, giving greater primacy to documentary evidence, and reducing presumptive discovery obligations.

But even if it’s inevitable that Something Must Be Done, it is still very much up in the air what that Something is.  As the Committee points out, it does not know which (if any) of the four options it favours.  Hence the consultation.

The Committee has called for submissions by 1 May 2020 and details about how to make a submission can be found in the discussion paper. As the Committee points out, input in these matter from the profession is important.  Who knows, I may well be able to bring myself to say something vaguely serious about options 2 and 3 (and why I think they are Bad Ideas).  Even if, like me, your experience with pure civil litigation is seeking adjournments in the duty judge list, your experiences or research is no doubt relevant to the task.

In the meantime, below are six ways I figure could improve access to justice by reducing the costs associated with bringing a civil matter to court.  You are only allowed to read them if you promise to send something serious to the Rules Committee.

 

The crime option

Reduce the cost of bringing a civil matter to court by initiating it as a private prosecution or, better yet, get the state to bring it for you.  While this may be equally expensive you will have eliminated the cost of a civil proceeding.  Boundary dispute?  That’s criminal trespass.  Breach of contract?  That’s obtaining by deception.  Arguing that New Zealand is forum non conveniens?  Did you know that’s actually a form of treason?

 

The lightning round option

Gamification is in these days. All witnesses enter the witness box at the same time.  They are each given a buzzer.  Lawyers take it in turns to ask ten questions each.  First witness to buzz in gets to answer.  The court must accept the answer given.  At the end of a round, the witness who answered the fewest questions gets eliminated.  The rounds continue until there are no witnesses left.  Limit damages awards to a Gold Coast holiday package or a new Toyota Rav 4.

 

Expanded “will say” statements

Instead of lengthy briefs of evidence being an exhaustive written record of a party’s evidence, the Rules Committee has sought comment on greater use of “will say” statements. “Will say” statements give a summary of the oral evidence a witness will give at the hearing (rather than it being a full record of their evidence).  But why stop at what a witness will say?  Further subheadings would lead to the more efficient conduct of the trial.  We need to know what a witness:

  • Will say.
  • Won’t say.
  • Will remember.
  • Won’t remember.
  • “Won’t remember”.
  • Won’t say at first but will admit when shown the receipts.
  • Will say but will regret later.
  • Won’t say now but will blurt out at trial for the first time.

 

The Luminaries Rule

In Eleanor Catton’s The Luminaries, each chapter decreases in length, starting with one chapter 360 pages long and ending with a chapter of just two pages.  As a general rule, anything that prods civil pleadings to resemble prize-winning literature should be encouraged.  And a Luminaries Rule could bring significant efficiencies.  A statement of claim can be of any length but a statement of defence may only be half as long.  Plaintiffs’ briefs may only be half the length of a statement of defence.  Defendants’ briefs only half as long again.  Smarter members of the judiciary may be able to predict benefits for judgment-writing also.

 

Abolish the Evidence Act and the High Court Rules in civil proceedings

A sort of ultra-Libertarian solution to the problem. Why is civil litigation so expensive?  Because there are too many rules about how you have to conduct it.  That means you need a lawyer to do it, and because lawyers are the only ones who know these rules, they charge lots of money.  The very existence of these rules are barriers to efficiency.  If anything went, then everything would go.  Let people conduct civil litigation however they like and the market will reveal the most efficient way to do things (probably some sort of Hunger Games in the High Court library).

 

The and/or option

The “just, speedy and inexpensive” determination of claims in the High Court Rules is an unachievable goal.  Like the hackneyed old joke that this suggestion is based on: pick any two.  But hide that fact by giving court users the illusion of a choice.  Amend the purpose of the High Court Rules so that it facilitates the just and/or speedy and/or inexpensive determination of a claim.  Then, require the Plaintiff to choose two of the three in their statement of claim (at their preference). Then, require the Defendant to select one from the two options chosen by the Plaintiff.  That quality becomes the key metric to be used by the judge case-managing the claim.

 

Anyway, I’ll give you a reminder about submissions in March next year.

 

The second-to-last nail in the coffin

Law is a profession.  Professions like to think their shared history and traditions give them a unique collegiality when really what it mainly gives them is silly clothes.  But one of the traditions of law, informed by that shared history, is the idea that barristers cannot sue clients for their fees.  Now, the foundations for that proposition have never looked shakier, and a new Court of Appeal decision has put the idea on life support.

 

The Rules and Atkinson v Pengelly

First, some background.  Barristers are not instructed directly by clients.  Instead, the client instructs a solicitor (a contractual relationship) and then the solicitor instructs a barrister.  The client pays the solicitor money for the services of the solicitor and for the barrister.  As a matter of professional ethics, the solicitor must pay the barrister’s fee (see r 10.7 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules).

(Initial disclaimer here: what I’ve just described is the traditional understanding of a rule called the intervention rule whereby a client cannot instruct a barrister directly.  The intervention rule has been relaxed in recent years in some but not all areas of law.  It involves direct billing or escrow accounts.  I’ll return to the position under the intervention rule later but for now assume the traditional model above holds true, because it is still widespread.)

If the client doesn’t pay a bill, then the solicitor can sue for the solicitor’s fee – that’s simple, there is an agreement.  The barrister can’t.  The barrister is reliant on the solicitor suing in the solicitor’s name, to recover the barrister’s fee.  And the Rules let the solicitor do that.  Rule 10.7.2 says:

10.7.2 A lawyer with a practising certificate as a barrister and solicitor may sue for and recover from the party chargeable any fees paid or payable by the lawyer to a barrister sole for work done or to be done on the instructions of the lawyer in relation to a client’s affairs, if those fees are shown as a disbursement in a bill of costs rendered by the lawyer to the party chargeable.

Then, a footnote to r 10.7.2 says this:

This rule is necessary because a barrister sole is not entitled to sue for his or her fees: Atkinson v Pengelly [1995] 3 NZLR 104.

It’s that case – Atkinson v Pengelly (PDF)- that articulated the basis for why a barrister cannot sue for their fee.  It’s been incorporated into the Rules.  I’ve always thought that’s a little strange because what happens to the Rules if Atkinson v Pengelly is overruled?  There may yet be a day…

But for now Atkinson v Pengelly says a barrister can’t sue for their fee.  It’s a mid-1990s High Court decision by Tipping J.  That’s a pedigree that is normally Rock Solid.  In my view, though, the decision’s showing it’s age.

In Atkinson, Tipping J gave four reasons why a barrister can’t sue for their fee.

The first reason was that, “[t]he starting point must be that in England a barrister has no right to sue his fees” (at 110).  That was relevant because s 61 of the Law Practitioners Act 1982 stated:

Subject to this Act, barristers of the Court shall have all the powers, privileges, duties, and responsibilities that barristers have in England.

But that reason can’t apply today, because the Law Practitioners Act 1982 is no longer in force.  It’s been replaced by the Lawyers and Conveyancers Act 2006 and the new Act doesn’t contain a provision like the old s 61.

So park that reason, what next?

The second reason was that allowing barristers to sue for their fees “might undermine the general rule allowing barristers immunity from suit for litigation…” (at 111).

But that reason can’t apply today either.  The Supreme Court did away with immunity from suit for barristers in Chamberlains v Lai [2006] NZSC 70, [2007] 2 NZLR 7.  Not only that but Tipping J was one of the Supreme Court judges who voted to get rid of it!

For completeness, I note that in Chamberlains the Supreme Court wrote:

[98] In medieval times, barristers, as we now know them, were liable for negligence and, so it seems, were able to take action to recover their fees. During the sixteenth century there was a revival of interest in many facets of life in ancient Greece and Rome. Included in this renaissance was the study of Roman law. It was a well-established tenet of Roman law that advocates had no contractual right to sue for their fees. In that respect they had no contract with their clients and what they received for their services was in the nature of an honorarium.

[99] The importation of this Roman law approach into the English common law resulted in the medieval view being overtaken by the view that as there was no contract between barrister and lay client, or between barrister and instructing solicitor for that matter, there was no basis for any action for breach of any duty to take care. Until the twentieth century there was no recognised general cause of action for negligence, outside contract, in relation to services rendered by a professional person. The absence of any contractual basis for a claim against a barrister, and the corresponding inability of a barrister to sue for outstanding fees, was generally seen as the basis upon which barristers’ so-called immunity was based.

So not the whole immunity from suit argument either.  What next?

The third reason was that the wording of ss 139 and 140 of the Law Practitioners Act 1982 seemed to suggest obliquely that the Act was enacted on the understanding that barristers could not sue for their fees (at 111).  Tipping J was a little apologetic about this one and recognised it “does not clinch the matter” but it was one plank of the argument (at 111).

Time has made this argument weaker still, I think.  Atkinson says a barrister cannot sue for fees because the Law Practitioners Act 1982 says you can’t.  The Law Practitioners Act 1982 gets abolished.  And its replacement says that a barrister cannot sue for fees because Atkinson says you can’t.  But the reason Atkinson says you can’t is no longer there.  That’s like building a Jenga tower: the building blocks get removed and placed on top.  The argument becomes self-referential, rather than being grounded in good policy reasons.

The fourth reason was that this is the way it’s always been done.  Or, as Tipping J put it (at 111):

Throughout my time in the profession I have never heard it seriously suggested that barrister sole either have or should have the right to sue their instructing solicitors or their lay clients for their fees.

I’m generally sympathetic to arguments of tradition.  But this is simply a recourse to history that no longer has policy underpinning it (such as the immunity from suit point), and which cannot account for modern day changes to the intervention rule which has made inroads into traditional understanding of barristers’ obligations.

It might be thought, then, that the time for a challenge to Atkinson v Pengelly is inevitable.  That’s not to say that some more up to date reasons couldn’t be magicked up.  At a guess I suppose you’d have to back the “no contractual relationship” horse.  But there’s a difficulty, I think, in that lawyers are obliged to provide terms of engagement including information about their fee (and that includes barristers at least under direct instructions).  That looks like a contract and quacks like one too…

For completeness, all of the arguments for why barristers should be able to sue for their fees can be found in this piece: GE Dal Pont “The Recovery of Counsel’s Fees” (2004) 28 UQLawJl 381, most of which apply in New Zealand.

Anyway, that takes the legal position up to this month, when the Court of Appeal released Keene v Legal Complaints Review Officer [2019] NZCA 559.

 

Keene – the second-to-last nail in the coffin

Mr Keene was a barrister.  Mr Cutting was his instructing solicitor.  A client owed them money.  Broadly speaking, the client disputed the quality of the work by Mr Keene and refused to pay.  Mr Cutting sued the client to recover the money owed to Mr Keene (because, remember, the Rules said Mr Keene could not sue).

Mr Cutting was the plaintiff and, in his capacity as a solicitor, he instructed a barrister to act on the proceeding aimed at getting Mr Keene’s money.  The barrister he instructed?  Well, that was Mr Keene.

By the time matters reached the Court of Appeal, Mr Keene had against his name a disciplinary finding for breach of r 13.5.3 of the Rules.  Rule 13.5.3 said:

13.5.3 A lawyer must not act in a proceeding if the conduct or advice of the lawyer or of another member of the lawyer’s practice is in issue in the matter before the court. This rule does not apply where the lawyer is acting for himself or herself, or for the member of the practice whose actions are in issue.

The issue was on the facts of the case (which I’m not going into here), was Mr Keene’s conduct “in issue” in the debt recovery proceeding.  After all, the client was saying that Mr Keene did a bad job.

Now, you can see how this whole situation could have been avoided if it wasn’t for Atkinson v Pengelly.  Mr Keene could have acted for himself and sued the client to recover his fee.  In that case, even if Mr Keene’s conduct was “in issue”, Mr Keene would be representing himself so he wouldn’t be “acting”.  Rule 13.5.3 wouldn’t apply.

But the Court of Appeal was clear it wasn’t being asked about Atkinson v Pengelly.  That was “not an issue we are concerned with on this appeal” (at [18]).

The Court of Appeal exonerated Mr Keene.  This is what Goddard J said for the Court (footnotes omitted):

[74] On the orthodox approach, as noted above, Mr Keene could not sue for his own fee. Rather, the only way that his fee could be recovered from the second respondents was for his instructing solicitor, Mr Cutting, to bring proceedings seeking to recover that fee. That approach was adopted in this case. So Mr Keene had an instructing solicitor, Mr Cutting. But in substance the proceedings were being brought for the benefit of Mr Keene.

[75] In the normal scenario where a client instructs a solicitor, and that solicitor instructs a barrister to act for the client, the obligations of the barrister to “the client” under the Rules are owed to the person who has instructed the solicitor, and through the solicitor, the barrister. They are not owed to the instructing solicitor. As a matter of form, Mr Cutting was Mr Keene’s client in the fee recovery proceedings as well as being his instructing solicitor because the fee recovery proceedings were brought with Mr Cutting named as plaintiff. But in this case the arrangements between Mr Cutting and Mr Keene meant that Mr Cutting’s interests were not directly engaged. Rather, the benefit of the proceedings would accrue to Mr Keene, and the cost burden of the proceedings also fell on him.

[76] We recognise the theoretical possibility of Mr Cutting being exposed to a costs award, or criticism, in relation to the conduct of the proceedings. But this risk seems remote, and one that Mr Cutting was well placed to understand and manage.

[77] Our approach to the interpretation of r 13.5.3 must be informed by the nature of the Rules, which as noted above are ethical rules that require a focus on substance rather than form, and by the purpose of r 13.5.3 read in context. We do not consider that the mischief at which r 13.5.3 is directed was present here, in circumstances where:

(a) There was no client who was looking to Mr Keene to act independently of his own interests, whose reasonable expectations of independence were disappointed because Mr Keene’s conduct was in issue. Mr Keene was the “in-substance” client. Mr Cutting was the client as a matter of form, but he knew that the proceedings were brought for Mr Keene’s personal benefit in circumstances where their mutual former client had raised concerns about the fees. There is no suggestion that his interests were compromised by Mr Keene acting in these circumstances.

(b) The position vis-á-vis the Court was also transparent. The Court knew Mr Keene was acting as counsel in order to recover his own fee, and he could not be expected to be completely independent in those circumstances. The Court was able to adjust its expectation of independence in this context in precisely the same way that it would if he were a barrister and solicitor suing a former client for payment of outstanding fees.

[78] Adopting a purposive and contextual approach to the interpretation of r 13.5.3, we consider that the better view is that on the facts of this case Mr Keene was “acting for himself”. Form should not distract from substance.

[79] It follows that there was no breach of r 13.5.3 in this case, as the rule did not apply.

This is the Court of Appeal saying that there is no ethical impediment to a barrister acting in a proceeding to recover their own fee.

True, it says nothing about the ability of a barrister to sue a client in the barrister’s own name.  But the decision gives the tick of approval at least to the idea of a barrister acting in that fee recovery process.  And the Court is clear: the reason there is no ethical impediment is because really this was a case of the barrister acting for themselves.  Forget the labels: in substance this was Mr Keene suing for his own fee.  And what’s wrong with that, the Court asks.

When the day comes that Atkinson v Pengelly is challenged you can see how this decision is going to be used:  if there is no ethical issue with a barrister “in substance” suing for their own fee, why can’t we make the form match the substance and do away with Atkinson v Pengelly?  I don’t know what the answer to that question is.

Between this decision, and the new intervention rule, there are structural changes that mean we should think carefully about accepted wisdom in this area.  There will come a day where simply invoking the name of Atkinson v Pengelly will not be enough to explain why barristers cannot sue for fees.  If, as the Court of Appeal says in Keene, form should not distract from substance, then that day might come sooner than we thinkAfter all, we’ve done away with plenty of our silly clothes.  

 

 

[[Disclosure: I had a degree of involvement in the Keene case.  This post has intentionally avoided the merits of the judgment but looks at what I think is a really interesting question of where to from here on an aspect unconnected with the merits.]]

[[Thanks to Judi of NZLII for digging out an unreported copy of Atkinson v Pengelly and uploading it to NZLII so I could link to it in this post.  NZLII needs support and you can do that through its Donation Form.]]

 

Uncollected thoughts on Zhang v R [2019] NZCA 507

Guidelines
Barbossa and (and I had to look this up) Jack JJ

Who doesn’t like guideline judgments?

I don’t like guideline judgments.  I mean, I do.  But what I like even more are the judgments of the Court of Appeal *after* a guideline judgment.  The ones where the Court says “pffft nice try, losers, but what we really meant was this”.  I’m looking forward to those.

The Court of Appeal doesn’t like guideline judgments either.  Zhang v R [2019] NZCA 507 is a judgment written with a pencil taped to the end of a bargepole.  It’s an exercise in pre-emptive dread, knowing that words intended to afford flexibility and discretion will begin to ossify the second they go beyond Molesworth Street.  Throughout the judgment there are reminders to readers that sound increasingly desperate.  Just because the Court is suggesting some numbers and bands doesn’t mean you can’t sentence outside them.  Just because they put a number on a percentage discount doesn’t mean it couldn’t go higher.  Just because we’re the Court of Appeal you don’t have to do what we say.  It won’t work.  Like a tragically hip relief teacher, attempts to get down with the youth in the District Court won’t work.  It’s axiomatic that a guideline judgment becomes axiomatic.  The rote learners of this world, which include nearly all criminal practitioners on both sides, will be saying in a few months time that you can get a 30% discount for addiction, and that this is a band three/lesser role which means a start point of X years, period.  What began as a “one size fits all” judgment will shrink in the wash to become simply “one size”.

That’s a pity, because the judgment itself is a work of art.  Do you like signposting in writing?  This is signposting central.  Every point neatly divvied up into four sub-points.  Every outstanding argument is promised to be returned to, and its return heralded two paragraphs later.  I can’t remember the last time I was able to read a hundred page judgment in one sitting.  Even my meme-addled brain with a concentration span of approximately two seconds could follow along.  More of this please.  You’ll have got the vibe of the decision from the media release.  R v Fatu‘s bands are retained with adjustments.  There’s now a band five because band four was catching too many people.  Role can influence starting point, but not as much as pretty much every intervener wanted.  Personal mitigating factors are back on the table for serious drug offending (more, as Downs J would say, about this later).  And they’re back in a big way.  Around 30% is on offer for addiction, if you can prove it.  Add another 25% for guilty plea and the sentencing discounts on offer begin to look like they’re being offered by the Briscoes lady.

The High Court doesn’t normally like guideline judgments but they’re not allowed to say that out loud.  They might like this one given that it seems a paean to sentencing discretion.  On Friday when my matter got bumped from the chambers list without warning, I wandered into the neighbouring courtroom and watched what might have been the first post-Zhang first instance sentencing – a case called R v Cutler [2019] NZHC 2737 (promptly whacked up on Decisions of Public Interest).  It all seemed to work well enough.  Ten kilos of meth in an importation and distribution ring gets you approximately a seven year end sentence.  That would quite simply not have happened under Fatu.

Prosecutors don’t like guideline judgments too.  Perhaps that’s not meant to be said out loud either – this sense that somehow it’s cheating when the rules have been changed and people can get credit for things they didn’t used to get credit for.  I don’t know.  God forbid we’re churlish about a level playing field.  But it’s a case of worst instincts revealed sometimes. And it’s interesting to watch those thoughts being processed.  Maybe more on that at another time.

Anyway, I tell you who liked this guideline judgment: Brewer and Moore JJ.  Both of them are referred to as “very experienced criminal judges” (at [107] and [108]).

For my next trick, this Supreme Court precedent will disappear

The part of the judgment that stands as a triumph of the art of judgery is the section consisting of paragraphs [133]-[136].  The paragraphs are too long to reproduce in full here but they revolutionise/normalise class A drug sentencing by saying that personal mitigating factors can be awarded just as much in drug sentencing cases as any other case.  For my money that’s the most important way the judgment lowers sentences for meth offending.  Forget starting point; the Court just tinkered with the numbers and let you drop down a band if your role was a bit bystandery.  The real movement is giving you tens of percent sentence discounts for personal factors in drug offending.  The judgment in particular focused on large discounts for addiction, for mental health, and for social deprivation as part of its general freeing-up of personal mitigating factors in drug offending.  It could only do that by explaining how personal mitigating factors could sound strongly in drugs cases, when they previously never did.  Watch this.

In the past, you only got an exceedingly small discount for personal factors.  That was because of a consistent attitude by the Courts which culminated in a Supreme Court case called Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612.  The Court of Appeal noted that in Jarden the Supreme Court had said this (at [12] of Jarden):

As the Courts have repeatedly said, and as we emphasise again, in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence.

The Court of Appeal had a bit to say about deterrence elsewhere, but that’s for another day.  Here’s what the Court in Zhang had to say about Jarden:

[133] First, given the outcome in Jarden, we do not apprehend the Supreme Court to
have used “subordinated” in any sense implying exclusion of consideration of personal circumstances. Rather, such circumstances are to be weighed in the balance with the needs of deterrence, denunciation, accountability and public protection…

[135] Thirdly, we think considerable caution must be exercised in the expression of broad principles which may diminish the inherently discretionary weighting of aggravating and mitigating factors in stage two of the sentencing exercise. Indeed, it is a qualified discretion in any event. Section 9(2) of the Sentencing Act requires the court to take into account certain mitigating factors to the extent they are applicable to the particular case. Section 9(3) makes clear the list in s 9(2) is non-exclusive. Section 8(g) requires the court to impose the least restrictive outcome appropriate in the circumstances. Importantly, s 8(h) requires the court to take into account any particular circumstances of the offender that mean the sentence would be disproportionately severe. None of these provisions are expressed by Parliament as being inapplicable, or less applicable, in certain classes of crime.

It’s a two-pronged attack.  First, in the finest traditions of intermediate appellate courts everywhere the Court settled on the old “we don’t think that’s what the Supreme Court meant” trick.  That’s great as long as no one calls you on it, but that is 100% what the Supreme Court meant.  If you keep reading past the “subordinated” line in Jarden the Supreme Court makes clear you can take all these other factors into account (no fettering here), it’s just the weight that they will be afforded will be minimal.  Even in Mr Jarden’s case where there were “extreme” personal circumstances “[t]he crucial importance of deterrence requires however that the reduction in sentence be a modest one” (at [14]).

And second, to the extent the Court of Appeal needs to escape Supreme Court precedent (which they should!) the Court just goes one level higher still to Parliament.  Using the shield of Parliamentary sovereignty the Court deploys provisions of the Sentencing Act 2002 to call into doubt the Supreme Court’s observation in Jarden.  Again, fine, until you remember that the Supreme Court considered those same statutory provisions in Jarden and came to a different conclusion, by which the Court of Appeal is bound.

After that, hey presto, the Court of Appeal can say:

[136] It follows that we consider that personal mitigating circumstances relating to the offender, at stage two of the sentencing exercise, are applicable to all instances of Class A drug offending, as in any other offending.

And for just five easy payments of $19.95 I can teach you to do the same.

The result is that flexible approach to stare decisis that I fear might be becoming my thing that I complain about all the time.  The idea that, well, if you asked the Supreme Court today about Jarden they would probably say the same thing as the Court of Appeal did in Zhang, so why bother them with it.  I guess all I’m saying is that the hierarchy of courts isn’t the same thing as asking your parents if you can borrow their car.

Still, don’t mistake what I say.  Zhang v R is a Good Decision™.  It means more compassionate, rehabilitative sentences for those addicted.  It retains stern sentences for commercial meth importations.  It removes strange distinctions for class A drug offending that looked weird a long time ago.  It expressly mentions social and cultural deprivation as a personal mitigating factor.  It’s good that we get some common-sense liberalism from those notorious lefties in the *checks notes* Court of Appeal.  See you out there in this brave new world.

On co-defendants’ statements and admissibility

Hearsay5
Five co-defendants in the early 2000s explain the nature of their statements vis-a-vis each other.

 

(Initial disclaimer: the groundwork for this piece draws substantially on the Law Commission’s Report on its Second Review of the Evidence Act, and Palmer J’s decision in R v Wellington [2018] NZHC 2080.  The point of the piece is respectful (and probably incorrect) disagreement with the conclusions in those sources, but it is proper to acknowledge the extent to which I’ve drawn on them.)

 

The right problem

Right now, a co-defendant’s statement is only really admissible by the prosecution if you want to tender it for the truth of its contents.

Look at s 27(1) of the Evidence Act 2006:

Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, and is admissible against a co-defendant in the proceeding only if it is admitted under section 22A.

So the only way a co-defendant’s statement is admitted is through s 22A.  But s 22A doesn’t let you admit co-defendant statements generally.  It only lets you admit “hearsay statements”.  That is, a statement:

  1. By a co-defendant who is not a witness (remember, it’s up to a defendant whether they choose to give evidence); and
  2. That is tendered to prove the truth of its contents.

Next, look at s 22A:

22A Admissibility of hearsay statement against defendant

In a criminal proceeding, a hearsay statement is admissible against a defendant if—

(a) there is reasonable evidence of a conspiracy or joint enterprise; and

(b) there is reasonable evidence that the defendant was a member of the conspiracy or joint enterprise; and

(c) the hearsay statement was made in furtherance of the conspiracy or joint enterprise.

Section 22A is only a route to admit hearsay statements.  It doesn’t let you admit co-defendant statements that are not hearsay.  And there’s no other route to admissibility in the Act.

There’s a bunch of reasons why you need to be able to admit non-hearsay co-defendant statements.  For example, to prove that something was said because it goes to a person’s state of mind.  Or, when a co-defendant chooses to give evidence their statements are no longer hearsay.  In that case, there has to be a way to admit them.

The difficulty is, the Evidence Act doesn’t let you.  Not on its face.

To understand the problem, you’ve got to go back to the beginning.

Fundamentally, co-defendant statements are hearsay if they’re tendered for the truth of their contents.  They’re out of court statements by a person who is unavailable as a witness.  That’s the Evidence Act idea of hearsay, but they were hearsay under the pre-Evidence Act position as well (see R v Fenton CA 223/00, 14 September 2000 at [31]).

Importantly, though, under the old law of evidence, if the Crown didn’t want to tender a co-defendant’s statement for the truth of its contents, then it was admissible (see generally Law Commission’s Second Review of the Evidence Act (NZLC R142, 2019) at [15.10]).

Sure, the common law recognised that co-defendant hearsay wasn’t just plain old hearsay.  Co-defendant statements carry with them particular risks.  Apparently when defendants get caught they have a tendency to blame each other in a bid to exculpate themselves (no honour among thieves and all that).  It makes the statements awfully difficult to rely upon, and the normal tests for admitting hearsay statements weren’t up to the task.  This impediment to admission was called the co-accused rule (see R v Pearce [2007] NZCA 40 at [26]).

The common law offered a couple of solutions to the co-accused rule.  The main one was the co-conspirator’s exception.  If the Crown could prove the statements were made as part of the defendants committing their crimes – made in the heat of the moment if you will – then they were likely to be reliable enough to be admitted to prove the truth of their contents (see R v Pearce [2007] NZCA 40 at [25]).

But remember, all of that was just a kind of special policy overlay for what was fundamentally an issue of hearsay.  Co-defendant statements were just a type of hearsay when they were tendered to prove the truth of their contents.  If they weren’t, then they could be admitted.

The Evidence Act 2006 carried over the common law co-conspirator exception in the common law through what used to be s 12A.  (As a side note we really don’t have time for, the whole idea of the Evidence Act was to codify the law of evidence but that failed because everyone forgot about ways to admit co-defendant statements using the co-conspirator exception.  Section 12A was an emergency patch expressly importing back in the common law in order.  No big deal.)

Now, the co-conspirator exception is properly codified in s 22A, and we’ve ditched s 12A.

And now, ackkkk, it’s broken.  Section 27(1) keeps out all co-defendant statements unless you can bring them under the co-conspirator exception in s 22A.  Which means the Act (purportedly a code) doesn’t give you a means of admitting co-defendant statements when they’re not hearsay.

Well, it *would* be broken if anyone actually followed the Evidence Act.  Because the courts pretend this problem doesn’t exist.  They have no problem admitting in non-hearsay co-defendant statements, even though the route to doing so is far from clear.  Go take a look at a Court of Appeal decision this month called Dheil v R [2019] NZCA 416 at [29]-[30].  Non-hearsay co-defendant statements were admitted no problem.

Right now, you’ve got an Act that doesn’t let you do things, and most courts either (charitably) don’t realise or (less charitably) dodge the issue.  In practice, though, if a co-defendant statement is not hearsay, then in it comes say the courts.

The wrong answers

Now, the Law Commission has noticed the issue with how the Act presently doesn’t seem to let you admit co-defendant statements when they’re not hearsay.

It’s not going too far to say though that the Law Commission has concluded that’s a feature, not a flaw.

In the Commission’s Second Review of the Evidence Act the Commission stated (Law Commission’s Second Review of the Evidence Act (NZLC R142, 2019) at [15.20]):

[15.20] The concerns associated with hearsay statements are unlikely to apply to the same degree to defendants’ statements that are not hearsay.

If a defendant’s statement is not hearsay because the defendant elects to give evidence at trial, the co-defendant will be able to test the reliability of the statement by cross-examining the defendant.

If the statement is not hearsay because the prosecution intends to rely on it for a purpose other than proving the truth of its contents, unreliability is less likely to be a significant concern … [there is an important clause in brackets here I’ve removed for now but the point is addressed substantively below].

At least that far, we’re on the same page.

But the Law Commission’s proposed solution to the problem of s 27(1) is that (at [15.21]):

the admissibility rule in section 22A should provide an independent basis for admitting a defendant’s statement against a co-defendant, regardless of whether the statement is hearsay.

That is, even statements that are not hearsay will only be admissible if they fall under the co-conspirator exception.  That high threshold of admissibility will follow, even when some non-hearsay co-defendant statements don’t warrant that high standard because they don’t prompt the same admissibility concerns.  Instead, the bar is raised universally.

One of the few cases in which this whole schemozzle was discussed broadly endorsed the Law Commission’s proposed solution as well: see R v Wellington [2018] NZHC 2080 at [69].  (Definitely worth reading it for the scholarship behind it and clarity of analysis, even though I don’t agree with all of it.  Importantly, Palmer J suggests a way in which s 27 might be read in a way that works, although recognises it faces a “stiff interpretive challenge” (at [68]).)

So, why do I disagree with the boffins at the Law Commission?

The difference in approach is that the Law Commission treats co-defendant statements as evidence sui generis.  But I don’t think they are (and I suspect this is the key point of disagreement).  Co-defendant statements are a species of hearsay, both under the old law, and especially under the Evidence Act as they literally meet the definition (when tendered for the truth of their contents).  They prompt special reliability concerns, but if you want to rely on them for the truth of their contents, well, that’s what the co-conspirator exception is for.  Otherwise, there’s no need to treat them differently.  When they’re not hearsay, they should be admissible.

And think about these things.

First, the Law Commission’s proposed position imposes a higher standard on non-hearsay co-defendants for no good normative reason. If you acknowledge that there are lesser reliability concerns with non-hearsay statements (which the Law Commission does), then changing the law to impose a uniform but higher standard on non-hearsay statements does not follow logically from the problem you have identified.  Remember it is the Law Commission essentially proposing a change from the common law position which treated co-defendant statements as straightforwardly admissible when they were not relied on for the truth of their contents.  I do not read the Law Commission proposal as giving any explanation as to why traditionally non-hearsay statements by co-defendants should have to jump through the requirements of the co-conspirator rule before they can be admitted.  This is a significant change that renders prima facie inadmissible a large class of evidence that was admissible under the old law and practically is admissible now (eg. when you get the Dheil v Rs of this world and the courts just wave it on in).  There is no particular harm that needs to be guarded against through a law change.

Second, the Law Commission’s approach is motivated by its assessment that all co-defendant statements have a much greater potential to be false or self-serving.  But the s 22A approach already lets you look to non-hearsay co-defendant statements as part of the evidential matrix to determine whether a joint enterprise exists (see R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779 at [13] and R v Qiu [2007] NZSC 51, [2008] 1 NZLR 1 at [14]).  In other words you are allowed to look at the very evidence that the Law Commission has just increased the admissibility threshold for.  It makes more sense to stick to the traditional route.  We can be discerning about the reliability of co-defendant statements.  If they are not relied on for the truth of their contents, then they don’t have the same reliability concerns. That lets us place weight on them when trying to figure out whether a joint enterprise existed. If, in combination with other evidence, we decide there is, and the other limbs of the s 22A test are met, then we can begin to admit that evidence for the truth of its contents.

Third, the Law Commission’s approach will drive the Crown into advancing the types of arguments all right-thinking people should run a mile from.  That’s the R v Holtham [2008] 2 NZLR 758 (HC) and Preston v R [2016] NZCA 568, [2017] 2 NZLR 358 type arguments about how something is not really a “statement” in a bid to get around these provisions.

Preston.jpg
The reasoning in R v Holtham and Preston v R.  Save us.

The contortions parties will go to arguing over whether something is a “statement” will be to the overall detriment of the state of evidence law generally (and see R v Wellington at [64]: “These are the sort of linguistic distinctions which can give legal analysis a bad name.”)  The battleground should be hearsay/non-hearsay, not statement/non-statement.

Fourth, and last, why this change?  The idea that a co-defendant’s non-hearsay statement is admissible is how everyone thought the Evidence Act did and should work for large periods of its existence.  Goffe v R [2011] NZCA 186, [2011] 2 NZLR 711 and R v Messenger  and Dheil v R are examples of that. For years before s 22A, the system worked perfectly well in practice with the assumption that a non-hearsay co-defendant statement would be admissible.  No particular instance of injustice has been identified.  All that is identified (correctly, mind) is that the wording of the Evidence Act doesn’t let the legal system take an approach to the law that they thought was permitted.  The solution to that is changing the Evidence Act to the way we think it works right now.  That could be done by amending s 27(1) to say a co-defendant’s hearsay statement is inadmissible except through s 22A.  That’s all we’d need to fix the problem the Law Commission identifies in the Act’s drafting, and bring the Act in line with present day practice.

Concluding thoughts

Imagine if the Law Commission’s proposed change goes ahead.  Under that scheme, if a defendant gives evidence in a trial – all of their statements (both in court and out of court) still aren’t admissible against a co-defendant unless they pass through the co-conspirator exception.  But why?  Why should they have to?  They are available for cross-examination.  The safeguards are there to prevent shifting the blame.  The co-defendant can cross-examine that defendant all they like.  The defendant is in the same position as any other witness.  Even the Law Commission in its own words agrees the reliability concerns are considerably lessened.  Why, then, should the Crown have to clear the high bar of s 22A to have that non-hearsay statement admitted?

Finally, on this topic, bear in mind the Supreme Court’s drive-by comments in Winter v R [2019] NZSC 98 this month.  It included a very pass-agg comment on the Law Commission’s proposed change, simply restricting itself to saying that (at [63]) “on the face of it, however, [the proposed amendment] would still not replicate the common law as explained in Messenger.”  Now, whether that’s the judicial equivalent of an “Every day we stray further from God’s light” meme, I don’t know.  But it serves to make the point, that the Law Commission’s solution seems to walk us further and further away from the common law position that is still being applied practically today.  In the absence of a compelling reason not to, normalising the position on an understanding of current, seemingly effective practice makes more sense to me.

So, please, think carefully about the Law Commission’s recommendation on this one.  My preferred amendment is that s 27(1) should say a co-defendant’s hearsay statement is inadmissible except through s 22A.  That means that a non-hearsay co-defendant statement will be prima facie admissible, subject to any other section of the Evidence Act.

A farewell to the Auckland High Court Crown Room

Next week the Auckland High Court gets rid of its Crown Room.  The Crown Room is in the historic part of the courthouse on the upper level along the side of the building that faces Waterloo Quadrant.  It’s an annex of rooms and corridors that were created in the late 80s from what used to be Courtroom 3 (and before that was a library).  After that it was decided that you can’t improve on perfection.  It hasn’t been touched since.

Two rooms at the west end are for the Police, these days used only by the officer assigned to the Court.  Two austere rooms at the east end, ceded in the 2015 matrimonial property dispute to the Manukau Crown.  And, in between, a small warren of rooms and a jury’s worth of furniture (in that there are twelve pieces that look like they’ve been chosen at random).

The days of the Crown needing so much space were gone long before I had the chance to set foot in it.  Now the sprawl is luxurious in a building that needs to maximise space, and that’s why it has to go, I guess.  But the room is a worn-down testament to law as it was; a time that I only get to know by listening to the quiet creak of the floorboards.  The idea that as a young lawyer you walk in the same space as all the people that came before you, is one that I can’t stop turning over in my mind when I’m there.

As much as the law likes getting dressed up nicely, the Crown Room is the law’s last pair of comfy pyjama pants.  Faded teal green carpet with a patch worn in the spot where thousands of feet have swivelled slightly in the same place as they turn a corner into a corridor.  Office chairs that look like the victims of psychopathic chiropractors.  Couches whose arms are grey with grime, and whose cushions started phoning it in in the late 90s, but are still somehow the comfiest couches known to humankind.

Like all communal spaces, if someone forgets something and leaves it behind, everyone else will assume it’s meant to be there.  The Crown Room has had decades of practice at that.  That’s why its decorations include a remote control snake with little wheels under its head, one abandoned double-breasted suit jacket the size of a parachute and, for reasons that continue to elude me, a framed group photo of Auckland High Court judges in their ceremonial reds at the swearing-in of Justice Temm.

In one dark, windowless room there’s a network server, little green lights flashing away like a droid in a Jawa sandcrawler.  In a second is a doughty printer that has printed out thousands of last minute court documents, and next to it the world’s smallest stapler.  A new coffee machine does its best to fit in by making terrible coffee.

And the remnants of history!  An old set of drawers, one of which is labelled “drinks order forms”, leftover from the decades long gone when it was vital the Crown Room had to hand sufficient booze.  A line of lockers with faded name labels: “S E Moore”, “M Woolford”, “C Gordon”.  The unlocked door behind a file rack that lets you walk up the internal spiral staircase of the High Court tower – no handrails, dust-filled, steep and treacherous.

Even the absurdity of the place is dear to me.  The combination lock on the door that had to be changed when someone lost a piece of paper that had on it both the combination and what the combination was for.  The jar of biscuits that is only ever added to, never fully replaced, meaning the bottom half of the jar is a slowly composting melange of Hokey-Pokey Squiggles and Cameo Cremes.  And the toilet where if you’re going standing up you have to make awkward eye contact through the event with a gargoyle outside who stares in the window.

I’m not sure what they’re turning it into – chambers, possibly, or meeting rooms.  Something with nice carpet and sensible chairs, and double glazing and none of the things which make the space what it is: a place to sprawl hungover on a couch while someone else swears at the over-enthusiastic Zip water heater.

Soon the Crown Room will be gone.  In a couple of weeks it won’t be there.  A couple of decades after that and the only place you’ll find it is in a story I’m boring some young lawyer with.

Ah well, so it goes.

 

 

UPDATE: a reliable source tells me that the Crown Room will become chambers for Court of Appeal judges, who will sit in Courtroom 1 instead of the Lorne Street hearing centre.  Goddard J, if you’re reading this, ask them to keep one of the couches for you!

On articles of faith

Believe
Do you believe in life after love, and that juries follow judicial directions?

Shortly following your admission as a barrister and solicitor, just after you sign the roll, you’re invited to drink a cup of Kool-Aid.  Once you imbibe, you find yourself believing in certain foundational myths of the legal system.  Things like witnesses draft their own affidavits, and sailing trips for judge and counsel are just fine.

There are good reasons for these myths.  Any system works best when everyone speaks the same lingo and believes the same things.  Outside the academy, I don’t know if the law goes in much for denominationalism.  God knows the law loves its legal fictions.  But a straight legal fiction is not really what I’m talking about.  Everyone knows a corporation isn’t really a person, and the sky won’t fall in if you say this to someone else.  I’m talking about legal fictions that everyone has to believe because without the belief the system stops working.  The sort of ur-fictions that seem like they’re enforced by a Stonecutter-esque secret society dressed in robes (possibly a poor metaphor given how commonplace be-robed elitism is in the law).

All of which preamble serves to underscore the heresy reported in a story this week about a murder trial in Palmerston North.  During his evidence, a Crown witness blew the doors off his witness protection and admitted he could not have heard key evidence he purported to give.  That was reported very well in this story by Jono Galuszka.  Following that, both the Crown and defence agreed that the witness did not warrant further name suppression (subject to maintaining secrecy of witness protection arrangements).  The media would be free to report on the wheels coming off mid-trial.

The trial judge – Ellis J – opted to continue suppression of the evidence.  Her Honour’s essential reasons are below:

Ellis2
R v Johnson and Haeana – Direction of Ellis J HC Palmerston North CRI-2017-054-850 & 2016, 5 July 2019.  

The part that caught my attention was that Ellis J was “not prepared to proceed on the basis that all jurors will have managed (or will continue) to comply” with the standard judicial direction not to read media reports.

“Juries will obey judicial directions” is one of the core foundational beliefs in the legal system.  So much of our jury trial system depends on that statement being true.  And the fact it might not be true is intensely problematic.  Because if it’s not true then how do we know juries might not Google things?  How do we know juries are applying the right standard of proof?  How do we know jurors aren’t discussing the case at home each night with their flatmates?  Do we admit to ourselves we leave a case in the hands of twelve people who might be deciding a case however they want?

The solution of the legal community presently seems to be to simply believe really really hard that it’s true.  So when Moore J considered whether to make media take-down orders in R v Tarapata [2017] NZHC 3209 at [43]-[48] his Honour decided:

[43] … I must be satisfied that a real risk exists despite the direction I gave the jury that they were not to undertake any inquiries of their own including internet searches.

[44] This is not a notorious case such as Bain or Lundy . It is unlikely that any members of the jury would bring to their role a residual memory or knowledge of Mr Tarapata or the events in 2014 and the media coverage of his first trial. Thus the issue is whether I should make the orders solely to prevent jurors from undertaking a course which I specifically directed them they must not.

[46] … the primary question here is whether there is a real risk a juror or jurors may ignore my direction. If risk to that level is made out I accept Mr Tarapata’s fair trial rights would be adversely affected for the reasons identified by Mr Krebs.

[47] Thus I return to the primary question which is whether I am satisfied there is a real or substantial risk a determined and irresponsible juror might undertake their own internet inquiries.

[48] On that point I agree with Lang J’s reasoning. The posted stories and articles in question would not be in the public consciousness. To access articles on the internet a juror would have to actively search Mr Tarapata’s name or those of his victims. Given my firm direction I regard that as a remote possibility.

In R v Rewa [2018] NZHC 1846 at [67] Venning J dismissed concerns that jurors wouldn’t put from their mind any previous publicity:

[67] In my judgment and experience jurors take their responsibilities which they solemnly confirm by the oath or affirmation to try the case on the basis of the evidence very seriously and abide by the trial Judges directions. The structure and formality of the trial processes and courtroom setting, all of which are completely new to the jurors and well outside their general experience removes them from daytoday life and enhances the likelihood they will follow and adhere to judicial directions. Judges’ collective experience is that almost all jurors approach their task responsibly. Trial judges will all have experienced the nods of assent from jurors when the judge explains why they must not be influenced by media reports, or why propensity evidence is to be led and how it may be used for example. Jurors well understand the concept of fairness. Experience shows that jurors become engaged in the trial process to the exclusion of other considerations and particularly so when the trial runs for a period of weeks. 

And Winkelmann J (as she then was) in R v Bailey HC Auckland CRI-2007-085-7842, 23 April 2010 at [67] stated:

[67] Trial judges regularly express confidence in the efficacy of judicial direction. These are not expressions of wishful thinking, but reflect the common experience of the trial Judge that juries do follow judicial direction. Judges are able to measure the efficacy of judicial direction in the verdicts delivered by juries who, by their verdicts, show that they have understood and followed directions, including those as to prejudice and the proper use of evidence.

I digress briefly to say that, of course, this presupposes that juries have in fact been directed on what to do.  In one of my very few trials the jury didn’t like the bathroom facilities supplied to them.  Over the course of their deliberations they started ducking out of the jury room to use the bathrooms in the public area of the Court, where they ran into members of the press bench.  A slightly bemused Lang J had to call the jury back in and (in what was no doubt a high point in his judicial career) directed the jury on which bathrooms they were to use.  To my knowledge, once directed, they obeyed.  I am unsure whether this direction now forms part of the standard directions in the bench book.

Returning to the point, though, the near-uniform approach of the bench has been to insist juries will follow directions.  Whether that’s a case of putting one’s fingers in one’s ears, closing one’s eyes and saying very loudly “LALALALA I can’t hear you”, I’m not sure.  But at least one judge isn’t buying it.  The Palmerston North murder trial isn’t the first time that Ellis J had expressed doubts.

In R v Lyttle [2017] NZHC 2426 (not on NZLII) Ellis J made a take down order for online media articles.  Her Honour reviewed empirical evidence that showed that – at least in respect of internet searches – jurors do not always follow judicial direction.  That evidence operated as one factor (among others) justifying the take down order (at [19](d)):

notwithstanding the truth of the proposition that faith in the jury system is necessarily predicated on the assumption that jurors will comply with judicial directions, there is empirical evidence (which was not before the Courts in Lyttelton) that strongly suggests that that is not always the case in relation to internet searches…

Sssshhhhhhhh!!!

I guess it’s too flippant to suggest that all this makes Ellis J the Lloyd Geering of the High Court bench.  Her Honour’s approach relies on overseas and Law Commission research for the point she makes.  And the empirical evidence is so far only focused on making one’s own media enquiries.  But it’s an uncomfortable intrusion into the accepted wisdom that juries will follow directions.  An uncomfortable intrusion that makes a very good point and makes me miserable at having to cast-off comfortable accepted wisdom.

And if juries don’t follow certain directions, what other directions do they not follow?  We have proof of partial non-compliance.  Retaining faith that juries follow directions in light of that isn’t intellectually bankrupt, but it could at least verge on intellectually insolvent trading.  It’s a rabbit hole I don’t really want to go down.

It strikes me that this question of faith in judicial directions is but one instance of a string of recent clobberings meted out to the legal system by empirical evidence.  The Court of Appeal is soon to grapple with the idea that long prison sentences don’t seem to deter offenders (and see the frontrunner in that debate – Palmer J in R v Wellington [2018] NZHC 2196 at [8]).  That’s a large ship to turn.

Reports under s 27 of the Sentencing Act 2002 are permitting courts to take into account demographic-based statistical evidence of Maori deprivation, and the social history of how we reached that point (a shameless plug for my earlier piece Thoughts on Solicitor General v Heta).  We have Alcohol and Other Drug Treatment Courts and Rangatahi Courts.  And some other empirical evidence successes have already taken seed – it seems unlikely we’ll go backwards on the Churchward v R youth factors, which were based on scientific research about young person brain development.

These things are all positive developments, where scientific or empirical evidence has led to better outcomes.  But none of them seem so fundamental to the system as juries.  The thing that’s too scary to contemplate is that if it’s true that if a jury room is the wild west then the entire system is borked and the solution isn’t clear.  I’m not saying it is.  In fact, I doubt it is.  But right now its integrity is an article of juridical faith.  And we should be honest with ourselves that that’s what it is, and that there is empirical evidence to challenge that faith.

In the meantime, we can all sit quietly in a dark room and ponder the consequences for our legal system if juries won’t do what they’re told simply because they’ve been told to by a room full of people dressed like extras from a Harry Potter movie.

 

 

 

(For completeness, a helpful synthesis of Lyttle, Tarapata and another decision of Moore J’s called Kahia v Police [2018] NZHC 1023 (not on NZLII) can be found in a decision by Gordon J called Parangi v Police [2018] NZHC 3123 (also not on NZLII), which provides no real answers to the main dilemma.)

Detective mode

maths
In what journal do I publish my research?

I’m meant to be writing a case note about the Craig v Williams [2019] NZSC 60 recall decision.  But within the first five minutes I got distracted because the decision – like all Supreme Court recall decisions – is not attributed to a particular judge.

The decision has been criticised, both ably and less-ably.  It’s a judgment that is powerful in its silence on Arnold J’s decision-making.  It risks relegating the effect of the Guidelines for Judicial Conduct.  And it’ll end up getting cited the next time a judge accidentally stumbles into a situation like this.  The ratio appears to be something along the lines of brain explosions are not grounds for recall.

But could we figure out who in fact wrote it?  Individual authorship doesn’t matter, really.  All of the permanent members of the Court signed up to it so who cares who wrote it.  But I spent three hours today (which is also my birthday) ctrl-F-ing through Supreme Court (and, in the case of Winkelmann CJ and Williams J) Court of Appeal decisions looking at writing style in order to try to find out.  And I’m not going to let that go to waste!

So, with my armchair linguist hat at a jaunty angle, I present a wildly speculative analysis of the recall decision.

Before I do, I should say that I have zero connection with the Supreme Court (after all, they have standards).  All of this, like everything else on this site, is Not Meant To Be Taken Seriously.  On the off chance I’m correct, it’s just a guess.

There are three overlapping, distinctive features about the writing in the decision that I think warrant scrutiny.  They are:

  1. What’s not said.
  2. Sentence starters.
  3. Description of submissions.

 

What’s not said

The first interesting thing about the decision is what’s not said.  For example, the excellent passive voice language in the decision:

[3] A sailing trip was planned in which both Arnold J and Mr Mills would be participants. …

Was it?  That sentence once used to say who had organised the trip.  But the passive voice smashed down the door, grabbed that key information, and is now holding it at gunpoint in a basement somewhere.

… It appears that … inquiries were made of Mr McKnight, counsel for Mr Williams. …

Oh God!  It’s taken a second hostage!

Actually, we learn later in the judgment that it was Mr Mills QC who asked Mr McKnight, so that one escaped or, possibly, it was released as a show of good faith.

It’s not solely the passive voice (which also features under other headings).  It’s things like the absence of focus on Arnold J’s conduct as well.

In other circumstances, I’d suggest that this might be a hallmark of writing style.  But here, I think those points are just symptomatic of the subject matter.  So it’s necessary to look at the other two features of the decision.

 

Sentence starters

This is a short decision – only 20 paragraphs over seven pages.  It’s easier then, perhaps, to spot concentrations of style.  The writer has said at various points:

Further, if it was possible to consent, the consent given was not an informed consent because Mr Williams was not aware of the Guidelines.

Further, it is argued that the Guidelines are not a code and that the authorities confirm breach of the Guidelines does not create apparent bias.

Further, the events to which Mr Williams consented were in fact what occurred and in accordance with the conditions which Mr McKnight says he stipulated.

Further, to the extent the Guidelines could have provided relevant information to Mr Williams and his counsel, they are in any case publicly available.

I think this is Glazebrook J.  Her Honour frequently starts sentences with “Further,”.  I’ve taken the following examples from cases where Glazebrook J has written a judgment in a Supreme Court decision where at least one judge also wrote a decision (for comparison purposes).

In R v Wichman [2015] NZSC 198 William Young J wrote 131 paragraphs and only once used “Further,” to begin a sentence.  Justice Glazebrook wrote 197 paragraphs and began a sentence with “Further,” 23 times.

Glazebrook J used it five times in the majority judgment in Quake Outcasts v Minister for Canterbury Earthquake Recovery [2015] NZSC 27, [2016] 1 NZLR 1 when no one else used it.  Thrice in Proprietors of Wakatu v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 when Elias CJ used it only once.  Six times in Northland Environmental Protection Society Incorporated v Chief Executive of the Ministry for Primary Industries [2018] NZSC 105 when William Young J used it only once.  In Scott v Williams [2017] NZSC 185 – when the Supreme Court did its best War And Peace impression, there were four separate decisions in which Glazebrook J was responsible for nine of 14 “Further,”s.  The term doesn’t feature strongly at all in the decisions of Winkelmann CJ and Williams J that I read either.

I think this factor sounds moderately strongly in favour of Glazebrook J, but what other indication is there?

 

Description of submissions

The Craig v Williams recall decision has a third distinctive feature.  It seldom attributes submissions to counsel.  Instead, the writer uses the passive voice.  So, we have these sentences in the recall decision:

It is submitted that what occurred here did not comply with the Guidelines particularly where the contact was such that counsel and the Judge were in close quarters over a week-long period.

In these circumstances, the submission is that there is an appearance of partiality when measured by the appropriate standard.

It is also submitted that, given the public interest in preserving impartiality, Mr Williams’ consent is irrelevant.

In any event, the submission is that there was compliance with the Guidelines because Mr Williams’ consent was obtained and there was no discussion of the case.

Finally, it is submitted the delay in raising this matter is tactical and contrary to the authorities which suggest questions of apparent bias should be raised promptly.

Which accords with Glazebrook J style (and only Glazebrook J’s style) of the judges on the panel that decided Craig v Williams.  Again, I looked at a range of decisions using the same methodology as above.  In Xu v IAG New Zealand Ltd [2019] NZSC 68 Glazebrook J wrote:

It is submitted that Bryant is either wrongly decided or distinguishable.

In the alternative, it is submitted that condition 2 of the Policy allows the appellants to restore the home and receive the replacement benefit.

It is submitted that Bryant was correctly decided and is not distinguishable and that condition 2 does not assist the appellants.

And in Quake Outcasts her Honour wrote:

It is submitted that the Crown’s actions in this case had significant practical effects which directly resulted in truncated rights.

In this context, it is submitted that the unequal treatment of the uninsured (and the delays in making decisions about their position) is unlawful, an abuse of power and inconsistent with the earthquake recovery purposes of the Canterbury Earthquake Recovery Act.

It is submitted that the Crown does not require statutory authority to provide information to the public. Ministers were able to make the decision that this information should be provided and the Prime Minister and the Minister were able to provide the information, in the exercise of the Crown’s common law powers.

As to the decision to establish the red zones, it is submitted that this was a delegated Cabinet policy decision, implemented by the announcement made by the Prime Minister and the Minister for Canterbury Earthquake Recovery.

it was nevertheless submitted that the Act does not limit the Crown’s common law power to acquire land and personal property through voluntary transactions.

In addition, it is submitted that it was open to Ministers, when making funding decisions, to take these factors into account.

No other judge in those cases used that terminology.

No judge has a monopoly on “it is submitted”, but Glazebrook J is by far the heaviest user.  And while her Honour also uses more active voice descriptions (eg. “Mr Goddard submits…”), a passive voice description of submissions is a notable and noticeable feature of her Honour’s writing.  And other judges – Winkelmann CJ in particular – are scrupulous at attributing submissions every time they are referred to.

 

Conclusion

Add the two factors together and I would irresponsibly bet the house on Glazebrook J as author of the recall decision.

What this post can’t exclude is the idea that multiple judges contributed to the judgment.  As a judgment of the Court, all judges would have had to be comfortable signing up to it, of course.  But I think the brevity of the decision makes it less likely to have multiple authors.

If it is Glazebrook J’s decision, there is a certain institutional integrity to that.  Her Honour was in the minority in the substantive decision.  It speaks well of the Court as a whole that the question of recall is not used as a vehicle to relitigate the decision as between judges.  Now if only they had said something about the decision to go sailing…